1

1. PUBLIC POSITION SECOND DIVISION [G.R. No. 135784. December 15, 2000] The three (3) policemen were accordingly charged with robbery. After trial, they were found guilty of having conspired in committing the crime with intimidation of persons. They were each sentenced to a prison term of six (6) years and one (1) day to ten (10) years of prision mayor, to restitute in favor of private complainants Diosdada Montecillo and Mario Montecillo the sum of P5,000.00, and to indemnify them in the amount of P20,000.00 for moral damages and P15,000.00 for attorneys fees.[4] The accused separately appealed to the Court of Appeals. On 31 March 1997 the appellate court affirmed the lower court's verdict.[5] Accused-appellant Ricardo Fortuna moved for reconsideration but the motion was denied. Hence, this petition by Fortuna alone under Rule 45 of the Rules of Court. He contends that the appellate court erred in holding that private complainants gave the money to the accused under duress, the same being negated by the prosecutions evidence, and in affirming the decision of the court below. He argued that the evidence presented by the prosecution did not support the theory of conspiracy as against him.[6] The issues raised by accused-appellant, as correctly observed by the Solicitor General, are purely factual. We have consistently stressed that in a petition for review on certiorari this Court does not sit as an arbiter of facts. As such, it is not our function to re-examine every appreciation of facts made by the trial and appellate courts unless the evidence on record does not support their findings or the judgment is based on a misappreciation of facts.[7] The ascertainment of what actually happened in a controverted situation is the function of the lower courts. If we are to re-examine every factual finding made by them, we would not only be prolonging the judicial process but would also be imposing upon the heavily clogged dockets of this Court. We do not see any infirmity in the present case justifying a departure from this well-settled rule. On the contrary, we are convinced that the trial and appellate courts did not err in holding that accusedappellant Fortuna conspired with the accused Pablo and Garcia in intimidating private complainants to give them their money. We are convinced that there was indeed sufficient intimidation applied on the offended parties as the acts performed by the three (3) accused, coupled with the circumstances under which they were executed, engendered fear in the minds of their victims and hindered the free exercise of their will. The three (3) accused succeeded in coercing them to choose between two (2) alternatives, to wit: to part with their money or suffer the burden and humiliation of being taken to the police station. To our mind, the success of the accused in taking their victims' money was premised on threats of prosecution and arrest. This intense infusion of fear was intimidation, plain and simple. Accused-appellant further argues that assuming arguendo that the element of intimidation did exist, the lower court erred in holding that he conspired with his companions in perpetrating the offense charged. This indeed is easy to assert, for conspiracy is something which exists only in the minds of the conspirators, which can easily be denied. However, conspiracy may be detected and deduced from the circumstances of the case which when pieced together will indubitably indicate that they form part of a common design to commit a felony; and, to establish conspiracy, it is not essential that there be actual proof evincing that all of the conspirators took a direct part in every act, it being sufficient that they acted in concert pursuant to the same objective.[8] In the present case, accused-appellant would want to impress upon this Court that his silence inside the car during Marios interrogation confirmed his claim that he did not participate in the offense. We do not agree. As a police officer, it is his primary duty to avert by all means the commission of an offense. As such, he should not have kept his silence but, instead, should have protected the Montecillos from his mulcting colleagues. This accused-appellant failed to do. His silence then could only be viewed as a form of moral support which he zealously lent to his co-conspirators. In one case, we ruled that in conspiracy all those who in one way or another helped and cooperated in the consummation of a felony were co-conspirators.[9] Hence, all of the three (3) accused in the present case should be held guilty of robbery with intimidation against persons. We however observe that the courts below failed to appreciate the aggravating circumstance of "abuse of public position."[10] The mere fact that the three (3) accused were all police officers at the time of the robbery placed them in a position to perpetrate the offense. If they were not police officers they could not have terrified the Montecillos into boarding the mobile patrol car and forced them to hand over their

RICARDO FORTUNA Y GRAGASIN, petitioner, vs.PEOPLE OF THE PHILIPPINES, respondent. DECISION BELLOSILLO, J . : Perhaps no other profession in the country has gone through incessant maligning by the public in general than its own police force. Much has been heard about the notoriety of this profession for excessive use and illegal discharge of power. The present case is yet another excuse for such vilification. On 21 July 1992 at about 5:00 oclock in the afternoon, while Diosdada Montecillo and her brother Mario Montecillo were standing at the corner of Mabini and Harrison Streets waiting for a ride home, a mobile patrol car of the Western Police District with three (3) policemen on board stopped in front of them. The policeman seated on the right at the front seat alighted and without a word frisked Mario. He took Marios belt, pointed to a supposedly blunt object in its buckle and uttered the word "evidence."[1] Then he motioned to Mario to board the car. The terrified Mario obeyed and seated himself at the back together with another policeman. Diosdada instinctively followed suit and sat beside Mario. They cruised towards Roxas Boulevard. The driver then asked Mario why he was carrying a "deadly weapon," to which Mario answered, "for self-defense since he was a polio victim."[2] The driver and another policeman who were both seated in front grilled Mario. They frightened him by telling him that for carrying a deadly weapon outside his residence he would be brought to the Bicutan police station where he would be interrogated by the police, mauled by other prisoners and heckled by the press. As they approached Ospital ng Maynila, the mobile car pulled over and the two (2) policemen in front told the Montecillos that the bailbond for carrying a "deadly weapon" was P12,000.00. At this point, the driver asked how much money they had. Without answering, Mario gave his P1,000.00 to Diosdada who placed the money inside her wallet. Diosdada was then made to alight from the car. She was followed by the driver and was told to go behind the vehicle. There, the driver forced her to take out her wallet and rummaged through its contents. He counted her money. She had P5,000.00 in her wallet. The driver took P1,500.00 and left her P3,500.00. He instructed her to tell his companions that all she had was P3,500.00. While going back to the car the driver demanded from her any piece of jewelry that could be pawned. Ruefully, she removed her wristwatch and offered it to him. The driver declined saying, "Never mind,"[3] and proceeded to board the car. Diosdada, still fearing for the safety of her brother, followed and sat beside him in the car. Once in the car, Diosdada was directed by the policeman at the front passenger seat to place all her money on the console box near the gearshift. The car then proceeded to Harrison Plaza where the Montecillos were told to disembark. From there, their dreadful experience over, they went home to Imus, Cavite. The following day Diosdada recounted her harrowing story to her employer Manuel Felix who readily accompanied her and her brother Mario to the office of General Diokno where they lodged their complaint. Gen. Diokno directed one of his men, a certain Lt. Ronas, to assist the complainants in looking for the erring policemen. They boarded the police patrol car and scoured the Mabini area for the culprits. They did not find them. When they returned to the police station, a line-up of policemen was immediately assembled. Diosdada readily recognized one of them as the policeman who was seated beside them in the back of the car. She trembled at the sight of him. She then rushed to Lt. Ronas and told him that she saw the policeman who sat beside them in the car. He was identified by Lt. Ronas as PO2 Ricardo Fortuna. A few minutes later, Gen. Diokno summoned the complainants. As they approached the General, they at once saw PO2 Eduardo Garcia whom they recognized as the policeman who frisked Mario. The following day, they met the last of their tormentors, the driver of the mobile car who played heavily on their nerves - PO3 Ramon Pablo.

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money. Precisely it was on account of their authority that the Montecillos believed that Mario had in fact committed a crime and would be brought to the police station for investigation unless they gave them what they demanded. Accordingly, the penalty imposed should be modified. Under Art. 294, par. (5), of The Revised Penal Code, the penalty for simple robbery is prision correccional in its maximum period to prision mayor in its medium period. In view of the aggravating circumstance of abuse of public position, the penalty should be imposed in its maximum period[11] while the minimum shall be taken from the penalty next lower in degree, which is arresto mayor maximum to prision correccional medium in any of its periods the range of which is four (4) months and one (1) day to four (4) years and two (2) months. WHEREFORE, the Decision of the Court of Appeals which affirmed that of the trial court finding accused-appellant Ricardo Fortuna guilty of robbery and ordering him to pay complaining witnesses Diosdada Montecillo and Mario Montecillo P5,000.00 representing the money taken from them, P20,000.00 for moral damages and P15,000.00 for attorney's fees, is AFFIRMED with the modification that accused-appellant Ricardo Fortuna is SENTENCED to the indeterminate prison term of two (2) years four (4) months and twenty (20) days of the medium period of arresto mayor maximum to prision correccional medium, as minimum, to eight (8) years two (2) months and ten (10) days of the maximum period of prision correccional maximum to prision mayor medium, as maximum. Costs against accused-appellant Ricardo Fortuna. SO ORDERED. Mendoza, Quisumbing, Buena, and De Leon, Jr., JJ., concur. "W H E R E F O R E the prosecution having established beyond an iota of doubt the guilt of Accused ALEXANDER TAO Y CABALLERO of the crime of Robbery with Rape, and considering the presence of the aggravating circumstance of dwelling without any mitigating circumstances to offset the same, this Court hereby sentences the Accused to suffer the maximum penalty of D E A T H with all the accessory penalties provided by law; to indemnify Victim AMY DE GUZMAN the amount of P50,000.00 and pay her actual damages of P2,687.65 and to restore to the victim her gold ring of undetermined amount as well as moral and exemplary damages in the total sum of P100,000.00; and to pay the costs." The Facts Version of the Prosecution DECISION The solicitor general sums the evidence for the prosecution in this wise:[4] PANGANIBAN, J.: The appellant cannot be convicted of the special complex crime of robbery with rape because the asportation was conceived and carried out as an afterthought and only after the rape has been consummated. Dwelling cannot be appreciated as an aggravating circumstance in this case because the rape was committed in the ground floor of a two-story structure, the lower floor being used as a video rental store and not as a private place of abode or residence. The Case This is an automatic review of the Decision[1] dated April 23, 1998 of the Regional Trial Court of Caloocan City, Branch 127, in Criminal Case No. C-53066, finding Accused-Appellant Alexander Tao y Caballero guilty beyond reasonable doubt of robbery with rape and imposing upon him the supreme penalty of death. The case arose out of an Information,[2] dated November 10, 1997, signed by Assistant City Prosecutor Salvador C. Quimpo, accusing the appellant of robbery with rape allegedly committed as follows: "On November 6, 1997, at around 7:30 p.m., Amy de Guzman (Amy) was tending a Video Rental Shop owned by her employer and cousin, Ana Marinay (Ana) located at 153 Loreto Street, Morning Breeze [S]ubdivision, Caloocan City (Tsn., January 8, 1998, p. 3). Thereupon, accused-appellant Alexander Tao, a relative of Anas husband Gerry Marinay (Gerry), arrived at said shop (ibid., p. 4). Alexander Tao then asked Amy about the time when Gerry would be coming home, to which she replied, 10:00 p.m. (id.). He then asked about the time when Ana would be coming home and Amy replied that she did not know (id.). "Thereafter, but still on the same date, Alexander Tao kept on going in and out of the Video Shop, and on the last time that he went inside said shop, he jumped over the counter of the shop to where Amy was and seized the latter by placing one of his arms around Amy[s] neck, while his other hand held a knife which h e poked at her neck (id., pp. 4-5). "Terrified by the attack, Amy started shouting for help but Alexander Tao increased the volume of a karaoke which was on at the time to drown Amys cries for help (id., p. 5). "Alexander Tao then dragged Amy to the kitchen of the shop where, at knife point, he ordered the latter to undress and he thereafter started raping her (id., pp. 5-6). "However, while Alexander Tao was raping Amy, somebody knocked at the door of the shop prompting the former to stop what he was doing and ordered Amy to put on her clothes (id., pp. 6-7). "Alexander Tao then directed Amy to go upstairs to the second Three (3) bracelets - - - - - - - - - - -3,500.00 Two (2) rings - - - - - - - - - - - - - - 5,000.00 One (1) pair of earrings - - - - - - - -2,000.00 One (1) Alba wristwatch - - - - - - -1,500.00 ...............................................-------------TOTAL.....................- -P16,000.00 with the total amount of P16,000.00 belonging to one ANA MARINAY Y SICYAN; that in the course of said robbery, said accused, with the use of force and intimidation, did then and there wilfully, unlawfully and feloniously lie with and have sexual intercourse with said AMY DE GUZMAN Y MAQUINANA, against the latters will and without her consent and with the use of a bladed weapon." During his arraignment on November 26, 1997, appellant, assisted by his counsel de oficio, pleaded not guilty to the charge.[3] After trial on the merits, the lower court promulgated the herein assailed Decision, the dispositive portion of which reads as follows:

2. DWELLING EN BANC [G.R. No. 133872. May 5, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALEXANDER TAO y CABALLERO, accused-appellant.HATOL

"That on or about the 6th day of November, 1997 in Kalookan City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to gain and by means fo force and intimidation employed upon the person of one AMY DE GUZMAN Y MAQUINANA, did there and then wilfully, unlawfully and feloniously take, rob and carry away the following articles, to wit: Cash money - - - - - - - - - - - - - - P5,000.00

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floor of the shop to change clothes as he will be taking her with him (id., p. 7). But suddenly thereafter, Tao pulled her down and punched her in the stomach thrice causing her to lose her balance (id.). Tao then started cursing her and again placed himself on top of her while poking a knife at her neck (id.). Amy then pleaded with Tao to just take anything inside the shop and to spare her life, to which Tao replied no, I will not leave you here alive. (id.). "But after a while and upon Amys pleading, Tao put down his knife and while he was kissing Amy, the latter got hold of the knife which she surreptitiously concealed under the stairs (id.). "Therafter, Tao became violent again and banged Amys head on the wall causing the latter to lose consciousness (id., p. 9). When she regained consciousness she found herself and Tao inside the toilet of the shop and the latter again banged her head, this time on the toilet bowl, several times causing Amy to again lose consciousness (id., pp. 8-10). "Thereafter, Tao went upstairs and looted the place of valuables belonging to Amys employer, Ana. Amy, herself lost her ring, bracelet and wristwatch during the incident in question (id., p. 10). "At about 9:00 oclock p.m. of the same day, Amys employer Ana arrived and found the shop in disarray with the karaoke in full volume (Tsn., 13, 1998, pp. 2-4). After turning off the karaoke[], Ana proceeded to the toilet where she found Amy bathed in blood (ibid., p.4). "Ana immediately sought the help of Barangay officials of the place and Amy was brought to the MCU Hospital where she was initially treated of her injuries (id., p. 5). Amy was, later on, transferred to Jose P. Reyes Memorial Medical Center (JPRMMC) where she was confined for four (4) days." Version of the Defense On the other hand, appellants version of the incident is as follows: [5] "x x x [O]n November 6, 1997, at around 7:40 p.m., he went to the house of his cousin Gerry Bautista Marinay at 113 Loreto St., Morning Breeze Subdivision, Kalookan City and upon arrival thereat he found therein Amy de Guzman alone which she greeted him because she knew that the accused was a frequent visitor thereof. Upon learning from her that Gerry was not around, accused proceeded to the kitchen to drink water and after he bought cigarettes at the nearby store, he returned to the shop and seated himself infront of Amy de Guzmans counter. Af ter the lapse of five minutes he got bored and went out again to wait for the arrival of GERRY. After finishing his cigarette he returned to Amy and talked with her and learned that ANA was at her newly opened restaurant. After a while, the thought of stealing his cousins valuables struck his mind owing to his dire need of cash/money. Thus, he approached Amy and held her hands and asked her to come with him because he badly needed money, to lead him to where his cousin was keeping his money and valuables. As to Amys surprise [sic], she shouted and to stop her, the accused covered her mouth with his right hand but Amy put up a struggle and in the process they both fell down and rolled on the floor. Thence, the accused was able to subdue Amy and forcibly took her in the upstairs where he did the ransacking of the drawers while holding the private complainants hand. However, she was able to free herself from his hold and ran downstairs to the kitchen where she tried to get hold [of] a knife but he was able to wrest with her. As the accused was rattled, he pushed Amy inside the comfort room and shoved her head against the tiles to mum her. He took Amys bag wherein he placed his loot consisting of 2 wrist watches, including Amys Alba watch, a bracelet, clothes and hair blower as well as jewelry box containing five rings which he placed in his pocket, then he proceeded to his brothers house in Taytay. Upon arrival of the police and his cousin thereat he returned the jewelry box to the latter but the same was not presented in court, that no other jewelry was taken by him from the place except those already specified, muchless has he taken any cash money from his cousin Gerry Marinay, that he has a wife staying in Iloilo and he has a girlfriend here in Manila, that he never raped the private complainant Amy de Guzman and neither [had he] courted her prior to the incident. (TSN., March 3, 1998, pp. 2-9) (TSN., March 4, 1998, pp. 2-6)"

Ruling of the Trial Court Assessing the testimony of the private complainant, the trial judge observed:[6] "Verily this Court finds the forthright account of the incident by the private complainant whose small and slender physique was certainly no match to the tall well-built body of an ex-convict, to be candid, straightforward, spontaneous and frank which remained consistent and unwavering despite the rigid cross-examinations of the defense counsel wherein she narrated in detail the sexual assault with the use of a knife perpetrated by the accused against her. Parenthetically this Court has observed the deportment of the private complainant at the witness stand and certainly she did not appear to have the callousness and shrewdness of a woman capable of imputing a heinous crime against the [a]ccused if the same is not true. Besides, the defense has not shown any evil motive or ill will on the part of the private complainant for testifying the way she did in this case." The lower court accepted the judicial admission of the accused that he stole valuables belonging to private complainant and her employer, and then proceeded to determine "whether or not the prosecution evidence has sufficiently established the rape angle of the case." "In fine, the [a]ccused having already admitted the robbery charge coupled with the fact that the prosecution has established with clear and convincing evidence [a]ccuseds culpability for sexually assaulting the pri[v]ate complainant leaves no room for doubt of the guilt of the accused for the complex crime of robbery with (aggravated) rape[.]" Furthermore, the trial court appreciated dwelling as an aggravating circumstance because the incident took place supposedly at the residence of private complainant's employer, "which doubles as a video rental shop."[7] Applying Article 63 of the Revised Penal Code as amended by RA 7659, it imposed the maximum penalty provided under Article 294 of the same Code as amended, which is death. Thus, this automatic review by this Court.[8] Issues In his Brief,[9] Appellant Tao assigns only two errors or issues. These are: "I The lower court erred in not taking into consideration the testimonies of Dr. Godofredo Balderosa and Dr. Maria Redencion Bukid-Abella which negate the rape [charge] imputed against the accused.

II The lower court erred in finding the accused guilty beyond reasonable doubt of the crime of robbery with rape despite the prosecutions insufficiency of evidence." In criminal cases, an appeal throws the whole case open for review and the appellate court may correct such errors it may find in the appealed judgment, even if they have not been specifically assigned.[10] Hence, this Court likewise reviewed (a) the propriety of appellant's conviction of the special complex crime of robbery with rape and (b) the trial court's appreciation of dwelling as an aggravating circumstance. These two items will be discussed as the third and fourth issues. The Courts Ruling After a careful review of the evidence on record, the Court finds that (a)

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appellant is guilty of two separate crimes -- rape and robbery, (b) dwelling cannot be appreciated as an aggravating circumstance, and (c) the proper penalty for rape is reclusion perpetua, not death. First Issue: Evaluation of the Examining Doctors' Testimonies Appellant contends that the trial court failed to give due credence to the testimonies of Dr. Godofredo Balderosa and Dr. Ma. Redencion BukidAbella, who both examined and treated Amy de Guzman's physical injuries immediately after the incident. Both doctors similarly stated that the victim complained to them of physical assault and attempted rape only, not of consummated rape.[11] Additionally, the findings of NBI Medico-Legal Officer Aurea Villena were allegedly inconclusive as to whether there was sexual intercourse between the appellant and the victim.[12] Their testimonies supposedly bolster appellant's innocence of the rape charge. Otherwise stated, appellant claims that the failure of Amy de Guzman to immediately disclose the rape to her examining physicians could only mean that she was not in fact sexually assaulted. In many criminal cases, especially of rape, this Court has acknowledged that the vacillation of the victim in reporting the crime to the authorities is not necessarily an indication of a fabricated charge. Neither does it always cast doubt on the credibility on the complaining witness.[13] The initial reluctance of a young, inexperienced lass to admit having been ravished is normal and natural.[14] The Court takes judicial notice of the Filipina's inbred modesty and shyness and her antipathy in publicly airing acts which blemish her honor and virtue.[15] She cannot be expected to readily reveal the fact of her sexual violation to total strangers. It is thus perfectly understandable and consistent with common experience that Amy initially tried to downplay the assault upon her chastity by telling the doctors that there was no consummation of the act. The following day, however, she was finally able to gather the courage to reveal the entire truth to her cousin-employer, Ana Marinay.[16] She also executed a Sworn Statement[17] before PO3 Jaime Basa, detailing how she had been raped and beaten by appellant. Four days later, she acceded to undergo a medico legal examination of her genital organ, which was conducted by Dra. Aurea Villena of the Jose R. Reyes Memorial Hospital, where she was confined. Time-honored is the doctrine that no young and decent woman would publicly admit that she was ravished and her virtue defiled, unless such was true, for it would be instinctive for her to protect her honor.[18] No woman would concoct a story of defloration, allow an examination of her private parts and submit herself to public humiliation and scrutiny via an open trial, if her sordid tale was not true and her sole motivation was not to have the culprit apprehended and punished.[19] Thus, absent any credible imputation of ill motive on the part of the private complainant to falsely accuse the appellant of a heinous crime, her candid and consistent testimony should be given full faith and credit.[20] It is a basic rule, founded on reason and experience, that when a victim testifies that she has been raped, she effectively says all that is necessary to show that rape was indeed committed.[21] In the case at bar, we find no reason to deviate from these doctrines. Amy de Guzman's straightforward and convincing testimony, which will be detailed later, bears no badge of material inconsistency which would bring doubt to its veracity. She stood firm on her tale throughout her court appearance. The trial judge observed her "to be candid, straightforward, spontaneous and frank x x x [and she] remained consistent and unwavering despite the rigid cross-examinations of the defense counsel x x x."[22] Besides, no ill motive was imputed on her. Appellant offers us no plausible explanation why Amy de Guzman cried rape against him. We believe she did so in order to bring out the truth and to obtain justice. Appellant's contention that the absence of genital and other injuries on Amy's body proves his innocence is unacceptable. Time and again, we have ruled that hymenal laceration is not an element of rape.[23] The victim need not sustain genital injuries, for even the slightest penetration of the labia by the male organ is equivalent to consummated rape.[24] Besides, the examining physician satisfactorily explained the absence of lacerations on private complainant's genitalia:[25] "x x x during the examination I found out that [the victim's] hymen is that of elastic type and so it is disten[s]ible and it could accommodate the penis without producing any genital injuries." She elucidated that "[l]aceration only occur[s] on non-elastic hymen because non-elastic hymen cannot accommodate the size of the penis without producing injury but hers is that of the elastic type, like rubber band that could stretch and turn back into its proper size."[26] Second Issue: Sufficiency of Prosecution Evidence Time-tested is the guiding principle that when a victim cries rape, she says in effect all that is necessary to show that the crime was inflicted on her; and so long as her testimony meets the test of credibility, the accused may be convicted on the basis thereof.[27] We have no reason in the instant case to deviate from this settled jurisprudence. Rape is committed by having carnal knowledge of a woman under any of the following instances: (1) force or intimidation is used, (2) the woman is deprived of reason or otherwise unconscious, or (3) she is under twelve years of age.[28] We find the necessary elements of rape duly established by Private Complainant Amy de Guzman when she candidly testified thus:[29] "a.......Then Alexander Tao kept coming in and out of the video rental shop and last time he went in, he slammed the door and jumped over the counter where I was and strangled me while his other hand is holding a knife, the knife was poked at the right side of my neck. q.......What else transpired thereafter? a.......And he took the knife from the right hand and held it with his left hand and turned the volume of the karaoke louder so that my voice will not be heard since I was shouting. q.......When the accused poked the knife, what did you feel? a.......'Natakot po.' q.......What happen[ed] next Ms. Witness? a.......Then after turning louder the volume of the karaoke to down my voice, he took me to the kitchen. COURT: q.......How [were] you taken to the kitchen? .......'Paano ka dinala sa kusina?' a.......Sakal-sakal po niya ako. x x x.......x x x.......x x x a.......x x x and once in the kitchen he made me lay my back against the stairs and told me to take[ ]off my pants. Due to fright I did as told and the knife was then poked at my stomach. q.......You said you removed x x x your pants, where [sic] you wearing your panty at that time? a.......Yes, Sir. I was wearing one. q.......What happened to that panty? a.......He told me to take off my pants, in doing so I took off completely together with my panty. q.......Then, what happened next?

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a.......And once [I laid] down on the floor, he tried x x x to make me spread[-]eagle my legs and in that process he knelt between my legs then took off his pants. q.......And after that, what happen[ed] next after accused removed his pants x x x? a.......Then after taking off his pants, he lay atop me and I felt he was forcing his penis in and [while] in that process the knife was still poked at my left neck. q.......When he inserted his penis into your private parts, what did you feel? a.......Pain. (Masakit po). q.......After inserting his penis into your private parts, what did he do? a.......He kept on pumping." As noted earlier, the trial judge, who was able to observe firsthand the conduct and demeanor of the witnesses while testifying, perceived Amy to be candid, straightforward, spontaneous and frank. Said witness was also found to have been consistent and unwavering despite the rigid crossexamination of the defense counsel. We note from the transcript of stenographic notes that the judge herself had posed additional clarificatory questions upon Amy.[30] Throughout her testimony, she indeed remained consistent as well as convincing. Of long-standing is the rule that findings of trial courts, especially on the credibility of witnesses, are entitled to great weight and accorded the highest respect by the reviewing courts, unless certain facts of substance and value were overlooked or misappreciated such as would alter the conviction of the appellant.[31] Trial judges are in a better position to assess the behavior of witnesses and to detect whether they are telling the truth or not because they could directly observe them in court.[32] The reviewing magistrate, on the other hand, has only the cold and impersonal records of the proceedings to rely upon. With respect to the robbery, its elements are: (1) the subject is personal property belonging to another; (2) there is unlawful taking of that property, (3) the taking is with the intent to gain, and (4) there is violence against or intimidation of any person or use of force upon things.[33] There is no question on the unlawful taking of valuables belonging to Amy and her employer, Ana Marinay. Appellant openly admitted in court the unlawful asportation, thus: "q.......[W]ere you able to get some valuables from the room of [the] Bautista[34] couple? a.......[Y]es sir. q.......[W]hat are these valuables? a.......I remember the jewelry box containing jewelry, clothes and other valuables [sic] things sir."[35] ..............x x x.......x x x.......x x x "q.......[W]here did you get that jewelry box containing rings? a.......[I]nside the locker or aparador sir. q.......[A]fter having taken all these jewelries and clothes you placed them all in a blue bag and left the place? a.......[T]he jewelry box was placed inside my pocket. I did not place in the blue bag sir. q.......[Y]ou mentioned five rings, Alba wrist watch owned by rape victim [A]my de [G]uzman, you also mentioned other jewelries, what other jewelries aside from the jewelry that you took in the house of the couple Gerry [and Ana] Bautista? Under these circumstances, appellant cannot be convicted of the special complex crime of robbery with rape. However, since it was clearly proven beyond reasonable doubt that he raped Amy de Guzman and thereafter robbed her and Ana Marinay of valuables totaling P16,000, he committed two separate offenses -- rape with the use of a deadly weapon and simple robbery with force and intimidation against persons. Appellant may well be convicted of the separate offenses of rape and robbery notwithstanding the fact that the offense charged in the Information is only "Robbery with Rape." In a similar case, People v. Barrientos,[39] this Court held: "x x x Controlling in an Information should not be the title of the complaint, nor the designation of the offense charged or the particular law or part thereof allegedly violated, these being, by and large, mere conclusions of law made by the prosecutor, but the description of the crime charged and the particular facts therein recited. Neither is it the technical name given to the offense by the prosecutor, more than the allegations made by him, that should predominate in determining the true character of the crime. There should also be no problem in convicting an accused of two or more crimes erroneously charged in one information or [A]tty. [C]risostomo .......[O]bjection he did not mention other jewelries. He specified one bracelet and one wrist watch. Court .......[W]itness may answer. Witness .......a.......[T]here were sir. Fiscal .......q.......[W]hat are they? Witness .......a.......[C]lothes and a hair blower because I was in a hurry."[36] During his arrest, the following stolen valuables were found in his bag: P5,000 cash, two bracelets, two rings and a pair of earrings, which Ana Marinay identified as belonging to her; and one wristwatch and a bracelet belonging to Amy de Guzman.[37] Unrebutted is the presumption that a person in possession of stolen personal effects is considered the author of the crime. Third Issue: Crime(s) Committed We do not, however, agree with the trial court that appellant is guilty of the special complex crime of robbery with rape. This felony contemplates a situation where the original intent of the accused was to take, with intent to gain, personal property belonging to another; and rape is committed on the occasion thereof or as an accompanying crime.[38] Such factual circumstance does not obtain here. As related by Private Complainant Amy de Guzman, accused-appellant suddenly jumped over the counter, strangled her, poked a knife at the left side of her neck, pulled her towards the kitchen where he forced her to undress, and gained carnal knowledge of her against her will and consent. Thereafter, he ordered her to proceed upstairs to get some clothes, so he could bring her out, saying he was not leaving her alive. At this point, appellant conceived the idea of robbery because, before they could reach the upper floor, he suddenly pulled Amy down and started mauling her until she lost consciousness; then he freely ransacked the place. Leaving Amy for dead after repeatedly banging her head, first on the wall, then on the toilet bowl, he took her bracelet, ring and wristwatch. He then proceeded upstairs where he took as well the jewelry box containing other valuables belonging to his victim's employer.

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complaint, but later proven to be independent crimes, as if they were made the subject of separate complaints or informations." In the case at bar, we find the Information filed against appellant to have sufficiently alleged all the elements necessary to convict him of the two separate crimes of rape and robbery. Needless to state, appellant failed, before his arraignment, to move for the quashal of the Information which appeared to charge more than one offense. He has thereby waived any objection and may thus be found guilty of as many offenses as those charged in the Information and proven during the trial.[40] must be supported by proof still stands. It must be anchored on proof showing that the claimant experienced moral suffering, mental anguish, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation or similar injury.[52] The private complainants, however, did not present any evidence of their moral sufferings as a result of the robbery. Thus, there is no basis for the grant of moral damages in connection with the robbery. WHEREFORE, the assailed Decision is hereby MODIFIED. AccusedAppellant Alexander Tao y Caballero is found guilty of two separate offenses: rape and robbery. For the crime of rape, appellant is hereby SENTENCED to reclusion perpetua and to pay Private Complainant Amy de Guzman P50,000 as indemnity ex delicto and P30,000 as moral damages. For the crime of robbery, appellant is sentenced to an indeterminate penalty of two (2) years and four (4) months of prision correccional, as minimum, to eight (8) years of prision mayor, as maximum; and to pay De Guzman P2,487.65 as actual damages. SO ORDERED. 6/21/00 1:43 PM Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon Jr., JJ., concur.

Fourth Issue: Dwelling as an Aggravating Circumstance Dwelling aggravates a felony when the crime was committed in the residence of the offended party and the latter has not given any provocation.[41] It is considered an aggravating circumstance primarily because of the sanctity of privacy that the law accords to human abode.[42] As one commentator puts it, ones dwelling place is a sanctuary worthy of respect; thus, one who slanders another in the latters house is more severely punished than one who offends him elsewhere.[43] According to Cuello Calon, the commission of the crime in anothers dwelling shows worse perversity and produces graver alarm. [44] In the case at bar, the building where the two offenses were committed was not entirely for dwelling purposes. The evidence shows that it consisted of two floors: the ground floor, which was being operated as a video rental shop, and the upper floor, which was used as a residence. It was in the video rental shop where the rape was committed. True, the victim was dragged to the kitchen and toilet but these two sections were adjacent to and formed parts of the store. Being a commercial shop that caters to the public, the video rental outlet was open to the public. As such, it is not attributed the sanctity of privacy that jurisprudence accords to residential abodes. Hence, dwelling cannot be appreciated as an aggravating circumstance in the crime of rape. Proper Penalties Under Article 335, paragraph 3, of the Revised Penal Code, as amended, "[w]henever the crime of rape is committed with the use of a deadly weapon x x x the penalty shall be reclusion perpetua to death." Under Article 63 of the same Code, reclusion perpetua is the appropriate penalty imposable upon accused-appellant for the crime of rape, inasmuch as no aggravating circumstance was proven. Pursuant to current jurisprudence, the award of P50,000 as indemnity ex delicto is mandatory upon the finding of the fact of rape.[45] Moral damages may additionally be awarded to the victim in such amount as the Court deems just, without the need of pleading or proof of the basis thereof.[46] In rape cases, it is recognized that the victim's moral injury is concomitant with and necessarily results from the odiousness of the crime to warrant the grant of moral damages.[47] In the instant case, we deem it appropriate to grant Amy de Guzman P30,000 as moral damages. However, since no aggravating circumstance attended the rape, no exemplary damages may be awarded.[48] For the crime of robbery committed under the circumstances of this case, the Code provides the penalty of prision correccional in its maximum period to prision mayor in its medium period.[49] Further, the appellant is also entitled to the benefits of the Indeterminate Sentence Law. For the actual damages incurred by Amy de Guzman in connection with her physical injuries, the lower court awarded P2,687.65, based on receipts submitted by her. A recomputation of the receipts, however, reveals a total of only P2,487.65. We, therefore, reduce the award accordingly. The trial court also ordered appellant "to restore to the victim her gold ring of undetermined amount," which was supposedly unrecovered. Upon an examination of the records, we note that the Information alleges the robbery of the following items: P5,000 cash, three (3) bracelets, two rings, one pair of earrings and one (1) Alba wristwatch. Except for the cash money, which has already been returned to Ana Marinay by the police, the other items were offered as evidence[50] and submitted to the custody of the trial court. Upon Motion[51] of Ana Marinay and Amy de Guzman, the release to them of these items was ordered by this Court via a Resolution issued on December 7, 1999. The stolen items are therefore all accounted for. Thus, we find no sufficient basis for the trial court's order for the appellant to return a "gold ring of undetermined amount." In robbery and other common crimes, the grant of moral damages is not automatic, unlike in rape cases. The rule that a claim for moral damages

3. INUNDATION E N B AN C PEOPLE OF THE PHILIPPINES, Appellee, - versus E D N A M AL N G AN y M AY O , Appellant. G. R. No. 170470 Present: PA N G A N I B A N , C . J . , PUNO, QUISUMBING, YNARES-SANTIAGO, S A N D O VA L - G U T I E R R E Z , CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, CALLEJO, SR., AZCUNA, TINGA, CHICO-NAZARIO, GARCIA, and VELASCO, JR., JJ. Promulgated: September 26, 2006 x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x D E C I S I O N

C H I C O - N AZ AR I O , J . : The Case For review is the Decision[1] of the Court of A p p e a l s i n C A - G . R . C R H C N o . 0 11 3 9 p r o m u l g a t e d o n 2 September 2005, affirming with modific ation the J u d g me n t [ 2 ] o f t h e R e g i o n a l Tr i a l C o u r t ( R T C ) o f M a n i l a , Branch 41, in Criminal Case No. 01 -188424 promulgate d on 13 October 2003, finding appellant Edna Malngan y Mayo (Edna) guilty beyond reasonable doubt of the crime of Arson with Multiple Homicide or Arson resulting to the death of six (6) people, and sentencing her to suffer the penalty of death. The Facts As summarized[3] by the Court of Appeals, antecedent facts are as follows: From the personal account of Remigio the

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Bernardo, the Barangay Chairman in the area, as well as the personal account of the pedicab driver named Rolando Gruta, it was at arou nd 4:45 a.m. on January 2, 2001 when Remigio Bernardo and his tanods saw the accused-appellant EDNA, one hired as a housemaid by R o b e r t o S e p a r a , S r. , w i t h h e r h e a d t u r n i n g i n d i f f e r e n t directions, hurriedly leaving the house of her employer at N o . 1 7 2 M o d e r n a S t r e e t , B a l u t , To n d o , M a n i l a . S h e w a s seen to have boarded a pedicab which was driven by a person later identified as Rolando Gruta. She was heard by the pedicab driver to have instructed that she be brought to Nipa Street, but upon her arrival there, she changed her mind and asked that she be brought instead to Balasan Street where she finally alighted, after paying for her fare. T h i r t y m i n u t e s l a t e r, a t a r o u n d 5 : 1 5 a . m . Barangay Chairman Bernardos group later discovered that a fire gutted the house of the employer of the housemaid. Barangay Chairman Bernardo and his tanods responded to the fire upon hearing shouts from the r e s i d e n t s a n d t h e r e a f t e r, f i r e m e n f r o m t h e F i r e D i s t r i c t 1 NCR arrived at the fire scene to contain the fire. W hen Barangay Chairman Bernardo returned to the Barangay Hall, he received a report from pedicab driver Rolando Gruta, who was also a tanod, that shortly before the occurrence of the fire, he saw a woman (the housemaid) coming out of the house at No. 172 Moderna S t r e e t , B a l u t , To n d o , M a n i l a a n d h e r e c e i v e d a c a l l f r o m his wife telling him of a woman (the same housemaid) who was acting strangely and suspiciously on Balasan Street. Barangay Chairman Bernardo, Rolando Gruta and the other tanods proceeded to Balasan Street and f ound the woman who was later identified as the accused -appellant. After Rolando Gruta positively identified the woman as the same person who left No. 172 Moderna Street, Balut, To n d o , M a n i l a , B a r a n g a y C h a i r m a n B e r n a r d o a n d h i s tanods apprehended her and br ought her to the Barangay Hall for investigation. At the Barangay Hall, Mercedita M e n d o z a , n e i g h b o r o f R o b e r t o S e p a r a , S r. a n d w h o s e house was also burned, identified the woman as accused appellant EDNA who was the housemaid of Roberto S e p a r a , S r. U p o n i n s p e c t i o n , a d i s p o s a b l e l i g h t e r w a s f o u n d i n s i d e a c c u s e d - a p p e l l a n t E D N A s b a g . T h e r e a f t e r, accused-appellant EDNA confessed to Barangay Chairman Bernardo in the presence of multitudes of angry residents outside the Barangay Hall that she set her employer s house on fire because she had not been paid her salary for about a year and that she wanted to go home to her province but her employer told her to just ride a broomstick in going home. Accused-appellant EDNA was then turned over t o a r s o n i n v e s t i g a t o r s h e a d e d b y S [ F ] O 4 D a n i l o Ta l u s a n , who brought her to the San Lazaro Fire Station in Sta. Cruz, Manila where she was further investigated and then detained. W hen Mercedita Mendoza went to the San Lazaro Fire Station to give her sworn statement, she had the opportunity to ask accused -appellant EDNA at the latter s detention c ell why she did the burning of her employer s hous e and ac cused -appellant EDNA replied that she set the house on fire because when she asked permission to go home to her province, the wife of her e m p l o y e r R o b e r t o S e p a r a , S r. , n a m e d Vi r g i n i a S e p a r a ( s i c ) s h o u t e d a t h e r : S i g e u mu w i k a , p a g d a t i n g m o ma p u t i k a n a . S u ma k a y k a s a w a l i s , p a g d a t i n g mo ma p u t i ka na (TSN, January 22, 2002, p.6) (Go ahead, when y o u a r r i v e y o u r c o l o r w o u l d b e f a i r a l r e a d y. R i d e a broomstick, when you arrive your color would be fair a l r e a d y. ) A n d w h e n M e r c e d i t a M e n d o z a a s k e d a c c u s e d appellant EDNA how she burned the house, accused a p p e l l a n t E D N A t o l d h e r : N a g l u k o t a k o n g ma r a mi n g diyaryo, sinindihan ko ng disposabl e lighter at hinagis ko s a i b a b a w n g l a me s a s a l o o b n g b a h a y ( T S N , J a n u a r y 2 2 , 2002, p. 7.) (I crumpled newspapers, lighted them with a disposable lighter and threw them on top of the table inside the house.) W h e n i n t e r v i e w e d b y C a r m e l i t a Va l d e z , a reporter of ABS-CBN Network, accused -appellant EDNA while under detention (sic) was heard by SFO4 (sic) D a n i l o Ta l u s a n a s h a v i n g a d m i t t e d t h e c r i m e a n d e v e n narrated the manner how she accomplished it. SFO4 (sic) D a n i l o Ta l u s a n w a s a b l e t o h e a r t h e s a m e c o n f e s s i o n , t h i s time at his home, while watching the television program Tr u e C r i m e h o s t e d b y G u s A b e l g a s a l s o o f A B S - C B N Network. The fire resulted in [the] destruction of the h o u s e o f R o b e r t o S e p a r a , S r. a n d o t h e r a d j o i n i n g h o u s e s a n d t h e d e a t h o f R o b e r t o S e p a r a , S r. a n d Vi r g i n i a S e p a r a together with their four (4) children, namely: Michael, D a p h n e , P r i s c i l l a a n d R o b e r t o , J r. On 9 January 2001, an Information [4] was filed b e f o r e t h e RT C o f M a n i l a , B r a n c h 4 1 , c h a r g i n g a c c u s e d a p p e l l a n t w i t h t h e c r i m e o f A r s o n wi t h M u l t i p l e H o mi c i d e . T h e c a s e w a s d o c k e t e d a s C r i m i n a l C a s e N o . 01-188424. The accusatory portion of said Information provides: That on or about January 2, 2001, in the City of Manila, Philippines, the said accused, with i n t e n t t o c a u s e d a m a g e , d i d t h e n a n d t h e r e w i l l f u l l y, u n l a w f u l l y, f e l o n i o u s l y a n d d e l i b e r a t e l y s e t f i r e u p o n t h e t w o - s t o r e y r e s i d e n t i a l h o u s e o f R O B E RT O S E PA R A a n d f a m i l y m o s t l y m a d e o f w o o d e n materials located at No. 172 Moderna St., Balut, To n d o , t h i s c i t y, b y l i g h t i n g c r u m p l e d n e w s p a p e r with the use of disposable lighter inside said house knowing the same to be an inhabited house and situated in a thickly populated place and as a consequence thereof a conflagration ensued and the said building, together with some seven (7) adjoining residential houses, were razed by fire; that by reason and on the occasion of the said fire, t h e f o l l o w i n g , n a m e l y, 1. 2. 3. 4. 5. 6. R o b e r t o S e p a r a , S r. , 4 5 y e a r s o f a g e Vi r g i n i a S e p a r a y M e n d o z a , 4 0 y e a r s of age Michael Separa, 24 years of age Daphne Separa, 18 years of age Priscilla Separa, 14 years of age R o b e r t o S e p a r a , J r. , 11 y e a r s o f a g e sustained burn injuries which were the direct cause of their death i m m e d i a t e l y t h e r e a f t e r. [ 5 ] W hen arraigned, accused -appellant with assistance of counsel de oficio, pleaded[6] Not Guilty to t h e c r i m e c h a r g e d . T h e r e a f t e r, t r i a l e n s u e d . [ 7 ] The prosecution presented five (5) witnesses, n a m e l y, S P O 4 [ 8 ] D a n i l o Ta l u s a n , R o l a n d o G r u t a , R e m i g i o Bernardo, Mercedita Mendoza and Rodolfo Movilla to establish its charge that accused -appellant Edna committed the crime of arson with multiple homicide. S P O 4 D a n i l o Ta l u s a n , a r s o n i n v e s t i g a t o r, testified that he was one of those who responded to the fire that occurred on 2 January 2001 and which started at N o . 1 7 2 M o d e r n a S t . , B a l u t , To n d o , M a n i l a . H e s t a t e d t h a t t h e f i r e k i l l e d R o b e r t o S e p a r a , S r. a n d a l l t h e o t h e r m e m b e r s o f h i s f a m i l y, n a m e l y h i s w i f e , Vi r g i n i a , a n d h i s c h i l d r e n , M i c h a e l , D a p h n e , P r i s c i l l a a n d R o b e r t o , J r. ; t h e fire also destroyed their abode as well as six neighboring houses. He likewise testified that he twice heard accused appellant once while the latter was being interviewed by C a r m e l i t a Va l d e z , a r e p o r t e r o f A B S - C B N , a n d t h e o t h e r time when it was shown on channel 2 on television during t h e a i r i n g o f t h e t e l e v i s i o n p r o g r a m e n t i t l e d Tr u e C r i m e hosted by Gus Abelgas confess to having committed the crime charged, to wit: Pros. Rebagay: Based on your investigation, was there any occasion when the accused Edna Malngan admitted to the burning of the house of the Separa Family? x x x x W itness:

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Ye s , s i r. A: Pros. Rebagay: W hen was that? A: O n J a n u a r y 2 s h e w a s i n t e r v i e w e d b y t h e m e d i a , s i r. The one who took the coverage was Carmelita Va l d e z o f C h a n n e l 2 , A B S - C B N . T h e y h a v e a A: f o o t a g e t h a t E d n a a d m i t t e d b e f o r e t h e m , s i r. And where were you when Edna Malngan made that Q: s t a t e m e n t o r a d m i s s i o n t o C a r m e l i t a Va l d e z o f ABS-CBN? A: I w a s a t o u r o f f i c e , s i r. Was there any other occasion wherein the accused made another confession relative to the admission of the crime? Ye s , s i r. W hen was that? L a s t F r i d a y, s i r. I t w a s s h o w n i n Tr u e C r i m e o f G u s Abelgas. She was interviewed at the City Ja il and she admitted that she was the one who a u t h o r e d t h e c r i m e , s i r. Q: Pros. Rebagay: And where were you when that admission to Gus Abelgas was made? A: A: Q: I w a s i n t h e h o u s e a n d I j u s t s a w i t o n t v, s i r. W h a t w a s t h a t a d m i s s i o n t h a t y o u h e a r d p e r s o n a l l y, when you were present, when the accused made t h e c o n f e s s i o n t o C a r m e l i t a Va l d e z ? Naglukot po siya ng papel, sinidihan niya ng l i g h t e r a t i n i l a g a y n i y a s a i b a b a w n g me s a y u n g mg a d i y a r y o a t s i n u n o g n i y a . Q: A: Q: Q: I w a s a t t h e c o r n e r o f M o d e r n a S t r e e t , s i r. Pros. Rebagay: And while you were at the corner of Moderna St., w h a t h a p p e n e d i f a n y, M r. W i t n e s s ? I saw Edna coming out from the door of the house of R o b e r t o S e p a r a , s i r. Do you know the number of the house of the Separa Family? 1 7 2 M o d e r n a S t . , B a l u t , To n d o , M a n i l a , s i r. x x x x Q: And you said you saw Edna coming out from the h o u s e o f t h e S e p a r a F a m i l y. H o w f a r i s t h a t house from the place where you were waiting at the corner of Mo derna and Paulino Streets? A: About three meters from Moderna and Paulino Streets where my pedicab was placed. My d i s t a n c e w a s a b o u t t h r e e m e t e r s , s i r. x x x x And how did you know that the house where Edna came out is that of the house of the Separa Family? M i s mo n g n a k i t a p o n g d a l a w a n g ma t a k o n a doon siya galing sa bahay ng Separa F a mi l y. H o w l o n g h a v e y o u k n o w n t h e S e p a r a F a m i l y, if you know them? A b o u t t w o y e a r s , s i r. How about this Edna, the one you just pointed (to) awhile ago? Do you know her prior to January 2, 2001? Ye s , s i r. I k n e w ( s i c ) h e r f o r t w o y e a r s .

Q:

A:

A: Q: A:

A:

x x x x Q: A: Aside from that statement, was there any other statement made by the accused Edna Malngan? Ye s , s i r. K a y a p o n i y a n a g a w a y o n g a l i t p o s i y a s a k a n y a n g a mo n a s i Vi r g i n i a , h i n d i s i y a p i n a s u w e l d o a t g u s t o n a p o n i y a n g u mu w i n a (sic) ayaw siyang payagan. Nagsa lita pa po sa k a n y a n a , S u ma k a y k a n a l a n g s a w a l i s . P a g b a l i k mo d i t o ma p u t i k a n a . ( s i c ) Yo n p o a n g s i n a b i n g k a n y a n g a mo . A: Court: W hy?

W itness: Madalas ko po siyang maging pasahero ng aking pedicab. Pros. Rebagay: How about the Separa family? W hy d o you know them? A: Q: T h e y w e r e t h e e m p l o y e r s o f E d n a , s i r. Yo u s a i d y o u s a w E d n a c o m i n g o u t f r o m t h e h o u s e o f t h e S e p a r a F a m i l y. W h a t happened when you saw Edna coming out from the house of the Separa Family? Wa l a p a p o n g a n o y a n n a i s a k a y k o n a s i y a s a s i d e c a r. And what did you observe from Edna when you saw her coming out from the house of the Separa family? N a g ma ma d a l i p o s i y a n g l u ma k a d a t p a l i n g a linga. x x x x Q: After she boarded your pedicab, what happened, if any? Nagpahatid po siya sa akin. W here? To N i p a S t r e e t , s i r.

A t t y. M a s w e n g : That was a statement of an alleged dead person, your H o n o r. Court: S a b i n i Va l d e s , h a ? Pros. Rebagay: S a b i n i E d n a M a l n g a n k a y C a r me l i t a Va l d e z, Yo u r H o n o r.

A: Court: Double hearsay na y on. Q: Pros. Rebagay: N o , Yo u r H o n o r, t h e w i t n e s s w a s p r e s e n t , Yo u r H o n o r, when that confession was made by the accused t o C a r m e l i t a Va l d e z . [ 9 ] Rolando Gruta, the pedicab driver and one of the barangay tanods in the area, testified: Pros. Rebagay: M r. W i t n e s s , w h a t i s y o u r p r o f e s s i o n ? A: A: Q: S i d e c a r d r i v e r, s i r. Q: On January 2, 2001 at around 4:45 in the morning, do you recall where were (sic) you? A:

A:

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Q: A: Did you bring her to Nipa Street as she requested? Ye s , s i r. x x x x Q: Yo u s a i d t h a t y o u b r o u g h t h e r t o N i p a S t r e e t . W hat happened when you go (sic) there at Nipa Street, if any? N a g p a h i n t o p o s i y a d o o n n g s a g l i t , mg a t a t l o n g mi n u t o p o . W hat did she do when she asked (you) to stop there for three minutes? After three minutes she requested me to bring h e r d i r e c t l y t o B a l a s a n S t r e e t , s i r. x x x x Q: A: Q W hat happened after that? W hen we arrived there, she alighted and pay ( s i c ) P 5 . 0 0 , s i r. And then what transpired after she alighted from your pedicab? A: Q: N o w, w h e r e w e r e y o u w h e n t h i s i n c i d e n t happened? K a s i u g a l i k o n a p o t u w i n g u ma g a n g - u ma g a p o a k o n a p u p u n t a s a b a r a n g a y H a l l mg a s i g u r o 6 : 0 0 o r 5 : 0 0 o c l o c k , me s u mi g a w n g s u n o g n i r e s p o n d e h a n n a mi n i y o n g s u n o g e h me d a l a k a mi n g f i r e . Court: Yo u j u s t a n s w e r t h e q u e s t i o n . W h e r e w e r e y o u w h e n this incident happened? W itness: I w a s a t t h e B a r a n g a y H a l l , Yo u r H o n o r. Pros. Rebagay: And you said that there was a fire that occurred, what did you do? W itness: I y o n n g a n a g r e s p o n d e k a mi d o o n s a s u n o g e h n a k i t a k o i y o n g s u n o g mu k h a t a l a g a n g a r s o n d a h i l n a p a k a l a k i k a a g a d , me r o n p o n g mg a t i p o n g I y o n g n a ma t a y p o c o n t r a c t o r p o i y o n e h k a y a s i g u r o n a p a k a r a mi n g k a l a t n g m g a p i n t u r a , mg a c o n t a i n e r, k a y a h i n d i p o n a mi n n a a p u l a k a a g a d i y o n g a p o y, n a s u n o g u l t i mo i y o n g f i r e t a n k n a mi n s a l a k a s , s i r. Pros. Rebagay: N o w, w i l l y o u p l e a s e t e l l u s w h e r e t h i s f i r e occurred? A: Pros. Rebagay: After that, what happened when you were on you way to your house to look for passengers? A Q: A: Nakita ko na nga po na pagdating ko sa M o d e r n a , n a g l a l a g a b l a b n a a p o y. From what place was that fire coming out? F r o m t h e h o u s e o f R o b e r t o S e p a r a F a m i l y, s i r. x x x x Pros. Rebagay: After you noticed that there was a fire from the h o u s e o f R o b e r t o S e p a r a F a m i l y, w h a t d i d you do if any? A: S i y e mp r e p o , i s a n g B a r a n g a y Ta n o d p o a k o , n a g r e s p o n d e n a p o k a mi s a s u n o g . A: B i n u k s a n n a p o n g C h a i r ma n n a mi n g y u n g t a n g k e , b i n o mb a n a p o n a mi n g y u n g a p o y ng tubig. A f t e r t h a t i n c i d e n t , M r. W i t n e s s , h a v e y o u s e e n Edna Again (sic). N o , s i r. A: A t B a l a s a n , s i r, b u t i t s n o t t h e a r e a o f m y jurisdiction. x x x x Q: W hat happened when you reached that place? I was called by our Barangay Chairman in o r d e r t o i d e n t i f y E d n a , s i r. x x x x[10] Remigio Bernardo, Barangay Chairman of the area where the fire occurred, stated: Pros. Rebagay: On January 2, 2001, do you recall if there is a fire that occurred somewhere in your area of jurisdiction, particularly Moderna Street? A: A: Ye s , s i r. A: S i y a p o a n g n a h u l i k o d o o n , s i r. A: Q: A: A t t h e h o u s e o f t h e s i x v i c t i m s , s i r. W hose house is that? T h e h o u s e o f t h e v i c t i m s , s i r. x x x x Pros. Rebagay: Yo u s a i d t h a t y o u r e s p o n d e d t o t h e p l a c e , w h a t transpired after you responded to the plac e? I y o n n g a p o a n g n a g s a b i ma y l u ma b a s n a i s a n g b a b a e p o n o o n s a b a h a y n a n a g ma ma d a l i h a b a n g ma y s u n o g , me i s a n g b a r a n g a y t a n o d p o a k o n g n a g s a b i ma y h u ma h a n g o s n a i s a n g b a b a e n a ma y d a l a n g b a g p a p u n t a p o r o o n p a l a b a s n g s a s a k y a n , s i r. Q: And so what happened?

A: Q: A:

W itness: I w e n t h o m e a n d I l o o k e d f o r a n o t h e r p a s s e n g e r, s i r.

Q: A:

S i y e mp r e h i n d i n a ma n a k o n a g t a n o n g k u n g s i n o n g a y o n ma y d u ma t i n g g a l i n g n a s a b a h a y n a mi n g , ma y t u ma w a g , t u ma w a g p o s i K o n s e h a l a A l f o n s o n a ma y i s a n g b a b a e n a h i n d i ma p a k a l i d o o n s a C a l l e Pedro Alfonso, ke konsehal na baka i to sabi niya i y o n g g a n i t o g a n o o n n i r e s p o n d e h a n k o p o , s i r. Q: W here did you respond?

Pros. Rebagay: And after that incident, did you come to know if Edna was apprehended or not? x x x x A:

Court: W itness pointing to accus ed Edna Malngan. Pros. Rebagay: And what happened? A: Q: I b r o u g h t h e r t o t h e b a r a n g a y h a l l , s i r. And what happened at the barangay hall?

I n e mb e s t i g a h a n k o , k i n u h a n a mi n g i y o n g b a g n i y a , me l i g h t e r s i y a e h . I n a mi n n i y a p o s a a mi n n a k a y a n i y a s i n u n o g h i n d i s i y a p i n a s a s a h o d n g mo r e o r l e s s

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isang taon na eh. Ngayon sabi ko bakit eh gusto ko n g u mu w i n g p r o b i n s y a a n g s a b i s a a k i n n g a mo k o s u ma k a y n a l a n g d a w p o a k o n g w a l i s t i n g t i n g p a r a ma k a u w i , s i r. A t t y. H e r m a n : W e w o u l d l i k e t o o b j e c t , Yo u r H o n o r o n t h e g r o u n d t h a t t h a t i s h e a r s a y. Pros. Rebagay: T h a t i s n o t a h e a r s a y s t a t e m e n t , Yo u r H o n o r, straight from the mouth of the accused. A t t y. H e r m a n : Its not under the exemption under the Ru les of C o u r t , Yo u r H o n o r. H e i s t e s t i f y i n g a c c o r d i n g t o what he has heard. Court: Thats part of the narration. W hether it is true or n o t , t h a t s a n o t h e r m a t t e r. L e t i t r e m a i n . Pros. Rebagay: N o w, w h o w e r e p r e s e n t w h e n t h e a c c u s e d a r e telling you this? A: I y o n n g a i y o n g mg a t a n o d k o , ma ma ma y a n d o o n n a k a p a l i g i d , s i y e mp r e ma y s u n o g n a g k a k a g u l o , g u s t o n g a s i y a n g k u n i n n g mg a ma ma ma y a n p a r a s a k t a n h i n d i k o ma i b i g a y p a p a t a y i n s i y a g a w a n g ma y n a ma t a y e h a n i m n a t a o a n d n a ma t a y, k a y a i y o n g mg a t a o k i n o k o n t r o l s i y a ma d i d i s g r a s y a s i y a d a h i l p i n - p o i n t e d p o s i y a , Yo u r H o n o r, i y o n g d a mi na iyon libo iyong nakapaligid doon sa barangay hall napakahirap awatin. Gustong -gusto siyang k u n i n n g mg a t a o n g - b a y a n , n a g a l i t d a h i l a n g d a mi n g b a h a y h o n g n a s u n o g . [ 11 ] For her part, Mercedita Mendoza, one of the neighbors of the Separa Family and whose house was one of those destroyed by the fire, recounted: Pros. Rebagay: Madam W itness, on January 2, 2001, do you recall where were you residing then? A: Q: Ye s , s i r. W here were you residing at? Q: Q: A: Q: Q: Q: A: W hat is the name? Vi r g i n i a M e n d o z a C i f a r a ( s i c ) , s i r.

Q: A r e y o u r e l a t e d t o Vi r g i n i a Mendoza Cifara (sic)? A: M y h u s b a n d , s i r.

W hat is the relationship of your husband to t h e l a t e Vi r g i n i a M e n d o z a C i f a r a ( s i c ) ? A: T h e y w e r e f i r s t c o u s i n s , s i r.

Q: A: Q:

How far is your house from the house of the Cifara (sic) family? Magkadikit lang po. Pader lang ang pagitan. Yo u s a i d t h a t E d n a M a l n g a n w a s w o r k i n g w i t h t h e C i f a r a ( s i c ) f a m i l y. W h a t i s t h e work of Edna Malngan? N a n g a n g a mu h a n p o . H o u s e h e l p e r, s i r. How long do you know Edna Malngan as house helper of the Cifara (sic) family? I cannot estimate but she stayed there for t h r e e t o f o u r y e a r s , s i r. Do you know who caused the burning of the house of the Cifara (sic) family? E d n a M a l n g a n , s i r.

W itness: Pros. Rebagay: W hy do you know that it was Edna Malngan who burned the house of the Cifara (sic) family? A: W h e n t h e f i r e i n c i d e n t h a p p e n e d , s i r, o n January 3, we went to San Lazaro Fire Station and I saw Edna Malngan detained t h e r e , s i r. And so what is your basis in pointing to Edna Malngan as the culprit or the one who burned the house of the Cifara (sic) family? I talked to her when we went there at that d a y, s i r. W hat transpired then? I t a l k e d t o h e r a n d I t o l d h e r, E d n a , b a k i t m o n a ma n g i n a w a y u n g g a n u n ? And what was the answer of Edna? She answered, Kasi pag nagpapaalam ako s a k a n y a n g u mu w i n g p r o b i n s y a , n a g p a p a a l a m p o s i y a n g u mu w i n g probinsya ang sinasabi daw po sa kanya n i B a b y C i f a r a ( s i c ) n a , ( s i c ) S i g e u mu w i k a , p a g d a t i n g mo ma p u t i k a n a . S u ma k a y k a s a w a l i s p a g d a t i n g mo ma p u t i k a n a .

A: At No. 170 Moderna St., Balut, To n d o , M a n i l a , s i r. Q: W hy did you transfer your residence? Awhile ago you testified that you are now residing at 147 Moderna St., Balut, To n d o , M a n i l a ? A: s i r. Q: Because our house was burned, A: Q: A: Q: A: A: More or less, P100,000.00, sir Q: Do you know the accused in this case Edna Malngan? A: Q: A: Ye s , s i r. W hy do you know her?

More or less, how much did the loss incurred on the burning of your house (sic)?

She is the house helper of the family who w e r e ( s i c ) b u r n e d , s i r. Q: A: W hat family? C i f a r a ( s i c ) f a m i l y, s i r.

Pros. Rebagay: W hat is the basis there that she was the one who burned the house of th e Cifara (sic) family? A: I a l s o a s k e d h e r, P a a n o mo g i n a w a y u n g sunog? She told me, Naglukot ako ng ma r a mi n g d i y a r y o , s i n i n d i h a n k o n g disposable lighter at hinagis niya sa i b a b a w n g l a me s a s a l o o b n g b a h a y . (sic)[12]

Q:

W ho in particular do you know among Cifara (sic) family? A: T h e w o m a n , s i r.

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L a s t l y, t h e p r o s e c u t i o n p r e s e n t e d R o d o l f o Movilla, owner of the house situated beside that of the S e p a r a f a m i l y. H e t e s t i f i e d t h a t h i s h o u s e w a s a l s o g u t t e d by the fire that killed the Separa family and that he tried to help said victims but to no avail. The prosecution presente d other documentary evidence[13] and thereafter rested its case. W hen it came time for the defense to present e xc u l p a t o r y e v i d e n c e , i n s t e a d o f d o i n g s o , a c c u s e d a p p e l l a n t f i l e d a M o t i o n t o A d mi t D e mu r r e r t o E v i d e n c e [ 1 4 ] a n d t h e c o r r e s p o n d i n g D e mu r r e r t o E v i d e n c e [ 1 5 ] w i t h t h e f o r m e r e x p r e s s l y s t a t i n g t h a t s a i d D e mu r r e r t o E v i d e n c e was being filed x x x without express leave of court x x x.[16] I n h e r D e mu r r e r t o E v i d e n c e , a c c u s e d - a p p e l l a n t asserts that the pros ecutions evidence was ins ufficient to prove her guilt beyond reasonable doubt for the following reasons:[17] (a) that she is charged with crime not defined and penalized by law; (b) that circumstantial evidence was insufficient to prove her guilt beyond reasonable doubt; and (c) that the testimonies given by the witnesses of the p r o s e c u t i o n w e r e h e a r s a y, t h u s , i n a d m i s s i b l e i n e v i d e n c e a g a i n s t h e r. T h e p r o s e c u t i o n f i l e d i t s C o m me n t / O p p o s i t i o n t o accused-appellants De murrer to Evidence. On 13 October 2003, acting on the Demurrer to E v i d e n c e , t h e RT C p r o m u l g a t e d i t s J u d g me n t [ 1 8 ] w h e r e i n it proceeded to resolve the subject case based on the e v i d e n c e o f t h e p r o s e c u t i o n . T h e RT C c o n s i d e r e d a c c u s e d appellant to have waived her right to present evidence, h a v i n g f i l e d t h e D e mu r r e r t o E v i d e n c e w i t h o u t l e a v e o f court. In finding accused -appellant Edna guilty beyond reasonable doubt of the crime of Arson with Multiple H o m i c i d e , t h e RT C r u l e d t h a t : The first argument of the accused that she is charged with an act not defined and penalized by law is without merit. x x x the caption which charges the accused with the crime of Arson with Multiple Homicide is merely descriptive of the charge of Arson that resulted to Multiple Homicide. The fact is t hat the accused is charged with Arson which resulted to Multiple Homicide (death of victims) and that charge is embodied and stated in the body of the information. W hat is controlling is the allegation in the body of the Information and not the title or caption thereof. x x x. x x x x The second and third arguments will be disc ussed jointly as they are interrelated with e a c h o t h e r. x x x . x x x x [W ]hile there is no direct evidence that points to the accused in the act of burning the house or actually starting the subject fire, the following circumstances that show that the accused intentionally caused or was responsible for the subject fire have been duly established: 1. that immediately before the burning of the house, the accused hurriedly and with head turning in different directions (palinga linga) went out of the said house and rode a pedicab apparently not knowing where to go x x x; 2. that immediately after the fire, upon a report that there was a woman in Balasan St. who appears confused and apprehensive (balisa), the Barangay Chairman and his tanods went there, found the accused and apprehended her and brought her to the barangay hall as shown by the testimony of Barangay Chairman Remigio Bernardo; and 3. that when she was ap prehended and investigated by the barangay officials and when her bag was opened, the same contained a disposable lighter as likewise shown by the testimony of the Barangay Chairman. [T]he timing of her hurried departure and nervous demeanor immediately b efore the fire when she left the house and rode a pedicab and h e r s a m e d e m e a n o r, p h y s i c a l a n d m e n t a l condition when found and apprehended at the same place where she alighted from the pedicab and the discovery of the lighter in her bag thereafter when investigated indisputably show her guilt as charged. If there is any doubt of her guilt that remains w i t h t h e c i r c u m s t a n t i a l e v i d e n c e a g a i n s t h e r, t h e same is removed or obliterated with the confessions/admissions of the commission of the offense and the manner thereof that s he made to the prosecution witnesses Barangay Chairman Remigio Bernardo, Mercedita Mendoza and to t h e m e d i a , r e s p e c t i v e l y. x x x x [H]er confessions/admissions are positive acknowledgment of guilt of the crime and appear to have been voluntarily and intelligently given. These confessions/admissions, especially the one given to her neighbor Mercedita Mendoza and the media, albeit uncounselled and made while she was already under the custody of authorities, it is believed, are not violat ive of her right under the Constitution. The decretal part of the RTCs J u d g me n t r e a d s : W HEREFORE, the Demurrer to Evidence is hereby denied and judgment is hereby rendered finding the accused EDNA M A L N G A N Y M AY O g u i l t y b e y o n d r e a s o n a b l e doubt of the crime of Arson with Multiple Homicide or Arson resulting to the death of six (6) people and sentencing her to suffer the mandatory penalty of death, and ordering her to p a y t h e h e i r s o f t h e v i c t i m s R o b e r t o S e p a r a , S r. a n d Vi r g i n i a S e p a r a a n d c h i l d r e n M i c h a e l , D a p h n e , P r i s c i l l a a n d R o b e r t o , J r. , t h e a m o u n t o f Fifty Thousand (P50,000.00) Pesos for each victim and the amount of One Hundred Thousand (P100,000.00) Pesos as temperate damages for their burned house or a total of Four Hundred Thousand (P400,000.00) Pesos and to Rodolfo Movilla the amount of One Hundred [Thousand] (P100,000.00) Pesos. Due to the death penalty imposed by the RTC, the case was directly elevated to this Court for automatic r e v i e w. C o n f o r m a b l y w i t h o u r d e c i s i o n i n P e o p l e v. E f r e n M a t e o y G a r c i a , [ 1 9 ] h o w e v e r, w e r e f e r r e d t h e c a s e a n d i t s records to the CA for appropriate action and disposition. On 2 September 2005, the Court of Appeals a f f i r m e d w i t h m o d i f i c a t i o n t h e d e c i s i o n o f t h e RT C , t h e fallo of which reads: W HEREFORE, premises consid ered, the assailed October 13, 2003 Judgment of the Regional Tr i a l C o u r t o f M a n i l a , B r a n c h 4 1 , f i n d i n g a c c u s e d appellant Edna Malngan y Mayo guilty beyond reasonable doubt of Arson with multiple homicide and s e n t e n c i n g h e r t o s u f f e r t h e D E AT H P E N A LT Y i s h e r e b y A F F I R M E D w i t h M O D I F I C AT I O N i n t h a t s h e i s further ordered to pay P50,000.00 as moral damages and another P50,000.00 as exemplary damages for each of the victims who perished in the fire, to be paid to their heirs. She is ordered to pay Rodolfo Movilla, one whose house was also burned, the sum of P50,000.00 as exemplary damage.

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Pursuant to Section 13 (a), Rule 124 of the 2000 Rules of Criminal Procedure as amended by A.M. No. 00-5-03-SC dated September 28, 2004, whic h bec ame effective on October 15, 2004, the Court of Appeals, after rendering judgment, hereby refrains from making an entry of judgment and forthwith certifies the case and elevates the entire record of this case to the Supreme Court for r e v i e w. [ 2 0 ] It is the contention of accused -appellant that the evidence presented by the pros ecution is not suffic ient to establish her guilt beyond reasonable doubt as the perpetrator of the crime charged. In support of said e xc u l p a t o r y p r o p o s i t i o n , s h e a s s i g n s t h e f o l l o w i n g errors[21]: I. T H E H O N O R A B L E C O U R T E R R E D I N R U L I N G T H AT T H E C I R C U M S TA N T I A L E V I D E N C E P R E S E N T E D B Y T H E P R O S E C U T I O N I S S U F F I C I E N T TO C O N V I C T T H E ACCUSED; and II. T H E H O N O R A B L E C O U R T E R R E D I N A L L OW I N G A N D G I V I N G C R E D E N C E T O T H E H E A R S AY E V I D E N C E A N D U N C O U N S E L L E D A D M I S S I O N S A L L E G E D LY G I V E N B Y T H E A C C U S E D TO T H E W I T N E S S E S B A R A N G AY C H A I R M A N R E M I G I O B E R N A R D O , M E R C E D I TA M E N D O Z A A N D T H E M E D I A . THERE IS NO COMPLEX CRIME OF ARSON W I T H ( M U LT I P L E ) H O M I C I D E . T h e I n f o r ma t i o n i n t h i s c a s e e r r o n e o u s l y c h a r g e d a c c u s e d - a p p e l l a n t w i t h a c o mp l e x c r i me , i . e . , A r s o n wi t h M u l t i p l e H o mi c i d e . P r e s e n t l y, t h e r e a r e t w o ( 2 ) laws that govern the crime of arson where death results therefrom Article 320 of the Revised Penal Code (RPC), a s a me n d e d b y R e p u b l i c A c t ( R A ) N o . 7 6 5 9 , [ 2 2 ] a n d Section 5 of Presidential Decree (PD) No. 1613 [23], q u o t e d h e r e u n d e r, t o w i t : Revised Penal Code: A R T. 3 2 0 . D e s t r u c t i v e A r s o n . x x x x I f a s a c o n s e q u e n c e o f t h e c o m mi s s i o n of any of the acts penalized under this Article, death results, the mandatory penalty of death shall be imposed. [Emphasis supplied.] Presidential Decree No. 1613: SEC. 5. Where Death Results from Arson. If by reason of or on the occasion of the arson death results , the penalty of reclusion perpetua to death shall be imposed. [Emphasis suppli ed.] m e a n s o f f i r e i s m u r d e r, i t i n t e n d s t h a t f i r e s h o u l d be purposely adopted as a means to that end. There can be no murder without a design to take life.[26] In other words, if the main object of the offender is to kill by means of fire, the offens e is m u r d e r. B u t i f t h e m a i n o b j e c t i v e i s t h e b u r n i n g o f the building, the resulting homicide may be absorbed by the crime of arson.[27] x x x x If the house was set on fire after the victims therein were killed, fire would not be a qualifying circumstance. The accused would be liable for the separate offens es of murder or homicide, as the case may be, and arson. [28] A c c o r d i n g l y, i n c a s e s w h e r e b o t h b u r n i n g a n d d e a t h o c c u r, in order to determine what crime/crimes was/were perpetrated whether arson, murder or arson and h o m i c i d e / m u r d e r, i t i s d e r i g u e u r t o a s c e r t a i n t h e m a i n objective of the malefactor: (a) if the main objectiv e is the burning of the building or edifice, but death results by reason or on the occasion of arson, the crime is simply arson, and the resulting homicide is absorbed; (b) if, on the other hand, the main objective is to kill a particular person who may be in a building or edifice, when fire is resorted to as the means to accomplish such goal the c r i m e c o m m i t t e d i s mu r d e r o n l y ; l a s t l y, ( c ) i f t h e o b j e c t i v e is, likewise, to kill a particular person, and in fact the offender has already done so, but fire is r esorted to as a means to cover up the killing, then there are two separate a n d d i s t i n c t c r i m e s c o m m i t t e d h o mi c i d e / mu r d e r a n d arson. W here then does this case fall under? From a reading of the body of the Information: That on or about January 2, 2001, in the City of Manila, Philippines, the said a c c u s e d , w i t h i n t e n t t o c a u s e d a ma g e , d i d t h e n a n d t h e r e w i l l f u l l y, u n l a w f u l l y, feloniously and deliberately set fire upon the t wo - s t o r e y r e s i d e n t i a l h o u s e o f R O B E R TO S E PA R A a n d f a m i l y m o s t l y m a d e o f w o o d e n materials located at No. 172 Moderna St., B a l u t , To n d o , t h i s c i t y, b y l i g h t i n g c r u m p l e d newspaper with the use of disposable lighter inside said house knowing the same to be an inhabited house and situated in a thickly populated place and as a consequence thereof a conflagration ensued and the said building, together with some seven (7) adjoining residential houses, were razed by fire; that by reason and on the occasion of t h e s a i d f i r e , t h e f o l l o w i n g , n a m e l y, 1. 2. age 3. 4. 5. 6. R o b e r t o S e p a r a , S r. , 4 5 y e a r s o f a g e Vi r g i n i a S e p a r a y M e n d o z a , 4 0 y e a r s o f Michael Separa, 24 years of age Daphne Separa, 18 years of age Priscilla Separa, 14 years of age R o b e r t o S e p a r a , J r. , 11 y e a r s o f a g e

A r t . 3 2 0 o f t h e R P C , a s a me n d e d , w i t h r e s p e c t t o destructive arson, and the provisions of PD No. 1613 respecting other cases of arson provide only one penalty f o r t h e c o m mi s s i o n o f a r s o n , w h e t h e r c o n s i d e r e d destructive or otherwise, where death results therefrom. The raison d'tre is that arson is itself the end and death is simply the consequence. [24] W hether the crime of arson will absorb the resultant death o r w i l l h a v e t o b e a s e p a r a t e c r i m e a l t o g e t h e r, t h e j o i n t d i s c u s s i o n [ 2 5 ] o f t h e l a t e M r. C h i e f J u s t i c e R a m o n C . Aquino and Mme. Justice Carolina C. Grio -Aquino, on the subject of the crimes of arson and murder/homicide, is highly instructive: Groizard says that when fire is used with the intent to kill a particular person who may be in a house and that objective is attained by b u r n i n g t h e h o u s e , t h e c r i m e i s m u r d e r o n l y. W h e n the Penal Code declares that killing committed by

sustained burn injuries which were the direct cause of their death immediately t h e r e a f t e r. [ 2 9 ] [ E m p h a s i s s u p p l i e d . ] accused-appellant is being charged with the crime of arson. It it is clear from the foregoing that her intent was merely to destroy her employer s hous e t hrough the use of fire. We now go to the issues raised. Under the first a s s i g n m e n t o f e r r o r, i n a s s e r t i n g t h e i n s u f f i c i e n c y o f t h e pros ecutions evidenc e to establis h her guilt beyond reasonable doubt, accused -appellant argues that the prosecution was onl y able to adduce circumstantial evidence hardly enough to prove her guilt beyond reasonable doubt. She ratiocinates that the following circumstances: 1. That immediately before the

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burning of the house , the accused hurriedly and with head turning in different directions (palinga linga) went out of the said house and rode a pedicab apparently not knowing where to go for she first requested to be brought to Nipa St. but upon reaching there requested again to be brought to Balasan St. as shown by the testimony of prosecution witness Rolando Gruta; 2. That immediately after the fire, upon a report that there was a woman in Balasan St. who appears confused and apprehensive (balisa), the Barangay Chairman and his tanods went there, found the accused and apprehended her and brought her to the barangay hall as shown by the testimony of Barangay Chairman Remigio Bernardo; and 3. That when she was apprehended and investigated by the barangay officials and when her bag was opened, the same contained a disposable lighter as likewise shown by the testimony of the Barangay Chairman.[30] fall short of proving that she had any involvement in setting her employer s house on fire, much less show guilt beyond reasonable doubt, given that it is a fact that housemaids are the first persons in the house to wake up early to perform routine chores for their employers, [31] one of which is preparing and cooking the morning meal for the members of the household; and necessity requires her to go out early to look for open stores or even nearby marketplaces to buy things that will complete the early m e a l f o r t h e d a y. [ 3 2 ] S h e t h e n c o n c l u d e s t h a t i t w a s normal for her to have been seen going out of her employer s hous e in a hurry at that time of the day and to look at all directions to insure that the house is secure and t h a t t h e r e a r e n o o t h e r p e r s o n s i n t h e v i c i n i t y. [ 3 3 ] We are far from persuaded. Tr u e , b y t h e n a t u r e o f t h e i r j o b s , h o u s e m a i d s a r e r e q u i r e d t o s t a r t t h e d a y e a r l y ; h o w e v e r, c o n t r a r y t o said assertion, the actuations and the demeanor of accused-appellant on that fateful early morning as observed firsthand by Rolando Gruta, one of the witnesses o f t h e p r o s e c u t i o n , b e l i e h e r c l a i m o f n o r m a l c y, t o w i t : Q: Yo u s a i d y o u s a w E d n a c o m i n g o u t f r o m t h e h o u s e o f t h e S e p a r a F a m i l y. W h a t h a p p e n e d when you saw Edna coming out from the house of the Separa Family? Wa l a p a p o n g a n o y a n n a i s a k a y k o n a s i y a sa sidecar. And what did you observe from Edna when you saw her coming out from the house of the Separa family? N a g ma ma d a l i p o s i y a n g l u ma k a d a t palinga-linga. A: Q: A: Nagpahinto po siya doon ng saglit, mg a t a t l o n g mi n u t o p o . W hat did she do when she asked (you) to stop there for three minutes? After three minutes she requested me to bring her directly to Balasan Street, s i r.

x x x x We quote with approval the pronouncement of t h e RT C i n d i s c r e d i t i n g a c c u s e d - a p p e l l a n t s aforementioned rationale: [O]bviously it is never normal, common or ordinary to leave the house in such a disturbed, nervous and a g i t a t e d m a n n e r, d e m e a n o r a n d c o n d i t i o n . T h e timing of her hurried departure and nervous demeanor immediately before the fire when she left the house and rode a pedicab and her same d e m e a n o r, p h y s i c a l a n d m e n t a l c o n d i t i o n w h e n found and apprehended at the same place where she alighted from the pedicab and the discovery of the lighter in her bag th ereafter when investigated indisputably show her guilt as charged. [34] All the witnesses are in accord that accused appellants agitated appearanc e was out of the o r d i n a r y. R e m a r k a b l y, s h e h a s n e v e r d e n i e d t h i s observation. W e g i v e g r e a t w e i g h t t o t h e f i n d i n g s o f t h e RT C and so accord credence to the testimonies of the prosecution witnesses as it had the opportunity to observe t h e m d i r e c t l y. T h e c r e d i b i l i t y g i v e n b y t r i a l c o u r t s t o prosecution witnesses is an important aspect of evidence which appellate courts can rely on because of its unique o p p o r t u n i t y t o o b s e r v e t h e m , p a r t i c u l a r l y t h e i r d e m e a n o r, conduct, and attitude, during the direct and cross examination by counsels. Here, Remigio Bernardo, Rolando Gruta and Mercedita Mendoza are disinterested witnesses and there is not an iota of evidence in the records to indicate that they are suborned witnesses. The records of the RTC even show that Remigio Bernardo, the Barangay Chairman, kept accused -appellant from being mauled by the angry crowd outside of the barangay hall: Pros. Rebagay: N o w, w h o w e r e p r e s e n t when the accused are (sic) telling you this? A: I y o n n g a i y o n g mg a t a n o d k o , ma ma ma y a n d o o n n a k a p a l i g i d , s i y e mp r e ma y sunog nagkakagulo, gusto n g a s i y a n g k u n i n n g mg a ma ma ma y a n p a r a s a k t a n h i n d i k o ma i b i g a y p a p a t a y i n s i y a g a w a n g ma y n a ma t a y eh anim na tao and n a ma t a y, k a y a i y o n g mg a tao kinokontrol siy a ma d i d i s g r a s y a s i y a d a h i l p i n - p o i n t e d p o s i y a , Yo u r H o n o r, i y o n g d a mi n a i y o n libo iyong nakapaligid doon sa barangay hall napakahirap awatin. Gusting-gusto siyang kunin n g mg a t a o n g - b a y a n , n a g a l i t d a h i l a n g d a mi n g b a h a y hong nasunog.[35]

A: Q:

A:

x x x x Q: A: Q: A: Q: A: x x x x Q: Yo u s a i d t h a t y o u b r o u g h t h e r t o N i p a Street. W hat happened when you go (sic) there at Nipa Street, if any? After she boarded your pedicab, what happened, if any? Nagpahatid po siya sa akin. W here? To N i p a S t r e e t , s i r. Did you bring her to Nipa Street as she requested? Ye s , s i r.

Accused-appellant has not shown any compelling reason why the witnesses presented would o p e n l y, p u b l i c l y a n d d e l i b e r a t e l y l i e o r c o n c o c t a s t o r y, t o send an innocent person to jail all the while knowing that the real malefactor remains at large. Such proposition defies logic. And where the defense failed to show any

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evil or improper motive on the part of the prosecution witnesses, the presumption is that their testimonies are true and thus entitled to full faith and credence. [36] W hile the prosecution witnesses did n ot see accused-appellant actually starting the fire that burned s e v e r a l h o u s e s a n d k i l l e d t h e S e p a r a f a m i l y, h e r g u i l t m a y still be established through circumstantial evidence provided that: (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proven; and, (3) the combination of all the circumstances is such as to produce conviction beyond reasonable doubt.[37] Circumstantial evidence is that evidence which proves a fact or series of facts from which the facts in issue may be established by inference. [38] It is founded on experience and observed facts and coincidences establishing a connection between the known and proven facts and the facts sought to be proved. [39] In order to bring about a conviction, the circ umstantial evidence presented must constitute an unbroken chain, which leads to one fair and reasonable conclusion pointing to the accused, to the exclusion of others, as the guilty person.[40] In this case, the interlocking testimonies of the p r o s e c u t i o n w i t n e s s e s , t a k e n t o g e t h e r, e x e m p l i f y a c a s e where conviction can be upheld on the basis of circumstantial evidence. First, prosecution witness Rolando Gruta, the driver of the pedicab that accused appellant rode on, testified that he knew for a fact that she worked as a housemaid of the victims, and that he positively identified her as the person hurriedly leaving the house of the victims on 2 January 2001 at 4:45 a.m., and a c t i n g i n a n e r v o u s m a n n e r. T h a t w h i l e r i d i n g o n t h e pedicab, accused -appellant was unsure of her intended destination. Upon reaching the place where he originally picked up accused -appellant only a few minutes after dropping her off, Rolando Gruta saw the Separas hous e being gutted by a blazing fire. Second, Remigio Bernardo testified that he and his tanods, including Rolando Gruta, were the ones who picked up accused -appellant Edna at Balas an Street (where Rolando Gruta dropped her off) after receiving a call that there was a woman acting strangely at said street and who appeared to have n o w h e r e t o g o . T h i r d , S P O 4 D a n i l o Ta l u s a n o v e r h e a r d a c c u s e d - a p p e l l a n t a d m i t t o C a r m e l i t a Va l d e z , a r e p o r t e r o f Channel 2 (ABS -CBN) that said accused -appellant started the fire, plus the fact that he was able see the telecast of Gus Abelgas show where accused-appellant, while being interviewed, confessed to the crime as well. The foregoing testimonies juxtaposed with the testimony of Mercedita Mendoza validating the fact that accused appellant confessed to having started the fire which killed the Separa family as well as burned seven houses including that of the victims, convincingly form an unbroken chain, which leads to the unassailable conclusion pinpointing accused -appellant as the person behind the crime of simple arson. I n h e r s e c o n d a s s i g n e d e r r o r, a c c u s e d - a p p e l l a n t questions the admissibility of her uncounselled e xt r a j u d i c i a l c o n f e s s i o n g i v e n t o p r o s e c u t i o n w i t n e s s e s , namely Remigio Bernardo, Mercedita Mendoza, and to the media. Accused-appellant Edna contends that being unc ouns elled extrajudicial confession, her admissions to having committed the crime charged should have been e xc l u d e d i n e v i d e n c e a g a i n s t h e r f o r b e i n g v i o l a t i v e o f Article III, Section 12(1) of the Constitution. P a r t i c u l a r l y, s h e t a k e s e x c e p t i o n t o t h e testimony of prosecuti on witnesses Remigio Bernardo and Mercedita Mendoza for being hearsay and in the nature of an uncounselled admission. W ith the above vital piec es of evidence e xc l u d e d , a c c u s e d - a p p e l l a n t i s o f t h e p o s i t i o n t h a t t h e remaining proof of her alleged guilt, con sisting in the main of circumstantial evidence, is inadequate to establish her guilt beyond reasonable doubt. We partly disagree. Article III, Section 12 of the Constitution in part provides: (1) Any person under investigation for the commission of an offense s hall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the s ervices of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. x x x x (3) Any confession or admission obtained in violation of this Section or Section 17 hereof shall be inadmissible in evidence. We have held that the abovequoted provision applies to the stage of custodial investigation when the investigation is no longer a general inquiry into an unsolved crime but starts to focus on a particular person as a suspect.[41] Said constitutional guarantee has also b e e n e xt e n d e d t o s i t u a t i o n s i n w h i c h a n i n d i v i d u a l h a s n o t been formally arrested but has merely been invited for questioning.[42] To b e a d m i s s i b l e i n e v i d e n c e a g a i n s t a n accused, the extrajudicial confessions made must satisfy the following requirements: (1) (2) (3) (4) it must be voluntary; it must be made with the assistance of competent and independent counsel; it must be express; and it must be in writing. [43]

Arguably, the barangay tanods, including the B a r a n g a y C h a i r m a n , i n t h i s p a r t i c u l a r i n s t a n c e , ma y b e deemed as law enforcement offic er for purpos es of applying Article III, Section 12(1) and (3), of the Constitution. W hen accused -appellant was brought to the barangay hall in the morning of 2 January 2001, she was already a suspect, actually the only on e, in the fire that destroyed several houses as well as killed the whole f a m i l y o f R o b e r t o S e p a r a , S r. S h e w a s , t h e r e f o r e , a l r e a d y under custodial investigation and the rights guaranteed by Article III, Section 12(1), of the Constitution should have a l r e a d y b e e n o b s e r v e d o r a p p l i e d t o h e r. A c c u s e d appellants confession to Barangay Chairman Remigio Bernardo was made in response to the interrogation made by the latter admittedly conducted without first informing accused -appellant of her rights under the Constitution or done in the presence of counsel. For this reason, the confession of accused -appellant, given to Barangay Chairman Remigio Bernardo, as well as the lighter found by the latter in her bag are inadmissible in evidence against her as such wer e obtained in violation of her constitutional rights. B e t h a t a s i t m a y, t h e i n a d m i s s i b i l i t y o f a c c u s e d appellants confession to Barangay Chairman Remigio Bernardo and the lighter as evidence do not automatically lead to her acquittal. It should well be recalled that the constitutional safeguards during custodial investigations do not apply to those not elicited through questioning by the police or their agents but given in an ordinary manner whereby the accused verbally admits to having committed the offense as what happened in the case at bar when accused-appellant admitted to Mercedita Mendoza, one of t h e n e i g h b o r s o f R o b e r t o S e p a r a , S r. , t o h a v i n g s t a r t e d t h e fire in the Separas house. The testimony of Mercedita Mendoza recounting said admission is, unfortunately for accused-appellant, admissible in evidence against her and is not covered by the aforesaid constitutional guarantee. Article III of the Constitution, or the Bill of Rights, solely governs the relationship between the individual on one hand and the State (and its agents) on the other; it does not concern itself with the relation between a private

15
individual and another private individual as both accused-appellant and prosecution witness Mercedita Mendoza undoubtedly are. [44] Here, there is no evidence on record to show that said witness was acting under p o l i c e a u t h o r i t y, s o a p p r o p r i a t e l y, a c c u s e d - a p p e l l a n t s unc ouns elled extrajudicial confession to said witness was p r o p e r l y a d m i t t e d b y t h e RT C . Accused-appellant likewise assails the admission of the testimony of SPO4 Danilo Ta l u s a n . C o n t e n d i n g t h a t [ w ] h e n S P O 4 D a n i l o Ta l u s a n testified in court, his story is more of events, which are not within his personal knowledge but based from accounts of witnesses who derived information allege dly from the accused or some other persons x x x. In other words, she o b j e c t s t o t h e t e s t i m o n y f o r b e i n g m e r e l y h e a r s a y. W i t h t h i s i m p u t a t i o n o f i n a d m i s s i b i l i t y, w e a g r e e w i t h w h a t t h e Court of Appeals had to say: Although this testimony of S F O 4 D a n i l o Ta l u s a n i s h e a r s a y because he was not present when Gus Abelgas interviewed accused appellant EDNA, it may nevertheless be admitted in evidence as an independently relevant statement to establish not the truth but the tenor of the statement or the fact that the s t a t e m e n t w a s m a d e [ P e o p l e v. Mallari, G.R. No. 103547, July 20, 1 9 9 9 , 3 1 0 S C R A 6 2 1 c i t i n g P e o p l e v. C u s i , J r. , G . R . N o . L - 2 0 9 8 6 , A u g u s t 14, 1965, 14 SCRA 944.]. In People v s . Ve l a s q u e z , G . R . N o s . 1 3 2 6 3 5 & 143872-75, February 21, 2001, 352 SCRA 455, the Supreme Court ruled that: Under the doctrine of independently relevant statements, r e g a r d l e s s o f t h e i r t r u t h o r f a l s i t y, t h e fact that such statements have been made is relevant. The hearsay rule d o e s n o t a p p l y, a n d t h e s t a t e m e n t s are admissible as evidence. Evidence as to the making of such statement is n o t s e c o n d a r y b u t p r i m a r y, f o r t h e statement itself may constitute a fact in issue or be circumstantially relevant as to the existence of such a fact. [45] As regards the confession given by accused appellant to the media, we need not discuss it further for the reporters were never presented to testify in court. A s a f i n a l a t t e m p t a t e xc u l p a t i o n , a c c u s e d appellant asserts that since the identities of the burned bodies were never conclusively established, she cannot be responsible for their deaths. Such assertion is bereft of merit. In the crime of arson, the identities of the victims are immaterial in that intent to kill them particularly is not one of the elem ents of the crime. As we h a v e c l a r i f i e d e a r l i e r, t h e k i l l i n g o f a p e r s o n i s a b s o r b e d i n the charge of arson, simple or destructive. The prosecution need only prove, that the burning was intentional and that what was intentionally burned is an inhabited house or dwelling. Again, in the case of People v. S o r i a n o , [ 4 6 ] w e e x p l a i n e d t h a t : Although intent may be an ingredient of the crime of Arson, it may be inferred from the acts of the accused. There is a presumption that one intends the natural consequences of his act; and when it is shown that one has deliberately set fire to a building, the prosecution is not bound to produce further evidence of his wrongful intent.[47] accused-appellant guilty of? As previously discussed, there are two (2) categories of the crime of arson: 1) destructive arson, under Art. 320 of the Revised Penal Code, as amended by R e p u b l i c A c t N o . 7 6 5 9 ; a n d 2 ) s i mp l e a r s o n , u n d e r Presidential Decree No. 1613. Said classification is based on the kind, character and location of the property burned, regardless of the value of the damage caused, [48] to wit: Article 320 of The Revised Penal Code, as amended by RA 7659, contemplates the malicious burning of structures, both public and private, hotels, buildings, edifices, trains, vessels, a i r c r a f t , f a c t o r i e s a n d o t h e r m i l i t a r y, g o v e r n m e n t or commercial establishments by any person or group of persons.[[49]] The classification of this type of crime is known as Destructive Arson, which is punishable by reclusion perpetua to death. The reas on for the law is self -evident: to effectively discourage and deter the commission of this dastardly crime, to prevent the destruction of properties and protect the lives of innocent people. Exposure to a brewing conflagration leaves only destruction and despair in its wake; hence, the State mandates greater retribution to authors of this h e i n o u s c r i me . T h e e xc e p t i o n a l l y s e v e r e p u n i s h m e n t imposed for this crime takes into consideration the e xt r e m e d a n g e r t o h u m a n l i v e s e x p o s e d b y t h e malicious burning of these structures; the danger to property resulting from the conflagration; the fact that it is normally difficult to adopt prec autions against its commission, and the difficulty in pinpointing the perpetrators; and, the greater impact on the social, economic, security and political fabric of the nation. [Emphasis supplied.] If as a consequence of the commission of any of the acts penalized under Art. 320, death should result, the mandatory penalty of death shall be imposed. On the other hand, PD 1613 which repealed Arts. 321 to 326-B of The Revised Penal Code remains the governing law for Si mple Arson. This decree contemplates the malicious burning of public and private structures, regardless of siz e, not included in Art. 320, as amended by RA 7659, and classified as other cases of arson. These include houses, dwellings, government buildings, farms, mills, plantations, railways, bus stations, airports, wharves and other industrial establishments.[[50]] Although the purpose of the law on Simple Arson is to prevent the high incidence of fires and other crimes involving destruction, protect the national economy and preserve the social, economic and political stability of the nation, PD 1613 tempers the p enalty to be meted to offenders. This separate classification of Simple Arson recognizes the need to lessen the severity of punishment commensurate to the act or acts committed, depending on the particular facts and circumstances of each case. [Emphasis supplied.] To e m p h a s i z e : The nature of Destructive Arson is distinguished from Simple Arson by the degree of perversity or viciousness of the criminal o f f e n d e r. T h e a c t s c o m m i t t e d u n d e r A r t . 3 2 0 o f the Revised Penal Code (as amended) constituting Destructi ve Arson are characterized as heinous crimes for being grievous, odious and hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and o r d e r e d s o c i e t y. [ 5 1 ] O n t h e o t h e r h a n d , a c t s committed under PD 1613 constituting Simple Arson are crimes with a lesser degree of perversity and viciousness that the law punishes w i t h a l e s s e r p e n a l t y. I n o t h e r w o r d s , S i m p l e

The ultimate query now is which kind of arson is

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Arson contemplates crimes with less significant social, economic, political and national security i m p l i c a t i o n s t h a n D e s t r u c t i v e A r s o n . H o w e v e r, acts falling under Simple Arson may nevertheless be converted into Destructive Arson depending on the qualifying circumstances present. [Emphasis supplied.][52] Prescinding from the above clarification vis--vis the description of the crime as stated in the accusatory portion of the Information, it is quite evident that accused appellant was charged with the crime of Simple Arson for having deliberately set fire upon the two-storey r e s i d e n t i a l h o u s e o f R O B E R TO S E PA R A a n d f a mi l y x x x k n o w i n g t h e s a me t o b e a n i n h a b i t e d h o u s e a n d s i t u a t e d i n a thickly populated place and as a consequence thereof a c o n f l a g r a t i o n e n s u e d a n d t h e s a i d b u i l d i n g , t o g e t h e r wi t h s o me s e v e n ( 7 ) a d j o i n i n g r e s i d e n t i a l h o u s e s , w e r e r a ze d by fire. [Emphasis supplied.] The facts of the case at bar is somewhat similar t o t h e f a c t s o f t h e c a s e o f P e o p l e v. S o r i a n o . [ 5 3 ] T h e accused in the latter case caused the burning of a p a r t i c u l a r h o u s e . U n f o r t u n a t e l y, t h e b l a z e s p r e a d a n d gutted down five (5) neighboring houses. The RTC therein found the accused guilty of destructive arson under paragraph 1[54] of Art. 320 of the Revised Penal Code, as amended by Republic Act No. 7659. This Court, through M r. J u s t i c e B e l l o s i l l o , h o w e v e r, d e c l a r e d t h a t : x x x [T]he applicable provision of law s h o u l d b e S e c . 3 , p a r. 2 , o f P D 1 6 1 3 , which imposes a penalty of reclusion temporal to reclusion perpetua for other cases of arson as the properties burned by accused-appellant are specifically described as houses, contemplating inhabited houses or d w e l l i n g s u n d e r t h e a f o r e s a i d l a w. T h e descriptions as alleged in the second Amended Information particularly refer to the structures as houses rather than as buildings or edifices. The applicable law should th erefore be S e c . 3 , P a r. 2 , o f P D 1 6 1 3 , a n d n o t A r t . 3 2 0 , p a r. 1 o f t h e P e n a l C o d e . I n case of ambiguity in construction of penal laws, it is well -settled that such laws shall be construed strictly against the government, and liberally in favor of the accus ed. The elements of arson under S e c . 3 , p a r. 2 , o f P D 1 6 1 3 a r e : ( a ) there is intentional burning; and (b) what is intentionally burned is an inhabited house or dwelling. I n c i d e n t a l l y, t h e s e e l e m e n t s c o n c u r i n t h e c a s e a t b a r. [ 5 5 ] As stated in the body of the Information, accused-appellant was charged with having intentionally burned the two-storey residential house of Robert Separa. Said conflagration likewise spread and destroyed s e v e n ( 7 ) a d j o i n i n g h o u s e s . C o n s e q u e n t l y, i f p r o v e d , a s i t was proved, at the trial, she may be convicted, and s e n t e n c e d a c c o r d i n g l y, o f t h e c r i m e o f s i m p l e arson. Such is the case notwithstanding the error in the designation of the offens e in the information, the information remains effective ins ofar as it states the facts constituting the crime alleged therein. [56] W hat is controlling is not the title of the complaint, nor the designation of the offens e charged or the particular law or part thereof allegedly violate, x x x, but the description of the crime charged and th e particular facts therein recited.[57] There is, thus, a need to modify the penalty imposed by the RTC as Sec. 5 of PD No. 1613 categorically provides that the penalty to be imposed for simple arson is: SEC. 5. Where Death Results from Arson. - If by reason of or on the occasion of arson death results, the penalty of reclusion perpetua to death shall be imposed. [Emphasis supplied.] A c c o r d i n g l y, t h e r e b e i n g n o a g g r a v a t i n g circumstance alleged in the Information, the imposable penalty on accused -appellant is reclusion perpetua . Apropos the civil liabilities of accused -appellant, current jurisprudence[58] dictate that the civil indemnity due from accused -appellant is P50,000.00 for the death of e a c h o f t h e v i c t i m s . [ 5 9 ] H o w e v e r, t h e m o n e t a r y a w a r d s f o r moral and exemplary damages given by the Court of Appeals, both in the amount of P50,000.00, due the heir s of the victims, have to be deleted for lack of material b a s i s . S i m i l a r l y, t h e C o u r t o f A p p e a l s a w a r d o f e x e m p l a r y damages to Rodolfo Movilla in the amount of P50,000.00 for the destruction of his house, also has to be deleted, b u t i n t h i s i n s t a n c e f o r b e i n g i m p r o p e r. M o r a l d a m a g e s cannot be award by this Court in the absence of proof of mental or physical suffering on the part of the heirs of the victims.[60] Concerning the award of exemplary damages, the reason for the deletion being that no aggravating circumstance had been alleged and proved by the p r o s e c u t i o n i n t h e c a s e a t b a r. [ 6 1 ] To s u m m a r i z e , a c c u s e d - a p p e l l a n t s a l t e r n a t i v e plea that she be acquitted of the crime must be rejected. W ith the evidence on record, we find no cogent r e a s o n t o d i s t u r b t h e f i n d i n g s o f t h e RT C a n d t h e C o u r t o f Appeals. It is indubitable that accused -appellant is the author of the crime of simple arson. All the circumstantial e v i d e n c e p r e s e n t e d b e f o r e t h e R T C , v i e w e d i n i t s e n t i r e t y, is as convincing as direct evidence a nd, as such, negates accused-appellants innoc enc e, and when considered concurrently with her admission given to Mercedita Mendoza, the former s guilt beyond reasonable doubt is twice as evident. Henc e, her c onviction is effectively justified. More so, as it is propitious to note that in stark contrast to the factual circumstances presented by the prosecution, accused -appellant neither mustered a denial nor an alibi except for the proposition that her guilt had not been established beyond reasonable doubt . I N V I EW W H E R E O F, t h e D e c i s i o n o f t h e C o u r t o f Appeals dated 2 September 2005, in CA G.R. CR HC No. 0 11 3 9 , i s h e r e b y A F F I R M E D i n s o f a r a s t h e c o n v i c t i o n o f a c c u s e d - a p p e l l a n t E D N A M A L N G A N Y M AY O i s c o n c e r n e d . The sentence to be imposed and the amount of da mages t o b e a w a r d e d , h o w e v e r, a r e M O D I F I E D . I n a c c o r d a n c e with Sec. 5 of Presidential Decree No. 1613, accused appellant is hereby sentenced to RECLUSION PERPETUA. Accused-appellant is hereby ordered to pay the heirs of e a c h o f t h e v i c t i m s P 5 0 , 0 0 0 . 0 0 a s c i v i l i n d e m n i t y. SO ORDERED.

4 . T R E AC H E RY Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. Nos. 111206-08 October 6, 1995 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CLAUDIO TEEHANKEE, JR., accused-appellant. PUNO, J.: Three (3) separate Informations were filed against accused Claudio Teehankee, Jr. for the shooting of Roland John Chapman, Jussi Olavi Leino and Maureen Hultman. Initially, he was charged with: MURDER for the killing of ROLAND CHAPMAN, and two (2) FRUSTRATED MURDER

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for the shooting and wounding of JUSSI LEINO and MAUREEN HULTMAN. When Hultman died on October 17, 1991, during the course of the trial, the Information for Frustrated Murder against accused was amended to MURDER. 1 The Information for murder in Criminal Case No. 91-4605 thus reads: That on or about the 13th day of July, 1991, in the Municipality of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the said Claudio Teehankee, Jr. y Javier, armed with a handgun, with intent to kill and evident premeditation and by means of treachery, did then and there wilfully, unlawfully and feloniously attack, assault and shoot with and shoot with the said handgun Roland John Chapman who war hit in the chest, thereby inflicting mortal wounds which directly caused the death of said Roland John Chapman. Contrary to law. 2 The Amended Information for Murder in Criminal Case No. 91-4606 reads: That on or about the 13th day of July, 1991, in the Municipality of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the said Claudio Teehankee, Jr. y Javier, armed with a handgun, with intent to kill and evident premeditation, and by means of treachery, did then and there wilfully, unlawfully and feloniously attack, assault and shoot with the said handgun Maureen Navarro Hultman who was hit in the head, thereby inflicting moral wounds which directly caused the death of the said Maureen Hultman. CONTRARY TO LAW. 3 Finally, the Information for Frustrated Murder in Criminal Case No. 914607 reads: That on or about the 13th day of July, 1991, in the Municipality of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, while armed with a handgun, with intent to kill, treachery and evident premeditation did then and there wilfully, unlawfully and feloniously attack, assault and shoot one Jussi Olavi Leino on the head, thereby inflicting gunshot wounds, which ordinarily would have caused the death of said Jussi Olavi Leino, thereby performing all the acts of execution which would have produced the crime of murder as a consequence, but nevertheless did not produce it by reason of cause or causes independent of his will, that is, due to the timely and able medical assistance rendered to said Jussi Olavi Leino which prevented his death. Contrary to law. 4 In the two (2) Informations for frustrated murder initially filed against accused, bail was set at twenty thousand pesos (P20,000.00) each. No bail was recommended for the murder of Roland John Chapman. A petition for bail was thus filed by accused. Hearing was set on August 9, 1991, while his arraignment was scheduled on August 14, 1991. At the hearing of the petition for bail on August 9, 1991, the prosecution manifested that it would present the surviving victim, Jussi Leino, to testify on the killing of Chapman and on the circumstances resulting to the wounding of the witness himself and Hultman. Defense counsel Atty. Rodolfo Jimenez objected on the ground that the incident pending that day was hearing of the evidence on the petition for bail relative to the murder charge for the killing of Chapman only. He opined that Leino's testimony on the frustrated murder charges with respect to the wounding of Leino and Hultman would be irrelevant. 5 Private prosecutor, Atty. Rogelio Vinluan, countered that time would be wasted if the testimony of Leino would be limited to the killing of Chapman considering that the crimes for which accused were charged involved only one continuing incident. He pleaded that Leino should be allowed to testify on all three (3) charges to obviate delay and the inconvenience of recalling him later to prove the two (2) frustrated murder charges. 6 By way of accommodation, the defense suggested that if the prosecution wanted to present Leino to testify on all three (3) charges, it should wait until after the arraignment of accused on August 14, 1991. The defense pointed out that if accused did not file a petition for bail, the prosecution would still have to wait until after accused had been arraigned before it could present Leino. 7 The private prosecutor agreed to defer the hearing on the petition for bail After a while, Maureen requested Leino to take her home at Campanilla Street, Dasmarias Village, Makati. Chapman tagged along. 12 When they entered the village, Maureen asked Leino to stop along Mahogany Street, about a block away from her house in Campanilla Street. She wanted to walk the rest of the way for she did not like to create too much noise in going back to her house. She did not want her parents to know that she was going home that late. Leino offered to walk with her while Chapman stayed in the car and listened to the radio. 13 Leino and Maureen started walking on the sidewalk along Mahogany Street. When they reached the corner of Caballero and Mahogany Streets, a light-colored Mitsubishi box-type Lancer car, driven by accused Claudio Teehankee, Jr., came up from behind them and stopped on the middle of the road. Accused alighted from his car, approached them, and asked: "Who are you? (Show me your) I.D." Leino thought accused only wanted to check their identities. He reached into his pocket, took out his plastic wallet, and handed to accused his Asian Development Bank (ADB) I.D. 14 Accused did not bother to look at his I.D. as he just grabbed Leino's wallet and pocketed it. 15 Chapman saw the incident. All of a sudden, he manifested from behind Leino and inquired what was going on. He stepped down on the sidewalk and asked accused: "Why are you bothering us?" Accused pushed Chapman, dug into his shirt, pulled out a gun and fired at him. Chapman felt his upper body, staggered for a moment, and asked: "Why did you shoot me?" Chapman crumpled on the sidewalk. Leino knelt beside Chapman to assist him but accused ordered him to get up and leave Chapman alone. 16 Accused then turned his ire on Leino. He pointed gun at him and asked: "Do you want a trouble?" Leino said "no" and took a step backward. The shooting initially shocked Maureen. When she came to her senses, she became hysterical and started screaming for help. She repeatedly shouted: "Oh, my God, he's got a gun. He's gonna kill us. Will somebody help us?" All the while, accused was pointing his gun to and from Leino to Maureen, warning the latter to shut up. Accused ordered Leino to sit down on the sidewalk. Leino obeyed and made no attempt to move away. Accused stood 2-3 meters away from him. He knew he could not run far without being shot by accused. Maureen continued to be hysterical. She could not stay still. She strayed to the side of accused's car. Accused tried but failed to grab her. Maureen circled around accused's car, trying to put some distance between them. The short chase lasted for a minute or two. Eventually, accused caught Maureen and repeatedly enjoined her to shut up and sit down beside Leino. 17 Maureen finally sat beside Leino on the sidewalk. Two (2) meters away and directly in front of them stood accused. 18 For a moment, accused turned his back from the two. He faced them again and shot Leino. Leino was hit on the upper jaw, fell backwards on the sidewalk, but did not lose consciousness. Leino heard another shot and saw Maureen fall beside him. He lifted his head to see what was happening and saw accused return to his car and drive away. 19 Leino struggled to his knees and shouted for help. He noticed at least three (3) people looking on and standing outside their houses along Caballero Street. 20 The three were: DOMINGO FLORECE, a private security guard hired by Stephen Roxas to secure his residence at #1357 Caballero Street, Dasmarias Village, Makati; 21 VICENTE MANGUBAT, a stay-in driver of Margarita Canto, residing at #1352 Caballero Street, until after arraignment of accused on the condition that there shall be trial on the merits and, at the same time, hearing on the petition for bail. The defense counsel acceded. 8 Upon arraignment, accused pleaded not guilty to the three (3) charges. The prosecution then started to adduce evidence relative to all three (3) cases. No objection was made by the defense. 9 A replay of the facts will show that on July 12, 1991, Jussi Olavi Leino invited Roland Chapman, Maureen Hultman and other friends for a party at his house in Forbes Park, Makati. The party started at about 8:30 p.m. and ended at past midnight. They then proceeded to Roxy's, a pub where students of International School hang out. 10 After an hour, they transferred to Vintage, another pub in Makati, where they stayed until past 3:00 a.m. of July 13, 1991. Their group returned to Roxy's to pick up a friend of Maureen, then went back to Leino's house to eat. 11

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corner Mahogany Street, Dasmarias Village; 22 and AGRIPINO CADENAS, a private security guard assigned at the house of Rey Dempsey, located at #1351 Caballero Street, corner Mahogany Street, Dasmarias Village. 23 Security guards Florece and Cadenas were then on duty at the house of their employer, while driver Mangubat was in his quarters, preparing to return to his own house. These three (3) eyewitnesses heard the first gunshot while at their respective posts. Upon hearing the first shot, Florece went out to Caballero Street to see what was happening, while Mangubat and Cadenas peeped over the fence of their employer's house and looked out to Caballero Street. Each saw a man (Chapman) sprawled on the ground, another man (Leino) sitting on the sidewalk, a third man standing up ad holding a gun and a woman (Hultman). They saw the gunman shoot Leino and Hultman and flee aboard his Lancer car. However, because of Florece's distance from the scene of the crime, 24 he was not able to discern the face of the gunman. He saw the control numbers of the gunman's car as 566. He described the gateway car as a box-type Lancer, its color somewhat white ("medyo maputi"). 25 Cadenas noticed in full the plate number of the getaway car and gave it as PDW 566. He described the car as silver metallic gray. 26 Both Cadenas and Mangubat saw the gunman's face. They had a good look at him. Cadenas was then a mere four (4) meters away from the gunman's car, 27 while Mangubat was about twenty (20) meters away from the scene of the crime. 28 The three confirmed that the corner of Caballero and Mahogany Streets where the shooting took place was adequately illuminated by a Meralco lamppost at the time of the incident. 29 After the gunman sped away, Mangubat ran outside his employer's house and went near the scene of the crime. He noticed security guard Florece along Caballero Street. A man on a bike passed by and Mangubat requested him to report the shooting incident to the security officers of Dasmarias Village. 30 Meanwhile, Florece returned to his post and narrated to his employer, Mrs. Helen Roxas, what he saw. Mrs. Roxas repaired to the crime scene while Florece noted the incident in his logbook (Exhibit "B"). He also jotted down the license plate control number of the gunman's car as 566. 31 The security guards of Dasmarias Village came after a few minutes. They rushed Leino and Maureen to the Makati Medical Center for treatment. 32 The Makati police and agents of the NBI also came. Patrolman JAMES BALDADO of the Makati police, together with SPO3 ALBERTO FERNANDEZ, investigated the incident. 33 Their initial investigation disclosed that the gunman's car was a box-type Mitsubishi Lancer with plate control number 566. They checked the list of vehicles registered with the village Homeowners' Association and were able to track down two (2) Lancer cars bearing plate control number 566. One was registered in the name of JOSE MONTAO of 1823 Santan Street, Dasmarias Village, with plate number PKX 566, and another was traced to accused CLAUDIO TEEHANKEE, JR., of 1339 Caballero Street, Dasmarias Village, with plate number PDW 566. SALVADOR RANIN, Chief of the Special Operations Group (SOG) of the NBI, was also tasked by then NBI Director Alfredo Lim 34 to head a team to investigate the shooting. Ranin's team immediately proceeded to the house of Jose Montao 35 where they found ahead of them the Makati police and operatives of the Constabulary Highway Patrol. Ranin tried to verify from Mrs. Montao whether the white Lancer car registered in the name of Mr. Montao and bearing plate number 566 was the gunman's car. Mrs. Montao denied and declared they had already sold the car to Saldaa Enterprises. She averred the car was being used by one Ben Conti, a comptroller in said company, who resides in Cubao, Quezon City. Mrs. Montao called up her husband and informed him about the investigation. She also called up Conti and asked him to bring the car to the house. 36 Jose Montao came around noon. Conti followed with white Lancer car. Ranin brought them to the NBI office for investigation, together with Lancer car. At the NBI Ranin inquired from Montao the whereabouts of his car on July 12 and 13, 1991. Montao informed him that the car was at the residence of his employee, Ben Conti, at E. Rodriguez Street, Cubao, Quezon City, the night of July 12, 1991. In the morning of July 13, 1991, Conti drove the car to their office at Saldaa Enterprises. Conti confirmed this information. Ranin received the same confirmation from two (2) NBI agents who made a countercheck of the allegation. Upon Ranin's request, Montao left his car at the NBI parking lot pending identification by possible witnesses. 37 On July 14, 1991, a team of NBI agents conducted an on-the-spot investigation and neighborhood inquiry of the shooting incident. They interviewed Domingo Florece and asked him to report to their office the next day for further investigation. 38 They also interviewed Agripino Cadenas who was reluctant to divulge any information and even denied having witnessed the incident. Sensing his reluctance, they returned to Cadenas' post at Dasmarias Village that night and served him a subpoena, inviting him to appear at the NBI office for investigation the next day. 39 The NBI agents also talked with Armenia Asliami, an Egyptian national residing at #1350 Caballero Street, Dasmarias Village, near the scene of the crime. Asliami informed the agents that the gunman's car was not white but light gray. A foreign national, Asliami was afraid and refused to give a statement about the incident. The agents exerted every effort to convince Asliami to cooperate, assuring her of their protection. Ranin even asked a representative of the Egyptian embassy to coax Asliami to cooperate. They failed. 40 On July 15, 1991, Florece and Cadenas appeared at the NBI office as summoned. Florece readily executed a sworn statement. 41 Cadenas, however, continued to feign ignorance and bridled his knowledge of the incident. He was lengthily interviewed. At around 2:00 p.m., the NBI agents informed SOG Chief Ranin that Cadenas was still withholding information from them. Ranin talked to Cadenas in his office. Cadenas confided to Ranin his fear to get involved in the case. He was apprehensive that the gunman would harass or harm him or his family. After Ranin assured him of NBI protection, Cadenas relented. 42 The next day, July 16, 1991, Cadenas gave a full disclosure to Ranin. He described the gunman's car as a box-type Lancer with plate number PDW 566. He was brought to the NBI parking lot where Montao's white Lancer car was parked to identify the gunman's car. Ranin asked Cadenas if Montao's was the gunman's car. Cadenas replied that its color was different. Ranin directed him to look around the cars in the parking lot and to point the color that most resembled the color of the gunman's car. He pointed to a light gray car. Ranin told him that the color of the car he pointed to was not white but light gray. 43 Ranin then asked Cadenas if he could identify the gunman. Cadenas replied in the affirmative. Ranin led Cadenas to his office and showed him ten (10) pictures of different men (Exhibits "CC-1" to "CC-10) taken from the NBI files. One of the pictures belonged to accused Claudio Teehankee, Jr. Cadenas studied the pictures, picked accused's picture (Exhibit "CC-7"), and identified him as the gunman. Cadenas wrote his name and the date at the back of said picture. Atty. Alex Tenerife of the NBI then took down Cadenas' statement. 44 Ranin sent his agents and the witnesses to the Makati Regional Trial Court to apply for a search warrant. After a searching examination of the witnesses, Judge Rebecca Salvador issued a search warrant (Exhibit "RR"), authorizing the NBI to search and seize the silver metallic gray, 1983 Mitsubishi Lancer car owned by accused, bearing plate number PDW 566. Ranin and his agents drove to accused's house at #1339 Caballero Street, Dasmarias Village, to implement the warrant. 45 At accused's house, Ranin informed Mrs. Pilar Teehankee, mother of accused, of their search warrant. Ranin also told Mrs. Teehankee that they had orders from Director Lim to invite accused to the NBI office for investigation. Mrs. Teehankee informed them that accused was not in the house at that time. She excused herself, went to the kitchen and called up someone on the phone. 46 In the meantime, Ranin and his men slipped to the Teehankee garage and secured accused's car. After a while, Mrs. Teehankee joined them. Ranin asked her for the car keys but she told him that the keys were with accused. Upon Ranin's request, Mrs. Teehankee got in touch with accused on the phone. Ranin conversed with accused and invited him to the NBI for investigation. Accused assured Ranin that he would report to the NBI later that day. The agents then towed the car of accused to the NBI office. 47 At around 9:00 p.m., accused's brother, Raul Teehankee, arrived at the NBI office and waited for accused. Accused came, escorted by three (3) Makati policemen, after an hour. He informed them that he just came from the Makati police station where he was also investigated. He told Lim that he was given a statement to the Makati police and was brought to the PC Crime Laboratory for paraffin test. 48 Accused's NBI investigation started. Lim asked accused of the whereabouts of his Lancer car at the time of the shooting. Accused claimed that his car was involved in an accident a few weeks back and was no longer functioning. The car had been parked in his mother's house

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at Dasmarias Village since then. Due to the lateness of the evening, the group decided to continue the investigation the following day. 49 The next day, July 17, 1991, after breakfast at the Manila Hotel, Lim pressed accused on what really happened at Dasmarias Village. Accused said he did not see anything. Lim apprised accused that he would be confronted with some eyewitnesses. Accused sank into silence.
50

gunman. Mangubat said he could. Mangubat was shown twelve (12) pictures (Exhibits "E" to "E-11) of different men and was asked to identify the gun gunman from them. He chose one picture (Exhibit "E-10"), that of accused, and identified him as the gunman. Mangubat's statement was taken. He was asked to return to the NBI the next day to make a personal identification. 64 When Mangubat returned, a lineup was prepared in Lim's office in the presence of the media. At that time, accused's counsels, Attys. Jimenez and Malvar, were at the office of then Asst. Director Epimaco Velasco protesting to the submission of accused to identification. They pointed out that since the cases against accused had already been filed in court and they have secured a court order for the transfer of accused to the Makati municipal jail, any identification of accused should be made in the courtroom. Asst. Director Velasco insisted on the identification as it was part of their on-going investigation. Eventually, accused's counsels acquiesced but requested that identification be made without the presence of the media. Velasco turned them down and explained that if accused is not identified n the lineup, the media coverage would favor accused. 65 All that time, accused was at the SOG office. He refused to join the lineup at Lim's office and remained seated. Ranin was compelled to bring to the SOG office the men composing the lineup and he asked them to go near accused. Ranin then told Mangubat to go in the office. Mangubat pointed to accused as the gunman. With the identification of accused by Mangubat, the NBI wrote finis to its investigation. 66 JUSSI LEINO, the surviving victim, suffered the following injuries: FINDINGS: = Abrasion, 0.5 cm., temporal area, left. = Wound, gunshot, entrance, circular in shape, 1.0 cm. in diameter, located at the upper lip, mouth, along the medial line, directed backwards and downwards, fracturing the maxillary bone and central and lateral incisors, both sides, to the buccal cavity then lacerating the tongue with fragments of the bullet lodged in the right palatine, tongue and tonsillar region. SKULL CHEST FOR RIBS X-RAY #353322 July 13, 1991 No demonstrable evidence of fracture. Note of radioopaque foreign body (bullet fragments) along the superior alveolar border on the right. No remarkable findings. CT SCAN #43992 July 13, 1991 Small hyperdensities presumably bullet and bone fragments in the right palatine, tongue and tonsillar regions with associated soft tissue swelling. Anterior maxillary bone comminuted fracture. Temporal lobe contusions with small hematomata on the right side. Minimal subarachnoid hemorrhage. Intact bone calvarium. xxx xxx xxx 67 Dr. Pedro Solis, testified that the bullet entered the left temple of Leino. After entering Leino's head, it fractured his upper jaw and his front teeth. Some of the bullet fragments pierced his palette and tongue. Brain scanning revealed contusions on the temporal lobe and hemorrhage on the covering of the brain. Physical deformity resulted as a consequence of the gunshot wound because of the fractured upper jaw and the loss of the front teeth. Sutures were performed on the upper portion of his tongue. Nonetheless, Leino's injuries on the tongue caused him difficulty in speaking. 68 Dr. Solis also testified as to the relative position of Leino and the gunman. He opined that the muzzle of the gun, like in the case of Maureen, must have been at a higher level than the victim's head. He concluded that the gun must have been pointed above Leino's head considering the

Lim directed Ranin to prepare a lineup at his office. Accused was requested to join the lineup composed of seven (7) men and he acceded. Cadenas was called from an adjoining room 51 and Ranin asked him to identify the gunman from the lineup. Forthwith, Cadenas pointed to accused. 52 Accused merely stared at Cadenas. 53 On the same day, then Asst. Director Epimaco Velasco, Ranin and two (2) other agents brought accused to Forbes Park for further identification by the surviving victim, Jussi Leino. Leino has just been discharged from the hospital the day before. Since Leino's parents were worried about his safety, they requested the NBI to conduct the identification of the gunman in Forbes Park where the Leinos also reside. The NBI agreed. 54 House security agents from the U.S. embassy fetched Leino at his house and escorted him and his father to a vacant house in Forbes Park, along Narra Avenue. After a couple of minutes, Leino was brought out of the house and placed in a car with slightly tinted windows. The car was parked about five (5) meters away from the house. Inside the car with Leino was his father, NBI-SOG Chief Salvador Ranin and a driver. Leino was instructed to look at the men who would be coming out of the house and identify the gunman from the lineup. 55 A group of five to six men (including accused) then came out of the unoccupied house, into the street, in a line-up. Leino noticed that one of them was wearing sunglasses. Since Leino could not yet speak at that time due to the extensive injury on his tongue, he wrote down on a piece of paper a request for one of the men in the lineup to remove his sunglasses. Leino handed this written request to his father. The men in the lineup were herded back inside the house. After a couple of minutes, they again stepped out and none was wearing sunglasses. From the lineup, Leino identified accused as the gunman. 56 The agents brought back accused to the NBI. They prepared and referred the cases of murder and double frustrated murder against accused to the Department of Justice for appropriate action. At the inquest, Fiscal Dennis Villa-Ignacio did not recommend bail insofar as the murder charge was concerned. Hence, accused was detained at the NBI. 57 The shooting incident was also investigated by the Makati Police. Pat. Baldado went to see security guard Vicente Mangubat at his post, at the residence of his employer in Dasmarias Village. Baldado interviewed Mangubat and invited him to the Makati police station where his statement (Exhibit "D") was taken. 58 The next day, July 16, 1991, at about 8:30 a.m., Pat. Baldado fetched Mangubat from his house and brought him to the Makati police station. At the station, Baldado told him to wait for a man who would be coming and see if the person was the gunman. Mangubat was posted at the top of the stairs at the second floor of the station. 59 After a couple of hours, accused, came with Makati police Major Lovete. He ascended the stairs, passed by Mangubat and proceeded to Major Lovete's office at the second floor. While accused was going up the stairs, Pat. Baldado inquired from Mangubat if accused was the gunman. Mangubat initially declined to identify accused, saying that he wanted to see the man again to be sure. He also confided to Pat. Baldado that he was nervous and afraid for accused was accompanied by a police Major. When accused came out from Major Lovete's office, Pat. Baldado again asked Mangubat if accused was the gunman. Mangubat nodded his head in response. 60 Accused, together with Major Lovete and Pat. Baldado, boarded a Mercedes Benz and left. Mangubat was brought back to his post at Dasmarias Village by other Makati policemen. 61 Two (2) days later, Pat. Baldado visited Mangubat at his employer's house and asked him again if accused was really the gunman. Once more, Mangubat answered in the affirmative. Pat. Baldado told Mangubat that he would no longer ask him to sign a statement which he (Baldado) earlier prepared (Exhibit "HHH"). 62 Baldado then left. 63 In the afternoon of July 23, 1991, Mangubat was also questioned by the NBI agents. Director Lim asked Mangubat if he could recognize the

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acuteness and downward trajectory of the bullet.
69

Dr. Leovigildo C. Isabela, a neuro-surgeon at the Makati Medical Center, operated on MAUREEN HULTMAN. He testified that when he first saw Maureen, she was unconscious and her face was bloodied all over. Maureen had a bullet hole on the left side of the forehead, above the eyebrow. Brain tissues were oozing out of her nostrils and on the left side of the forehead where the bullet entered. 70 They brought Maureen to the x-ray room for examination of her skull. She was also given a CT scan. The examination revealed that she suffered injuries on the skull and brain. There were several splintered bullets in her brain and the major portion of the bullet, after it fragmented, was lodged beneath her right jaw. 71 Maureen was rushed to the operating room for surgery. Dr. Isabela led a team who operated on her brain to arrest the bleeding inside her head, remove devitalized brain tissues and retrieve the splintered bullets embedded in her brain. Due to the extensive swelling of Maureen's brain and her very unstable condition, he failed to patch the destroyed undersurface covering of her brain. 72 After the surgery, Maureen's vital signs continued to function but she remained unconscious. She was wheeled to the ICU for further observation. Two (2) weeks later, brain tissues and fluid continue to flow out of Maureen's nostrils due to the unpatched undersurface covering of her brain, leaving the swollen portion of her brain exposed. A second surgery was made on July 30, 1991 to repair Maureen's brain covering. He used the fascia lata of Maureen's right thigh to replace the destroyed covering of the brain. Nonetheless, Maureen remained unconscious. The trickle of brain tissues through her nose was lessened but Maureen developed infection as a result of the destruction of her brain covering. Maureen developed brain abscess because of the infection. She underwent a third operation to remove brain abscess and all possible focus of infection. 73 Testifying on the extensive injuries suffered by Maureen Hultman, Dr. Solis explained that Maureen was shot at the left side of the forehead. The bullet entry was at 1.5 cm. above the eyebrow. Upon entering the forehead, the bullet fragmented into pieces and went from the left to the right side of the temple, fracturing the frontal bone of the skull. The bullet eventually settled behind the right jaw of Maureen. 74 The wound inflicted on Maureen was mortal for it hit one of the most vital parts of the body, the brain. When Maureen was subjected to CT scan, they discovered hemorrhage in her brain. After the bullet hit her head, it caused hemorrhagic lesion on the ventricles of the brain and the second covering of the brain. 75 The bullet also injured Maureen's eye sockets. There was swelling underneath the forehead brought about by edema in the area. Scanning also showed that Maureen's right jaw was affected by the fragmented bullet. The whole interior portion of her nose was also swollen. 76 A team of doctors operated on Maureen's brain. They tried to control the internal bleeding and remove the splintered bullets, small bone fragments and dead tissues. The main bullet was recovered behind Maureen's right jaw. There was also an acute downward trajectory of the bullet. Hence, it was opined that Maureen was shot while she was seated. 77 With each passing day, Maureen's condition deteriorated. Even if Maureen survived, she would have led a vegetating life and she would have needed assistance in the execution of normal and ordinary routines. 78 She would have been completely blind on the left eye and there was possibility she would have also lost her vision on the right eye. All her senses would have been modified and the same would have affected her motor functions. There was practically no possibility for Maureen to return to normal. 79 Maureen did not survive her ordeal. After ninety-seven (97) days of confinement in the hospital, she ceased to be a breathing soul on October 17, 1991. For his exculpation, accused relied on the defense of denial and alibi. Accused claimed that on said date and time, he was not anywhere near the scene of the crime. He alleged that he was then in his house at #53 San Juan, Barrio Kapitolyo, Pasig. He slept at around 1:00 a.m. on July 13, 1991 and woke up at around 8:00 or 9:00 a.m. that same morning. Accused avowed his two (2) maids could attest to his presence in his house that fateful day. 80

Accused averred that he only came to know the three (3) victims in the Dasmarias shooting when he read the newspaper reports about it. He denied knowing prosecution eyewitnesses Agripino Cadenas and Vicente Mangubat before they identified him as the gunman. 81 Accused admitted ownership of a box-type, silver metallic gray Mitsubishi Lancer, with plate number PDW 566. He, however, claimed that said car ceased to be in good running condition after its involvement in an accident in February 1991. Since May 1991 until the day of the shooting, his Lancer car had been parked in the garage of his mother's house in Dasmarias Village. He has not used this car since then. Accused, however, conceded that although the car was not in good running condition, it could still be used. 82 Accused said that on July 16, 1991, he went to the Makati police station at around 5:00 p.m. upon invitation of Chief of Police Remy Macaspac and Major Lovete who wanted to ask him about the ownership of the Lancer car parked in his mother's house. He readily gave a statement to the Makati police denying complicity in the crime. He submitted himself to a paraffin test. He was accompanied by the Makati police to the Crime Laboratory in Camp Crame and was tested negative for gunpowder nitrates. 83 After the test, he asked the Makati policemen to accompany him to the NBI for he had earlier committed to his mother that he would present himself to Director Lim. 84 He arrived at Director Lim's office at about 9:30 to 10:00 p.m. He furnished Lim with the statement he earlier gave to the Makati police. Thereafter, Lim detained him at the NBI against his will. 85 The following day, July 17, 1991, Lim and his agents brought him to the Manila Hotel for breakfast. When they returned to the NBI, he was asked to proceed to Lim's office. On his way, he saw a lineup formed inside Lim's office. The NBI agents forced him to join the lineup and placed him in the number seven (7) slot. He observed that the man who was to identify him was already in the room. As soon as he walked up to the lineup, Cadenas identified him as the gunman. 86 A second identification was made on the same day at a house in Forbes Park. The NBI agents brought him to Forbes Park but he never saw Jussi Leino who allegedly identified him as the gunman in a lineup. 87 A third identification was conducted on July 24, 1991. He was then seated at the office of Ranin for he refused to join another lineup. Despite his protest, the NBI agents insisted on the conduct of the identification and ordered a group of men to line up alongside him. While thus seated, he was identified by Mangubat as the gunman. He complained that he was not assisted by counsel at any stage of said investigation. 88 The defense also presented CLAUDIO TEEHANKEE III, son of accused Claudio Teehankee, Jr. He testified that from May 1989 to February 1991, he had been using his father's Lancer car bearing plate number PDW 566 in going to school. 89 In February 1991, while driving his father's Lancer car, he accidentally hit a bicycle driver and two (2) trucks parked at the side of the road. The accident resulted in the death of the bicycle driver and damage to his father's car, 90 especially on its body. The timing of the engine became a little off and the car was hard to start. They had the car repaired at Reliable Shop located in Banawe Street, Quezon city. After a month, he brought the car to the residence of his grandmother, Pilar Teehankee, at Dasmarias Village, Makati. He personally started the car's engine and drove it to Makati from the shop in Quezon City. He did not bring the car to their house in Pasig for it was still scheduled for further repairs and they preferred to have the repair done in a shop in Makati. Teehankee III claimed that from that time on, he was prohibited by his father from using the car because of his careless driving. He kept the keys to the car and since he was busy in school, no further repair on said car had been made.
91

Accused also imputed the commission of the crimes at bar to Anders Hultman, adoptive father of deceased victim Maureen Hultman. He capitalized on a newspaper report that the gunman may have been an overprotective father. This theory was formed when an eyewitness allegedly overheard Maureen pleading to the gunman: "Huwag Daddy. Huwag, Daddy." The defense presented Anders Hultman as a hostile witness. ANDERS HULTMAN, testified that he is a Swedish national. He and Vivian Hultman were married in the Philippines in 1981. Vivian had two (2) children by her previous marriage, one of whom was Maureen. He legally

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adopted Vivian's two (2) daughters in 1991. He and Vivian had three (3) children of their own. 92 The defense confronted Anders with one of the angles of the crime in the initial stage of the investigation, i.e., that Maureen was overhead pleading to the gunman: "Huwag, Daddy. Huwag, Daddy." Anders explained that Maureen could not have uttered those words for Maureen never spoke Tagalog. He also said that all his children call him "Papa," not "Daddy." 93 On July 12, 1991, he and Vivian permitted Maureen to have a night out but instructed her to be home by 2:00 a.m. Maureen just received her first salary in her first job and she wanted to celebrate with friends. At the time of the shooting, he and his wife were sleeping in their house. He woke up at around 5:15 a.m. of July 13, 1991 when a security guard came to their house and informed them about the killings. 94 Anders admitted he had been vocal about the VIP treatment accorded to accused at the Makati municipal jail. On several occasions, he checked on accused in jail and discovered that accused was not in his cell. The jail guards even covered up accused's whereabouts. His complaint was investigated by the Congressional Committee on Crime Prevention, headed by Congressman Concepcion. 95 The defense also presented two (2) Makati policemen, PAT. JAMES F. BALDADO and SPO3 ALBERTO FERNANDEZ, who investigated the shooting. Pat. Baldado testified that in the course of his investigation, he learned from Mr. Jose Montao that he sold his white Lancer car, with plate number PKX 566, to Saldaa Lending Investors in February 1991. This car was assigned to Ben Conti, Operations Manager of said company and was in the residence of Conti at the time of the shooting. The other witnesses he interviewed confirmed that Montao's white Lancer car was not in the vicinity of Montao's residence at the time of the incident. 96 SPO3 Fernandez testified that he interviewed security guard Vicente Mangubat. Mangubat saw the gunman and the get-away car but could not give the central letters of the car's license plate. Fernandez went to one of the houses at the corner of Mahogany and Caballero Streets and asked the maid therein if he could use the phone. After placing a call, the maid told him that he saw the gunman and heard one of the victims say: "Daddy, don't shoot. Don't, don't." Fernandez tried to get the maid's name but the latter refused. The defense did not present this maid in court nor asked the court to subpoena her to testify. Neither was the alleged statement of the maid included in the Progress Report (Exhibit "13") prepared by the Makati police investigators. 97 SPO3 Fernandez saw Mangubat the next time on July 16, 1991 when he and Baldado fetched the latter at Dasmarias Village for identification of the gunman at the Makati police station. At the police station, Fernandez and Baldado posted Mangubat at the lobby. After a few minutes, accused and company arrived. When accused passed by them, they instructed Mangubat to look around and see if he could identify the gunman. Mangubat failed to identify accused. Mangubat told Fernandez that the gunman was younger and shorter than accused.
98

attendance of Ponferrada by subpoena. On rebuttal, Cadenas denied the torture story. Atty. Malvar also admitted that he and Atty. Jimenez were aware of the irregularities committed in the off-court identification of their client. When asked what he did to remedy this perceived irregularity, Malvar said he objected to the conduct of the lineup. When further pressed whether he filed a petition for review raising this issue with the Department of Justice upon the filing of the cases therewith, he said he did not. He offered the excuse that he deferred to Atty. Jimenez, the principal counsel of accused at that time. He also declared that although they knew that arraignment would mean waiver of the alleged irregularities in the conduct of the investigation and preliminary investigation, he and Atty. Jimenez allowed accused to be arraigned. 103 The defense likewise relied on a number of news accounts reporting the progress in the investigation of the case. It presented seven (7) newspaper reporters as witnesses, viz: Nestor Barrameda of the Manila Times, Martin Marfil and Dave Veridiano of the Philippine Daily Inquirer, Nida Mendoza of Malaya, Itchie Kabayan and Alex Allan of the People's Journal and Elena Aben of the Manila Bulletin. The bulk of defense evidence consists of newspaper clippings and the testimonies of the news reporters, thus: NESTOR BARRAMEDA, a news reporter of the Manila Times identified two (2) news reports as having been partly written by him. One was a news item, entitled: "JUSTICE DEP'T ORDERS PROBE OF THREE METRO KILLINGS" (Exhibit "1"), appearing on the July 16, 1991 issue of the Manila Times. 104 He, however, clarified that a news report is usually the product of collaborative work among several reporters. They follow the practice of pooling news reports where several reporters are tasked to cover one subject matter. The news editor then compiles the different reports they file and summarizes them into one story. 105 The defense lifted only certain portions of Exhibit "1" and marked them in evidence as follows: Exhibit "1-A": Bello directed NBI Deputy Director Epimaco Velasco to take over the investigation of the murders of Roland Chapman, 21, Eldon Maguan, 25, and three members of a family Estrellita Vizconde and her daughters, Carmela, 19, and Anne Marie Jennifer, 7. Exhibit "1-B" Police said that Chapman's assailant could have been angered when Hultman, a 10th grader at the International School in Makati was escorted home by Chapman after going to a disco. Exhibit "1-C" The lone gunman, witnesses told police, first pistol-whipped Hultman. Exhibit "l-D" The same witnesses said Chapman and Leino were shot when they tried to escape. Exhibit "1-E" Other angles Velasco said "we are pursuing two angles" in the Chapman murder. One, he said, is the jealousy angle and the other is a "highly sensitive" matter that might involve influential people. 106 Barrameda testified that he had no personal knowledge of the content of the news items marked as Exhibits "1-C" to "1-D". He just culled them from previous news reports of other newspapers. He admitted that the only portion he wrote based on an actual interview with NBI Asst. Director Velasco was Exhibit "I-E." Barrameda identified another news item in the July 23, 1991 issue of the Manila Times, entitled: "NBI INSISTS IT HAS "RIGHT" SUSPECT IN CHAPMAN SLAY" which was marked as Exhibit "2." Certain portions

SPO3 Fernandez also took the statement of security guard Domingo Florece (Exhibit "MM"). It was signed by Florece in his presence. In said statement, Florece described the gunman's car as "medyo puti" (somewhat white). 99 ELIZABETH AYONON, forensic chemist of the PNP Crime Laboratory, testified on the paraffin test she conducted on July 17, 1991 on both hands of accused. 100 As per Chemistry Report No. C 274-91, 101 the test yielded a negative result of gunpowder nitrates on accused's hands. In said Report, she noted that accused was subjected to paraffin test more than seventy-two (72) hours after the shooting incident. She explained that 72 hours is the reasonable period within which nitrate residues may not be removed by ordinary washing and would remain on the hands of a person who has fired a gun. 102 ATTY. MANUEL Q. MALVAR, one of accused's counsel of record, also took the stand for the defense. He testified that in the course of handling the cases, he was able to confer with Ponferrada, Cadenas' supervisor at the Security agency where Cadenas was employed. Ponferrada informed him that Cadenas confided to him that he was tortured at the NBI and was compelled to execute a statement. Ponferrada, allegedly, refused to testify. Atty. Malvar, however, admitted the defense did not compel the

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thereof, which were not written by Barrameda, defense and offered in evidence, viz: Exhibit "2-a" Superintendent Lucas Managuelod, CIS director for the national capital region, claims, however, that another security guard, Vic Mangubat, had testified before the police that another man, not Teehankee, had fired at Chapman and his companions. Exhibit "2-b" The CIS official added that the absence of nitrite or powder burns on Teehankee's hands as shown by paraffin tests at the CIS laboratory indicated that he may not have fired the gun. 108 MARTIN MARFIL, a reporter of the Philippine Daily Inquirer identified two (2) newspaper clippings which were partly written by him. One news item, which appeared on the July 17, 1991 issue of the Philippine Daily Inquirer, was entitled: "FBI JOINS PROBE OF DASMA SLAY" (Exhibit "3"). 109 Again, the defense marked in evidence certain portions of Exhibit "3", thus: Exhibit "3-a" Witnesses said Hultman talked with the gunman whom she called "Daddy" shortly before Chapman's shooting. Exhibit "3-b" Exhibit "6-c" But Ranin said they were also looking into reports that Hultman was a dancer before she was adopted by her foster parent. Exhibit "3-c" Investigations showed that the gunman sped along Caballero street inside the village after the shooting and was believed to have proceeded toward Forbes Park using the Palm street gate. On cross-examination, Marfil admitted that he did not write Exhibits "3-a" and "3-c". He just reiterated previous reports in other newspapers. They were based on speculations. Marfil also wrote some portions of a news item, entitled: "TEEHANKEE SON HELD FOR DASMA SLAY," which appeared on the July 18, 1991 issue of the Philippine Daily Inquirer (Exhibit "4"), viz: Exhibit "4-B" According to NBI Director Alfredo Lim, the break in the case came when the witness showed up and said that the gunman was on board a silvermetallic Lancer. Exhibit "4-C" The witness said the gunman was standing a few feet away near the car and was talking to Hultman, who was shouting "Huwag! Daddy!" several times. 110 Marfil's source of information was Director Lim. On cross-examination, Marfil admitted that the news reports marked as Exhibits "3" and "4" were written based on information available at that time. 111 NIDA MENDOZA, a reporter of the Malaya identified a news report, entitled: "TEEHANKEE SON HELD ON DASMA SLAYING," which appeared on the July 18, 1991 issue of Malaya. She testified that she wrote a portion thereof, marked as Exhibit "5-c", and the sources of her information were several Makati policemen. 112 Exhibit "5-c" reads: Makati policemen, meanwhile, disputed NBI accounts that Teehankee was arrested at his house. Exhibit "6" and its sub-markings were offered to prove: (a) the alleged blind and consuming personal rage and bias of Anders Hultman against accused; and (b) the unwarranted pressure, prejudice and prejudgment by some congressional leaders in favor of the Hultmans in violation of due process. DAVE VERIDIANO, a reporter of the Philippine Daily Inquirer, identified the news account which appeared on the July 16, 1991 issue of the Inquirer, entitled: "DASMA SLAY SUSPECT IDENTIFIED" (Exhibit "7"). He wrote a portion of said article (Exhibit "7-c") and the source of his information was Camp Crame. 120 It reads: Exhibit "7-c" Witnesses said the gunman fled aboard a white Mitsubishi Lancer with plate number "566." The witnesses cannot tell the plate's control letters.
121 107

were lifted by the

They said Teehankee, the last remaining owner of a car with plate control number 566 who had not been questioned, voluntarily went to police headquarters upon invitation of Makati police chief Superintendent Remy Macaspac. 113 The defense presented EXHIBITS "1-5" to prove: (a) the alleged concerted effort of the investigators to implicate accused as the lone gunman; (b) that there were other suspects aside from accused and that someone whom Maureen called as "Daddy" was the actual gunman; (c) that the initial police investigation showed that the gunman's car was a white Lancer with plate no. 566; and, (d) that after the NBI took over the investigation, the white Lancer car of the gunman became a silver gray Lancer of accused and thereafter, he became the gunman. ITCHIE CABAYAN, a reporter of the People's Journal identified the portions she wrote in the news item, entitled: ''I WILL HOUND YOU", which appeared on the October 24, 1991 issue of People's Journal (Exhibit "6"). She identified the source of her information as Mr. Anders Hultman himself. 114 The portions thereof were marked in evidence by the defense, viz: Exhibit "6-a" "I will be visiting him often and at the most unexpected occasion," Hultman said the day after his 17-year old daughter was cremated. 115 Exhibit "6-b" The day Maureen died, a congressional hearing granted the Hultman family's request for permission to visit Teehankee in his cell "at anytime of their choice."

"If on my next visit he still refuses to come out and is still hiding behind the curtain," Hultman said, "Congress told me that I can take the curtain down and jail authorities will pull him out." 116 ALEX ALLAN, also a reporter of People's Journal co-wrote the news item marked as Exhibit "6". Specifically, he wrote Exhibits "6-d" and "6-e" 117 which read: Exhibit "6-d" "Kaawaawa naman ang mga Hultmans, tulungan natin sila," Ong was quoted as telling Vergel de Dios. Exhibit "6-e" BIR insiders said Ong has shown a keen interest in the ChapmanHultman, Vizconde and Eldon Maguan cases because he belongs to a secret but very influential multi-sectoral group monitoring graft and corruption and other crimes in high levels of government and society. 118 Allan was not able to check or verify the information in Exhibit "6-e" given to him by BIR insiders for the latter refused to be identified. 119

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Veridiano likewise identified a news item which appeared on the July 1991 issue of the Inquirer, entitled: "N.B.I. FINDINGS DISPUTED, SECOND WITNESS TAGS TEEHANKEE" (Exhibit "8"). The portions of said news item which he wrote were marked in evidence by the defense, viz: Exhibit "8-a" At the Criminal Investigation Service, however, an investigator who asked not to be identified insisted that the NBI got the wrong man. The NBI has taken over the case from the CIS. Exhibit "8-c" He said the CIS will shortly identify the suspect killer whom he described as "resembling Teehankee but looks much younger." Exhibit "8-e" Exhibit "23-a-1" The source said that the police's "prime witness," identified only as Mangubat, saw everything that happened in the early morning of July 13. The witness, however, failed to identify Teehankee as the gunman. 122 Veridiano was shown another news report, entitled: "CIS GIVES UP CHAPMAN SLAY CASE", which appeared on the July 26, 1991 issue of the Philippine Daily Inquirer (Exhibit 9). 123 He wrote the entire news account, 124 portions of which were marked by the defense in evidence, thus: Exhibit "9-a" The CIS pulled out from the case a day after its so-called "surprise witness" picked Claudio Teehankee, Jr. from an NBI lineup. He gathered this information from his source but he was not able to interview Mangubat himself. 125 Exhibit "9-b" Sira ulo pala siya (Mangubat). Ilang beses kong pinarada sa kanya si Bobby (Teehankee Jr.) puro iling siya. Hindi raw ito ang suspect. Ngayon bigla niyang ituturo, said a red-faced Makati investigator who, as usual, did not want to be identified. ELENA ABEN, a reporter from the Manila Bulletin, wrote the entire article, entitled: "US DIPLOMAT'S SON SHOT DEAD", which appeared on the July 14, 1991 issue of the Manila Bulletin (Exhibit "10"). 126 Two (2) portions thereof were marked as evidence by the defense, viz: Exhibit "10-a-1" The victims were on their way home in Olanileino's Mercedez Benz with a diplomat's plate number when a white Lancer with plate number PKX-566 blocked its path. Exhibit "10-a-2" US embassy spokesman Stanley Schrager said Chapman's father is a communications specialist. He said the shooting could be the result of an altercation on the street. 127 Finally, VICTOR VEGA, a reporter of the Manila Bulletin, identified the news account he wrote which appeared on the July 16, 1991 issue of the Bulletin, entitled: "4 MURDER SUSPECTS FALL" (Exhibit "22"). Portions of said news item were marked by the defense as follows: Exhibit "22-b" . . . He was shot to death by a group of armed men at the corner of Mahogany and Caballero Sts. in Dasmarias Village at past 4 a.m. Friday. Exhibit "22-c" The NBI sources said that jealousy sparked the slaying of Chapman who was killed in front of his friends on his way home from a party. The armed men, on board a white Lancer car, blocked the path of the victim's The NBI said Teehankee was one of four men who blocked Chapman's car on Mahogany St. in the subdivision. Exhibit "23-a-2" Witnesses said they saw Teehankee order Chapman and his two companions, Maureen Hultman and Jussi Olanileino, a Finn, to get out of their car. Exhibit "23-a-3" They identified the car used by the suspect, a silver gray Lancer with plate No. PDW 566. They added that they saw the same car in the garage of the Teehankee family. 129 On cross-examination, Vega declared that the source of his two (a) stories was the NBI and they were based on information available to the NBI at that time 130 The prosecution recalled to the stand eyewitness VICENTE MANGUBAT as its rebuttal witness. Mangubat insisted that he was able to identify accused when he saw the latter at the Makati police station. Her reiterated that the next day, Pat. Baldado of the Makati police went to his place of work in Dasmarias Village and asked him if he was sure about the identity of the gunman. He told Baldado he was positive. Baldado then said him he would no longer require him to sign the statement he prepared for him earlier. 131 LEONORA C. VALLADO, chief of the Forensic Chemistry Division of the NBI, was also presented as a prosecution rebuttal witness. She testified that extensive washing of hands or excessive perspiration can eliminate gunpowder nitrates lodged on skin pores of the hands. Continued washing with hot water can induce perspiration and remove nitrate residue embedded in the skin pores. Application of vinegar on the hand can register the same effect. 132 She testified that their practice at the NBI is to take the paraffin test on a suspect within 72 hours from the time of the alleged firing of a gun, during which time, any possible trace of nitrate may still be found. 133 She divulged that questions have been raised regarding the reliability of the paraffin test. She related that she once attended a training in Baguio City where they tried to test the accuracy of a paraffin test. In said training, two (2) NBI agents fired a .38 revolver. One of them washed his hands. They then subjected both agents to a paraffin test using diphylamine reagent. Both yielded a negative result. Thus, she opined, the result of a paraffin test should merely be taken as a corroborative evidence and evaluated together with other physical evidence. 134 The records show that the case was set for hearing on October 29, 1992 for the presentation by the defense of sur-rebuttal evidence. However, a day before the scheduled hearing, the defense filed a Constancia 135 manifesting that it shall waive its right to present sur-rebuttal evidence, the same being unneccesary. The defense, however, declared that this is without prejudice to the presentation of its evidence in the trial proper should the same be necessary. At the hearing of October 29, 1992, the defense counsels did not appear. Mercedes Benz car inside the village before the shooting. Exhibit "22-a-1" The gunmen then alighted from their car and at gunpoint ordered Chapman to alight from the car. They shot Chapman several times in the body, while his companions identified as Maureen Hultman, and Jussi Olanileino, were seriously wounded when the gunmen sprayed the car with bullets. The gunmen escaped after the shooting. Lim said he will announce later the names of the detained suspects after their initial investigation. 128 Finally, his article, entitled: "MAKATI SLAY SUSPECT IDENTIFIED" (Exhibit "23"), which appeared on the July 18, 1991 issue of the Manila Bulletin, was introduced by the defense in evidence as follows:

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The prosecution moved in open court that the main cases and the petition for bail be submitted for decision in view of the absence of defense counsels who had manifested that they would no longer present their surrebuttal evidence. The motion was granted and the parties were given ten (10) days from receipt of the Order within which to submit their simultaneous Memorandum. 136 It does not appear that the defense objected to this Order. The records show that the defense even filed a motion asking for additional time to file its Memorandum. 137 In due time, both parties submitted their respective Memorandum. On December 22, 1992, the trial court convicted accused CLAUDIO TEEHANKEE, JR. of the crimes charged. 138 The dispositive portion of the Decision reads: WHEREFORE, premises considered, the Court hereby renders judgment: (1) In criminal Case No. 91-4605, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the offense of Murder, qualified by treachery, for the fatal shooting of Roland John Chapman, and sentencing said accused to suffer imprisonment of Reclusion perpetua, and to pay the heirs of the said deceased the sum of Fifty Thousand Pesos (P50, 000.00), Philippine Currency, plus moderate or temperate and exemplary damages in the sum of Five Hundred Thousand Pesos (P500,000.00), Philippine Currency; (2) In Criminal Case No. 91-4606, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the offense of Murder, qualified by treachery, for the fatal shooting of Maureen Navarro Hultman, and sentencing him to suffer imprisonment of Reclusion Perpetua, and to pay the heirs of the said deceased the sum of Fifty Thousand Pesos (P50,000.00), Philippine Currency, plus the sums of Two Million Three Hundred Fifty Thousand Four Hundred Sixty-One Pesos and Eighty-Three Centavos (P2,350,461.83), Philippine Currency, as actual damages; Thirteen Million Pesos (P13,000,000.00), Philippine Currency, for loss of earning capacity of the said deceased; and One Million Pesos (P1,000,000.00), Philippine Currency, as moral, moderate and exemplary damages; (3) In Criminal Case No. 91-4607, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the offense of Frustrated Murder, qualified by treachery, for the shooting of Jussi Olavi Leino, and sentencing him to suffer the indeterminate penalty of eight (8) years of prision mayor, as minimum, to ten (10) years and one (1) day of prision mayor, as maximum, and to pay the said offended party the sum of Thirty Thousand Pesos (P30,000.00), Philippine Currency; plus the sum of One Hundred Eighteen Thousand Three Hundred Sixty-Nine Pesos and Eighty-Four Centavos (P118,369.84), Philippine Currency, and another sum equivalent in Philippine Pesos of U.S. $55,600.00, both as actual damages; an amount equivalent in Philippine Pesos of U.S. $40,000.00, as loss of earning capacity of said offended party; and One Million Pesos (P1,000,000.00), Philippine Currency, as moral, moderate and exemplary damages. (4) In all these three cases ordering said accused to pay all the offended parties the sum of Three Million Pesos (P3,000,000.00), Philippine Currency, as and for attorney's fees and expenses of litigation; and (5) To pay the costs in these three cases. Consequently the petition for bail is hereby denied for utter lack of merit. SO ORDERED. Accused hired a new counsel in the person of Atty. Nicanor B. Gatmaytan, Jr. He filed a Motion for New Trial, 139 alleging for the first time that the trial court erred in considering as submitted for decision not only the petition for bail but also the case on the merits. He claimed that accused's right to adduce further evidence was violated. His motion for new trial was denied. Accused interposed the present appeal.
140

III. THE PUBLICITY GIVEN THE CASE AGAINST THE APPELLANT WAS MASSIVE, OVERWHELMING, AND PREJUDICIAL AS TO EFFECTIVELY DEPRIVE THE ACCUSED OF RIGHT TO IMPARTIAL TRIAL. IV. THE LOWER COURT ERRED IN FINDING THAT THE KILLING OF CHAPMAN AND HULTMAN AND THE SHOOTING OF LEINO WAS ATTENDED BY TREACHERY. V. THE LOWER COURT ERRED IN GRANTING EXORBITANT MORAL AND EXEMPLARY DAMAGES AND LOSS OF EARNING CAPACITY. VI. THE LOWER COURT ERRED IN AWARDING ATTORNEY'S FEES OF THREE MILLION PESOS (P3,000,000.00). VII. THE LOWER COURT ERRED IN RENDERING JUDGMENT ON THE MERITS AND ON THE PETITION FOR BAIL AT THE SAME TIME WITHOUT GIVING THE ACCUSED THE OPPORTUNITY TO PRESENT ADDITIONAL EVIDENCE IN HIS DEFENSE ON THE MERITS OF THE CASE AND DENYING THE ACCUSED'S MOTION FOR NEW TRIAL. We shall discuss these alleged errors in seriatim. Appellant was convicted on the strength of the testimonies of three (3) eyewitnesses who positively identified him as the gunman. He vigorously assails his out-of-court identification by these eyewitnesses. He starts by trying to discredit the eyeball account of Jussi Leino, the lone surviving victim of the crimes at bar. Appellant urges: First, that Leino's identification of him outside an unoccupied house in Forbes Park was highly irregular. Second, that Leino saw his pictures on television and the newspapers before he identified him. Third, that Leino's interview at the hospital was never put in writing. Fourth, that the sketch of appellant based on the description given by Leino to the CIS agents was suppressed by the NBI. It is surmised that the sketch must have been among the evidence turned over to the NBI when the latter assumed jurisdiction over the investigation. Lastly, that Leino could not have remembered the face of appellant. The shooting lasted for only five (5) minutes. During that period, his gaze could not have been fixed only on the gunman's face. His senses were also dulled by the five (5) bottles of beer he imbibed that night. It is understandable for appellant to assail his out-of-court identification by the prosecution witnesses in his first assignment of error. Eyewitness identification constitutes vital evidence and, in most cases, decisive of the success or failure of the prosecution. Yet, while eyewitness identification is significant, it is not as accurate and authoritative as the scientific forms of identification evidence such as the fingerprint or DNA testing. Some authors even describe eyewitness evidence as "inherently suspect." 141 The causes of misidentification are known, thus: xxx xxx xxx Identification testimony has at least three components. First, witnessing a crime, whether as a victim or a bystander, involves perception of an event actually occurring. Second, the witness must memorize details of the event. Third, the witness must be able to recall and communicate accurately. Dangers of unreliability in eyewitness testimony arise at each of these three stages, for whenever people attempt to acquire, retain, and retrieve information accurately, they are limited by normal human fallibilities and suggestive influences. (Emphasis Supplied) 142 Out-of-court identification is conducted by the police in various ways. It is done thru show-ups where the suspect alone is brought face to face with the witness for identification. It is done thru mug shots where photographs are shown to the witness to identify the suspect. It is also done thru lineups where a witness identifies the suspect from a group of persons lined up for the purpose. Since corruption of out-of-court identification contaminates the integrity of in-court identification during the trial of the case, courts have fashioned out rules to assure its fairness and its compliance with the requirements of constitutional due process. In resolving the admissibility of and relying on out-of-court identification of

He contends that:

I. THE LOWER COURT ERRED IN FINDING THAT THE ACCUSED HAD BEEN POSITIVELY IDENTIFIED BY JUSSI LEINO, CADENAS AND MANGUBAT AS THE ONE WHO SHOT HIM, ROLAND CHAPMAN AND MAUREEN NAVARRO HULTMAN. II. THE PROSECUTION HAS FAILED TO ESTABLISH THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT.

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suspects, courts have adopted the totality of circumstances test where they consider the following factors, viz: (1) the witness' opportunity to view the criminal at the time of the crime; (2) the witness' degree of attention at that time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and, (6) the suggestiveness of the identification procedure. 143 Using the totality of circumstances test, we hold that the alleged irregularities cited by appellant did not result in his misidentification nor was he denied due process. There is nothing wrong in Leino's identification of appellant in an unoccupied house in Forbes Park. The records reveal that this mode was resorted to by the authorities for security reasons. 144 The need for security even compelled that Leino be fetched and escorted from his house in Forbes Park by U.S. embassy security officials and brought to the house where he was to make the identification. The Leinos refused to have the identification at the NBI office as it was cramped with people and with high security risk. 145 Leino's fear for his safety was not irrational. He and his companions had been shot in cold blood in one of the exclusive, supposedly safe subdivisions in the metropolis. Atty. Salvador Ranin, Chief of the Special Operations Group of the NBI, correctly testified that there is no hard and fast rule as to the place where suspects are identified by witnesses. Identification may be done in open field. It is often done in hospitals while the crime and the criminal are still fresh in the mind of the victim. 146 Appellant cannot also gripe that Leino saw his pictures and heard radio and TV accounts of the shooting before he personally identified him. Indeed, the records show that on July 15, 1991, while Leino was still in the hospital, he was shown three (3) pictures of different men by the investigators. He identified appellant as the gunman from these pictures. He, however, categorically stated that, before the mug shot identification, he has not seen any picture of appellant or read any report relative to the shooting incident. 147 The burden is on appellant to prove that his mug shot identification was unduly suggestive. Failing proof of impermissible suggestiveness, he cannot complain about the admission of his out-ofcourt identification by Leino. We have no reason to doubt the correctness of appellant's identification by Leino. The scene of the crime was well-lighted by a Meralco lamp post. Appellant was merely 2-3 meters away when he shot Leino. The incident happened for a full five (5) minutes. Leino had no ill-motive to falsely testify against appellant. His testimony at the trial was straightforward. He was unshaken by the brutal cross-examination of the defense counsels. He never wavered in his identification of appellant. When asked how sure he was that appellant was responsible for the crime, he confidently replied: "I'm very sure. It could not have been somebody else." 148 Appellant cannot likewise capitalize on the failure of the investigators to reduce to a sworn statement the information revealed by Leino during his hospital interviews. It was sufficiently established that Leino's extensive injuries, especially the injury to his tongue, limited his mobility. The day he identified appellant in the line-up, he was still physically unable to speak. He was being fed through a tube inserted in his throat. 149 There is also no rule of evidence which requires the rejection of the testimony of a witness whose statement has not been priorly reduced to writing. Reliance by appellant on the case of People v. Alindog 150 to erode Leino's credibility is misplaced. In Alindog, accused was acquitted not solely on the basis of delay in taking his statement, but mainly on the finding that the prosecution evidence was, at best, circumstancial and "suspiciosly short in important details," there being no investigation whatsoever conducted by the police. We also reject appellant's contention that the NBI suppressed the sketch prepared by the CIS on the basis of the description given by Leino. There is nothing on the record to show that said sketch was turned over by the CIS to the NBI which could warrant a presumption that the sketch was suppressed. The suspicion that the sketch did not resemble appellant is not evidence. It is unmitigated guesswork. We are not likewise impressed with the contention that it was incredible for Leino to have remembered appellant's face when the incident happened within a span of five (5) minutes. Five (5) minutes is not a short time for Leino to etch in his mind the picture of appellant. Experience shows that precisely because of the unusual acts of bestiality committed before their eyes, eyewitnesses, especially the victims to a crime, can remember with a high degree of reliability the identity of criminals. 151 We have ruled that the natural reaction of victims of criminal violence is to strive to see the appearance of their assailants and observe the manner the crime was committed. Most often, the face end body movements of the assailant create an impression which cannot be easily erased from their memory. 152 In the case at bar, there is absolutely no improper motive for Leino to impute a serious crime to appellant. The victims and appellant were unknown to each other before their chance encounter. If Leino identified appellant, it must be because appellant was the real culprit. Appellant also assails his identification by Cadenas. He contends that Cadenas did not witness the crime. He stresses that when the Dasmarias security force and the Makati police conducted an on-the-spot investigation on the day of the incident, neither came across Cadenas. The next day, in the afternoon of July 14, 1991, an NBI agent interviewed Cadenas and asked if he saw the incident. He merely replied: "Nakita ko pero patay na." He did not volunteer information to anyone as to what he supposedly witnessed. That same night, the NBI subpoenaed him for investigation. He went to the NBI the next morning. It was only the next day, July 16, 1991, that he gave his statement to the NBI. Cadenas allegedly told Ponferrada, his supervisor, that the NBI tortured him. We reject appellant's submission. Cadenas' initial reluctance to reveal to the authorities what he witnessed was sufficiently explained during the trial. He related that he feared for his and his family's safety. His fear was not imaginary. He saw with his own eyes the senseless violence perpetrated by appellant. He knew appellant belonged to an influential family. It was only after consistent prodding and assurance of protection from NBI officials that he agreed to cooperate with the authorities. 153 The Court has taken judicial notice of the natural reticence of witnesses to get involved in the solution of crimes considering the risk to their lives and limbs. In light of these all too real risks, the court has not considered the initial reluctance of fear-gripped witnesses to cooperate with authorities as an authorities as an indicium of credibility. 154 It will not depart from this ruling. Appellant's assertion that Cadenas was tortured by the NBI is not borne out by the records. Supposedly, Cadenas passed on to his superior, a certain Ponferrada, information about his torture. The allegation is an out and out hearsay as Ponferrada was not presented in the witness stand. Cadenas himself stoutly denied this allegation of torture. The claim of torture is also belied by the fact that Cadenas' entire family was allowed to stay with him at the NBI headquarters and likewise extended protection.
155

Appellant then discredits his identification by VICENTE MANGUBAT, citing the testimony of defense witness Pat. James Baldado of the Makati Police. Pat. Baldado testified that Mangubat failed to identify appellant as the gunman the first time he was brought to the Makati police station. Mangubat, however, belied Baldado's story. He declared he positively identified appellant as the gunman at the Makati police station. He averred that the day after he identified appellant, Pat. Baldado returned to his place of work in Dasmarias and asked him again whether appellant was the gunman. Again, he replied in the affirmative. Forthwith, Pat. Baldado said he would no longer ask him to sign a statement (Exhibit "HHH") 156 earlier prepared by Baldado. In said statement previously prepared by Baldado, Mangubat was supposed to state that appellant, whom he saw at the Makati police station, was NOT the gunman. We give more weight to the testimony of Mangubat. We find nothing in the records to suspect that Mangubat would perjure himself. The Court cannot be as generous to Pat. Baldado of the Makati Police. Mr. Hultman has proved that the Makati police, including some of its jail officials, gave appellant favored treatment while in their custody. The anomaly triggered nothing less than a congressional investigation. II We now rule on appellant's second assignment of error, i.e., that the trial court erred in not holding that the prosecution failed to establish his guilt beyond reasonable doubt. First, he claims the trial court erred in citing in its Decision his involvement in previous shooting incidents for this contravenes the rule 157 that evidence that one did or omitted to do a certain thing at one time is not admissible to prove that he did or omitted to do the same or similar thing at another time. Second, the NBI failed to conduct an examination to compare the bullets fired from the gun at the scene of the crime with the bullets recovered from the body of Chapman. Third, the prosecution eyewitnesses described the gunman's car as white, but the trial court found it to be silver mettalic gray. Fourth, appellant could not have been the gunman for Mangubat, in his statement dated July 15, 1991, said that he overheard the victim Maureen Hultman plead to the gunman, thus: "Please, don't shoot me and don't kill me. I promise Mommy, Daddy." Appellant also contends that a maid in a house near the scene of the crime told Makati police Alberto Fernandez that she heard Maureen say: "Daddy don't shoot. Don't." Fifth, the NBI towed accused's car from Dasmarias Village to the NBI office which proved that the same was not in good running condition. Lastly, the result of the paraffin test conducted

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on appellant showed he was negative of nitrates. Appellant points to other possible suspects, viz:. ANDERS HULTMAN, since one of the eyewitnesses was quoted in the newspapers as having overheard Maureen plead to the gunman: "Huwag, Daddy."; and, (b) JOSE MONTAO, another resident of Dasmarias Village, who had a white Lancer car, also bearing license plate number 566. We reject appellant's thesis as bereft of merit. Appellant cannot hope to exculpate himself simply because the trial judge violated the rule on res inter alios acta when he considered his involvement in previous shooting incidents. This stance is a specie of a mid-1800 rule known as the English Exchequer Rule pursuant to which "a trial court's error as to the admission of evidence was presumed to have caused prejudice and therefore, almost automatically required a new trial." 158 The Exchequer rule has long been laid to rest for even English appellate courts now disregard an error in the admission of evidence "unless in its opinion, some substantial wrong or miscarriage (of justice) has been occasioned." 159 American courts adopted this approach especially after the enactment of a 1915 federal statute which required a federal appellate court to "give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties." 160 We have likewise followed the harmless error rule in our jurisdiction. In dealing with evidence improperly admitted in trial, we examine its damaging quality and its impact to the substantive rights of the litigant . If the impact is slight and insignificant, we disregard the error as it will not overcome the weight of the properly admitted evidence against the prejudiced party. 161 In the case at bar, the reference by the trial judge to reports about the troublesome character of appellant is a harmless error. The reference is not the linchpin of the inculpatory evidence appreciated by the trial judge in convicting appellant. As aforestated, the appellant was convicted mainly because of his identification by three (3) eyewitnesses with high credibility. The NBI may have also failed to compare the bullets fired from the fatal gun with the bullets found at the scene of the crime. The omission, however, cannot exculpate appellant. The omitted comparison cannot nullify the evidentiary value of the positive identification of appellant. There is also little to the contention of appellant that his Lancer car was not in running condition. Allegedly, this was vicariously proved when the NBI towed his car from Dasmarias Village where it was parked to the NBI office. Again, the argument is negated by the records which show that said car was towed because the NBI could not get its ignition key which was then in the possession of appellant. Clearly, the car was towed not because it was not in running condition. Even appellant's evidence show that said car could run. After its repairs, appellant's son, Claudio Teehankee III, drove it from the repair shop in Banawe, Quezon City to Dasmarias Village, in Makati, where it was parked. 162 Nor are we impressed by the alleged discrepancies in the eyewitnesses' description of the color of the gunman's car. Leino described the car as light-colored; Florece said the car was somewhat white ("medyo puti"); 163 Mangubat declared the car was white; 164 and Cadenas testified it was silver metallic gray. 165 These alleged discrepancies amount to no more than shades of differences and are not meaningful, referring as they do to colors white, somewhat white and silver metallic gray. Considering the speed and shocking nature of the incident which happened before the break of dawn, these slight discrepancies in the description of the car do not make the prosecution eyewitnesses unworthy of credence. Appellant's attempt to pin the crimes at bar on Anders Hultman, the adoptive father of Maureen Hultman, deserves scant consideration. Appellant cites a newspaper item 166 where Maureen was allegedly overheard as saying to the gunman: "Huwag, Daddy. Huwag, Daddy." The evidence on record, however, demonstrates that Anders Hultman could not have been the gunman. It was clearly established that Maureen could not have uttered said statement for two (2) reasons: Maureen did not speak Tagalog, and she addressed Anders Hultman as "Papa," not "Daddy." 167 Moreover, Leino outrightly dismissed this suspicion. While still in the hospital and when informed that the Makati police were looking into this possibility, Leino flatly stated that Anders Hultman was NOT the gunman. 168 Leino is a reliable witness. Appellant cannot also capitalize on the paraffin test showing he was negative of nitrates. Scientific experts concur in the view that the paraffin test has ". . . proved extremely unreliable in use. The only thing that it can definitely establish is the presence or absence of nitrates or nitrites on the hand. It cannot be established from this test alone that the source of the nitrates or nitrites was the discharge of a firearm. The person may have handled one or more of a number of substances which give the same positive reaction for nitrates or nitrites, such as explosives, fireworks, fertilizers, pharmaceuticals, and leguminous plants such as peas, beans, and alfalfa. A person who uses tobacco may also have nitrate or nitrite deposits on his hands since these substances are present in the products of combustion of tobacco." 169 In numerous rulings, we have also recognized several factors which may bring about the absence of gunpowder nitrates on the hands of a gunman, viz: when the assailant washes his hands after firing the gun, wears gloves at the time of the shooting, or if the direction of a strong wind is against the gunman at the time of firing. 170 In the case at bar, NBI Forensic Chemist, Leonora Vallado, testified and confirmed that excessive perspiration or washing of hands with the use of warm water or vinegar may also remove gunpowder nitrates on the skin. She likewise opined that the conduct of the paraffin test after more than seventy-two (72) hours from the time of the shooting may not lead to a reliable result for, by such time, the nitrates could have already been removed by washing or perspiration. 171 In the Report 172 on the paraffin test conducted on appellant, Forensic Chemist Elizabeth Ayonon noted that when appellant was tested for the presence of nitrates, more than 72 hours has already lapsed from the time of the alleged shooting. III In his third assigned error, appellant blames the press for his conviction as he contends that the publicity given to his case impaired his right to an impartial trial. He postulates there was pressure on the trial judge for highranking government officials avidly followed the developments in the case (as no less than Vice-President Joseph Estrada and then Department of Justice Secretary Franklin Drilon attended some of the hearings and, President Corazon Aquino even visited victim Maureen Hultman while she was still confined at the hospital). He submits that the trial judge failed to protect him from prejudicial publicity and disruptive influences which attended the prosecution of the cases. He claims there were placards displayed during the hearing of the cases, spectators inside the courtroom clapped their hands and converted the proceedings into a carnival. In another instance, he was allegedly given the "finger sign" by several young people while he was leaving the courtroom on his way back to his cell. We cannot sustain appellant's claim that he was denied the right to impartial trial due to prejudicial publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible reporting enhances an accused's right to a fair trial for, as well pointed out, "a responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field . . . The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting in the police, prosecutors, and judicial processes to extensive public scrutiny and criticism." 173 Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible to seal the minds of members of the bench from pretrial and other off-court publicity of sensational criminal cases. The state of the art of our communication system brings news as they happen straight to our breakfast tables and right to our bedrooms. These news form part of our everyday menu of the facts and fictions of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch with the world. We have not installed the jury system whose members are overly protected from publicity lest they lose their impartiality. Criticisms against the jury system are mounting and Mark Twain's wit and wisdom put them all in better perspective when he observed: "When a gentleman of high social standing, intelligence, and probity swears that testimony given under the same oath will outweigh with him, street talk and newspaper reports based upon mere hearsay, he is worth a hundred jurymen who will swear to their own ignorance and stupidity . . . Why could not the jury law be so altered as to give men of brains and honesty an equal chance with fools and miscreants?" 174 Our judges are learned in the law and trained to disregard off-court evidence and on-camera performances of parties to a litigation. Their mere exposure to publications and publicity stunts does not per se fatally infect their impartiality. At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v. Alejandro, et a1., 175 we rejected this standard of possibility of prejudice and adopted the test of actual prejudice as we ruled that to warrant a finding of prejudicial

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publicity, there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, the records do not show that the trial judge developed actual bias against appellant as a consequence of the extensive media coverage of the pre-trial and trial of his case. The totality of circumstances of the case does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity which is incapable of change even by evidence presented during the trial. Appellant has the burden to prove this actual bias and he has not discharged the burden. We have minutely examined the transcripts of the proceedings and they do not disclose that the trial judge allowed the proceedings to turn into a carnival. Nor did he consent to or condone any manifestation of unruly or improper behavior or conduct inside the courtroom during the trial of the case at bar. The transcripts reveal the following: 1. At the August 14, 1991 hearing, the defense counsel called the attention of the court to the visible display of a placard inside the courtroom. Acting on the manifestation, the trial judge immediately directed that the placard be hidden. Only then did he order the start of the arraignment of accused. 176 On the same hearing, the defense counsel asked for the exclusion of the media after they had enough opportunity to take pictures. The court granted defense's request, noting that the courtroom was also too crowded. 177 2. During the testimony of Domingo Florece, an argument ensued between the defense lawyer and the fiscal. When part of the audience clapped their hands, the defense counsel invoked Rule 119, Section 13 of the Rules of Court and moved for the exclusion of the public. Assistant Prosecutor Villa-Ignacio objected on the ground that the public was not unruly. The trial judge noted that there were yet no guidelines drafted by the Supreme Court regarding media coverage of the trial proceedings. 178 Collaborating defense counsel, Atty. Malvar, complained that the outpouring of sympathy by spectators inside the courtroom has turned the proceedings into a carnival. He also manifested that he personally saw that when accused was being brought back to his cell from the courtroom, a group of young people were pointing dirty fingers at accused in full view of policemen. Forthwith, the trial judge declared that he could not be dissuaded by public sentiments. He noted that the clapping of hands by the public was just a reaction at the spur of the moment. He then admonished the audience not to repeat it. 179 3. At the hearing of July 14, 1992, the parties again argued on the coverage of the trial by the press. The defense alleged that the media coverage will constitute mistrial and deny accused's constitutional right to due process. It invoked the provision in the Rules of Court which allows the accused to exclude everybody in the courtroom, except the organic personnel. The prosecutor, however, argued that exclusion of the public can be ordered only in prosecution of private offenses and does not apply to murder cases. He added that the public is entitled to observe and witness trial of public offenses. He quoted the U.S. case of Sheppard v. Maxwell 180 where it was held: "A responsible press is always regarded as the handmaiden of effective judicial administration especially in the criminal field. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, the prosecutors and judicial processes to extensive public scrutiny and criticism. What transpires in the courtrooms public property." The trial judge then ruled that the media should be given a chance to cover the proceedings before the trial proper but, thereafter, he prohibited them from taking pictures during the trial. They were allowed to remain inside the courtroom but were ordered to desist from taking live coverage of the proceedings. 181 4. At the August 14, 1992 hearing, before the hearing began, the trial judge gave the media two (2) minutes to take video coverage and no more. Trial then ensued. 182 5. At the September 8, 1992 hearing, the trial judge again gave the media two (2) minutes to take pictures before the trial proper. Afterwards, the reporters were duly admonished to remain silent, to quietly observe the proceedings and just take down notes. 183 6 On September 10, 1992 before the start of the afternoon session, the judge admonished the media people present in the courtroom to stop taking pictures. 184 Parenthetically, appellant should be the last person to complain against the press for prejudicial coverage of his trial. The records reveal he presented in court no less than seven (7) newspaper reporters and relied heavily on selected portions of their reports for his defense. The defense's documentary evidence consists mostly of newspaper clippings relative to the investigation of the case at bar and which appeared to cast doubt on his guilt. The press cannot be fair and unfair to appellant at the same time. Finally, it would not be amiss to stress that on May 29, 1992, the trial judge voluntarily inhibited himself from further hearing the case at bar to assuage appellant's suspicion of bias and partiality. 185 However, upon elevation of the trial judge's voluntary Order of Inhibition to this Court, we directed the trial judge to proceed with the trial to speed up the administration of justice. 186 We found nothing in the conduct of the proceedings to stir any suspicion of partiality against the trial judge. IV In his fourth assigned error, appellant claims that treachery was not present in the killing of Hultman and Chapman, and the wounding of Leino for it was not shown that the gunman consciously and deliberately adopted particular means, methods and forms in the execution of the crime. Appellant asserts that mere suddenness of attack does not prove treachery. The three (3) Informations charged appellant with having committed the crimes at bar with treachery and evident premeditation. Evident premeditation was correctly ruled out by the trial court for, admittedly, the shooting incident was merely a casual encounter or a chance meeting on the street since the victims were unknown to appellant and vice-versa It, however, appreciated the presence of the qualifying circumstance of treachery. We hold that the prosecution failed to prove treachery in the killing of Chapman. Prosecution witness Leino established the sequence of events leading to the shooting. He testified that for no apparent reason, appellant suddenly alighted from his car and accosted him and Maureen Hultman who were then walking along the sidewalk. Appellant questioned who they were and demanded for an I.D. After Leino handed him his I.D., Chapman appeared from behind Leino and asked what was going on. Chapman then stepped down on the sidewalk and inquired from appellant what was wrong. There and then, appellant pushed Chapman, pulled a gun from inside his shirt, and shot him. The gun attack was unexpected. "Why did you shoot me?" was all Chapman could utter. Concededly, the shooting of Chapman was carried out swiftly and left him with no chance to defend himself. Even then, there is no evidence on record to prove that appellant consciously and deliberately adopted his mode of attack to insure the accomplishment of his criminal design without risk to himself. It appears to us that appellant acted on the spur of the moment. Their meeting was by chance. They were strangers to each other. The time between the initial encounter and the shooting was short and unbroken. The shooting of Chapman was thus the result of a rash and impetuous impulse on the part of appellant rather than a deliberate act of will. We have consistently ruled that mere suddenness of the attack on the victim would not, by itself, constitute treachery. 187 Hence, absent any qualifying circumstance, appellant should only be held liable for Homicide for the shooting and killing of Chapman. As to the wounding of Jussi Leino and the killing of Maureen Hultman, we hold that treachery clearly attended the commission of the crimes. The evidence shows that after shooting Chapman in cold blood, appellant ordered Leino to sit on the pavement. Maureen became hysterical and wandered to the side of appellant's car. When appellant went after her, Maureen moved around his car and tried to put some distance between them. After a minute or two, appellant got to Maureen and ordered her to sit beside Leino on the pavement. While seated, unarmed and begging for mercy, the two were gunned down by appellant. Clearly, appellant purposely placed his two victims in a completely defenseless position before shooting them. There was an appreciable lapse of time between the killing of Chapman and the shooting of Leino and Hultman a period which appellant used to prepare for a mode of attack which ensured the execution of the crime without risk to himself. Treachery was thus correctly appreciated by the trial court against appellant insofar as the killing of Hultman and the wounding of Leino are concerned. V and VI We come now to the civil liability imposed against appellant. Appellant posits that the awards of moral and exemplary damages and for loss of earning capacity of Maureen Hultman, Roland Chapman and Jussi Leino were exorbitant. He likewise claims that the trial court's award of attorney's fees was excessive.

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In its Decision, the trial court awarded to Jussi Leino end the heirs of victims Hultman and Chapman the following damages: 1. For the murder of Roland John Chapman, appellant was sentenced to pay the heirs of the deceased the sum of Fifty Thousand Pesos (P50,000.00) as indemnity for death and the sum of Five Hundred Thousand Pesos (P500,000.00) as moderate or temperate and exemplary damages. 2. For the murder of Maureen Navarro Hultman, appellant was sentenced to pay the heirs of the deceased the sum of: Fifty Thousand Pesos (P50,000.00) as indemnity for death; Two Million Three Hundred Fifty Thousand Four Hundred Sixty-One Pesos and Eighty-Three Centavos (P2,350,461.83) as actual damages; Thirteen Million Pesos (P13,000,000.00) for loss of earning capacity of deceased; and, One Million Pesos as moral, moderate and exemplary damages. 3. For the shooting of Jussi Olavi Leino, appellant was sentenced to pay: Thirty thousand pesos (P30,000.00) as indemnity for the injury; One Hundred Eighteen Thousand Three-Hundred Sixty Nine Pesos and Eighty-Four Centavos (P118,369.84) and the sum equivalent in Philippine pesos of U.S.$55,600.00, both as actual damages; an amount equivalent in Philippine pesos of U.S.$40,000.00, for loss of earning capacity of Jussi Leino; and, One Million Pesos (P1,000,000.00) as moral, moderate and exemplary damages. 4. In all three cases, appellant was also ordered to pay each of the offended parties the sum of One Million Pesos (or a total of three million pesos) for attorney's fees and expenses of litigation. 5. Costs of litigation.
188

of the death of the deceased. The amount of P3,000 referred to in the above article has already been increased by this Court first, to P6,000.00 in People v. Amansec, 80 Phil. 426, and lately to P12,000.00 in the case of People v. Pantoja, G.R. No. L-18793, promulgated October 11, 1968 190, and it must be stressed that this amount, as well as the amount of moral damages, may be adjudicated even without proof of pecuniary loss, the assessment of the moral damages being "left to the discretion of the court, according to the circumstances of each case." (Art. 2216) Exemplary damages may also be imposed as a part of this civil liability when the crime has been committed with one or more aggravating circumstances, such damages being "separate and distinct from fines and shall be paid to the offended party." (Art. 2230). Exemplary damages cannot however be recovered as a matter of right; the court will decide whether or not they should be given. (Art. 2233) In any event, save as expressly provided in connection with the indemnity for the sole fact of death (1st par., Art. 2206) and is cases wherein exemplary damages are awarded precisely because of the attendance of aggravating circumstances, (Art. 2230) ". . . damages to be adjudicated may be respectively increased or lessened according to the aggravating or mitigating circumstances," (Art. 2204) "but the party suffering the loss or injury must exercise the diligence of a good father of a family to minimize the damages resulting from the act or omission in question." (Art. 2203) "Interest as a part of the damages, may, in a proper case, be adjudicated in the discretion of the Court." (Art. 2211) As to attorneys' fees and expenses of litigation, the same may be recovered only when exemplary damages have been granted (Art. 2208, par. 1) or . . . when there is a separate civil action. Stated differently, when death occurs as a result of a crime, the heirs of the deceased are entitled to the following items of damages: 1. As indemnity for the death of the victim of the offense P12,000.00 (now P50,000.00), without the need of any evidence or proof of damages, and even though there may have been mitigating circumstances attending the commission of the offense. 2. As indemnity for loss of earning capacity of the deceased an amount to be fixed by the court according to the circumstances of the deceased related to his actual income at the time of death and his probable life expectancy, the said indemnity to be assessed and awarded by the court as a matter of duty, unless the deceased had no earning capacity at said time on account of permanent disability not caused by the accused. If the deceased was obliged to give support, under Art. 291, Civil Code, the recipient who is not an heir, may demand support from the accused for not more than five years, the exact duration to be fixed by the court. 3. As moral damages for mental anguish, an amount to be fixed by the court. This may be recovered even by the illegitimate descendants and ascendants of the deceased. 4. As exemplary damages, when the crime is attended by one or more aggravating circumstances, an amount to be fixed in the discretion of the court, the same to be considered separate from fines. 5. As attorney's fees and expenses of litigation, the actual amount thereof, (but only when a separate civil action to recover civil liability has been filed or when exemplary damages are awarded). 6. Interests in the proper cases. 7. It must be emphasized that the indemnities for loss of earning capacity of the deceased and for moral damages are recoverable separately from and in addition to the fixed sum of P12,000.00 (now P50,000.00) corresponding to the indemnity for the sole fact of death, and that these damages may, however, be respectively increased or lessened according to the mitigating or aggravating circumstances, except items 1 and 4 above, for obvious reasons. 191 We shall first review the damages awarded to the heirs of ROLAND JOHN CHAPMAN in light of the law and the case law. Appellant claims that the award of Five Hundred Thousand (P500,000.00) pesos as moderate or temperate and exemplary damages to the heirs of Roland John Chapman was baseless.

The early case of Heirs of Raymundo Castro v. Bustos 189 discussed in detail the matter of damages recoverable in case of death arising from a felony, thus: When the commission of a crime results in death, the civil obligations arising therefrom are governed by penal laws, ". . . subject to the provisions of Art. 2177, and of the pertinent provisions of Chapter 2, Preliminary Title on Human Relations, and of Title XVIII of this Book (Book IV) regulating damages." (Art. 1161, Civil Code) Thus, "every person criminally liable for a felony is also civilly liable." (Art. 100, Revised Penal Code). This civil liability, in case the felony involves death, includes indemnification for consequential damages (Art. 104, id.) and said consequential damages in turn include ". . . those suffered by his family or by a third person by reason of the crime." (Art. 107, id.) Since these provisions are subject, however, as above indicated, to certain provisions of the Civil Code, (w)e will now turn to said provisions. The general rule in the Civil Code is that: In crimes and quasi-delicts, the defendant shall be liable for all damages which are the natural and probable consequences of the act or omission complained of. It is not necessary that such damages have been foreseen or could have reasonably foreseen by the defendant. (Art. 2202) When, however, the crime committed involves death, there is Art. 2206 which provides thus: The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand pesos even though there may have been mitigating circumstances. In addition: (1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court, unless the deceased on account of permanent physical disability not caused by the defendant, had no earning capacity at the time of his death; (2) If the deceased was obliged to give support according to the provisions of article 291, the recipient who is not an heir called to the descendant's inheritance by law of testate or intestate succession, may demand support from the person causing the death, for a period not exceeding five years, the exact duration to be fixed by the court; (3) The spouse, legitimate or illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason

29
We start with the observation that the trial court should not have lumped together the awards for moderate or temperate and exemplary damages at Five Hundred Thousand Pesos (P500,000.00), without specifying the particular amount which corresponds to each, as they are of a different kind. We shall, however, consider their propriety and reasonableness. The amount of Five Hundred Thousand (P500,000.00) pesos cannot be given as temperate or moderate damages for the records do not show any basis for sustaining the award. Nor can it be given as exemplary damages. The killing of Chapman was not attended by either evident premeditation or treachery. Be that as it may, the award can be considered as one for moral damages under Article 2206 (3) of the New Civil Code. 192 It states: Art. 2206. The amount of damages for death caused by a crime . . . shall be at least (fifty thousand pesos, under current jurisprudence) . . . In addition: xxx xxx xxx (3) The spouse, legitimate or illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased. Moreover, considering the shocking and senseless aggression committed by appellant, we increase the amount of moral damages to One Million (P1,000,000.00) pesos for the death of Chapman. We next rule on the legality of damages awarded to the heirs of MAUREEN NAVARRO HULTMAN. Appellant argues that the damages for the death of Maureen should be awarded to her mother, Vivian Hultman, and her natural father. He contends that under Article 352 of the New Civil Code, Anders Hultman as adoptive father of Maureen, is not entitled to said award. Only the parents by nature of Maureen should inherit from her. We reject the argument. Under the Family Code which was already in effect at the time of Maureen's death, Anders Hultman, as adoptive father, is entitled to the award made by the trial court. Article 190 of the Family Code provides: xxx xxx xxx (2) When the parents, legitimate or illegitimate, or the legitimate descendants of the adopted concur with the adopters, they shall divide the entire estate, one-half to be inherited by the parents or ascendants and the other half, by the adopters; xxx xxx xxx (5) When only the adopters survive, they shall inherit the entire estate; It does not appear on the records whether Maureen was survived by her natural father. During the trial of these cases, only Vivian and Anders Hultman testified on their claim of damages. Hence, we find that the award of damages in their favor has sufficient factual and legal basis. Appellant also urges that the award to the heirs of Maureen Hultman of One Million Pesos (P1,000,000.00) as moral and exemplary damages is unjustified or, at the very least, exorbitant and should be reduced. We hold that the award of One Million (P1,000,000.00) pesos is amply justified by the circumstances. The records reveal that Maureen recovered between life and death for ninety-seven (97) days. Her family experienced the peaks and valleys of unspeakable suffering. During that time, she underwent brain surgery three (3) times. Her condition was never stable and remained critical. It was always touch and go with death. She could not be left alone at the hospital. Her parents had to be perpetually by her side at least six (6) to seven (7) hours daily. After the shooting, their siblings had to be sent back to Sweden for their safety. Left unattended, her family's business took a downspin. Soon, her family's assets were depleted, then wiped out. A total of twenty-three (23) doctors attended to her and their bills ballooned without abatement. They were forced to rely on the goodness of the gracious. Her family started receiving contributions from other people to defray the medical expenses and hospital bills. 193 Maureen never regained consciousness until her demise on October 17, 1991, at the tender age of seventeen. Under the foregoing circumstances, we thus find the award of One Million Pesos (P1,000,000.00) as moral damages to be reasonable. Moreover, we find that the grant of exemplary damages is called for by the circumstances of the case. Under Article 2229 of the Civil Code, 194 in addition to the award of moral damages, exemplary or corrective damages may be adjudged in order to deter the commission of similar acts in the future. The award for exemplary damages is designed to permit the courts to mould behavior that has socially deleterious consequences. Its imposition is required by public policy to suppress the wanton acts of an offender. In the case at bar, appellant's unprovoked aggression snuffed the life of Maureen Hultman, a girl in the prime of her youth. Hultman and her companions were gunned down by appellant in cold-blood, for no apparent reason. Appellant's vicious criminality led to the suffering of his victims and their families. Considering our soaring crime rate, the imposition of exemplary damages against appellant to deter others from taking the lives of people without any sense of sin is proper. Moreover, since the killing of Hultman was attended by treachery and pursuant to Article 2229 of the new Civil Code, 195 we impose an award of Two Million (P2,000,000.00) pesos as exemplary damages against appellant for the death of Maureen Hultman. We now review the award of One Million Pesos (P1,000,000.00) as moral, moderate and exemplary damages to victim JUSSI LEINO. From the record, it is incontrovertible that Leino likewise suffered extensive injuries as a result of the shooting. His upper jaw bone was shattered. He would need a bone transplant operation to restore it. His tongue was also injured. He partially lost his sense of taste for his taste buds were also affected. When he was discharged from the hospital, he had difficulty in speaking and had to be fed through a tube running down his nose. He lost eight of his teeth. The roots of his teeth were cut off and the raw nerves were exposed. But all these speak only of his physical injuries and suffering. More devastating was the emotional strain that distressed Leino. His parents were in Europe for a vacation at the time of the shooting. Only a neighbor attended to him at the hospital. It took two (2) days for his father to come and comfort by his bedside. Leino had trouble sleeping in peace at night. The traumatic event woke him up in the middle of the night. Black memories of the incident kept coming back to mind. 196 Understably, the ill-effects of the incident spilled over his family. Seppo Leino, Jussi's father, was tortured by thoughts of insecurity. He had to relocate his entire family to Europe where he felt they would be safe. 197 Under the foregoing circumstances, we find that an award of One Million (P1,000,000.00) pesos to Jussi Leino as indemnity for moral damages is justified and reasonable. As in the case of Hultman, since the shooting of Leino was committed with treachery and pursuant to Article 2229 of the New Civil Code, 198 appellant is additionally adjudged liable for the payment to Leino of Two Million (P2,000,000.00) pesos as exemplary damages. We come now to the trial court's monetary award to compensate the LOSS OF EARNING CAPACITY OF VICTIMS JUSSI LEINO and MAUREEN HULTMAN. To be compensated for loss of earning capacity, it is not necessary that the victim, at the time of injury or death, is gainfully employed. Compensation of this nature is awarded not for loss of earnings but for loss of capacity to earn money. In Cariaga v. Laguna Tayabas Bus Company, 199 we awarded to the heirs of Cariaga a sum representing loss of his earning capacity although he was still a medical student at the time of injury. However, the award was not without basis for Cariaga was then a fourth year medical student at a reputable school; his scholastic record, which was presented at the trial, justified an assumption that he would have been able to finish his course and pass the board in due time; and a doctor, presented as witness for the appellee, testified as to the amount of income Cariaga would have earned had he finished his medical studies. In the case at bar, the trial court awarded the amount, equivalent in Philippine pesos, of Forty capacity of JUSSI LEINO. We agree with appellant that this amount is highly speculative and should be denied considering that Leino had only earned a high school degree at the International School, Manila, in 1989. He went back to Finland to serve the military and has just arrived in Manila in February 1991 to pursue his ambition to become a pilot. At the time of the shooting on July 13, 1991, he has just enrolled at the Manila Aero Club to become a professional pilot. He was thus only on his first year, first semester, in said school and was practically, a mere high school graduate. Under the foregoing circumstances, we find the records wanting with substantial evidence to

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justify a reasonable assumption that Leino would have been able to finish his studies at the Manila Aero Club and ultimately become a professional pilot. We now pass upon the propriety of the award of Thirteen Million Pesos (P13,000,000.00) for loss of earning capacity of deceased MAUREEN HULTMAN. We find that the award is not supported by the records. In adjudging an award for Maureen's loss of earning capacity, the trial court incorrectly used the monthly salary of a secretary working in Sweden, computed at two thousand dollars ($2,000.00) a month, as per the estimate given by Anders Hultman. Nowhere in the records does it appear that, at the time of her death, Maureen had acquired the skills needed for a secretarial job or that she intended to take a secretarial course in preparation for such job in Sweden. Anders Hultman himself testified that there was uncertainty as to Maureen's future career path, thus: ATTY. VINLUAN: Q Mr. Witness, if Maureen would not been ( sic) shot and she continued her studies, what professional career would she ( sic) like to pursue considering her interests and inclinations? WITNESS: A That is very difficult to say. She has just turned 17 and our projection is that, certainly she would have been an artist in the creative side. She would have become an actress or a movie producer or probably she would have been a college graduate. ATTY. VINLUAN: Q But if you would just say based on the salary of a secretary in Sweden, how much would she have much earned? A. Not less than Two Thousand Dollars a month.
200

(68) documentary exhibits were presented by the prosecution. Incidents related to the trial of the cases came up to this Court for review at least twice during the pendency of the trial. 206 Given these circumstances and the evident effort exerted by the private prosecutor throughout the trial, the trial court's award of a total of Three Million (P3,000,000.00) pesos as attorney's fees and litigation expenses appears just and reasonable. VII In his last assigned error, appellant urges that the hearings conducted on the cases, where no less than forty-one (41) witnesses were presented by the parties, 207 were merely hearings on the petition for bail concerning the murder charge for the killing of Roland Chapman, and not a trial on the merits of all three (3) cases. Appellant insists that after the termination of the hearing, he still had the right to adduce evidence at the trial proper. He claims he was denied due process when the trial court considered all the cases submitted for decision after the defense waived its right to present its surrebuttal evidence. Appellant's position is untenable. This issue was resolved at the very first hearing of the cases on August 9, 1991. The incident then pending was appellant's petition for bail for the murder of Chapman. It will be remembered that, initially, there was only one murder charge against appellant since Maureen Hultman succumbed to death during the course of the proceedings on October 17, 1991. Thus, at the initial hearing on August 9, 1991, the incident for resolution was appellant's petition for bail. The prosecution sought to present the surviving victim, Jussi Leino, to testify on all three (3) charges to obviate delay and inconvenience since all three (3) charges involved one continuing incident. Appellant, through counsel, objected to the testimony of Leino insofar as the two (2) frustrated murder charges (with respect to the wounding of Leino and Hultman) were concerned. He argued that since the pending incident was the petition for bail with respect to the killing of Chapman, any testimony relative to the two (2) other charges in which bail were recommended was irrelevant. After arguments, the defense suggested that if the prosecution would present Leino to testify on all three (3) charges, it should wait until after accused's arraingment on August 14, 1991. 208 The prosecution agreed on the condition that there shall be trial on the merits and, at the same time, hearing on the petition for bail. Defense counsel agreed. 209 As agreed upon, accused was arraigned and the prosecution presented Jussi Leino as its first witness to testify on all three (3) cases. No objection was made by the defense. 210 Subsequent proceedings likewise disprove appellant's insistence that the hearings conducted by the trial court were limited to the petition for bail, viz: 1. The prosecution presented all their witnesses and documentary evidence relative to the shooting incident, including evidence in support of the claim for damages. These witnesses were extensively cross-examined by the defense counsels. The defense never objected that evidence on damages would be unnecessary if its intention was really to limit presentation of evidence to appellant's petition for bail. 2. After the prosecution and the defense rested their cases, the trial court issued an Order 211 directing the parties to submit their Memorandum, after which "the main case as well as the petition for bail are respectively submitted for Decision and Resolution." After receipt of this Order, the defense counsel filed two (2) motions for extension of time to file the defense Memorandum. In both Motions, the defense did not object to the trial court's Order submitting for decision the main case and the petition for bail. Neither did it move for a reconsideration of this Order and notify the court that it still had witnesses to present. 3. In compliance with said Order, appellant's counsel, Atty. Rodolfo Jimenez, filed a Memorandum and Supplemental Memorandum praying for accused's acquittal. This is inconsistent with the defense's position that the hearing conducted was only on the petition for bail. If the defense insist that what was submitted for decision was only his petition for bail, he would have only prayed that he be granted bail. 4. Upon receipt of the notice of promulgation of judgment from the trial court, the defense did not interpose any objection to the intended promulgation. In fact, the defense attended the promulgation of the Decision and manifested that they were ready therefor.

Clearly, there is no factual basis for the award of thirteen million (P13,000,000.00) pesos to the heirs of Maureen far loss of earning capacity as a probable secretary in Sweden. In any event, what was proved on record is that after graduating from high school, Maureen took up a short personality development course at the John Roberts Powers. Maureen was employed at the John Roberts Powers at the time of her death. It was her first job. In fact, she had just received her first salary, for which reason she went out with her friends to celebrate on that fateful day. However, neither the nature of her work nor her salary in said company was disclosed at the trial. Thus, to compute the award for Maureen's loss of earning capacity, we are constrained to use the minimum wage prevailing as of the date of her death (October 17, 1991), i.e., one hundred eighteen pesos (P118.00). 201 Allowing for reasonable and necessary expenses in the amount of P19,800.00, her net income per annum would amount to P26,859.17. 202 Hence, using the formula repeatedly adopted by this Court: 203 (2/3 x [80 age of victim at time of death]) x a reasonable portion of the net income which would have been received by the heirs as support, 204 we fix the award for loss of earning as capacity of deceased Maureen Hultman at Five Hundred SixtyFour Thousand Forty-Two Pesos and Fifty-Seven Centavos (P564,042.57). It also bears emphasis that in the computation of the award for loss of earning capacity of the deceased, the life expectancy of the deceased's heirs is not factored in. The rule is well-settled that the award of damages for death is computed on the basis of the life expectancy of the deceased, and not the beneficiary. 205 Lastly, appellant seeks a reduction of the award of attorney's fees in the amount of Three Million Pesos (P3,000,000.00), claiming that the same is exorbitant. We disagree. The three (3) private complainants were represented by the ACCRA law firm, with Atty. Rogelio Vinluan as lead counsel. They agreed to pay the amount of One Million (P1,000,000.00) pesos each as attorney's fees and for litigation expenses. The three criminal cases were consolidated. A continuous trial was conducted, with some hearings having both morning and afternoon sessions. The trial lasted for almost one and a half years. More than forty (40) witnesses testified during the hearings. Several pleadings were prepared and filed. A total of sixty-eight

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All these clearly show that the merits of the cases and the petition for bail were heard simultaneously and appellant acquiesced thereto. Moreover, appellant's right to present additional evidence was not abridged by the trial court. On the contrary, the records disclose that the trial court afforded the defense fair opportunity to adduce its evidence. It took the defense almost one and a half years to submit its evidence. The defense presented more than twenty (20) witnesses and several documentary evidence. It was only after the trial court rendered a decision against appellant that he filed a motion for new trial, 212 through his new counsel, Atty. Gatmaytan, Jr. For the first time, he alleged that the joint decision of the cases, both on the merits and on the petition for bail, was irregular for he was not given a chance to present further evidence to corroborate his alibi. We note that in his motion for new trial, 213 appellant did not even identify his alleged additional witnesses and the substance of their testimonies. Nor was it shown that he could not have produced these evidence at the trial with reasonable diligence. Appellant's motion was a patent ploy to delay the decision on his cases. His motion was properly denied by the trial court. IN VIEW WHEREOF, we hereby AFFIRM WITH MODIFICATIONS the Decision of the trial court, dated December 22, 1992, thus: (1) In Criminal Case No. 91-4605, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the crime of Homicide for the shooting of Roland John Chapman, and sentencing said accused to suffer an indeterminate penalty of imprisonment of eight (8) years and one (1) day of prision mayor as minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as maximum, and to pay the heirs of the said deceased the following amounts: Fifty Thousand (P50,000.00) pesos as indemnity for the victim's death; and, One Million (P1,000,000.00) pesos as moral damages. (2) In Criminal Case No. 91-4606, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the crime of Murder, qualified by treachery, for the shooting of Maureen Navarro Hultman, and sentencing him to suffer imprisonment of reclusion perpetua, and to pay the heirs of the said deceased the following amounts: Fifty Thousand (P50,000.00) pesos as indemnity for her death; Two Million Three Hundred Fifty Thousand Four Hundred Sixty-One Pesos and Eighty-Three Centavos (P2,350,461.83) as actual damages; Five Hundred Sixty-Four Thousand Fourty-Two Pesos and Fifty-Seven Centavos (P564,042.57) for loss of earning capacity of said deceased; One Million Pesos (P1,000,000.00) as moral damages; and Two Million (P2,000,000.00) pesos as exemplary damages. (3) In Criminal Case No. 91-4807, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the crime of Frustrated Murder, qualified by treachery, for the shooting of Jussi Olavi Leino, and sentencing him to suffer the indeterminate penalty of eight (8) years of prision mayor as minimum, to fourteen (14) years and eight (8) months of reclusion temporal as maximum, and to pay the said offended party the following amounts: (P30,000.00) pesos as Thirty Thousand (P30,000.00) pesos as indemnity for his injuries; One Hundred Eighteen Thousand Three Hundred Sixty-Nine pesos and Eighty-Four Centavos (P118,369.84) and equivalent in Philippine Pesos of U.S.$55,600.00, both as actual damages; One Million (P1,000,000.00) pesos as moral damages; and, Two Million (P2,000,000.00) pesos as exemplary damages. (4) In all three cases, ordering said accused to pay each of the three (3) offended parties the sum of One Million Pesos (P1,000,000.00; or a total of Three Million [P3,000,000.00] pesos] for attorney's fees and expenses of litigation; and (5) To pay the costs in all three (3) cases. SO ORDERED. Regalado, Mendoza and Francisco, JJ., concur. Narvasa, C.J., is on leave. DIGEST The facts: In 1991, Jussi Olavi Leino was taking Maureen Hultman to her home at Campanilla Street, Dasmarinas Village, Makati. Roland John Chapman went with them. When they entered the village, Maureen asked Leino to He starts by trying to discredit the eyeball account of Leino, the lone surviving victim of the crimes at bar. Appellant urges: First, that Leinos identification of him outside an unoccupied house in Forbes Park was highly irregular; Second, that Leino saw his pictures on television and the newspapers before he identified him; Third, that Leinos interview at the hospital was never put in writing; Fourth, that the sketch of appellant based on the description given by Leino to the CIS agents was stop about a block away from her house, as she wanted to walk the rest of the way for she did not want her parents to know that she was going home that late. Leino offered to walk with her while Chapman stayed in the car and listened to the radio. While Leino and Maureen were walking, a light-colored Mitsubishi boxtype Lancer car, driven by accused Claudio Teehankee, Jr., came up from behind them and stopped on the middle of the road. Accused alighted from his car, approached them, and asked: Who are you? (Show me your) I.D. When Leino handed his I.D., the accused grabbed and pocketed the I.D., without bothering to look at it. Chapman saw the incident. He stepped down on the sidewalk and asked accused: Why are you bothering us? Accused pushed Chapman, dug into his shirt, pulled out a gun and fired at him. Chapman felt his upper body, staggered for a moment, and asked: Why did you shoot me? Chapman crumpled on the sidewalk. Leino knelt beside Chapman to assist him but accused ordered him to get up and leave Chapman alone. Accused then turned his ire on Leino. He pointed gun at him and asked: Do you want a trouble? Leino said no and took a step backward. The shooting initially shocked Maureen. When she came to her senses, she became hysterical and started screaming for help. She repeatedly shouted: Oh, my God, hes got a gun. Hes gonna kill us. Will somebody help us? All the while, accused was pointing his gun to and from Leino to Maureen, warning the latter to shut up. Accused ordered Leino to sit down on the sidewalk. Leino obeyed and made no attempt to move away. Accused stood 2-3 meters away from him. Maureen continued to be hysterical. She could not stay still. She strayed to the side of accuseds car. Accused tried but failed to grab her. Maureen circled around accuseds car, trying to put some distance between them. The short chase lasted for a minute or two. Eventually, accused caught Maureen and repeatedly enjoined her to shut up and sit down beside Leino. Maureen finally sat beside Leino on the sidewalk. For a moment, the accused turned his back from the two. He faced them again and shot Leino. Leino was hit on the upper jaw, fell backwards on the sidewalk, but did not lose consciousness. Leino heard another shot and saw Maureen fall beside him. He lifted his head to see what was happening and saw accused return to his car and drive away. Leino struggled to his knees and shouted for help. He noticed at least 3 people who saw the incident. As a result of the incident, 3 separate criminal cases were filed against accused Claudio Teehankee, Jr. Initially, he was charged with: MURDER for the killing of ROLAND CHAPMAN, and two (2) FRUSTRATED MURDER for the shooting and wounding of JUSSI LEINO and MAUREEN HULTMAN. When Hultman subsequently died after 97 days of confinement at the hospital and during the course of the trial, the Information for Frustrated Murder was amended to MURDER. The defense: Accused relied on the defense of denial and alibi. Accused claimed that during the shooting incident, he was not anywhere near the scene of the crime, but in his house in Pasig. Accused averred that he only came to know the 3 victims in the Dasmarinas shooting when he read the newspaper reports about it. Accused admitted ownership of a box-type, silver metallic gray Mitsubishi Lancer, with plate number PDW 566. He, however, claimed that said car ceased to be in good running condition after its involvement in an accident. Until the day of the shooting, his Lancer car had been parked in the garage of his mothers house in Dasmarinas Village. He has not used this car since then. Accused conceded that although the car was not in good running condition, it could still be used. The ruling: Eyewitness identification and out-of-court identification. The accused was convicted on the strength of the testimonies of 3 eyewitnesses who positively identified him as the gunman. However, he vigorously assails his out-of-court identification by these eyewitnesses.

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suppressed by the NBI. It is surmised that the sketch must have been among the evidence turned over to the NBI when the latter assumed jurisdiction over the investigation; and, lastly, that Leino could not have remembered the face of the accused. The shooting lasted for only five (5) minutes. During that period, his gaze could not have been fixed only on the gunmans face. His senses were also dulled by the five (5) bottles of beer he imbibed that night. It is understandable for the accused to assail his out-of-court identification by the prosecution witnesses in his first assignment of error. Eyewitness identification constitutes vital evidence and, in most cases, decisive of the success or failure of the prosecution. Yet, while eyewitness identification is significant, it is not as accurate and authoritative as the scientific forms of identification evidence such as the fingerprint or DNA testing. Some authors even describe eyewitness evidence as inherently suspect. The causes of misidentification are known, thus: Identification testimony has at least three components. First, witnessing a crime, whether as a victim or a bystander, involves perception of an event actually occurring. Second, the witness must memorize details of the event. Third, the witness must be able to recall and communicate accurately. Dangers of unreliability in eyewitness testimony arise at each of these three stages, for whenever people attempt to acquire, retain, and retrieve information accurately, they are limited by normal human fallibilities and suggestive influences. Out-of-court identification is conducted by the police in various ways. It is done thru show-ups where the suspect alone is brought face to face with the witness for identification. It is done thru mug shots where photographs are shown to the witness to identify the suspect. It is also done thru lineups where a witness identifies the suspect from a group of persons lined up for the purpose. Since corruption of out-of-court identification contaminates the integrity of in-court identification during the trial of the case, courts have fashioned out rules to assure its fairness and its compliance with the requirements of constitutional due process. In resolving the admissibility of and relying on out-of-court identification of suspects, courts have adopted the totality of circumstances test where they consider the following factors, viz: (1) the witness opportunity to view the criminal at the time of the crime; (2) the wi tness degree of attention at that time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and, (6) the suggestiveness of the identification procedure. Using the totality of circumstances test, the alleged irregularities cited by the accused did not result in his misidentification nor was he denied due process. There is nothing wrong in Leinos identifi cation of the accused in an unoccupied house in Forbes Park. The records reveal that this mode was resorted to by the authorities for security reasons. The need for security even compelled that Leino be fetched and escorted from his house in Forbes Park by U.S. embassy security officials and brought to the house where he was to make the identification. The Leinos refused to have the identification at the NBI office as it was cramped with people and with high security risk. Leinos fear for his safety was no t irrational. He and his companions had been shot in cold blood in one of the exclusive, supposedly safe subdivisions in the metropolis. There is no hard and fast rule as to the place where suspects are identified by witnesses. Identification may be done in open field. It is often done in hospitals while the crime and the criminal are still fresh in the mind of the victim. Accused cant also gripe that Leino saw his pictures and heard radio and TV accounts of the shooting before he personally identified him. The records show that while Leino was still in the hospital, he was shown 3 pictures of different men by the investigators. He identified the accused as the gunman from these pictures. He, however, categorically stated that, before the mug shot identification, he has not seen any picture of accused or read any report relative to the shooting incident. The burden is on accused to prove that his mug shot identification was unduly suggestive. Failing proof of impermissible suggestiveness, he cannot complain about the admission of his out-of-court identification by Leino. There is no reason to doubt the correctness of the accuseds identification by Leino. The scene of the crime was well-lighted by a lamp post. The accused was merely 2-3 meters away when he shot Leino. The incident happened for a full 5 minutes. Leino had no ill-motive to falsely testify against the accusedt. His testimony at the trial was straightforward. He was unshaken by the brutal cross-examination of the defense counsels. He never wavered in his identification of the accused. When asked how sure he was that the accused was responsible for the crime, he confidently replied: Im very sure. It could not have been somebody else. The accused cannot likewise capitalize on the failure of the investigators to reduce to a sworn statement the information revealed by Leino during his hospital interviews. It was sufficiently established that Leinos extensive injuries, especially the injury to his tongue, limited his mobility. The day he identified appellant in the line-up, he was still physically unable to speak. He was being fed through a tube inserted in his throat. There is also no rule of evidence which requires the rejection of the testimony of a witness whose statement has not been priorly reduced to writing. The SC also rejected the accuseds contention that the NBI suppressed the sketch prepared by the CIS on the basis of the description given by Leino. There is nothing on the record to show that said sketch was turned over by the CIS to the NBI which could warrant a presumption that the sketch was suppressed. The suspicion that the sketch did not resemble the accused is not evidence. It is unmitigated guesswork. The SC was also not impressed with the contention that it was incredible for Leino to have remembered the accuseds face when the incident happened within a span of 5 minutes. Five minutes is not a short time for Leino to etch in his mind the picture of the accused. Experience shows that precisely because of the unusual acts of bestiality committed before their eyes, eyewitnesses, especially the victims to a crime, can remember with a high degree of reliability the identity of criminals. The natural reaction of victims of criminal violence is to strive to see the appearance of their assailants and observe the manner the crime was committed. Most often, the face end body movements of the assailant create an impression which cannot be easily erased from their memory. In this case, there is absolutely no improper motive for Leino to impute a serious crime to the accused. The victims and the accused were unknown to each other before their chance encounter. If Leino identified the accused, it must be because the accused was the real culprit. The SC also gave credence to the testimony of the other two witnesses. As to the testimony of Cadenas, his initial reluctance to reveal to the authorities what he witnessed was sufficiently explained during the trial he feared for his and his familys safety. The Court has taken judicial notice of the natural reticence of witnesses to get involved in the solution of crimes considering the risk to their lives and limbs. In light of these all too real risks, the court has not considered the initial reluctance of feargripped witnesses to cooperate with authorities as an authorities as an indicium of credibility. As to the testimony of Mangubat, the SC found nothing in the records to suspect that Mangubat would perjure himself. 2. Proof beyond reasonable doubt According to the the accused, the trial court erred in not holding that the prosecution failed to establish his guilt beyond reasonable doubt. First, he claims the trial court erred in citing in its Decision his involvement in previous shooting incidents. Second, the NBI failed to conduct an examination to compare the bullets fired from the gun at the scene of the crime with the bullets recovered from the body of Chapman. Third, the prosecution eyewitnesses described the gunmans car as white, but the trial court found it to be silver metalic gray. Fourth, the accused could not have been the gunman, for Mangubat said that he overheard the victim Hultman plead to the gunman, thus: Please, dont shoot me and dont kill me. I promise Mommy, Daddy. The accused also contends that a maid in a house near the scene of the crime told Makati police Alberto Fernandez that she heard Maureen say: Daddy dont shoot. Dont. Fifth, the NBI towed accuseds car from Dasmarinas Village to the NBI office which proved that the same was not in good running condition. Lastly, the result of the paraffin test conducted on appellant showed he was negative of nitrates. The accused points to other possible suspects, viz:. ANDERS HULTMAN, since one of the eyewitnesses was quoted in the newspapers as having overheard Maureen plead to the gunman: Huwag, Daddy.; and, (b) JOSE MONTAO, another resident of Dasmarias Village, who had a white Lancer car, also bearing license plate number 566. The accused, however, cannot hope to exculpate himself simply because the trial judge violated the rule on res inter alios acta when he considered his involvement in previous shooting incidents. This rule has long been laid to rest. The harmless error rule is also followed in our jurisdiction. In dealing with evidence improperly admitted in trial, the court examines its damaging quality and its impact to the substantive rights of the litigant. If the impact is slight and insignificant, the court disregards the error as it will not overcome the weight of the properly admitted evidence against the prejudiced party. In the case at bar, the reference by the trial judge to reports about the troublesome character of appellant is a harmless error. The reference is

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not the linchpin of the inculpatory evidence appreciated by the trial judge in convicting the accused. As aforestated, the accused was convicted mainly because of his identification by 3 eyewitnesses with high credibility. The NBI may have also failed to compare the bullets fired from the fatal gun with the bullets found at the scene of the crime. The omission, however, cannot exculpate the accused. The omitted comparison cannot nullify the evidentiary value of the positive identification of the accused. There is also little to the contention of the accused that his Lancer car was not in running condition. Allegedly, this was vicariously proved when the NBI towed his car from Dasmarias Village where it was parked to the NBI office. Again, the argument is negated by the records which show that said car was towed because the NBI could not get its ignition key which was then in the possession of the accused. Clearly, the car was towed not because it was not in running condition. Even the accuseds evidence show that said car could run. After its repairs, the accuseds son, Claudio Teehankee III, drove it from the repair shop in Banawe, Quezon City to Dasmarinas Village, in Makati, where it was parked. Nor was the SC impressed by the alleged discrepancies in the eyewitnesses description of the color of the gunmans car. Leino described the car as light-colored; Florece said the car was somewhat white (medyo puti); Mangubat declared the car was white; and Cadenas testified it was silver metallic gray. These alleged discrepancies amount to no more than shades of differences and are not meaningful, referring as they do to colors white, somewhat white and silver metallic gray. Considering the speed and shocking nature of the incident which happened before the break of dawn, these slight discrepancies in the description of the car do not make the prosecution eyewitnesses unworthy of credence. The accuseds attempt to pin the crimes at bar on Anders Hultman, the adoptive father of Maureen Hultman, deserves scant consideration. The accused cites a newspaper item where Maureen was allegedly overheard as saying to the gunman: Huwag, Daddy. Huwag, Daddy. The evidence on record, however, demonstrates that Anders Hultman could not have been the gunman. It was clearly established that Maureen could not have uttered said statement for two (2) reasons: Maureen did not speak Tagalog, and she addressed Anders Hultman as Papa, not Daddy. Moreover, Leino outrightly dismissed this suspicion. While still in the hospital and when informed that the Makati police were looking into this possibility, Leino flatly stated that Anders Hultman was NOT the gunman. Leino is a reliable witness. The accused cannot also capitalize on the paraffin test showing he was negative of nitrates. Scientific experts concur in the view that the paraffin test has . . . proved extremely unreliable in use. The only thing that it can definitely establish is the presence or absence of nitrates or nitrites on the hand. It cannot be established from this test alone that the source of the nitrates or nitrites was the discharge of a firearm. The person may have handled one or more of a number of substances which give the same positive reaction for nitrates or nitrites, such as explosives, fireworks, fertilizers, pharmaceuticals, and leguminous plants such as peas, beans, and alfalfa. A person who uses tobacco may also have nitrate or nitrite deposits on his hands since these substances are present in the products of combustion of tobacco. In numerous rulings, we have also recognized several factors which may bring about the absence of gunpowder nitrates on the hands of a gunman, viz: when the assailant washes his hands after firing the gun, wears gloves at the time of the shooting, or if the direction of a strong wind is against the gunman at the time of firing. In the case at bar, NBI Forensic Chemist, Leonora Vallado, testified and confirmed that excessive perspiration or washing of hands with the use of warm water or vinegar may also remove gunpowder nitrates on the skin. She likewise opined that the conduct of the paraffin test after more than seventy-two (72) hours from the time of the shooting may not lead to a reliable result for, by such time, the nitrates could have already been removed by washing or perspiration. In the Report on the paraffin test conducted on appellant, Forensic Chemist Elizabeth Ayonon noted that when the accused was tested for the presence of nitrates, more than 72 hours has already lapsed from the time of the alleged shooting. 3. The right to an impartial trial. The the accused blames the press for his conviction as he contends that the publicity given to his case impaired his right to an impartial trial. He postulates there was pressure on the trial judge for high-ranking government officials avidly followed the developments in the case (as no less than then Vice-President Estrada and then DOJ Secretary Drilon attended some of the hearings and, President Aquino even visited Hultman while she was still confined at the hospital). He submits that the trial judge failed to protect him from prejudicial publicity and disruptive influences which attended the prosecution of the cases. The SC did not sustain the accuseds claim that he was denied the right to impartial trial due to prejudicial publicity. Its true that the print and broadcast media gave the case at bar pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible reporting enhances an accuseds right to a fair trial for, as well pointed out, a responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field . . . The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting in the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible to seal the minds of members of the bench from pretrial and other off-court publicity of sensational criminal cases. The state of the art of our communication system brings news as they happen straight to our breakfast tables and right to our bedrooms. These news form part of our everyday menu of the facts and fictions of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch with the world. We have not installed the jury system whose members are overly protected from publicity lest they lose their impartiality. Our judges are learned in the law and trained to disregard off-court evidence and oncamera performances of parties to a litigation. Their mere exposure to publications and publicity stunts does not per se fatally infect their impartiality. At best, the accused can only conjure possibility of prejudice on the part of the trial judge due to the barrage of publicity that characterized the investigation and trial of the case. The SC had previously rejected this standard of possibility of prejudice and adopted the test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, the records do not show that the trial judge developed actual bias against appellant as a consequence of the extensive media coverage of the pretrial and trial of his case. The totality of circumstances of the case does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity which is incapable of change even by evidence presented during the trial. The accused has the burden to prove this actual bias and he has not discharged the burden. There is no evidence showing that the trial judge allowed the proceedings to turn into a carnival. Nor did he consent to or condone any manifestation of unruly or improper behavior or conduct inside the courtroom during the trial of the case at bar. Parenthetically, the accused should be the last person to complain against the press for prejudicial coverage of his trial. The records reveal he presented in court no less than 7 newspaper reporters and relied heavily on selected portions of their reports for his defense. The defenses documentary evidence consists mostly of newspaper clippings relative to the investigation of the case at bar and which appeared to cast doubt on his guilt. The press cannot be fair and unfair to appellant at the same time. Finally, it would not be amiss to stress that the trial judge voluntarily inhibited himself from further hearing the case, but the SC, nothing in the conduct of the proceedings to stir any suspicion of partiality against the trial judge, directed the trial judge to proceed with the trial to speed up the administration of justice. 4. The presence of treachery The accused claims that treachery was not present in the killing of Hultman and Chapman, and the wounding of Leino for it was not shown that the gunman consciously and deliberately adopted particular means, methods and forms in the execution of the crime. The accused asserts that mere suddenness of attack does not prove treachery. The 3 Informations charged the accused with having committed the crimes with treachery and evident premeditation. Evident premeditation was correctly ruled out by the trial court for, admittedly, the shooting incident was merely a casual encounter or a chance meeting on the street since the victims were unknown to the accused and vice-versa. It, however, appreciated the presence of the qualifying circumstance of treachery. On the other hand, the prosecution failed to prove treachery in the killing

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of Chapman. Prosecution witness Leino established the sequence of events leading to the shooting. He testified that for no apparent reason, the accused suddenly alighted from his car and accosted him and Maureen Hultman who were then walking along the sidewalk. Appellant questioned who they were and demanded for an I.D. After Leino handed him his I.D., Chapman appeared from behind Leino and asked what was going on. Chapman then stepped down on the sidewalk and inquired from appellant what was wrong. There and then, the accused pushed Chapman, pulled a gun from inside his shirt, and shot him. The gun attack was unexpected. Why did you shoot me? was all Chapman could utter. Concededly, the shooting of Chapman was carried out swiftly and left him with no chance to defend himself. Even then, there is no evidence on record to prove that the accused consciously and deliberately adopted his mode of attack to insure the accomplishment of his criminal design without risk to himself. The accused acted on the spur of the moment. Their meeting was by chance. They were strangers to each other. The time between the initial encounter and the shooting was short and unbroken. The shooting of Chapman was thus the result of a rash and impetuous impulse on the part of the accused rather than a deliberate act of will. Mere suddenness of the attack on the victim would not, by itself, constitute treachery. Hence, absent any qualifying circumstance, the accused should only be held liable for Homicide for the shooting and killing of Chapman. As to the wounding of Leino and the killing of Hultman, treachery clearly attended the commission of the crimes. The evidence shows that after shooting Chapman in cold blood, the accused ordered Leino to sit on the pavement. Maureen became hysterical and wandered to the side of appellants car. When the accused went after her, Maureen moved around his car and tried to put some distance between them. After a minute or two, the accused got to Maureen and ordered her to sit beside Leino on the pavement. While seated, unarmed and begging for mercy, the two were gunned down by the accused . Clearly, the accused purposely placed his two victims in a completely defenseless position before shooting them. There was an appreciable lapse of time between the killing of Chapman and the shooting of Leino and Hultman a period which the accused used to prepare for a mode of attack which ensured the execution of the crime without risk to himself. Penalties:(Note: Mr. Teehankee was pardoned in 2008) (1) guilty beyond reasonable doubt of the crime of Homicide for the shooting of Roland John Chapman. He was sentenced to suffer an indeterminate penalty of imprisonment of 8 years and 1 day of prision mayor as minimum to 14 years, 8 months and 1 day of reclusion temporal as maximum, and to pay the heirs of the said deceased the following amounts: P50,000 as indemnity for the victims death; and, P1,000,000 as moral damages. (2) guilty beyond reasonable doubt of the crime of Murder, qualified by treachery, for the shooting of Maureen Navarro Hultman. He was sentenced to suffer imprisonment of reclusion perpetua, and to pay the heirs of the said deceased the following amounts: P50,000 as indemnity for her death; P2,350,461.83 as actual damages; P564,042.57 for loss of earning capacity of said deceased; P1,000,000 as moral damages; and P2,000,000 as exemplary damages. (3) guilty beyond reasonable doubt of the crime of Frustrated Murder, qualified by treachery, for the shooting of Jussi Olavi Leino, and sentenced to suffer the indeterminate penalty of 8 years of prision mayor as minimum, to 14 years and 8 months of reclusion temporal as maximum, and to pay the said offended party the following amounts: P30,000 as indemnity for his injuries; P118,369.84 and equivalent in Philippine Pesos of U.S.$55,600.00, both as actual damages; P1,000,000 as moral damages; and, P2,000,000 as exemplary damages. (4) In all three cases, to pay each of the 3 offended parties the sum of P1,000,000, or a total of P3,000,000, for attorneys fees and expenses of litigation; and (5) To pay the costs in all 3 cases. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. INOCENCIO GONZALEZ, JR., accused-appellant. DECISION GONZAGA-REYES, J.: Many unfortunate tragedies would not have happened if the improvident use of a firearm did not exacerbate a simple altercation over traffic. This is one of them. On a day intended to pay homage to the dead, a pregnant woman was shot to death in the course of her husbands altercation with th e accused-appellant and his son along the Garden of Remembrance within the Loyola Memorial Park in Marikina. The trial court found the accused guilty of the complex crime of murder and two counts of frustrated murder and accordingly sentenced him to death. This case is before us on automatic review. The details of what actually transpired in the few seconds immediately preceding the shooting are controverted by both parties but the events leading to this tragedy are not disputed. In the afternoon of October 31, 1998 at about 2:30 p.m. both the families of the private complainant Noel Andres and that of the accusedappellant Inocencio Gonzalez were on their way to the exit of the Loyola Memorial Park. The appellant was driving a white Isuzu Esteem with his grandson and three housemaids, while the private complainant was driving a maroon Toyota FX with his pregnant wife Feliber Andres, his two year old son, Kenneth, his nephew Kevin and his sister-in-law, Francar Valdez. At the intersection near the Garden of Remembrance, while the accused-appellant Gonzalez was turning left towards the exit and the complainant Noel Andres was headed straight along the road to the exit their two vehicles almost collided. Noel Andres was able to timely step on the brakes. The appellant continued driving along his way while Noel Andres drove behind the appellants vehicle for some time and cut him off when he found the opportunity to do so.[1] Noel Andres then got out of his vehicle and knocked on the appellants car window. [2] This is as far as their versions of the incident coincide. The prosecutions version of the incident is that Noel Andres calmly told the appellant to be careful with his driving and informed the latter that he, Andres, is with his family and to this Gonzalez allegedly replied, Accidents are accidents, whats your problem. Andres stated that he saw the appellant turning red in anger so he decided to go back to his vehicle when he was blocked by the appellants son who said, Anong problema mo sa erpat ko. Andres testified that he felt threatened and so he immediately boarded his vehicle, sat at the drivers seat, closed the door, and partially opened the car window just wide enough to talk back to appellants son, Dino. Suddenly, one of his passengers said Binaril kami. He turned to his wife Feliber Andres and saw her bloodied and unconscious. He turned around and saw his son Kenneth and nephew Kevin were also wounded. Andres admitted in court that he and Dino were shouting at each other so that he did not hear the shot. Andres then got out of his vehicle to warn the appellant not to flee. He then took the wounded members of his family to the exit where there was an ambulance standing by. The three were then taken to the Sta. Monica Hospital and were later transferred to the Quezon City Medical Center. The defenses version of the incident is that Andres cut the appellants path by positioning his FX obliquely along the appellants lane from the latters left side. Andres then got out of his vehicle, stood beside the appellants car window, and repeatedly cursed the appellant, Putang ina mo, ang tanda-tanda mo na hindi ka pa marunong magmaneho. Ang bobo-bobo mo.[3] The appellant stayed inside his car and allegedly replied, Pasensiya ka na hindi kita nakita, nasilaw ako. Aksidente lang. The appellant Gonzalez and another witness for the defense, Quidic, testified that Noel Andres went back to his vehicle to move it in such a way that it is straight in front of the appellants car. Andres allegedly got out of his vehicle again and continued shouting and cursing at the appellant.[4] Dino, the appellants son, who rode in another vehicle decided to go back when he did not see his fathers car behind him. When Dino arrived at the scene he confronted Andres and the two had an altercation. Both Dino and the appellant stated that Andres remained outside his vehicle during the altercation with Dino. When Andres suddenly reached for something inside his vehicle, Dino froze on the spot where he stood. This prompted the appellant to get his gun from the glove compartment and feeling that his son was threatened he got out of his car ready to shoot. When he saw that Andres did not have a weapon he put down his hand holding the gun. This is when the appellants daughter Trisha who was riding in Dinos car arrived at the scene, walked past Dino and Andres, and pushed the appellant away. She hugged her father and in the process held his hand holding the gun. The appellant tried to free his hand and with Trishas substantial

5. (Only 1 case, I cannot find the other..) EN BANC [G.R. No. 139542. June 21, 2001]

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body weight pushing against him the appellant lost his balance and the gun accidentally fired. The accused stated that he did not know he shot somebody until the private complainants sister-in-law, Francar Valdez, got out of the vehicle carrying a bloodied small boy. The defense claims that the appellant did not try to flee and even told the complainants sister in-law to take the wounded to the hospital. On November 4, 1998 an Information for the complex crime of Murder, Double Frustrated Murder and Attempted Murder was filed against herein accused-appellant: That on or about the 31st day of October 1998, in the city of Marikina, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, did then and there willfully, unlawfully and feloniously with intent to kill, attack, assault and employ personal violence by means of treachery and abuse of superior strength upon the person of Noel Andres y Tomas, by then and there shooting him with a Glock cal. 9mm pistol but instead hitting one Feliber Andres y Ordoo, on the left back portion of her head, thereby inflicting upon her serious and mortal wound which directly caused her death, as well as hitting John Kenneth Andres y Ordoo and Kevin Valdez y Ordoo physical injuries which ordinarily would have caused their death, thus performing all the acts of execution which would have produced the crime of murder as a consequence, but nevertheless did not produce it by reason of some cause or causes, independent of their will, that is, the timely and able medical assistance rendered to John Kenneth Andres y Ordoo and Kevin Valdez y Ordoo to their damage and prejudice as well as to the damage and prejudice of the heirs of Feliber Andres y Ordoo. On arraignment the accused-appellant pleaded not guilty to the crimes charged. The case records show that Feliber Andres, the wife of Noel Andres did not die instantaneously. She lived to give birth to a baby girl[5] by caesarian section and died the following morning on November 1, 1998. The Autopsy Report[6] states: FINDINGS: Fairly nourished, fairly developed female cadaver, with post mortem lividity. Conjunctivae are pale. Lips and nail beds are cyanotic. Surgical incisions were noted at left tempero-parietal region. Surgical incisions is also noted at the abdominal region secondary to a caesarian section. HEAD: (1) gunshot wound, point of entry, left fronto-temporal region, measuring 1 by 0.9 cm, 9 cm from the anterior midline, with a uniform abraided collar measuring 0.2 cm., directed posteriorwards, slightly downwards, and medialwards, fracturing the frontal, and left temporal bones, lacerating the left cerebral hemisphere, with a deformed slug fragment embedded and recovered at the posterior lobe of the left cerebral hemisphere. (2) hematoma, left orbital region, measuring 4.5 by 2 cm, 4 cm from the anterior midline. There are subdural and subarachnoidal hemorrages. Stomach contains 1 glassful of partially digested food particles mostly rice and meaty material. CONCLUSION: Cause of death is gunshot wound on the head. Kenneth and Kevin were treated for extraction of metallic fragments on their faces. They were discharged from the hospital six days later or on November 6, 1998. On June 25, 1999 the trial court rendered judgement finding that the shooting was attended by the qualifying circumstance of treachery and held the appellant guilty of the complex crime of murder for the death of Feliber Andres and for two counts of frustrated murder for the injuries sustained by Kenneth Andres and Kevin Valdez and sentenced the appellant to the maximum of the imposable penalty which is death. The trial court held: Beforehand, the Court takes note of the judicial admissions on the verbal declarations of the accused that the court a quo has jurisdiction over the case; that he owns the black Gluck 9 mm. automatic pistol; that the said gun will never fire even if he drops it; that only one bullet was fired from his gun; and that the victim Feliber Andres is already dead. With this exegesis and the declarations in open court of the eyewitness of both the prosecution and some of the defense, there is no real dispute on the antecedent facts showing that the accused fired on Noel Andres but instead hit and caused the fatal injuries to the victims John Kenneth Andres, Kevin Valdez and Feliber Andres resulting to the ultimate death of the latter. The court takes further judicial admissions of the accused made in their memorandum demonstrating the existence of five (5) sequences of events leading to the death of Feliber Andres and the wounding of John Kenneth Andres and Kevin Valdez which are as follows: First is when Noel Andres overtook the car driven of the accused and cut cross his path; Second is when Noel Andres alighted from his vehicle and confronted Inocencio; Third is when Noel had an argument with Dino Gonzalez, the son of the accused; Forth is when, Inocencio seeing his son having confrontation with Noel, got his gun to protect Dino; and Fifth is when Inocencio had a struggle with his daughter. Trisha Gonzalez, who tried to reach for the gun and as a result of which Inocencio lost his balance and as he was falling backward to his side, his right arm holding the gun hit the rear window of the Tamaraw FX van and the gun accidentally went off hitting the victim, who were all then inside the van. The court likewise take judicial notice on the feature of the automatic pistol used in this case which is capable of unquestionable demonstration or ought to be known to judges because of their judicial functions. Practically, the stages before an automatic firearm would be capable of firing are as follows: 1) the loading of a bullet into the chamber of the gun; 2) the cocking of the hammer, if uncocked; 3) the releasing of the safety pin; 4) the pressing of the trigger to unleash the hammer so that the firing pin will hit the cartridge to propel the bullet out to hit the target. Realistically, it demonstrates that a gun will not fire even if the bullet is loaded in its chamber if the hammer is uncocked; or even if cocked if the safety pin is engaged; or even if the safety pin is disengaged if the trigger will not be pressed. However, even if the gun is fired if it is not aimed and leveled to the target, the purpose of firing it shall not be achieved. Contrarily, once a gun is drawn against a person, the means methods and forms employed for its execution is already conceived. And once it is tended directly and specifically to insure its execution, it consequently produces the conscious and deliberate intention. Finally if all the acts of execution had been effectively done without risk on the part of the offender arising from any defense coming from the offended party, treachery results. In brief, there is treachery when the offender commits any crime against persons, employing means, methods and forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from any defense which the offended party might make (People vs. Mesa 276 SCRA 407; People vs. Carlos Patrolla, Jr. G. R. No. 112445, March 7, 1996). To appreciate treachery two (2) conditions must be present, to wit: 1) the employment of means of execution that give the person attacked no opportunity to defend himself or retaliate; and 2) the means of execution were deliberately or consciously adopted. (People vs. Azugue, 268 SCRA 711; People vs. Pea, G. R. No. 116022, July 1, 1998, p. 1) In the case at bar and guided with the above-quoted doctrinal cases, logically, the accused is positive of the crime charged against him. When he alighted with a drawn gun to protect his son and released all the safety measures of his gun as he fired and missed at Noel who was then unarmed, but instead hit Kevin Valdez, John Kenneth Andres and Feliber Andres which resulted to the death of the latter, demonstrate that the accused has executed the two (2) conditions to generate treachery enough to qualify the crime committed to murder. XXXX XXXXX XXXX

WHEREFORE, foregoing premises considered, the accused Inocencio Gonzalez, Jr., y Esquivel is hereby found guilty beyond reasonable doubt of the complex crime of Murder with Double Frustrated Murder and Attempted Murder penalized under Art. 248, as amended by Republic Act No. 7659 in relation to Article 48 of the Revised Penal Code and is sentenced to suffer the maximum penalty of Death by lethal injection. The accused is further ordered to pay the following civil liabilities: 1. To the private complainant Noel Andres: a) the amount of P50,000.00 as indemnity for the death of Feliber Andres; b) the amount of P3,363,663.60 as indemnity for the loss of earning capacity of the deceased Feliber Andres; c) the amount of P98,384.19 as funeral expenses; d) the amount of P271,800.56 for the hospitalization expenses incurred for the injuries sustained by the deceased Feliber Andres and the amount of P23,622.58 representing the expenses for the untimely delivery of the child Ma. Clarisse Andres; e) the amount of P51,566.00 representing the hospitalization expenses for the injuries sustained by the victim John Kenneth Andres;

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f) the amount of P150,000.00 as moral damages suffered for the untimely death of his wife Feliber Andres and for the injuries caused to his son John Kenneth Andres; g) the amount of P50,000.00 as and by way of attorneys fees and a fee of P2,000.00 per appearance; and h) the costs of the suit. 2. To the private complainant Nicasio Valdez: a) the amount of P73,824.75 as actual damages for the injuries sustained by the victim Kevin Valdez; and b) the amount of P75,000.00 as and by way of moral damages. SO ORDERED. In his appeal, Gonzalez submits the following assignments of error: 1. The trial court committed reversible error when it found that treachery was present. 2. The trial court committed reversible error when it presumed that there was treachery by taking judicial notice of the feature of the automatic pistol involved in this case. 3. The trial court committed reversible error when it violated the constitutional right of the accused-appellant to due process when it took judicial notice of the feature of the automatic pistol involved in this case without notice. 4. The trial court committed reversible error when it found AccusedAppellant guilty beyond reasonable doubt of the complex crime of Murder with Double Frustrated Murder. 5. The trial court committed reversible error when it failed to appreciate the mitigating circumstances of passion or obfuscation, lack of intention to commit so grave a wrong, provocation or threat on the part of the offended party immediately preceded the act, incomplete defense of relative, and voluntary surrender. 6. The trial court committed reversible error when it failed to find that the shooting incident was accidental. 7. The trial court committed reversible error when it gave credence to the testimonies of prosecution witnesses Elmer Ramos and Moises Castro. 8. The trial court committed reversible error when it disregarded the basic principle that the accused is presumed innocent and his guilt must be proven beyond reasonable doubt. 9. The trial court committed reversible error when it ordered AccusedAppellant to pay for the civil liabilities. The appellant seeks a reversal and prays that judgment be rendered exempting him from criminal and civil liabilities. Appellant declared that he had no intention to shoot Noel Andres much less his wife nor the children. He lost his balance when his daughter Trisha approached and pushed him backwards to stop him from joining Dino and Noel Andres but the appellant tried to free his right hand holding the gun and it accidentally fired. The single bullet fired hit the last window on the left side of the Tamaraw FX. The appellant claims that he did not see the passengers inside the vehicle at the time of the shooting. This is corroborated by the testimony of two witnesses for the prosecution who testified that the windows of Andres vehicle are heavily tinted so that a person outside the vehicle would not be able to see if there are people inside. It is also argued that had the appellant intended to shoot Noel Andres he could have simply done so by shooting at him directly. The defense asserts that the evidence for the prosecution failed to establish the attendance of treachery and without the attendance of the said qualifying circumstance the crime committed is homicide, not murder. The appellant also points out that the trial court made the factual finding that the shooting happened in a matter of seconds and that it was preceded by a heated argument between the parties. Such being the case, it is argued that the shooting could not have been attended by treachery. There was no time for the appellant to consciously and deliberately employ the mode of attack against Noel Andres, nor against any one of the actual victims, to insure its execution and at the same time to eliminate any form of retaliation from the alleged intended victim. And yet, the trial court, contrary to the evidence on record, held that the loading of the bullet into the chamber of the gun, the cocking of the hammer, the release of the safety pin and the pulling of the trigger by the appellant of his automatic pistol constitute conscious and deliberate effort to employ the gun as a means of committing the crime and resultantly, qualified its commission by treachery. Such a finding presupposes that the appellant loaded the gun to shoot Noel Andres only that very moment when his son Dino and Noel Andres were arguing. This conclusion has no basis on record. The appellant testified that his gun was loaded before he left the house and two witnesses for prosecution stated in court that a few seconds after Noel Andres and Dino started shouting at each other, the appellant got out of his car and shot at the last window on the left side of the complainants vehicle. Further, the appellant assigns as error the procedure adopted by the trial court in taking judicial notice that the gun used by the appellant is an automatic pistol and as such, it will not fire unless aimed at the intended target. The procedure taken by the trial court is contrary to Section 3, Rule 129 of the Rules of Court.[7] The trial court should have given both parties the opportunity to present evidence, expert evidence, if necessary, to inform the court on the subject matter. The appellant argues that the factual finding borne by such erroneous procedure is equally erroneous. The gun used by the appellant is a semi-automatic and not an automatic pistol which means that the pistol used has no external safety pin to be released and that the hammer need not be cocked. The pulling of the trigger, intentional or not, will fire the gun. The use of a semi-automatic pistol does not necessarily imply treachery. Appellant also argues that the testimonies of prosecution witnesses Castro and Ramos were improperly given credence by the trial court. The appellant contends that a reading of their testimonies would show that their narration of the incident is rather absurd and would show that they did not witness the actual shooting. Defense witnesses, Gonzalez and his daughter, Trisha, on the other hand, testified that Castro and Ramos arrived at the scene only after the shooting. As regards the injuries sustained by Kevin and Kenneth, it is argued that considering that there was no intent to kill and that they stayed in the hospital only for six days, the crime committed is physical injuries. It is argued that the trial court erred in awarding damages. The bunch of receipts allegedly representing the medical expenses incurred for the injuries sustained by the victims was erroneously admitted in evidence, without first requiring the prosecution to establish the authenticity of the receipts. The appellant also points out that the award for loss of earning capacity has no basis as the deceased was unemployed at the time of the incident. Finally, the appellant assigns as error the trial courts rejection of the mitigating circumstances pleaded by the defense which allegedly attended the commission of the crime, i.e., lack of intent to commit so grave a wrong, passion and obfuscation, incomplete defense of a relative and voluntary surrender. The appellant asserts that these mitigating circumstances were duly proven during the trial and are supported by the evidence on record. The private complainant Noel Andres testified that he saw the appellant getting red in anger after they, Andres and the appellant, had a heated argument immediately prior to the shooting. These admitted circumstances show that the appellant was not in his proper state of mind at the time of the shooting. First, he was angered by Andres abusive language and later he got out of his car with a loaded gun to protect his son from a perceived danger. The appellant clams that his willingness to help the injured and his voluntary surrender to the police should likewise be considered as mitigating circumstances in the imposition of penalties. The Solicitor-General agrees with the appellant that the crime was not attended by the qualifying circumstance of treachery and hence the crime committed by the appellant for the death of Feliber Andres is homicide, not murder. The appellee takes into consideration that the shooting was preceded by a heated argument and that the supposed victim was placed on guard that attack was imminent. It also appears that the shooting was done impulsively. There is no evidence that the appellant deliberately employed the means of attack to insure execution of the crime and at the same time eliminate the risk of retaliation from the private complainant. The appellee also agrees with the appellant that the trial court erred in equating the use of an automatic pistol with treachery. The trial court made the factual finding that the appellants automatic pistol would not fire unless aimed and the trigger is deliberately pulled and hence treachery attended the shooting. The appellee submits that if we follow the reasoning of the trial court it would appear that the appellant intended to shoot at the complainants vehicle only as the shot

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was fired at the last window on the left side of the FX away from where Andres was allegedly seated. The fact that the gun was drawn and fired does not mean that the mode of attack was consciously and deliberately employed. However, with respect to the injuries sustained by Kevin and Kenneth, the appellee disagrees with the contention that the appellant is liable only for slight physical injuries. The injuries sustained by both children are head injuries and could have caused their death if not for the immediate medical attention given them. The number of days spent in the hospital is not determinative of the severity of the wounds. Their nature and location should instead be considered. The appellant cannot escape liability for frustrated homicide for the injuries of the two children on the ground that he fired a single shot at the vehicle of Noel Andres. He is liable for all the consequences of his unlawful act even if the crime committed is different from that intended. As regards the pleaded mitigating circumstances, appellee asserts that none can be considered in favor of the appellant. There is evidence on record that the appellant did not voluntarily surrender to the police and it appears from the testimonies of witnesses that he entertained the possibility of flight but his car was stuck in traffic along the exit of the memorial park. His pretense of incomplete defense of a relative is belied by his own admission that when he saw that Noel Andres did not have a gun he lowered his hand holding the gun. There was allegedly no threat on the life of his son at the time of the shooting, no uncontrollable fear nor irresistible force that would mitigate the commission of the offense. The Solicitor-General also seeks to uphold the pecuniary awards granted by the trial court. The appellee alleges that it is not denied by the appellant that Feliber Andres was a 38 year old registered nurse at the time of the shooting. Although she was then unemployed on account of her pregnancy, she still had earning capacity and the trial court properly applied the salary of a government nurse under the salary standardization scheme in the computation of damages for the loss of earning capacity. The receipts presented in evidence by the prosecution to establish hospitalization and other medical expenses incurred by the private complainants by reason of the injuries suffered by the victims were duly authenticated by the prosecution witnesses and there is no dispute that they are exact copies of the original receipts presented in court. The objections raised by the appellant in this regard were duly met by the evidence presented by the private complainants. In sum, the appellee asserts that considering that the appellant fired a single shot and in the process committed four offenses the appellant should be held liable for the complex crime of homicide for the death of Feliber Andres, double frustrated homicide against Kevin and Kenneth and attempted homicide against Noel Andres. Under the rules on complex crimes the penalty for the gravest offense, i.e., reclusion temporal for homicide, should be imposed in its maximum period. The appeal has merit. Treachery under par.16 of Article 14 of the Revised Penal Code is defined as the deliberate employment of means, methods or forms in the execution of a crime against persons which tend directly and specially to insure its execution, without risk to the offender arising from the defense which the intended victim might raise. For treachery to be appreciated two elements must concur: 1) the employment of means of execution that would insure the safety of the accused from retaliatory acts of the intended victim and leaving the latter without an opportunity to defend himself and 2) the means employed were deliberately or consciously adopted by the offender.[8] The suddenness of the attack, the infliction of the wound from behind the victim, the vulnerable position of the victim at the time the attack was made or the fact that the victim was unarmed do not by themselves render the attack as treacherous.[9] This is of particular significance in a case of an instantaneous attack made by the accused whereby he gained an advantageous position over the victim when the latter accidentally fell and was rendered defenseless.[10] The means employed for the commission of the crime or the mode of attack must be shown to have been consciously or deliberately adopted by the accused to insure the consummation of the crime and at the same time eliminate or reduce the risk of retaliation from the intended victim.[11] Accordingly, it has been consistently held by this court that chance encounters, impulse killing or crimes committed at the spur of the moment or that were preceded by heated altercations are generally not attended by treachery for lack of opportunity of the accused to deliberately employ a treacherous mode of attack.[12] Thus, the sudden attack made by the accused due to his infuriation by reason of the victims provocation was held to be without treachery. Sudden attacks made by the accused preceded by curses and insults by the victim or acts taunting the accused to retaliate or the rebellious or aggressive behavior of the victim were held to be without treachery as the victim was sufficiently forewarned of reprisal.[13] For the rules on treachery to apply the sudden attack must have been preconceived by the accused, unexpected by the victim and without provocation on the part of the latter.[14] This Court has also had occasion to state that whether or not the attack succeeds against its intended victim or injures another or whether the crime committed is graver than that intended is immaterial, as long as it is shown that the attack is attended by treachery, the said qualifying circumstance may still be considered by the court.[15] Thus, the determining factor on whether or not the commission of a crime is attended by treachery is not the resulting crime committed but the mode of attack employed in its execution.[16] Treachery is never presumed. It is required that the manner of attack must be shown to have been attended by treachery as conclusively as the crime itself. [17] We affirm the recommendation of the Solicitor-General that the shooting was not attended by treachery and accordingly the crime committed for the death of Feliber Andres is homicide and not murder. The encounter between Noel Andres and the appellant was a chance encounter. They were total strangers before their vehicles almost collided at an intersection inside the memorial park. Unfortunately, heated exchange of remarks that followed the near collision was fanned by a short temper, which in the case of the appellant, was augmented by the improvident use of a firearm. From a reading of the transcript of the testimonies of the witnesses, it would appear that Noel Andres, who had his pregnant wife and child with him, among others, on board the Tamaraw FX provoked the altercation. After the near collision of his vehicle with that of the appellant, he tailed behind the latters car towards the exit until he had the chance to cut him off to scold him for his failure to observe traffic rules.[18] Andres stated in court that he calmly told the appellant to be careful with his driving and denied that he was angry when he alighted from his vehicle to confront the appellant.[19] His statement is belied by the witnesses, two prosecution witnesses included, who uniformly testified that Andres quarreled with or shouted and cursed at the appellant for the latters recklessness at the intersection.[20] The appellant narrated in court that Andres repeatedly shouted at him, Putang ina mo, ang tanda-tanda mo na gago ka pa.[21] Andres hostile behavior towards the appellant is evident from his statement in court that he noticed the appellant turning red in anger.[22] It is highly improbable for Gonzalez to have turned red in anger had Andres been polite, as he claims he was, in scolding Gonzalez. Andres could have simply communicated to the appellant his disgust for the latters bad driving when he overtook the appellants car near the scene of the shooting but instead he chose to block the appellants path, insult and virtually provoke the appellant to retaliate. Andres stated in court that when he noticed Gonzalez infuriation he immediately walked towards his vehicle, because according to him the altercation was over. On his way to his FX he met another man, whom he later found out to be the appellants son, Dino. It appears that the altercation was far from over because again Andres had a shouting match this time with Dino.[23] In a matter of seconds, the appellant alighted from his car and fired a single shot at the last window on the left side of Andres vehicle at an angle away from Noel Andres. The single bullet fired hit Feliber Andres on the forehead near the temporal region above the left eye and the two children with metallic fragments of the bullet on their faces, one at the cheek and the other below his left eye. The prosecution did not present evidence as to the exact seating arrangement of the victims inside the vehicle; suffice it to say, that an examination of the pictures of the vehicle[24] one of which shows a mass of blood stains on the left side (towards the drivers seat) of the white seat cover below the head rest[25], would show that the deceased Feliber must have been seated at the front passengers seat and the children at the middle row behind the drivers seat.[26] Another picture shows a bullet hole on the last window on the left side of the vehicle[27] and another shows that the front windshield appears undamaged.[28] A ballistics expert appeared in court for the prosecution and testified that the bullet fired at the FX came from the appellants gun, which fact was admitted by the defense. The prosecution did not inquire from the ballistics expert regarding the trajectory of the bullet or the approximate distance of the appellant from the FX when he fired his gun to establish whether or not the appellant aimed for Noel or Feliber or simply fired indiscriminately at the latters vehicle.[29] At first blush it would seem that the shooting of Feliber Andres was attended by treachery as she was inside the FX witnessing her husbands altercation, first, with the appellant then with the appellants son, totally defenseless from the shot that came suddenly from her left side. Public outrage over the death of Feliber was heightened by the fact that she was then pregnant with her second child and her death left a new born baby girl and a two year old boy motherless.

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However, a meticulous review of the evidence prevents a conclusive finding of treachery and any doubt must be resolved, like the fact of the commission of an offense, in favor of the accused. The pictures indicate that Gonzalez fired at the FX at an angle away from Noel Andres and that Gonzalez was not aiming at anybody in particular. It is not disputed that the appellants car was directly behind the complainants FX and that Gonzalez who was then seated at the drivers seat alighted from his car, took a few steps then fired at the left side of the FX. Whether Noel Andres was seated at the drivers seat inside his vehicle when Gonzalez fired at the FX, as the prosecution asserts, or was standing by the door of the drivers seat outside his vehicle, as the defense submits, it is clear that the shot was fired away from Noel Andres. The bullet hit Feliber near her temple above the left eye indicating that she was facing left towards her husband when the shot was fired.[30] The direct hit on Felibers head shows that the angle of the shot was indeed away from Noel Andres. Even the eyewitness for the prosecution testified that had the appellant intended to kill Noel Andres he could have shot directly at him, considering that Noel Andres was just a few steps away from him[31] and that Noel Andres was visible from the outside because his window was partially open.[32] The pictures show that the bullet hole was on the third window on the left side of the Tamaraw FX[33] belying any attempt to shoot Noel Andres. Two prosecution witnesses Ramos and Castro unequivocally declared that nothing or no one prevented Gonzalez from shooting directly at Noel Andres and that Gonzalez could have simply done so if he wanted to. But after alighting from his car, Gonzalez took a few steps and shot at the left side window of the FX.[34] The fact that the appellant fired his gun from behind the victim does not by itself amount to treachery. There is no evidence on record that the appellant deliberately positioned himself behind the victim to gain advantage over him when he fired the shot. On the contrary, the evidence before us reveals that the position of the appellants car was not of his own doing but it became so when Noel Andres overtook his car and cut off his path. We note further, that the appellant did not act belligerently towards Noel Andres even after the latter cut off the appellants path. Andres stated in court that the appellant did not alight from his car nor opened his window until he, Andres, tapped on it.[35] For his part Gonzalez categorically stated in court that he did not point his gun nor threatened Andres during their short spat.[36] Gonzalez, although he had his gun in his car, did not react to Andres cursing until the latter was having an altercation with the appellants son, Dino. Gonzalez claimed that he perceived that his son was in imminent danger.[37] Whether he overreacted or he shot at Andres vehicle out of rage over Andres aggressive behavior, one thing appears clear to us, that the shooting was not done in cold blood. It is undisputed that the windows of the FX are heavily or darkly tinted so that a person outside would not see if anybody was inside.[38] The pictures of the FX[39] on record confirm the testimonies of both prosecution and defense witnesses that the other passengers of the FX were not visible from the outside. Gonzalez admitted in court that Noel Andres mentioned that he has passengers with him while he was shouting and cursing at Gonzalez but there is no indication that Gonzalez had any opportunity to see the passengers when he fired the shot. The totality of the evidence on record fails to support a conclusion that Gonzalez deliberately employed the mode of attack to gain undue advantage over the intended nor the actual victim. Without any decisive evidence to the contrary, treachery cannot be considered; thus the crime committed is homicide.[40] The trial courts finding that the loading of the gun, the cocking of the hammer and finally the pulling of the trigger constitute a deliberate effort on the part of appellant to use the gun as a means of a treacherous attack is patently erroneous. A single and continuous attack cannot be divided into stages to make it appear that treachery was involved.[41] The entire incident happened in a matter of minutes, as testified to by witnesses, and as noted by the trial court.[42] It was error to our mind for the trial court to divide the assault in stages to arrive at the conclusion that the mode of attack was consciously employed by the appellant. Contrary to the finding of the trial court that the appellant prepared the gun before getting out of his car, the appellant testified that he loaded his gun before he left the house and that it was ready to fire when he alighted his car. There was no time for him to reflect on the mode of attack since he just picked up his gun and alighted from his car and shot at the FX a few seconds after Dino and Noel Andres started shouting at each other.[43] We note further that the trial court pointed out that from the fact that the appellant prepared his gun to shoot, this was an indication of the deliberate employment of the gun as a means to kill; i.e. that the use of an automatic pistol shows that the shooting was attended by treachery. We do not agree that the weapon used, by itself, is determinative of treachery, unless it is shown, and it is not herein shown, that the appellant deliberately used the gun to insure the commission of the crime and to render the unarmed victim defenseless. As discussed above, the encounter between the appellant and the Andresses was a chance encounter and the appellants gun was in the glove compartment of his car even before he left his house. The shooting was clearly a spur of the moment or impulsive decision made by the appellant preceded by a heated altercation at the instance of the private complainant. Jurisprudence teaches us that under the circumstances, treachery is not obtaining. In the case of People vs. Valles,[44] the accused, a security guard, fired his Armalite and mortally wounded the victim when the latter approached the accused four times insisting on entering the workplace wearing improper uniform, then cursed and insulted and challenged the accused to a fight. We held that the shooting was not attended by treachery as the shooting was preceded by a heated altercation at the instance of the victim. It is to be noted that the kind of weapon used against an unarmed victim was not taken into consideration in determining the attendance of treachery; it is the mode of attack employed by the accused under the particular circumstances of a case that determines its attendance in the commission of a crime. We find that the prosecution has not discharged its burden to show that the shooting was attended by treachery and we are convinced that the crime committed for the death of Feliber Andres is homicide. As regards the injuries sustained by the two children we find that the crime committed are two counts of slight physical injuries. The intent to kill determines whether the crime committed is physical injuries or homicide and such intent is made manifest by the acts of the accused which are undoubtedly intended to kill the victim.[45] In a case wherein the accused did not know that a person was hiding behind a table who was hit by a stray bullet causing superficial injuries requiring treatment for three days, the crime committed is slight physical injuries.[46] In case of doubt as to the homicidal intent of the accused, he should be convicted of the lesser offense of physical injuries.[47] We have earlier pointed out that the intent to kill is absent in this case. It was also found that one small metallic fragment was extracted from Kenneth below his left eye while another fragment was extracted from Kevin immediately below the level of his skin before the cheek bone.[48] An examination of the testimonies of the attending physicians, showed that the wounds sustained by the two children from the metallic fragments are not in themselves fatal but may cause death if left untreated. One of the attending physician testified in court that the fragments themselves will not cause complication, it is the entry of the fragment or the open wound that is susceptible to infection.[49] Two small fragments were no longer extracted from the face of Kevin Valdez, as the doctor deemed it to be without danger of complication.[50] We note that the various sizes of the metallic fragments were not established, at least to give an indication of the severity of the wounds sustained. Both children were discharged after six days of treatment and there is no showing that they required subsequent treatment or that they were immobilized for a greater number of days by reason of the injuries sustained. Considering the nature and location of their injuries and the number of days required for their treatment, we find that the crime committed for the injuries sustained by the children are two counts of slight physical injuries under Art. 266 of the Revised Penal Code which imposes a penalty of arresto menor or imprisonment for 1 to 30 days for injuries sustained that has incapacitated the victim for one to nine days or required medical attendance for the same period. For evident lack of criminal intent to kill the complainant, Noel Andres, as above stated, the information for attempted homicide must fail. The mitigating circumstances of voluntary surrender, passion and obfuscation, incomplete defense of a relative and lack of intent to commit so grave a wrong, pleaded by the defense, were not convincingly proved and none can be considered in the imposition of penalties. The testimony of prosecution witness contradicts the appellants pretense of voluntary surrender. Witness Ramos testified that the appellant drove away towards the gate of the memorial park while he was questioning him after the shooting and had not Noel Andres and onlookers blocked his path the appellant could have fled the scene of the crime.[51] The mitigating circumstance of passion and obfuscation is also not obtaining. For this mitigating circumstance to be considered, it must be shown that (1) an unlawful act sufficient to produce passion and obfuscation was committed by the intended victim; (2) that the crime was committed within a reasonable length of time from the commission of the unlawful act that produced the obfuscation in the accuseds mi nd; and that (3) the passion and obfuscation arose from lawful sentiments and not from a spirit of lawlessness or revenge.[52] Noel Andres act of shouting at the appellants son, who was then a nurse and of legal age, is not sufficient to produce passion and obfuscation as it is claimed by the accused. Besides, the appellants son, Dino was shouting back at Noel Andres. It was not a case wherein the appellants son appeared helpless and oppressed that the appellant lost his reason and shot at the FX of Noel Andres. The same holds true for the appellants claim of provocation on the part of Noel Andres. Provocation must be sufficient to excite a person to commit the wrong committed and that the provocation must be commensurate to the crime committed. The sufficiency of provocation varies according to the circumstances of the case.[53] The aggressive behavior of Noel Andres towards the appellant and his son may be

39
demeaning or humiliating but it is not sufficient provocation to shoot at the complainants vehicle. The plea for the appreciation of the mitigating circumstance of incomplete defense of a relative is also unmeritorious since the act of Andres in cursing and shouting at the appellant and his son do not amount to an unlawful aggression against them, Dino Gonzalez. Finally, the plea for the appreciation of the mitigating circumstance of lack of intent to commit so grave a wrong is likewise devoid of merit. This mitigating circumstance is obtaining when there is a notable disparity between the means employed by the accused to commit a wrong and the resulting crime committed. The intention of the accused at the time of the commission of the crime is manifested from the weapon used, the mode of attack employed and the injury sustained by the victim.[54] The appellants use of a gun, although not deliberately sought nor employed in the shooting, should have reasonably placed the appellant on guard of the possible consequences of his act. The use of a gun is sufficient to produce the resulting crimes committed. For the death of Feliber Andres, and in the absence of any mitigating circumstance, the appellant is hereby sentenced to an indeterminate sentence of 8 years and 1 day of prision mayor, in its medium period, as minimum to 14 years 8 months and 1 day of reclusion temporal in its medium period, as maximum. For each count of the slight physical injuries committed against Kenneth Andres and Kevin Valdez, the appellant is hereby sentenced to 20 days of arresto menor in its medium period. The rules on the imposition of penalties for complex crimes under Art. 48 of the Revised Penal Code are not applicable in this case. Art. 48 applies if a single act constitutes two or more grave and less grave felonies or when an offense is a necessary means of committing another; in such a case, the penalty for the most serious offense shall be imposed in its maximum period. Art. 9 of the Revised Penal Code in relation to Art. 25 defines grave felonies as those to which the law attaches the capital punishment or afflictive penalties from reclusion perpetua to prision mayor; less grave felonies are those to which the law attaches a penalty which in its maximum period falls under correctional penalties; and light felonies are those punishable by arresto menor or fine not exceeding two hundred pesos. Considering that the offenses committed by the act of the appellant of firing a single shot are one count of homicide, a grave felony, and two counts of slight physical injuries, a light felony, the rules on the imposition of penalties for complex crimes, which requires two or more grave and/or less grave felonies, will not apply. The pecuniary award granted by the trial court for actual damages was duly established by the testimonies of the prosecution witnesses as supported by the original receipts for hospitalization and other medical expenses presented in evidence by the prosecution. The award for loss of earning capacity is likewise sustained for the reason that while Feliber Andres was pregnant and was unemployed at the time of death, it is not disputed that she was a registered nurse and had earning capacity. Noel Andres also testified that he and his wife had plans to go back to Saudi Arabia to work after Feliber had given birth to their second baby. While there is no evidence as to Felibers actual income at the time of her death, in view of her temporary separation from work because of her pregnancy, we do not consider it reversible error for the trial court to peg her earning capacity to that of the salary of a government nurse under the salary standardization law, as a fair estimate or reasonable assessment of her earning capacity at the time of her death. It would be grossly inequitous to deny her spouse and her minor children damages for the support that they would have received, considering clear evidence on record that she did have earning capacity at the time of her death. The awards for moral damages for the death of Feliber Andres and for the injuries sustained by the two children, which under the circumstances are reasonable, are likewise sustained. WHEREFORE, the decision of the trial court is hereby MODIFIED. The appellant is hereby found guilty of homicide for the death of Feliber Andres and is sentenced to an indeterminate sentence of 8 years and 1 day of prision mayor in its medium period, as minimum, to 14 years 8 months and 1 day of reclusion temporal in its medium period, as maximum. For each count of the slight physical injuries committed against Kenneth Andres and Kevin Valdez, the appellant is hereby sentenced to 20 days of arresto menor. The pecuniary awards granted by the trial court are hereby sustained. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Vitug, Mendoza, Quisumbing, Buena, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur. Pardo, J., see dissenting opinion. Puno, Kapunan, and Panganiban, JJ., joins the dissenting opinion of J. Pardo.

DIGEST FACTS: On October 31, 1998 at about 2:30 p.m., the families of Noel Andres and herein accused-appellant were both on their way to the exit of the Loyola Memorial Park. At the intersection point, the cars they were driving almost collided. Later on, when Andres found an opportunity, he cut Gonzalez off, disembarked from his car and went over to Gonzales. Altercation then ensued. Meanwhile, Dino Gonzalez, son of Inocencio, entered the scene in defense of his father. Fearing that his son was in danger, Gonzalez took out the gun which was already in his car compartment. Upon seeing his father, Gonzalezs daughter, Trisha, hugged her father and in the process held his hand holding the gun. The appellant tried to free his hand and with Trishas substantial body weight pushing against him the appellant lost his balance and the gun accidentally fired. Feliber Andres, Noels wife, was shot to death while their son, Kenneth and nephew Kevin were wounded. The trial court found the accused guilty of the complex crime of murder and two counts of frustrated murder and accordingly sentenced him to death. Accused were also ordered to pay for civil liabilities to the heirs of Mrs. Andres, and the parents of Kevin Valdez. Hence, an automatic review or this case.

ISSUES: 1. Whether or not the trial court committed reversible error when it found treachery was present in the commission of the crime. 2. Whether or not the trial court committed reversible error when it failed to appreciate voluntary surrender, passion and obfuscation, incomplete defense of a relative and lack of intent to commit so grave a wrong be considered as mitigating circumstances. RULINGS: 1. It has been consistently held by this court that chance encounters, impulse killing or crimes committed at the spur of the moment or that were preceded by heated altercations are generally not attended by treachery for lack of opportunity of the accused to deliberately employ a treacherous mode of attack. Thus, the sudden attack made by the accused due to his infuriation by reason of the victims provocation was held to be without treachery. Sudden attacks made by the accused preceded by curses and insults by the victim or acts taunting the accused to retaliate or the rebellious or aggressive behavior of the victim were held to be without treachery as the victim was sufficiently forewarned of reprisal. For the rules on treachery to apply the sudden attack must have been preconceived by the accused, unexpected by the victim and without provocation on the part of the latter. We affirm the recommendation of the Solicitor-General that the shooting was not attended by treachery and accordingly the crime committed for the death of Feliber Andres is homicide and not murder. 2. The mitigating circumstances of voluntary surrender, passion and obfuscation, incomplete defense of a relative and lack of intent to commit so grave a wrong, pleaded by the defense, were not convincingly proved and none can be considered in the imposition of penalties. The testimony of prosecution witness contradicts the appellants pretense of voluntary surrender. The mitigating circumstance of passion and obfuscation is also not obtaining. Provocation must be sufficient to excite a person to commit the wrong committed and that the provocation must be commensurate to the crime committed. The sufficiency of provocation varies according to the circumstances of the case. The aggressive behavior of Noel Andres towards the appellant and his son may be demeaning or humiliating but it is not sufficient provocation to shoot at the complainants vehicle. The plea for the appreciation of the mitigating circumstance of incomplete defense of a relative is also unmeritorious since the act of Andres in cursing and shouting at the appellant and his son do not amount to an unlawful aggression against them, Dino Gonzalez. Finally, the plea for the appreciation of the mitigating circumstance of lack of intent to commit so grave a wrong is likewise devoid of merit. This mitigating circumstance is obtaining when there is a notable disparity between the means employed by the accused to commit a wrong and the resulting crime committed. The intention of the accused at the time of the commission of the crime is manifested from the weapon used, the mode of attack employed and the injury sustained by the victim. The appellants use of a gun, although not deliberately sought nor employed in the shooting, should have reasonably placed the appellant on guard of the possible consequences of his act. The use of a gun is sufficient to

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produce the resulting crimes committed. Let a Commitment Order be issued for the transfer of accused ALBERTO S. ANTONIO @ Ambet from the San Juan Municipal Jail to the Bureau of Corrections, Muntinlupa City. SO ORDERED.[1] On that fateful morning of November 2, 1996, what should have been an amiable game of cards between two erstwhile friends turned into a deadly confrontation resulting in the fatal shooting of one by the hand of the other. The victim, Arnulfo Arnie Tuadles, a former professional basketball player, succumbed instantaneously to a single gunshot wound right between the eyes, inflicted with deadly precision by the bullet of a .9mm caliber Beretta pistol. Convicted of murder by the trial court as the killer is Alberto Ambet S. Antonio, a one-time chairman of the Games and Amusement Board (GAB). It was during his stint as such that he and Tuadles became socially acquainted. They somehow lost touch, but later became reacquainted when they both started frequenting the International Business Club (IBC), located along Wilson Street in San Juan, Metro Manila, which houses amenities such as a dining room, music bar and gameroom. Often, the two would meet with other members and friends to play cards in the gameroom at the second floor of the club. Their preferred games were poker or pusoy dos, ordinary poker or Russian poker. Their bets always ran into the tens of thousands of pesos. The tragic events began to unravel in the final hours of November 1, 1996. Antonio, Tuadles, and a certain Danny Debdani, then president of the IBC, had agreed to meet at the club for another poker session, their third night in a row. Antonio arrived at the club first, followed by Tuadles at around midnight. Debdani, however, failed to appear, so after waiting for sometime, Antonio and Tuadles decided to play pusoy dos, a game for two (2) players only. They continued playing until morning, pausing only when either of them had to visit the restroom. They stopped playing at around 9:00 oclock in the morning of November 2, 1996, to eat breakfast. When it came time to tally their scores and collect the winnings from the loser, an argument arose. It is at this point where the prosecution and the defense presented two very different scenarios. The prosecution alleged and sought to prove that in the course of an argument, without warning or cause, Antonio pulled his gun from behind his back and shot Tuadles at very close range, thus employing treacherous means to accomplish the nefarious deed. The pivotal evidence presented by the prosecution was the testimony of one Jose Jimmy T. Bobis, a security guard who testified as to how the shooting of Tuadles occurred. On the other hand, the defense hinged its opposing arguments on the testimony of accused Antonio himself, who testified that their argument was caused by Tuadles refusal to pay Antonios winnings. In the middle of a heated altercation where they traded expletives, Tuadles suddenly grabbed Antonios gun from atop a sidetable. Fearing for his life, Antonio claimed that he reached for Tuadles hand and they grappled for possession of the gun. As they wrestled, a single shot roared, Tuadles fell face down to the floor, and Antonio was left too stunned to recall who had actually pulled the trigger. In fine, Antonio alleged that the shooting was accidental, and his only motivation was to defend himself. He also refuted the testimony of the prosecutions eyewitness, averring that SG Bobis could not have seen the actual shooting since he (Bobis) and coaccused SPO4 Juanito Nieto, who were alerted by Antonios yells, reached the scene when Tuadles had already been shot and was lying on the floor. While Tuadles lay bloodied and still, no one remembered to call an ambulance or check if he was still alive. Instead, and there is no dispute in these succeeding events, Antonio convinced the two (2) security guards, prosecution eyewitness SG Bobis included, to accompany him to his home in Greenmeadows Subdivision, Quezon City, after which they proceeded to the San Juan Police Station. With them was SPO4 Nieto, a member of the San Juan Police Force. They remained at Antonios residence for several hours, during which time Antonio made phone calls and summoned his lawyer. At around 3:00 oclock in the afternoon, Antonio, accompanied by SPO4 Nieto, placed himself and his gun in the custody of San Juan Mayor Jinggoy Estrada and the police authorities. Later, the two security guards and SPO4 Nieto were driven back to the club where they waited for the police investigators. Sometime thereafter, SG Bobis narrated the events and executed his statement at the police station, a statement which he would repudiate three (3) days later. On November 18, 1996, an Information was filed against Antonio for the crime of murder. Also charged as accessories were SPO4 Nieto and SPO1 Honorio Cartalla, Jr. The Information alleged that:

6. TREACHERY FIRST DIVISION [G.R. No. 128900. July 14, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALBERTO S. ANTONIO, SPO4 JUANITO N. NIETO and SPO1 HONORIO CARTALLA, JR., accused-appellants. DECISION YNARES-SANTIAGO, J.: This is an appeal from the Decision dated April 30, 1997, rendered by the Regional Trial Court of Pasig City, Branch 156 in Criminal Case No. 111232-H, for Murder, the dispositive portion of which is quoted hereunder, to wit: WHEREFORE, finding accused ALBERTO S. ANTONIO @ Ambet, GUILTY beyond reasonable doubt of the crime of Murder, qualified by treachery as charged in the Information, and there being no mitigating or any aggravating circumstance, he is hereby sentenced to suffer the penalty of reclusion perpetua, pursuant to Sec. 6 of Republic Act No. 7659 entitled An Act to Impose The Death Penalty On Certain Heinous Crimes and Art. 63, paragraph 2 of the Revised Penal Code. In the service of his sentence, accused ALBERTO S. ANTONIO @ Ambet shall be credited in full with the period of his preventive imprisonment. The guilt of both accused JUANITO NIETO y NEMER and HONORIO C. CARTALLA, JR., as accessories, having also been established beyond any reasonable doubt, each of them is hereby sentenced to suffer the indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correcional as minimum to eight (8) years and one (1) day of prision mayor as maximum. Accused ALBERTO S. ANTONIO @ Ambet is likewise hereby ordered to pay, unto the heirs of Arnulfo B. Tuadles, the following sums: a. P50,000.00, as indemnity for the death of Arnulfo B. Tuadles; b. P226,298.36, as actual damages; c. P7,200,000.00, representing compensable earnings lost by reason of Arnulfo B. Tuadles death; d. P3,000,000.00 or the stipulated P1,000,000.00 each for the three (3) children of Arnulfo B. Tuadles, and another P500,000.00 for the widow, Ma. Odyssa Suzette Tecarro-Tuadles, as moral damages; e. P50,000.00, as exemplary damages; f. Costs. In case of insolvency of accused ALBERTO S. ANTONIO @ Ambet, accused JUANITO NIETO y NEMER and HONORIO C. CARTALLA, JR., shall be liable to pay, jointly and severally, one-third (1/3) of the aboveadjudicated sums or the amount of P3,675,432.78 unto the said heirs of Arnulfo B. Tuadles. In any event, the foregoing civil liabilities shall all be without subsidiary imprisonment in case of insolvency. Being instruments of the crime, let the caliber .9mm Beretta Mode 92F with Serial Number BER-041965-Z, including its black magazine and five (5) live bullets, which are presently under the custody of the Court, be confiscated and forfeited in favor of the Government and turned over to the Firearms and Explosives Office, Camp Crame, Quezon City.

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On or about November 2, 1996, in San Juan, Metro Manila and within the jurisdiction of this Honorable Court, the accused Antonio, armed with a gun, did then and there wilfully, unlawfully and feloniously, with intent to kill and with treachery, attack, assault and use personal violence upon the person of Arnulfo Arnie Tuadles, by then and there suddenly, unexpectedly, deliberately and without provocation, shooting Arnulfo Arnie Tuadles on his forehead, right between the eyes, thereby inflicting upon the latter mortal wound which was the direct and immediate cause of his death; The accused Nieto, without having participated in said crime of murder, either as principal or accomplice, did then and there wilfully, unlawfully and feloniously take part subsequent to its commission, with abuse of his public functions and position as a public officer, by harboring or assisting the accused Antonio, by then and there failing to arrest and surrender immediately the said accused Antonio to the authorities and by giving false information which tended to deceive the investigating authorities; and The accused Cartalla, Jr., without having participated in said crime of murder either as principal or accomplice, did then and there wilfully, unlawfully and feloniously take part subsequent to its commission, with abuse of his public functions and position as a public officer, by concealing or destroying the effects or instruments of the body of the crime, in order to prevent its discovery, by then and there removing the laser sight of the gun used in shooting Tuadles, deliberately omitting to take steps to preserve the evidence at the scene of the crime, and purposely failing to call on the crime laboratory service of the proper agencies for appropriate action. Contrary to law.[2] Upon arraignment, co-accused SPO1 Cartalla, Jr. entered a plea of Not Guilty. Accused Antonio and SPO4 Nieto both refused to enter a plea, and the trial court entered a plea of not guilty for both of them. After trial on the merits, all three accused were found guilty as charged, imposing on them the appropriate penalties and ordering them to pay to the heirs of Tuadles various amounts as and for indemnity and damages, set forth in the dispositive portion quoted above. All three accused filed separate appeals assailing the trial courts findings and disposition. Appellant Antonio assails the trial courts judgment on the following assigned errors: I THE TRIAL COURT ERRED IN GIVING FULL CREDENCE TO THE TESTIMONY OF JOSE JIMMY BOBIS WHICH CONFLICTS DRASTICALLY NOT ONLY WITH HIS INITIAL DECLARATIONS BUT ALSO WITH HIS PREVIOUSLY EXECUTED STATEMENT, AND WHICH TESTIMONY IS TAINTED WITH SERIOUS INCONSISTENCIES, INCREDIBILITIES, AND OMISSIONS ON SUBSTANTIAL MATTERS. II THE TRIAL COURT ERRED IN HOLDING THAT TREACHERY ATTENDED THE COMMISSION OF THE OFFENSE CHARGED. III THE TRIAL COURT ERRED IN NOT GIVING CREDENCE TO THE VERSION OF APPELLANT ALBERTO AMBET ANTONIO. IV THE TRIAL COURT ERRED IN NOT APPRECIATING THE MITIGATING CIRCUMSTANCES OF VOLUNTARY SURRENDER. V THE TRIAL COURT ERRED IN NOT FINDING THAT SUFFICIENT PROVOCATION ON THE PART OF THE VICTIM ARNULFO ARNIE TUADLES IMMEDIATELY PRECEDED THE COMMISION OF THE IMPUTED ACT, AND IN NOT APPRECIATING THIS MITIGATING CIRCUMSTANCE. VI Appellant Cartalla, Jr. also challenged the said decision on the following grounds: I THE COURT OF ORIGIN HAS COMMITTED A BLATANT ERROR IN CONVICTING SPO1 HONORIO CARTALLA, JR. AS ACCESSORY TO THE CRIME CHARGED DESPITE THE FACT THAT THE RECORD IS SO REPLETE WITH EVIDENCES THAT THERE ARE REASONABLE DOUBTS TO HOLD HIM AS SUCH. II THE COURT A QUO COMMITTED A GRAVE ERROR AND HAS NOT SHOWN FAIRNESS IN NOT CONSIDERING FULLY THE GOOD FAITH, DILIGENCE AND HARD WORK EXERTED BY SPO1 HONORIO CARTALLA, JR. WHEN HE INVESTIGATED THE CASE ON HAND TILL THE TIME HE DELIVERED THE SPECIMEN OR PIECES OF PHYSICAL EVIDENCE OF THE CRIME TO THE PNP-CLS, CAMP CRAME, QUEZON CITY. III THE LOWER COURT HAS COMMITTED A SERIOUS MISTAKE IN DISREGARDING THE SIXTEEN (16) YEARS OF ACTIVE POLICE SERVICE OF SPO1 HONORIO CARTALLA, JR. SHOWN WITH DEDICATION AND LOYALTY THERETO SUSTAINING MORE HIS INNOCENCE OF THE CRIME CHARGED HEREIN.[5] Considering that appellant Antonio is the principal accused, we shall deal first with the issues raised in his appeal, foremost of which is the credibility of the prosecutions sole eyewitness, SG Jose Jimmy Bobis. Appellant Antonio challenges SG Bobis worth and credibility as an eyewitness on two (2) grounds. First, SG Bobis, in his first sworn statement before the San Juan authorities averred that he did not see the actual shooting since he was still ascending the stairs leading to the second floor where the crime took place when he heard the gunshot. Days later, in a second statement taken at the Eastern Police District (EPD) and in his testimony before the trial court, SG Bobis negated his earlier statement, this time averring that he had indeed seen appellant Antonio pull his gun from behind, and with neither warning nor provocation, aim the gun at the head of Tuadles and shoot the latter pointblank. This complete turnabout in SG Bobis testimony, according to appellant Antonio, is a sure sign of the said witness unreliability, incredibility, and unworthiness. He also points out the contradictions and inconsistencies between SG Bobis first and second statements and court testimony. Second, appellant Antonio belittles SG Bobis reasons for giving THE TRIAL COURT ERRED IN AWARDING THE SUM OF P7,200,000.00 AS COMPENSABLE EARNINGS LOST BY REASON OF ARNIE TUADLES DEATH, DESPITE INADEQUATE EVIDENCE TO SUPPORT SUCH AWARD. VII THE TRIAL COURT ERRED IN AWARDING PALPABLY EXCESSIVE MORAL DAMAGES TO THE HEIRS OF ARNIE TUADLES. VIII THE TRIAL COURT ERRED IN FINDING APPELLANT ALBERTO AMBET ANTONIO GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER.[3] Appellant SPO4 Nieto likewise questions the trial courts decision, arguing that: I THE TRIAL COURT GRAVELY ERRED IN CONVICTING NIETO AS AN ACCESSORY II THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE CRIME COMMITTED BY THE PRINCIPAL ACCUSED ANTONIO WAS MURDER[4]

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the San Juan Police investigators false information in his first statement, saying that nobody threatened SG Bobis if he testified against appellant Antonio. On the other hand, appellant Antonio suggests that it was Colonel Lucas Managuelod of the EPD who coerced SG Bobis to change his statement and testimony so that the murder charge against appellant Antonio would be strengthened. There is no question that SG Bobis second statement and court testimony, on the one hand, contradicted what he previously narrated in his first statement, on the other hand. The question therefore is: Which is more credible and of more value to the courts in ascertaining the guilt or innocence of the accused? It is a matter of judicial experience that affidavits or statements taken ex parte are generally considered incomplete and inaccurate. Thus, by nature, they are inferior to testimony given in court, and whenever there is inconsistency between the affidavit and the testimony of a witness in court, the testimony commands greater weight.[6] Moreover, inconsistencies between the declaration of the affiant in his sworn statements and those in open court do not necessarily discredit said witness.[7] Thus, the trial court followed precedents in giving more credence to SG Bobis testimony given in open court despite his having executed an earlier statement which was inconsistent with his testimony. Besides, when confronted with his first contradictory statement, SG Bobis explained the reasons why he was moved to give false information in his first statement. He had testified that moments after he saw appellant Antonio shoot Tuadles, the appellant warned him: Ikaw, wag kang tumistigo, ha.[8] Later, he and the other security guard, SG Olac, were allegedly coerced to go to the appellants house in Quezon City. He also testified that while they were there, appellant Antonio and his lawyer instructed him (Bobis), should the police investigator ask him who shot Tuadles, to say that what happened was only an accident.[9] At the police station, appellant SPO4 Nieto allegedly told SG Bobis to say that they were both outside the club when the trouble started, saying: kailangan ipalabas natin na nasa labas tayo ng club. [10] Bobis stated that he was confused and afraid, and, therefore, told the police investigator, appellant Cartalla, Jr., on November 2, 1996, that he did not see appellant Antonio shoot Tuadles because he was still ascending the stairs when the gun went off. Apparently, it was not only fear that ruled his thoughts and actions at that time, but also remorse and confusion. As found by the trial court: He admits that he had acted contrary to the ethical standards and code of conduct of private security guards when he did not make a formal report to his superior about the shooting incident of November 2, 1996 at the Club but countered that this was because accused Antonio had taken him to the latters house. This being so, neither was he able to put said accused Antonio under arrest. Added to this was the fact that even accused Nieto, a policeman in active service who was with them at the time and who should have done so, had also failed to arrest accused Antonio, more so with him and SG Olac who are just ordinary security guards. (Dahil po maam, si SPO4 Nieto, pulis na po ang kasama namin, hindi niya po nagawa na arestuhin si Mr. Ambet Antonio mas lalo po kami na ordinary guard lang po.) True, he had his service .38 caliber in his possession at the time. Nevertheless, because accused Antonio looked: parang galit pa sila sa amin he can not, as in fact he did not, insist that instead of going to the house of accused Antonio, he will effect the arrest.[11] Nevertheless, Bobis stated that his conscience bothered him, and seeing Tuadles widow crying on television, he gathered enough resolve and courage to finally tell the truth to the police authorities at the EPD. When he testified in open court, SG Bobis did not waver in his declaration that he witnessed appellant Antonio suddenly pull his gun from behind and shoot Tuadles three (3) feet away. Rule 132, Section 13 of the Rules of Court provides that: Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing they must be shown to the witness before any question is put to him concerning them. (Underscoring ours). Thus, this Court has uniformly held that: Previous statements cannot serve as bases for impeaching the credibility of a witness unless his attention was first directed to the discrepancies and he was then given an opportunity to explain them. It is only when no reasonable explanation is given by a witness in reconciling his conflicting declarations that he should be deemed impeached.[12] We find no reason to discredit the trial courts finding that the reasons given by SG Bobis sufficiently explained the conflicting declarations he made in his two (2) sworn statements and in his court testimony. Therefore, he cannot be impeached as an eyewitness. This Court also recognizes that the initial reticence of witnesses to volunteer information about a criminal case and their aversion to be involved in criminal investigations due to fear of reprisal is not uncommon, and this fact has been judicially declared not to adversely affect the credibility of witnesses.[13] Apart from the issue of SG Bobis having given an earlier contradictory statement, his direct testimony and answers under crossexamination appear clear and convincing. We agree with the trial court when it held: But it is SG Bobis whom the Court finds credible. Why he had executed a first, then a second statement, totally in conflict with each other, SG Bobis had fully explained to the satisfaction of the Court. His lowly station in life had been taken advantage of by accused Antonio and Nieto. These two (2) had thought that they had succeeded in completely prevailing upon SG Bobis. For did not SG Bobis tell their lies? Still, the conscience of a good man had won over. SG Bobis had redeemed himself. He gave spontaneous and straightforward answers to the gruelling questions propounded on him and had stuck to his truth. The Court had painstakingly, taken note of each of the witnesses demeanor on the stand. While SG Bobis was steadfast with his words, accused Antonio and Nieto were evidently recalling from a script. The other prosecution witnesses, SG Olac and Romeo M. Solano were, like SG Bobis, untainted in their testimonies.[14] Finding nothing that would compel us to conclude otherwise, we respect the findings of the trial court on the issue of the credibility of SG Bobis as an eyewitness, especially considering that the trial court was in a better position to decide the question, having heard the witness himself and observed his deportment and manner of testifying during the trial.[15] In the recent case of People v. Pili, this Court had occasion to rule that: It is doctrinally settled that the assessments of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court, because of its unique opportunity to observe the witnesses firsthand and to note their demeanor, conduct and attitude under grilling examination. These are the most significant factors in evaluating the sincerity of witnesses and in unearthing the truth, especially in the face of conflicting testimonies. Through its observations during the entire proceedings, the trial court can be expected to determine, with reasonable discretion, whose testimony to accept and which witness to believe. Verily, findings of the trial court on such matters will not be disturbed on appeal unless some facts or circumstances of weight have been overlooked, misapprehended or misinterpreted so as to materially affect the disposition of the case.[16] And in People v. Deleverio, this Court ruled that: It is axiomatic to point out, furthermore, that in an appeal, where the culpability or innocence of an accused would hinge on the issue of credibility of witnesses and the veracity of their testimonies, findings of the trial court are entitled to and given the highest degree of respect.[17] Moreover, in People v. Reynaldo, we reiterated the principle that: The matter of assigning values to declarations on the witness stand is best and most competently performed by the trial judge who, unlike appellate magistrates, can weigh the testimony of a witness in the light of his demeanor, conduct and attitude as he testified, and is thereby placed in a more competent position to discriminate between the true and the false.[18]

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There are other reasons why the eyewitness testimony of SG Bobis was given full faith and credit. SG Bobis, a mere security guard, realized he was no match to appellants Antonio and SPO4 Nieto. The former, a wealthy businessman, is known as an intimate friend of people in power. Appellant Antonio admitted in court that he surrendered himself and his gun to Mayor Jinggoy Estrada, who was his good friend. Hours later, he went to see then Vice President Joseph Estrada in Tagaytay City so he (Antonio) could tell his friend, the Vice President, what happened in his own words.[19] Appellant SPO4 Nieto was a member in active duty of the San Juan Police Force who was close to appellant Antonio. Considering SG Bobis lowly station in life, as compared to that of t he said appellants, it is understandable that his initial reaction to the shocking events would be one of intimidation, if not fear. SG Bobis believed then, and no one can fault him for thinking so, that going against the instructions and dictates of appellant Antonio and SPO4 Nieto would make life very difficult for him, knowing they were well-connected to the powers that be. This perceived threat, whether real or imagined, compelled him to take the easy way out and just repeat what appellants told him to say. There is an oft-quoted adage that a person may be able to avoid his enemies, but he can never run away from himself. SG Bobis may have momentarily avoided incurring the wrath of the appellants by acceding to their dictates, but he could not escape the proddings of his conscience. He realized he had to right a wrong, and this he did with selflessness and at great risk to himself. Furthermore, appellants could not impute any ill motive on the part of SG Bobis except the statement that it was Colonel Lucas Managuelod of the EPD who told him how to testify. Thus, his positive and categorical declarations on the witness stand under solemn oath without convincing evidence to the contrary deserve full faith and credence.[20] Appellant Antonio, however, would seek to completely avoid culpability by claiming that the shooting of Tuadles was caused by mere accident without his fault or intention of causing it, or that he acted in selfdefense. Well-entrenched in our jurisprudence is the rule that where an accused admits having killed the victim but invokes self-defense to escape criminal liability, he assumes the burden of proof to establish his plea of self-defense by clear, credible and convincing evidence.[21] To successfully interpose self-defense, appellant Antonio must clearly and convincingly prove: (1) unlawful aggression on the part of the victim; (2) the reasonable necessity of the means employed to prevent or repel the attack; and (3) the person defending himself must not have provoked the victim into committing the act of aggression.[22] Without granting that his testimony is an accurate narration of the events that took place, we shall discuss the points raised by appellant Antonio only for the purpose of determining whether the requisites of selfdefense were attendant as claimed. In his testimony appellant Antonio alleged that Tuadles committed an act of aggression when he (Tuadles) grabbed the gun which was on top of a sidetable. Appellant Antonio then concluded that Tuadles had the sole intention of using the gun against him (Antonio), so he grappled with Tuadles to prevent the latter from shooting him. His bare testimony, uncorroborated as it is, does not convince us that Tuadles would, so to speak, beat him to the draw. The testimony of Bobis shows that Tuadles was calm in answering Appellant Antonios loud invectives, and it would be hard to imagine Tuadles as the aggressor under such a situation. And even if Tuadles had grabbed the gun, it could very well have been that Tuadles intended to keep the gun away from appellant Antonio to prevent the latter from using it against him considering the state of mind and the foul mood appellant Antonio was in. This would be a more believable scenario since even appellant Antonio admitted that he was suffused with anger, his temper short due to three (3) consecutive sleepless nights. Appellant Antonio never said that Tuadles aimed or pointed the gun at him. There is no evidence, apart from appellant Antonios uncorroborated testimony, that Tuadles made an attempt to shoot him. Hence, there is no convincing proof that there was unlawful aggression on the part of Tuadles. For unlawful aggression to be appreciated, there must be an actual, sudden, unexpected attack or imminent danger thereof, and not merely a threatening or intimidating attitude.[23] The burden of proving unlawful aggression lay on appellant Antonio, but he has not presented incontrovertible proof that would stand careful scrutiny before any court. Lacking this requirement, appellant Antonios claim of self-defense cannot be appreciated. He cannot even claim it as an extenuating circumstance.[24] Besides, it cannot be said that appellant Antonio did not provoke Tuadles, if indeed the latter had grabbed the gun from the table. Antonio himself admitted that he was shouting and cursing Tuadles while in a furious rage. Such a threatening stance could be interpreted as a provocation which could have prompted Tuadles to get the gun so that appellant Antonio, in his anger, would not be able to use it against Tuadles. If ever there was provocation, it was certainly coming from appellant Antonio, not from Tuadles. In the alternative, appellant Antonio claims that the shooting of Tuadles was an accident. He further argues that Tuadles was killed while he, Antonio, was performing a lawful act with due care, and without fault or intention of causing it. Having ruled that appellant Antonio failed to prove his claim of self-defense, (i.e., there was no unlawful aggression on the part of Tuadles and provocation coming from Antonio himself), there is no basis for us to argue with appellant Antonio that he was performing a lawful act when he shot Tuadles.[25] We note that appellant Antonios version of how the shooting took place leaves much room for conjecture. It is true that there is no fixed dictum on the reaction of a person under the circumstances of a sudden death he may have caused. He could react in a variety of ways, some of them even irrational. However, we respect the trial courts findings. The trial court upheld the prosecutions version thus sustaining the theory that if Antonio indeed shot Tuadles by accident, the natural reaction expected of him would be to immediately see to it that Tuadles be brought to a hospital or get medical attention at the quickest time possible. Instead, appellant Antonio left Tuadles, who was supposed to be his good friend, lying dead on the floor for several hours. If indeed he and Tuadles both had their hands on the gun and there was no telling who actually pulled the trigger, we agree that appellant Antonio should have seen to it that no one else would touch the gun barehanded to preserve the fingerprints on it. Instead, he gave the gun to SPO4 Nieto who had no concern for preserving the fingerprints on the gun. Not only that, appellant Antonio also handed the gun to Mayor Jinggoy Estrada. Thus, one tangible piece of evidence that could have proven his claim of self-defense or accident was unfortunately lost due to his lack of presence and due care. Appellant Antonios ambivalence in his choice of defenses is clear from the records. First, he denies that he pulled the trigger because it was Tuadles who was holding the gun. Then he says that he cannot recall who fired the gun so it could have very well been either him or Tuadles who did it. Next, he admits firing the gun, but he did it in selfdefense. Only, he could not indubitably prove that there was unlawful aggression on the part of Tuadles. Failing there, he again admitted shooting Tuadles, but that it was an accident. Again, he failed to prove that he was in the process of performing a lawful act when he shot Tuadles. When an accused invokes self-defense or claims that it was an accident to escape criminal liability, he admits having caused the death of the victim. And when he fails to prove by clear and convincing evidence the positiveness of that justifying circumstance, having admitted the killing, conviction of the accused is inescapable.[26] Appellant Antonio had to rely on the strength of his evidence and not on the weakness of the prosecutions evidence for, even if the latter were weak, his invoking self defense is already an open admission of responsibility for the killing.[27] As it was, appellant Antonios testimony is not only unco rroborated by independent and competent evidence, but also doubtful by itself[28] for being ambivalent and self-serving.[29] Having admitted responsibility for the killing of Tuadles, appellant Antonio claims the mitigating circumstance of voluntary surrender. On this score, we find merit in his claim considering that all the elements in order that voluntary surrender may be appreciated were attendant in his case. First, he had not been actually arrested; Second, he surrendered himself to a person in authority; and Third, his surrender was voluntary. It is of no moment that appellant Antonio did not immediately surrender to the authorities, but did so only after the lapse of about six (6) hours. In the case of People v. Bautista,[30] the voluntary surrender of the accused to a police authority four (4) days after the commission of the crime was considered attenuating. There is no dispute that appellant Antonio voluntarily surrendered to the mayor, a person in authority, before he was arrested, hence the mitigating circumstance of voluntary surrender should be considered in appellant Antonios favor. [31] Appellant Antonio also claims the mitigating circumstance of sufficient provocation on the part of Tuadles. To avail of this mitigating circumstance, it must be shown that the provocation originated from the offended party.[32] However, apart from his own testimony, appellant Antonio has not proven by convincing evidence that he was provoked by Tuadles. He claimed that Tuadles provoked him when the latter refused or could not pay his winning. Refusal to pay cannot be a mitigating provocation for appellant Antonio to kill Tuadles. An unpaid debt cannot, and never will, be a reason to shoot the debtor dead. Besides, appellant Antonio had no other proof that he won and that the argument arose from Tuadles refusal to pay. His bare testimony is, at best, selfserving. Accordingly, appellant Antonio is not entitled to the benefit of the

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mitigating circumstance of sufficient provocation.[33] There is, however, a significant and consequential aspect of the case which the trial court overlooked and disregarded. As earlier stated, we find no sufficient reason to disagree with the trial court when it relied on the testimony of SG Bobis. However, we have carefully examined said testimony, the records of this petition, and the justifications of the trial court upon which it based its decision. There is no basis for the trial courts conclusion that accused Antonio consciously and deliberately adopted his mode of attack to insure the accomplishment of his criminal design without risk to himself. [34] It ruled that treachery qualified the killing to murder. The trial court did not explain the basis for the qualification except for a terse citation that there was a sudden attack and the victim had no opportunity to defend himself or to retaliate. As stated by counsel for appellant, out of the 71-page decision, typed single space, the trial court devoted only a few sentences to the issue of treachery. There was no treachery in this case. It is not only the sudden attack that qualifies a killing into murder. There must be a conscious and deliberate adoption of the mode of attack for a specific purpose. All the evidence shows that the incident was an impulse killing. It was a spur of the moment crime. The precedents are many. They are consistent. Among them: Mere suddenness of attack is not enough to constitute treachery where accused made no preparation or employed no means, method and form of execution tending directly and specially to insure the commission of a crime and to eliminate or diminish risk from defense which the victim may take.[35] A sudden and unexpected attack would not constitute alevosia where the aggressor did not consciously adopt a mode of attack intended to perpetrate the homicide without risk to himself. [36] A sudden and unexpected attack constitutes the absence of alevosia where it did not appear that the aggressor had consciously adopted a mode of attack intended to facilitate the perpetration of the homicide without risk to himself, as where the appellant followed the victims when the latter refused appellant's invitation to have some more alcoholic drinks.[37] The mere suddenness of attack does not, of itself suffice for a finding of alevosia if the mode adopted by the accused does not positively tend to prove that they thereby knowingly intended to insure the accomplishment of their criminal purpose without any risk to themselves arising from the defense that might be offered.[38] The aggravating circumstance of treachery is not present when decision to attack was arrived at on the spur of the moment. [39] The annotations are similarly consistent. It is not enough that the means, methods, or form of execution of the offense was without danger to the offender arising from the defense or retaliation that might be made by the offended party. It is further required, for treachery to be appreciable, that such means, method or form was deliberated upon or consciously adopted by the offender.[40] Such deliberate or conscious choice was held non-existent where the attack was the product of an impulse of the moment.[41] The trial court's ruling that the mere suddenness of an attack makes the killing a murder because of treachery is not consistent with the decisions of this Court.[42] Conscious deliberation or conscious adoption of the mode of attack has to be proved beyond reasonable doubt. For it is likewise an established principle that the quantum of evidence to prove a person's being guilty of a crime is also required to prove treachery. The same degree of proof to dispel any reasonable doubt is required before any conclusion may also be reached respecting the attendance of treachery, whether as qualifying or aggravating, in a criminal case.[43] There is no such proof in this case. There is no dispute that prior to the shooting, appellant Antonio and Tuadles spent several hours having fun playing "pusoy dos." The situation turned ugly, however, when Tuadles could not pay to appellant Antonio his alleged winnings. An argument arose, with appellant Antonio and Tuadles standing face to face three (3) feet away from each other, a Thus, treachery could not be appreciated where the victim was forewarned and could have anticipated the aggression of the accused. Since the sudden shooting of Tuadles was preceded by a heated verbal altercation between Tuadles and appellant Antonio, as admitted by both prosecution and defense, then it cannot be concluded that the shooting was committed with treachery. It is also clear that appellant Antonio did not set out or plan to kill Tuadles in the first place. His criminal act was an offshoot of their argument which neither of them had foreseen. Hence, there was no treachery because treachery requires that the mode of attack must have been thought of by the offender and must have sprung from an unforeseen occurrence.[47] In People v. Nitcha,[48] we held that: To establish treachery, the evidence must show that the accused made some preparation to kill the victim in such a manner as to ensure the execution of the crime or to make it impossible or hard for the person attacked to defend himself. A killing done at the spur of the moment is not treacherous. (Underscoring ours) It was Antonio's sudden anger and heated passion which drove him to pull his gun and shoot Tuadles. Said passion, however, cannot coexist with treachery. In passion, the offender loses his reason and control. In treachery, on the other hand, the means employed is adopted consciously and deliberately. One who, in the heat of passion, loses his reason and self-control, cannot consciously employ a particular means, method or form of attack in the execution of the crime.[49] Thus, the killing of Tuadles by appellant Antonio was not attended by treachery. That the treachery, which was alleged in the information and favorably considered by the trial court to elevate the killing to murder, was not proven by convincing evidence[50] is advocated by the Solicitor General in the Appellee's Brief. He agreed with Appellant Antonio's contention on the matter: On the basis of the evidence at hand, appellee is constrained to agree with this particular submission of Antonio. Antonio and Tuadles engaged in pusoy dos. In the beginning, they were heard laughing and kidding each other (nagtatawanan at nagkakantiyawan). Later, the banter turned into verbal altercation. Under the circumstances, Tuadles became aware of the incipient violence. Hence, Tuadles could have braced himself with the aggression of Antonio. There is no treachery when the killing results from a verbal altercation or spat between the victim and the assailant such that the victim must have been forewarned of the impending danger. In this case, Bobis testified that he saw Antonio and Tuadles facing each other before Antonio raised his hand and shot Tuadles on the forehead. The proximate distance of three feet between Tuadles and Antonio immediately before the fatal shooting allowed and gave Tuadles opportunity to defend himself.[51] Consequently, Antonio can only be convicted of the lesser crime of fact attested to by the defense and even by the prosecution eyewitness himself. Accordingly to SG Bobis, Tuadles and Antonio were arguing. Antonio even called out: Sarge! Sarge! Sarge! Just before the shooting, Bobis heard Antonio saying: Putang ina ka kasi. The argument precluded the presence of treachery. If Antonio had consciously adopted means and methods to kill Tuadles, there was no reason to call for a Sergeant or any eyewitness for that matter. To the point is our ruling in the case of People v. Alacar,[44] where we held that there was no treachery where the attempt to kill resulted from a verbal altercation. More recently, in People v. Salvador, we pronounced that: There would be no treachery when the victim was placed on guard, such as when a heated argument preceded the attack, or when the victim was standing face to face with his assailants and the initial assault could not have been unforseen.[45] (Underscoring Ours) Even if it could be said that the attack was sudden, there would still be no treachery. In People v. Chua,[46] we reiterated our consistent view that: While the killing itself appears to have occurred on sudden impulse, it was preceded by acts of appellant showing hostility and a heated temper that indicated an imminent attack and should have put the deceased on guard.

45
homicide under Article 249 of the Revised Penal code. Having been found guilty of the crime of homicide, the penalty that should be imposed on appellant Antonio should be reduced to reclusion temporal under Article 249 of the Revised Penal Code. There being one (1) mitigating circumstance of voluntary surrender, the penalty to be imposed shall be the minimum period of reclusion temporal, that is, from twelve (12) years and one (1) day to fourteen (14) years and eight (8) months. Applying the Indeterminate Sentence Law, the minimum of the penalty to be imposed shall be the penalty next lower which is prision mayor in any of its periods.[52] Therefore, appellant Alberto Antonio is hereby sentenced to an indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to fourteen (14) years and eight (8) months of reclusion temporal, as maximum. Appellant Antonio challenges the award of compensatory and moral damages to the heirs of Tuadles, arguing that said award was unsupported by adequate evidence. In arriving at the amount of P7,200,000.00 as compensatory damages, the trial court relied completely on the testimony of the victim's widow, Suzette Tuadles, who stated that at the time of his death, Tuadles was earning P50,000.00 a month from his construction business. Applying the formula laid down by this Court in the cases of Villa Rey Transit v. CA,[53] and People v. Quilaton,[54] the trial court arrived at the amount of P7,200,000.00 as compensatory damages for loss of earning capacity. Appellant Antonio argues that the trial court cannot just rely on the sole testimony of Suzette Tuadles, otherwise, it would be basing its computation on mere speculation, conjecture, or guess work. In People v. Silvestre[55] and People v. Verde,[56] we held that the absence of documentary evidence to support the prosecution's claim for damages for loss of earning capacity of the deceased does not preclude recovery of said damages. There, we awarded damages for loss of earning capacity computed on the basis of the testimonies of the victim's wives. This was reiterated in People v. Dizon,[57] where we held that: As a rule, documentary evidence should be presented to substantiate the claim for damages for loss of earning capacity. In People vs. Verde (G. R. No. 119077, February 10, 1999), the non-presentation of documentary evidence to support the claim for damages for loss of earning capacity did not prevent this Court from awarding said damages. The testimony of the victim's wife as to the earning capacity of her murdered husband, who was then 48 years old and was earning P200.00 a day as a tricycle driver, sufficed to establish the basis for such an award. x x x As in People vs. Verde, the Court is inclined to grant the claim for damages for loss of earning capacity despite the absence of documentary evidence. (Underscoring ours) In the case at bar, however, the award for compensatory damages should be calculated as follows: Net earning capacity (x) = life expectancy income - living expenses x gross annual We now come to the errors assigned by appellant SPO4 Juanito M. Nieto. He argues that the trial court erred in convicting him as an accessory. The trial court's grounds for finding him guilty are: (1) he failed to arrest appellant Antonio; and (2) he gave false information tending to deceive the investigating authorities.[62] The Revised Penal Code in Article 19 defines an accessory as one who has knowledge of the commission of the crime, yet did not take part in its commission as principal or accomplice, but took part in it subsequent to its commission by any of three modes: (1) profiting himself or assisting the offender to profit by the effects of the crime; (2) concealing or destroying the body of the crime, or the effects or instruments thereof in order to prevent its discovery; and (3) harboring, concealing, or assisting in the escape of the principals of the crime, provided the accessory acts with abuse of his public functions or when the offender is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime.[63] Under paragraph 3 of Article 19 of the Revised Penal Code, there are two (2) classes of accessories, one of which is a public officer who harbors, conceals or assists in the escape of the principal. Such public officer must have acted with abuse of his public functions, and the crime committed by the principal is any crime, provided it is not a light felony. Appellant SPO4 Nieto is one such public officer, and he abused his public function when he failed to effect the immediate arrest of accused Antonio and to conduct a speedy investigation of the crime committed. The evidence in the case at bar, insofar as appellant Nieto's culpability is concerned, shows that in the middle of the argument between appellant Antonio and the deceased, Antonio called Nieto by shouting, Sarge! Sarge! Hearing this, SG Bobis woke Nieto up and the latter went upstairs. Immediately thereafter, appellant Antonio shot Tuadles, and then ordered Nieto to get the scoresheet and the cards from the table, which Nieto did. Antonio, Nieto and Bobis went downstairs. Antonio told guards Bobis and Ernesto Olac to go with them, and they all boarded Antonio's Mercedes Benz van, including Nieto. They arrived at Antonio's residence in Greenmeadows Subdivision at around 11:30 o'clock in the morning. There, they had coffee while Antonio made some telephone calls. Soon after, a certain Atty. Abaya arrived and talked to the two security guards, while Nieto was present. Nieto then told Bobis that in his statement, he should say that the two of them, i.e., Bobis and Nieto, were seated outside the entrance of the Club when the incident took place. At 5:00 o'clock in the afternoon, Nieto, Bobis and Olac returned to the Club. They waited outside until members of the San Juan police, together with Mayor Jinggoy Estrada and Vice Mayor Philip Cezar, arrived at 6:00 o'clock in the evening. After the police investigated the scene, they proceeded to the police station. There, Nieto reiterated his instruction to Bobis to say that the two of them were outside the club. While Bobis gave his statement to the police, Nieto remained in front of him and dictated to him what he should answer to the questions of the police investigator.[64] The foregoing facts were culled from the testimony of SG Bobis. Appellant Nieto's actuations immediately after the commission of ( the crime demonstrate his liability as an accessory. Being a police officer in the active service, he had the duty to arrest appellant Antonio after the latter committed a crime in his presence, and which he himself witnessed. Unfortunately, he failed to do what was incumbent upon him to do. Instead, he rode with the offender to the latter's house where they stayed for more than five (5) hours. In the early case of U. S. v. Yacat, et al., it was held:[65] It is, however, unquestionable that Pedro Ureta, who was the local president of the town of Cabiao at the time the crime was committed, has incurred criminal liability. Abusing his public office, he refused to prosecute the crime of homicide and those guilty thereof, and thus made it possible for them to escape, as the defendant Pedro Lising did in fact. This fact is sufficiently demonstrated in the records, and he has been unable to explain his conduct in refusing to make an investigation of this serious occurrence, of which complaint was made to him, and consequently he should suffer a penalty two degrees inferior to that designated by paragraph 2 of article 405 of the Code, by virtue of article 68 thereof. Appellant Nieto knew of the commission of the crime. Right before the shooting, appellant Antonio called him and he immediately went upstairs. He saw that appellant shot Tuadles. Despite this knowledge, he failed to arrest appellant and, instead, left the crime scene together with the latter. To this extent, he assisted appellant Antonio in his escape.[66] Furthermore, as correctly found by the trial court, appellant Nieto provided false information to deceive the investigating authorities. He instructed Bobis to answer falsely to the questions of the investigating officer, in order to make it appear that there were no eyewitnesses to the

50% of gross annual income) x = 2(80-40) x [P600,000.00 - 300,000.00] 3 = 26.67 x P300,000.00 = P8,001,000.00

Considering that moral damages may be awarded without proof of pecuniary loss, the Court shall take into account the circumstances obtaining in the case and assess damages according to its discretion.[58] We agree with appellant Antonio that the trial court's award of moral damages was excessive. While there is no hard and fast rule in the determination of what would be a fair amount of moral damages, each case must be governed by its own peculiar circumstances.[59] And though moral damages are incapable of pecuniary estimation to compensate the claimants for actual injury, they are not designed to enrich the complainants at the expense of the accused.[60] Applied to this case, we recognize that Tuadles was the sole support of his family and they will also be deprived of his love and companionship. No amount of money could ever compensate for their loss. While the award of moral damages may help ease the emotional and psychological trauma that they continue to suffer, this Court has not granted so large an amount as moral damages. Accordingly, we find that the amount of P3,000,000.00 granted by the trial court in this case is excessive, and the same is therefore reduced to P500,000.00. Moreover, there being no aggravating circumstances attendant in this case, the award of exemplary damages should also be deleted.[61]

46
incident and thus make it more difficult for the police to solve the crime. Accordingly, the court a quo was correct in convicting appellant as an accessory to the crime, and he should be sentenced to suffer the penalty prescribed by law. Applying the Indeterminate Sentence Law, we impose on appellant Nieto the indeterminate penalty of six (6) months of arresto mayor, as minimum, to four (4) years of prison correccional, as maximum. Finally, we come to appellant SPO1 Honorio Cartalla, Jr.'s appeal. After carefully reviewing the facts and issues raised therein, we find that the trial court erred in finding said appellant guilty as an accessory. The trial court's sole reason for convicting appellant SPO1 Cartalla, Jr. was his failure to produce the laser sight of the gun as evidence during the trial. However, such omission does not amount to concealing or destroying the body of the crime or effects or instruments thereof to prevent its discovery. The laser sight had been surrendered to the police authorities so there was no more need for discovery. Its loss thereafter does not make appellant SPO1 Cartalla, Jr. an accessory. At most, as custodian thereof, he may be made answerable administratively. In his testimony, he made clear that the loss was not intentional. He further stated: Q Finally, Mr. Cartalla, what can you say about the charge against you as alleged in the information that you tried to conceal or destroy the effects or body of the crime to prevent its discovery? It's not true, sir. What answer did you get? Q A Why? A Because I did not conceal anything, I did not destroy anything on the body of the crime and as far as I know, I did all my job as investigator and I worked for it up to the wee hours of the morning up to the next morning, I still did it and I gathered evidence and I submitted it to the Crime Laboratory and even when at the time, I have been hearing that I will not be the one who will investigate, they got it from me without proper notice, that they will take over the investigation, I still did my job, and on the fifth, I was asked by Prosecutor Llorente to retrieve the slug and what I did was even the investigation is not with me, I still did it, I still went to the IBC and I still worked hard, I even remember There was no answer. Nobody was answering me, nobody was talking.[67] brown envelope, I placed it in my drawer. On the second day, I was really busy on that day because I was the only one. I was asking for assistance because I would go out, I will investigate and then I just found out when I was about to submit the laser to the laboratory, I gave the envelope together with the transmittal and when it was being received, he checked it and he said Sgt. Where is the laser sight? and I said it's there, attached. And he said please look at it. COURT Who told you that? A The person who received, your Honor.

COURT But in your transmittal, you wrote there that there was a laser? A Yes, your Honor. When I saw the envelope, there was no laser, I was planning to go back right away but I just said, okay, I will just cross it out and I did not erase because I want that I will not hide anything. It has happened because maybe somebody is interested or I might have left in my drawer. Because I will not hide it. That's why I did not snopake it and I just crossed it out so it can be read together with my initial and when I came back, I asked them who touched my things.

COURT A

Atty. Flaminiano We want to make of record that the witness is now in tears at this moment. COURT Continue. A The companion of Inspector de Leon and PO2 Rojas even said that this policeman is very hardworking, even the investigation is not with him anymore, but still, he's working and I answered him, whatever, whatever they will charge to me, maybe it's just their job and so, I will also do my job. Because as far as I know, I will not be implicated because I have not done anything, I have not done the charges that they filed against me, I was surprised when I was given a confirmation that I was an accessory that is why my youngest child even told me "kala ko Papa, Mabait ka?" and I told him that it's not true. For me, I have not done anything like that.

From the foregoing, it is clear that appellant SPO1 Cartalla, Jr. did not intentionally conceal or destroy the laser sight, and the prosecution failed to prove that he did so with intent to derail the prosecution of the principal accused. On the other hand, while the laser sight was an accessory device attached to the gun, it was not essential to the commission, investigation and prosecution of the crime. The gun itself, which was the instrument of the crime, was surrendered to the authorities and presented as evidence in court. The failure of appellant SPO1 Cartalla, Jr. to present the laser sight as part of the evidence did not in any way affect the outcome of the trial, much less prevent the discovery of the crime. Furthermore, there is no showing that appellant SPO1 Cartalla, Jr. profited by the non-presentation of the laser sight. Thus, under the definition of an accessory under the Revised Penal Code and jurisprudence, appellant Cartalla, Jr.'s omission does not make him liable as an accessory to the crime committed by appellant Antonio. Even the Solicitor General submits that there are no grounds to convict appellant Cartalla, to wit: At the time the laser sight was turned over to Cartalla, the crime or its corpus delicti had been discovered. Hence, the loss of the laser sight could not have prevented the discovery of the crime. The essential instrument of the crime, namely, a caliber .9 mm Beretta Model 92F with serial number BER-041965-7 and black magazine had been preserved and presented as evidence. Neither could Cartalla be said to have profited with the non-presentation of the laser sight as this was not proved by the prosecution. Either way, concealing or profiting, there is no convicting motive for Cartalla to have so committed. More so, as Cartalla was the investigating officer on the case. It is submitted that the non-production of the laser sight by Cartalla did not make him an accessory to the crime committed by Antonio, although he may be administratively liable for the loss of a part of the evidence for the prosecution in this case.[68] WHEREFORE, in view of all the foregoing, the appealed Decision in Criminal Case No. 111232-H is hereby MODIFIED. Accused-appellant Alberto "Ambet" Antonio is found GUILTY beyond reasonable doubt of the crime of HOMICIDE and is correspondingly sentenced to suffer the indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum to fourteen (14) years and eight (8) months of reclusion temporal, as maximum. Accused-appellant Juanito Nieto y Nemer is likewise found GUILTY beyond reasonable doubt as accessory to the crime of HOMICIDE, and is correspondingly sentenced to suffer the indeterminate penalty of six (6) months of arresto mayor, as minimum, to

Atty. Fernandez That's all for the witness, your Honor. COURT The way I look at your case, you are indicted here as an accessory because according to one of the witnesses, the gun together with the laser sight was handled to you and when that gun reached Crame, the laser sight was no longer there, answer me, what happened? A The truth, your Honor, is, when the gun was submitted to me by Inspector Cabrera, the laser sight was there, I immediately made the transmittal for the laboratory and I described what is there, together with the laser and after that, I placed it in a

47
four (4) years of prision correccional, as maximum. Accused-appellant Antonio is likewise ordered to pay to the heirs of Arnulfo B. Tuadles the following sums: (1) P50,000.00 as indemnity for the death of Arnulfo B. Tuadles; (2) P226,298.36 as actual damages; (3) P8,001,000.00 as compensatory damages for loss of earning capacity; (4) P500,000.00 as moral damages; and (5) Costs. For failure to prove accused-appellant SPO1 Honorio Cartalla, Jr.'s guilt beyond reasonable doubt as accessory to the crime, he is ACQUITTED and absolved of all liability, both criminal or civil. In case of insolvency of appellant Alberto S. Antonio @ Ambet, appellant Juanito Nieto y Nemer shall be liable to pay one-half (1/2) of the above-adjudicated sums or the amount of P4,388,649.18 unto the said heirs of Arnulfo B. Tuadles. In all other respects, the judgment of the trial court is AFFIRMED. SO ORDERED. Davide, Jr., C.J. (Chairman), joins Justice Puno in his concurring & dissenting opinion. Puno, J., see concurring & dissenting opinion. Kapunan, and Pardo, JJ., concur. CONCURRING AND DISSENTNG OPINION laughing and teasing each other ("nagkakantiyawan") while playing "pusoy dos". He recognized the voice of Antonio because it was loud in contrast to Tuadles' voice which was soft. At past 9:00 a.m., he heard Antonio say in a loud voice: "Di ba may usapan tayo na ang mag pa pass ay mag-tatap ng dalawang beses sa ibabaw ng mesa?" Antonio then said "Sige ". Tuadles' response was almost inaudible because he spoke in a soft, cool voice (mahina at malamig ang boses).8 Again, Antonio spoke: "Barya lang itong pinagla-laruan natin" (We are only playing for loose change). Tuadles kept silent. Antonio then called: "Sarge, Sarge, Sarge!," referring to SPO4 Nieto. Bobis walked to the sleeping Nieto and informed him that Antonio was calling him. They went to the second floor and saw Antonio and Tuadles standing between the billiard table and the " pusoy" table. They were facing each other but at a certain angle, and about three feet of space separated them. Antonio appeared, hiding his right hand behind his back. He (Antonio) cursed "putang ina ka kasi". Tuadles uttered something which Bobis could not understand because Tuadles' back was turned on him. Antonio then quickly raised his right hand, pointed a gun at the face of Tuadles and fired the gun ("Mabilis na inangat niya ang kanang kamay niya at itinapat sa mukha ni Arnie Tuadles at ipinutok ang baril ").9 Tuadles twisted to the right and fell on the floor face down. Antonio removed the gun's magazine, cocked it and replaced its magazine. The gun had a laser light attached to its end.10 Antonio ordered SPO4 Nieto to get the score sheet and the cards laying on top of a table. SPO4 Nieto placed the cards on a paper, folded it several times, and placed it inside the clutch bag of Antonio. Bobis was taken aback by the incident. When he regained his composure, he asked Antonio: "Boss, bakit nangyari ito." Antonio did not immediately respond but later pointed his finger at Bobis and then warned: "Ikaw, huwag kang tumistigo, ha!" Bobis kept quiet due to fear. They all went downstairs. Olac who heard the gunfire inquired from Bobis what happened. He told him that Antonio shot Tuadles. Antonio then commanded Bobis to get the key of Tuadles' car. He did as he was told. Only two vehicles were parked in the premises of the club: the Mercedes Benz van of Antonio and the car of Tuadles. They boarded the van, with Antonio driving. Following them was the car of Tuadles driven by Antonio's driver. The driver left Tuadles' car near Shaw Blvd. and rode in the van. They headed to the house of Antonio. They left the club at 10:00 a.m. and arrived at Antonio's house in Green Meadows at 11:30 a.m. On instruction of Antonio, his driver burned the score sheet and the cards. They stayed at Antonio's house for several hours while Antonio conferred with his lawyer. Antonio's lawyer told Bobis that he should say that the shooting was an accident. SPO4 Nieto instructed Bobis to claim that he was outside the entrance of the club when the shooting took place. Bobis, Nieto, Olac and Antonio's driver returned to the club at 5:00 p.m. Thirty minutes later, a team of policemen from San Juan arrived. They found the lifeless body of Tuadles sprawled on the second floor. Police investigator SPO1 Cartalla, Jr. took the statement of Bobis that same day. In his statement, Bobis denied seeing the shooting incident. On November 4, 1996, Bobis happened to watch the television and he saw the crying Mrs. Tuadles while being interviewed. Bothered by his conscience, he requested the operations manager of their security agency to bring him to the Eastern Police District. On November 5, 1996, he gave another statement to the EPD and revealed the truth that fateful day of November 2, 1996. Given these facts, the majority holds that treachery did not attend the killing of Tuadles. There is treachery (alevosia) 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.11 The two elements that must be proved to establish treachery are: (1) the employment of means of execution which would ensure the safety of the offender from defensive and retaliatory acts of the victim, giving the victim no opportunity to defend himself, and (2) the means, method and manner of execution were deliberately and consciously adopted by the offender.12 I respectfully submit that the killing of Tuadles was characterized by treachery. First. There is little doubt that the first element of treachery was proved by the prosecution. The victim, Tuadles, had absolutely no opportunity to defend himself from the aggression of Antonio. The attack was sudden, coming as it did like a thunderbolt from a blue sky. It was preceded by a not too serious argument about a rule of the "pusoy dos" game which appeared to have been overlooked by Tuadles. The little argument agitated Antonio but not Tuadles. Hence, the attack was unexpected especially because Tuadles and Antonio did not have any prior misunderstanding. Tuadles even endearingly called Antonio "uncle". Likewise, Tuadles was a basketball player when Antonio served

PUNO, J.: I agree with the majority decision except its finding that treachery did not attend the killing of the victim, Arnulfo Tuadles, and the conclusion that the accused-appellant, Alberto "Ambet" Antonio, should not be held guilty of murder but only of homicide. For proper perspective, I wish to relate the relevant facts on the issue of treachery. On November 2, 1996, at about 9:30 a.m., the victim, Arnulfo "Arnie" Tuadles, 40 years old, a former professional basketball player and a family man, was shot to death by accused-appellant Alberto "Ambet" Antonio, 59 years old and former Chairman of the Games and Amusement Board. The murder weapon was a 9mm Beretta Model 92F pistol, with a laser sight.1 Tuadles sustained a single gunshot wound on the forehead, between the eyes.2 The bullet hit the brain and exited at the right portion of the back of the head.3 He died due to "intracranial hemmorhage."4 Dr. Jaime Leal, Medico-Legal Officer at the PNP Crime Laboratory, conducted the autopsy examination on the Tuadles. His examination showed that Tuadles was shot at close range, specifically at a distance of less than 12 inches.5 The bullet's trajectory was directed backwards, slightly upwards and to the right.6 The autopsy also revealed that Tuadles suffered five (5) abrasions ("gasgas"), located on his forehead, nose, tip of nose, cheek, and right lower lip. He sustained these abrasions as he collapsed on the floor after he was shot. There were also contusions on Tuadles' forehead and lower lip that could have been sustained when his face hit a hard blunt object, and hematomas on both eyes caused by the "pulling of the blood in the spaces between the eyes." He had a lacerated wound on the cheek which could have been caused by a forcible contact of the skin with a hard blunt object, such as chairs or tables, when he was falling to the floor.7 All the injuries were located on the head of the victim. Security guard Jose Jimmy Bobis gave the eyewitness account of the shooting. He reported at the IBC Club in Greenhills, San Juan, on November 2, 1996 at 7:00 a.m. He relieved co-security guard Ernesto Olac. At that time, there were only five (5) people inside the club: Antonio, Tuadles, SP04 Juanito Nieto, Olac and Bobis. Antonio and Tuadles were at the second floor playing "pusoy dos", SP04 Nieto and Olac were sleeping in the dining area at the ground floor, while Bobis was in the bar, also at the ground floor, keeping watch of the premises. In the course of his duty, Bobis heard Antonio and Tuadles

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as Chairman of the Games and Amusement Board. Second. The prosecution also proved the second element of treachery that "the means, method and manner of execution were deliberately and consciously adopted by the offender." This element deals with the subjective aspect of treachery, hence, the more difficult element to determine. We are not, however, without any established jurisprudence in determining whether the accused-appellant deliberately and consciously adopted the means, method and manner of killing the victim. The authoritative La Fave and Scott, after a survey of court rulings, tell us of the relevant evidence to consider, viz:13 "On the basis of events before and at the time of the killing, the trier of fact will sometimes be entitled to infer that the defendant actually premeditated and deliberated his intentional killing. Three categories of evidence are important for this purpose: (1) facts about how and what the defendant did prior to the actual killing which show he was engaged in activity directed toward the killing, that is, planning activity; (2) facts about the defendant's prior relationship and conduct with the victim from which motive may be inferred; and (3) facts about the nature of the killing from which it may be inferred that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design. Illustrative of the first category are such acts by the defendant as prior possession of the murder weapon, surreptitious approach of the victim, or taking the prospective victim to a place where others are unlikely to intrude. In the second category are prior threats by the defendants to do violence to the victim, plans or desires of the defendant which would be facilitated by the death of the victim, and prior conduct of the victim known to have angered the defendant. As to the third category, the manner of killing, what is required is evidence (usually based upon examination of the victim's body) showing that the wounds were deliberately placed at vital areas of the body. The mere fact that the killing was attended by much violence or that a great many wounds were inflicted is not relevant in this regard, as such a killing is just as likely (or perhaps more likely) to have been on impulse. Conduct by the defendant after the killing in an effort to avoid detection and punishment is obviously not relevant for purposes of showing premeditation and deliberation, as it only goes to show the defendant's state of mind at the time and not before or during the killing." (emphasis ours) The evidence proves the deliberateness of the attack made by Antonio. The attack was done with swiftness. It was motivated by the failure of Tuadles to follow an agreement on the " pusoy" game. The deliberateness of the attack is also shown by the fact that Tuadles was shot at close range, with the muzzle of the gun less than 12 inches from Tuadles' forehead. Antonio aimed at Tuadles' forehead, between the eyes. The bullet penetrated Tuadles' brain, destroyed its right hemisphere and caused Tuadles' instantaneous death. Clearly, Antonio chose to shoot Tuadles at a vital part of his body. As a result, Tuadles became an instant statistic of the graveyard. With due respect, I do not agree with the majority that the case at bar involves a spur of the moment killing, hence, there is no treachery. The majority states that there was a prior heated altercation between Tuadles and Antonio. The heated altercation allegedly forewarned Tuadles of the attack. The so-called heated altercation, however, is not well-established by the evidence. A replay of the facts will reveal that eyewitness Bobis initially heard the two teasing each other ("nagkakantiyawan"). Later, an argument developed between them which cannot be characterized as a "heated altercation." Bobis testified as follows: 14 "Q: Now, this matter of 'kantiyawan' and 'nagtatawanan' iyong dalawa, how long did this continue during the period of time you were there? A: xxx A few seconds only. xxx xxx Leading, your Honor. COURT: Answer. A: Yes, sir.

Q: What did you hear? xxx A: xxx xxx xxx

Di ba may usapan tayo na ang mag-pa-pass ay mag-ta-tap ng dalawang beses sa ibabaw ng mesa? xxx xxx

Q: Before you heard this statement, did you hear other things from Mr. Ambet Antonio apart from what you have said, before that? A: xxx None, sir. xxx xxx

Q: Was there any comment that you heard from Mr. Tuadles? A: Yes, sir.

Q: What did you hear from Mr. Tuadles? A: I could not understand because his voice was soft and ...

Prosecutor Llorente: May we put on record the answer of the witness in Tagalog? COURT: Granted. A: "Mahina at malamig ang boses."

Despite the soft response from Tuadles, Antonio continued with his outburst, thus:15 "Q: Going back now to Mr. Antonio, did you hear him again mentioned (sic) or say other things? A: Yes, sir.

Q: What did you hear from Mr. Ambet Antonio? A: 'Barya lang and pinagla-laruan natin.' It's only a (sic) loose change that we are playing with here.

Q: Did you hear any word from Mr. Tuadles? A: No more, sir."

In sum, it was only Antonio who appeared agitated during the alleged altercation. Tuadles spoke in a soft and cool voice that Bobis could hardly hear and understand him. The characterization of the argument that preceded the shooting of is decisive of the issue of treachery. I submit that the argument between Antonio and Tuadles was trivial for it merely concerned the inadvertence of Tuadles to tap the table when making a pass. Nothing in the records shows that Tuadles violated the rule intentionally. Nothing shows the degree of damage suffered by Antonio as a consequence of Tuadles' omission. It is thus my submission that the argument appears to be slight and cannot justify the conclusion that Antonio acted in the heat of passion or on impulse in killing the victim. The case of People vs. Cruz 16 is apropos. In said case, the accused and the victim were "compadres" for having stood as sponsors in the baptism of a common friend. The accused used to drive one of the tricycles of the victim until the latter sold the tricycle the accused was driving. It was claimed that the accused bore a grudge against the victim because of the said incident. At any rate, while the victim was talking with a co-tricycle driver along the street while waiting for passengers, the accused appeared and approached the victim. Upon nearing the victim, accused angrily uttered, "Pare, walang presidente presidente sa akin" as he simultaneously drew out a gun from the front portion of his waist and shot the victim with it point blank, hitting the upper left eyebrow of the latter which caused him to fall on the ground. Thereafter, accused left. This Court rejected the claim of the accused that the shooting was accidental and noted with approval the observation of the Solicitor

Q: Would you be in a position to recognize the voices of Ambet Antonio and Arnie Tuadles? A: Yes, sir.

Q: Why? A: Arnie Tuadles' voice is soft and Ambet Antonio's voice is loud.

Q: Let's focus on Mr. Antonio, you said his voice was loud, did you hear him mentioned (sic) anything at that time? Atty. Flaminiano:

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General that "if the shooting of the victim were accidental, accused would have come to his aid and taken him to a hospital, instead of abandoning him." The Court further held that the accused was liable for murder. The victim was unarmed. He did not have the least suspicion of the accused's design to shoot him. In contrast, accused had a gun. The victim, therefore, had no chance to defend himself against the latter's frontal attack. Treachery qualified the killing to murder. With due respect to the majority, I find the killing of the victim Tuadles qualified by treachery. I vote to convict accused-appellant Antonio of murder as charged. DIGEST Accused was convicted of murder. He questions credibility of witness because the latters first statement differed with his succeeding statements and his testimony in open court. HELD: Affidavits or statements taken ex-parte are generally considered incomplete and inaccurate. Thus, by nature, they are inferior to testimony given in court and whenever there is inconsistency between the affidavit and the testimony of a witness in court, the testimony commands greater weight. Moreover, inconsistencies between the declaration of the affiant in his sworn statements and those in open court do not necessarily discredit said witness. Previous statements cannot serve as bases for impeaching the credibility of a witness unless his attention was first directed to the discrepancies and he was then given an opportunity to explain them. It is only when no reasonable explanation is given by a witness in reconciling his conflicting declarations that he should be deemed impeached. Further, in an appeal, where the culpability or innocence of an accused would hinge on the issue of credibility of witnesses and the veracity of their testimonies, findings of trial court are entitled to and given the highest degree of respect. There was no treachery. It is not only the sudden attack that qualifies a killing into murder. There must be a conscious and deliberate adoption of the mode of attack for a specific purpose. All the evidence shows was that the incident was an impulse killing. It was a spur of the moment crime. A sudden and unexpected attack would not constitute alevosia where the aggressor did not consciously adopt a mode of attack intended to penetrate the homicide without risk to himself. and with intent to kill, fired their guns at Marjune Roca, which caused his death, shot at Benita Avendao Roca and Febe Roca and hurled a grenade against them and both of them died as consequence of the wounds they sustained; and also fired upon Alfredo Roca with their firearms, thus performing all the acts of execution which would produce the crime of murder as a consequence but which, nevertheless, did not produce it by reason of the timely running for cover by the said Alfredo Roca. That in the commission of the crime, the generic aggravating circumstances of treachery, disregard of the respect due the deceased Febe Roca and Benita Avendao Roca on account of their age and sex and that the crime was committed by a band. ALL CONTRARY TO LAW.[2] All of the accused remain at large to this day except for appellant who was arrested on January 5, 1990. He pleaded not guilty during arraignment on January 25, 1990. In order to expedite the hearing of his case, appellant was granted a separate trial. The prosecution presented Alfredo Roca, Virgilita Roca-Laureaga, Dr. Aurora Belsa and Emilio Roca as its witnesses. The prosecution anchored its case principally on the testimony of Alfredo Roca who saw how appellant and his companions robbed them of 35 sacks of palay after killing his son Marjun Roca, his wife Benita Roca and his mother Febe Roca. Alfredo Roca testified that between 12:00 noon and 1:00 p.m. of March 20, 1987, he was in his farm in Manggahan, Rizal, Nueva Ecija to thresh palay. With him at that time were Marjun Roca, Benita Roca, Febe Roca and daughter Virgilita Roca-Laureaga. He, Benita and Febe were about to take their lunch inside his hut. Marjun and Virgilita were done eating and were standing outside. At this point, Alfredo noticed the arrival of an owner-type jeep with trailer which stopped at a spot not far from his hut. He recognized the occupants as accused Antos Dacanay, Edgardo Liling Areola, William Ancheta, Lito de la Cruz, Ely Calacala and appellant Felipe Boy Ulep who all alighted from the jeep. Dacanay, Areola and Ancheta stood on one side of the irrigation canal facing Marjun Roca who was standing on the other side. From a distance of 10 to 12 meters, Alfredo saw Dacanay suddenly pull out a gun and shoot Marjun on the head, causing the latter to fall to the ground. As he lay on the ground, Marjun was again shot, this time by Areola and Ancheta. Thereafter, Ulep, de la Cruz and Calacala started firing at Alfredos hut. Alfredo was not hit, however, because he was able to get out of the hut and dive into the irrigation canal in the nick of time. However, Benita and Febe were fatally hit by the initial volley of gunfire. The assailants fired at Alfredo in the canal but they did not hit him. Ancheta then hurled a grenade which exploded near the hut. When the group ran out of bullets, Alfredo emerged from the canal and hid inside his hut. He saw the group load onto the trailer 35 sacks of palay, each containing an average of 50 kilos valued at P4.50 per kilo. Alfredo owned the stolen palay. Appellant Ulep and his companions then boarded their jeep and left. Virgilita Roca-Laureaga corroborated the eyewitness account of her father Alfredo Roca. She declared that, from a distance of 10 meters, she saw her brother Marjun fall to the ground after being shot by Dacanay. Following the grenade explosion, Areola aimed his gun at her and pulled the trigger but the gun did not fire because he had apparently run out of bullets. She also saw appellant Ulep fire his gun at her fathers hut. Dr. Aurora Belsa, assistant provincial health officer of Rizal, Nueva Ecija, conducted the autopsy on the bodies of Marjun, Benita and Febe. Her report showed that: (1) Marjun sustained gunshot wounds in the head, stomach and chest; (2) Benita suffered gunshot wounds that punctured her small and large intestines and (3) Febes gunshot wounds in her chest damaged her lungs, heart and liver. Dr. Belsa declared that all the gunshot wounds sustained by the victims were fatal, causing their immediate death. Emilio Roca, 81 years old and husband of Febe Roca, testified on the civil aspect of the case. He stated that, as a result of the death of Febe, Marjun and Benita, the family incurred expenses for the wake and funeral in the amount of P85,000. Likewise, the death of his wife, sister-inlaw and grandson caused him to suffer a fit of depression. He lived in fear and was forced to sell his house. He transferred residence because the perpetrators might return to kill him. The defense had a different story. Appellant Ulep, a cogon-gatherer in the farm of Edgardo Areola, alleged that at around 10:30 a.m. on March 20, 1987, he went to Areolas farm to check whether the palay crops had adequate water. The farm was

7. TREACHERY

THIRD DIVISION [G.R. No. 143935. June 4, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. WILLIAM ANCHETA, EDGARDO AREOLA, ANTOS DACANAY, LITO DE LA CRUZ, FELIPE ULEP @ BOY ULEP AND ELY CALCALA, accused. FELIPE ULEP @ BOY ULEP, appellant. DECISION CORONA, J.: This is an appeal from the decision[1] dated October 16, 1998 of the Regional Trial Court of Cabanatuan City, Branch 30, convicting the appellant Felipe Boy Ulep of the crime of robbery with homicide and sentencing him to suffer the penalty of reclusion perpetua. Appellant, together with William Ancheta, Edgardo Liling Areola, Antos Dacanay, Lito dela Cruz and Ely Calacala, was charged with the crime of robbery with multiple homicide and frustrated murder in an Information dated November 2,1987: That on or about the 20th day of March, 1987, at 12:00 oclock to 1:00 oclock in the afternoon, at Manggahan, Bicos, Rizal, Nueva Ecija, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring, confederating and helping one another, did then and there wilfully, unlawfully and feloniously, through force and intimidation upon persons, take, rob and carry away thirty (30) cavans of clean palay valued at P4,500.00 belonging to Alfredo Roca, to his damage and prejudice, and in order to successfully carry out the robbery, the above-named accused, pursuant to the same conspiracy, wilfully, unlawfully and feloniously, with evident premeditation and with treachery,

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located just beside Alfredo Rocas. When he saw that the crops were almost withered, appellant diverted the flow of water from Alfredos farm to that of Areolas. While he was beside the irrigation ditch, he noticed 10 male strangers in the vicinity of Alfredos hut. He saw Alfredo attempting to throw a grenade at the other side of the canal but two women prevented him from doing so by embracing him. As a result of the struggle, Alfredo dropped the grenade. Whereupon Alfredo immediately jumped into the irrigation canal to take cover. The grenade then exploded. He never saw his co-accused in the vicinity nor did he hear any gunshots. After witnessing these events, appellant walked away and continued irrigating Areolas farm. At about 1:00 p.m., he had lunch in the house of his in-laws in Bicos, Rizal, Nueva Ecija and returned to the farm at 2:00 p.m. He worked until 5:00 p.m. and spent the night in the house of his in-laws. The next morning, he went home to Villa Paraiso, Rizal, Nueva Ecija. Federico Catalan, appellants neighbor and a barangay captain, testified that at around 11:00 a.m. on March 20, 1987, he went to his farm which was about 100 meters away from Edgardo Areolas farm. Between 12:00 noon and 12:30 p.m., he saw appellant walking towards the irrigation canal and joined him to go there. At 1:00 p.m., they both went home to eat lunch and later returned to continue irrigating their farms up to 5:00 p.m. After work, they proceeded home to Villa Paraiso. He also testified that the wife of appellant was his niece. On cross-examination, he declared that he heard a gunshot at around 1:00 p.m. On October 16, 1998, the trial court found appellant guilty beyond reasonable doubt of the crime of robbery with homicide. The dispositive portion of the decision read: WHEREFORE, in view of the foregoing consideration and finding that the accused, FELIPE ULEP, is guilty of the special complex crime of ROBBERY WITH HOMICIDE, he is hereby sentenced to suffer imprisonment of RECLUSION PERPETUA; to indemnify the heirs of Marjun Roca, Benita Avendao-Roca and Febe Roca P50,000.00 each for their deaths; to pay the sum of P50,000.00 for expenses incurred for the burial of Marjun Roca and Benita Avedao-Roca; to pay the sum of P50,000.00 to Emilio Roca for burial expenses incurred; and to pay the heirs of Marjun Roca, Benita Avendao-Roca and Febe Roca, P50,000.00 each by way of moral damages; to pay Alfredo Roca the sum of P7,877.00 for the 35 cavans of palay taken on the occasion of the robbery; and to pay the cost of this suit. SO ORDERED.[3] Thus, the instant appeal based on the following assignments of error: I THE COURT A QUO GRAVELY ERRED IN ADMITTING AND GIVING WEIGHT AND CREDENCE TO THE TESTIMONY OF THE PROSECUTION WITNESSES DESPITE THE FAILURE OF THE PROSECUTION TO MAKE A FORMAL OFFER BEFORE THEY (WITNESSES) TESTIFIED. II THE COURT A QUO ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT FOR THE CRIME CHARGED HAS BEEN PROVEN BEYOND REASONABLE DOUBT. III THE COURT A QUO ERRED IN DISREGARDING THE EVIDENCE ADDUCED BY THE DEFENSE.[4] In the first assignment of error, appellant alleges that the trial court erred in admitting as evidence the testimonies of the prosecution witnesses despite the failure of the prosecution to make a formal offer thereof in violation of Rule 132, Section 34 of the Rules of Court: Sec. 34. Offer of Evidence The Court shall consider no evidence which has not been formally offered. xxx. Corollarily, Section 35 of the same Rule 132 states that: Sec. 35. When to make offer. As regards the testimony of a witness, the offer must be made at the time the witness is called to testify. This formal offer of testimonial evidence is necessary in order to enable the court to rule intelligently on any objections to the questions asked. As a general rule, the proponent must show its relevance, materiality and competence. Where the proponent offers evidence deemed by counsel of the adverse party to be inadmissible for any reason, the latter has the right to object. But such right can be waived. Necessarily, the objection must be made at the earliest possible time lest silence, when there is an opportunity to speak, operates as a waiver of the objection.[5] The records show that the prosecution failed to formally offer the questioned testimonies of witnesses Alfredo Roca and Virgilita RocaLaureaga. However, appellant waived this procedural error by failing to make a timely objection, i.e., when the ground for objection became reasonably apparent the moment said witnesses were called to testify without any prior offer having been made by the proponent. He even impliedly acquiesced to the materiality, competence and relevance of the prosecution witnesses testimonies by cross -examining them. Since appellant failed to raise before the trial court the issue of the prosecutions failure to formally offer the testimonies of its witnesses, an objection on this score raised for the first time on appeal will not be entertained. The second and third assignments of error, being interrelated, shall be discussed jointly. Appellant assails the testimonies of prosecution witnesses, Alfredo and Virgilita, for being unbelievable and contrary to human nature. According to appellant, the natural tendency of a person being fired at is to take cover. Thus, it was inconceivable for Alfredo to still attempt to take a look at his assailants as he was at risk of being shot and killed. Besides, he could not have witnessed the killing of Marjun if he himself was being attacked at the same time. It is apparent that appellants defense rests mainly on the credibility of the prosecution witnesses. It is settled, however, that, when the issue of credibility of a witness is involved, the appellate courts will generally not disturb the findings of the trial court, considering that the latter was in a better position to resolve the matter, having heard the witness and observed his deportment during trial, unless certain facts of value were plainly ignored, which if considered might affect the result of the case.[6] We find the trial courts evaluation of the facts and its conclusions fully supported by the evidence. Alfredo and Virgilita were straightforward and categorical in their narration of how appellant and his cohorts killed Marjun, Febe and Benita, and thereafter took 35 cavans of palay from their farm. Despite the grueling cross-examination, they never wavered in their testimonies regarding the details of the crime. What made their testimonies even more credible was the fact that both Alfredo and Virgilita had no ill-motive to testify against appellant and his co-accused. It has been our consistent ruling that a witness testimony deserves full faith and credit where there exists no evidence to show any improper motive why he should testify falsely against the accused, or why he should implicate the accused in a serious offense.[7] Further, the relationship of Alfredo and Virgilita to the victims all the more bolstered their credibility as they naturally wanted the real culprits to be punished. It would be unnatural for the relatives of the victims in search of justice to impute the crime to innocent persons and not those who were actually responsible therefor. Appellant also points out the glaring inconsistencies in the testimonies of Alfredo and Virgilita. Appellant cites the testimony of Virgilita that the assailants waited for about five minutes after they stopped firing at Marjun before they started shooting at her father Alfredo. This, according to appellant, contradicted Alfredos testimony that the perpetrators started firing at him immediately after Marjun was killed. Likewise, while Virgilita declared that Ancheta threw the grenade before her father jumped into the irrigation canal, Alfredo testified that Ancheta threw the grenade when he was already in the canal. Appellant insists that these inconsistencies tainted the credibility of both Alfredo and Virgilita. The alleged discrepancies in the testimonies of Alfredo and Virgilita referred only to minor matters. There was no inconsistency as far as the principal occurrence and the positive identification of the assailants were concerned. Both Alfredo and Virgilita positively identified appellants group as the persons who attacked and robbed them. The court a quo correctly cited the case of People vs. Fabros[8] where we held that: Inconsistencies among witnesses testifying on the same incident may be expected because different persons may have different impressions or recollections of the same incident. One may remember a detail more clearly than another. Witnesses may have seen that same detail from different angles or viewpoints. That same detail may be minimized by one but considered important by another. Nevertheless, these disparities do not necessarily taint the witnesses credibility as long as their separate versions are substantially similar or agree on the material points. Thus,

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although it may be conceded that there are some variations in the separate testimonies xxx, these do not, in our view, detract from the integrity of their declarations. On the contrary, they represent a believable narration, made more so precisely because of their imperfections, of what actually happened. xxx Moreover, the testimonies of Alfredo and Virgilita were supported by the medical findings of Dr. Belsa. The presence of gunshot wounds in the bodies of the victims materially corroborated the prosecution witnesses testimonies that appellant and his co-accused repeatedly fired their guns at their hapless victims. Appellant also interposes the defense of alibi. The time-tested rule is that alibi cannot prevail over the positive assertions of prosecution witnesses[9], more so in this case where appellant failed to prove that he was at another place at the time of the commission of the crime and that it was physically impossible for him to be at the crime scene. Appellants claim that he was in Edgardo Areolas farm from 10:30 a.m. to 5:00 p.m. did not negate the possibility that he had gone to Alfredos farm between 10:30 a.m. and 5:00 p.m. to commit the crime, considering the fact that Areolas farm was just beside Alfredos farm, the scene of the crime. It was, on the contrary, appellants alibi that was considerably weakened by the major inconsistencies between his and Federico Catalans supposedly corroborating testimony. While appellant testified that he did not hear any gunshot the entire day on March 20, 1987, Catalan contradicted this by attesting that he heard a gunshot at about 1:00 p.m. Likewise, appellant claimed that after working in the farm, he proceeded to the house of his in-laws in Bicos and only went home to Villa Paraiso the next day Catalan, on the other hand, stated that after work that same day, they went home to Villa Paraiso together. Appellant also contends that the prosecution failed to prove the special complex crime of robbery with homicide. He insists that there was no showing that the perpetrators killed the victims in order to steal the palay. There is robbery with homicide when there is a direct relation or an intimate connection between the robbery and the killing, whether the killing takes place prior or subsequent to the robbery or whether both crimes are committed at the same time.[10] Based on the facts established, the Court is convinced that the prosecution adequately proved the direct relation between the robbery and the killing. Immediately after shooting the victims, the assailants loaded the sacks of palay onto the trailer of the jeep. As they did so, no conversation took place and there was no hesitation on their part, indicating that they were proceeding from a common, preconceived plan. In fact, why would they bring a trailer if their only purpose was to massacre the Roca family? The series of overt acts executed by appellant and his companions, in their totality, showed that their intention was not only to kill but to rob as well. The group tried to kill all the members of the Roca family to ensure lack of resistance to their plan to take Alfredos palay. Whenever homicide is perpetrated with the sole purpose of removing opposition to the robbery or suppressing evidence thereof, the crime committed is robbery with homicide.[11] Further, in order to sustain a conviction for robbery with homicide, robbery must be proven as conclusively as the killing itself.[12] A review of the entire records of this case leads us to conclude that robbery was established beyond reasonable doubt. As long as the killing is perpetrated as a consequence or on the occasion of the robbery, the special complex crime of robbery with homicide is committed. Of the aggravating circumstances alleged in the information,[13] only treachery and band were established. There was treachery as the events narrated by the eyewitnesses pointed to the fact that the victims could not have possibly been aware that they would be attacked by appellant and his companions. There was no opportunity for the victims to defend themselves as the assailants, suddenly and without provocation, almost simultaneously fired their guns at them. The essence of treachery is the sudden and unexpected attack without the slightest provocation on the part of the person attacked.[14] We deem it necessary to reiterate the principle laid down by the Court en banc in the case of People vs. Escote, Jr.[15] on the issue of whether treachery may be appreciated in robbery with homicide which is classified as a crime against property. This Court held: xxx (t)reachery is a generic aggravating circumstance to robbery with homicide although said crime is classified as a crime against property and a single and indivisible crime. xxx xxx xxx xxx

In fine, in the application of treachery as a generic aggravating circumstance to robbery with homicide, the law looks at the constituent crime of homicide which is a crime against persons and not at the constituent crime of robbery which is a crime against property. Treachery is applied to the constituent crime of homicide and not to the constituent crime of robbery of the special complex crime of robbery with homicide. The crime of robbery with homicide does not lose its classification as a crime against property or as a special complex and single and indivisible crime simply because treachery is appreciated as a generic aggravating circumstance. Treachery merely increases the penalty for the crime conformably with Article 63 of the Revised Penal Code absent any generic mitigating circumstance. xxx xxx xxx xxx xxx xxx xxx xxx xxx

In sum then, treachery is a generic aggravating circumstance in robbery with homicide when the victim of homicide is killed by treachery. The offense was also proven to have been executed by a band. A crime is committed by a band when at least four armed malefactors act together in the commission thereof. In this case, all six accused were armed with guns which they used on their victims. Clearly, all the armed assailants, including appellant, took direct part in the execution of the robbery with homicide. Under Article 294 (1) of the Revised Penal Code, the crime of robbery with homicide carries the penalty of reclusion perpetua to death. Inasmuch as the crime was committed on March 20, 1987 which was prior to the effectivity of RA 7659 on December 31, 1993, the penalty of death cannot be imposed even if the aggravating circumstances of treachery and band attended its commission. Only the single indivisible penalty of reclusion perpetua is imposable on appellant. With respect to damages, we affirm the award of P50,000 as civil indemnity each for the death of Marjun, Febe and Benita Roca. In addition, moral damages must be granted in the amount of P50,000 for each of the deceased victims. The amount of P7,875 is also due to Alfredo Roca as reparation for the 35 sacks of palay stolen from him, each valued at P225. The heirs of the victims are likewise entitled to exemplary damages in the sum of P20,000 for each of the three victims due to the aggravating circumstances that attended the commission of the crime. However, the award of burial expenses cannot be sustained because no receipts were presented to substantiate the same. Nonetheless, the victims heirs are entitled to the sum of P25,000 as temperate damages in lieu of actual damages, pursuant to the case of People vs. Abrazaldo.[16] WHEREFORE, the decision of the Regional Trial Court of Cabanatuan City, Branch 30, convicting appellant Felipe Boy Ulep of the crime of robbery with homicide and sentencing him to suffer the penalty of reclusion perpetua is hereby AFFIRMED with MODIFICATION. Appellant is also ordered to pay the heirs of the victims: (1) P50,000 as civil indemnity for each of the three victims; (2) P50,000 as moral damages for each of the three victims; (3) P7,875 as reparation for the 35 stolen sacks of palay; (4) P20,000 as exemplary damages for each of the three victims and (5) P25,000 as temperate damages. SO ORDERED. Vitug, (Chairman), Sandoval-Gutierrez, and Carpio-Morales, JJ., concur.

8. TREACHERY (HINDI AKO SURE DITO) EN BANC [G.R. No. 140756. April 4, 2003]

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PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUAN GONZALES ESCOTE, JR. @ Jun Mantika of Sta. Lucia, Angat, Bulacan and VICTOR ACUYAN y OCHOVILLOS @ Vic Arroyo of Sto. Nio, Poblacion, Bustos, Bulacan, accused-appellants. DECISION CALLEJO, SR., J.: Robbery with homicide is classified as a crime against property. Nevertheless, treachery is a generic aggravating circumstance in said crime if the victim of homicide is killed treacherously. The Supreme Court of Spain so ruled. So does the Court rule in this case, as it had done for decades. Before the Court on automatic review is the Decision[1] of Branch 11 of the Regional Trial Court of Bulacan in Criminal Case No. 443-M-97 convicting accused-appellants Juan Gonzales Escote, Jr. and Victor Acuyan of the complex crime of robbery with homicide, meting on each of them the supreme penalty of death, and ordering them to pay the heirs of the victim, SPO1 Jose C. Manio, Jr., the total amount of P300,000.00 by way of actual and moral damages and to pay to Five Star Bus, Inc., the amount of P6,000.00 by way of actual damages. The Facts Pampanga, performed an autopsy on the cadaver of the police officer. The doctor prepared and signed an autopsy report detailing the wounds sustained by the police officer and the cause of his death: Body still flaccid (not in rigor mortis) bathed with his own blood. There were 6 entrance wounds and 6 exit wounds. All the entrance were located on his right side. An entrance (0.5 cm x 0.5 cm.) located infront of the right ear exited at the left side just below the ear lobe. Another entrance through the mouth exited at the back of the head fracturing the occiput with an opening of (1.5 cm x 2 cm). Blood CSF and brain tissues came out. Another fatal bullet entered at the upper right cornea of the sternum, entered the chest cavity pierced the heart and left lung and exited at the left axillary line. Severe hemorrhage in the chest cavity came from the heart and left lung. The other 3 bullets entered the right side and exited on the same side. One entrance at the top of the right shoulder exited at the medial side of the right arm. The other entered above the right breast and exited at the right lateral abdominal wall travelling below muscles and subcutaneous tissues without entering the cavities. Lastly another bullet entered above the right iliac crest travelled superficially and exited above the right inguinal line. Cause of Death: Shock, massive internal and external hemorrhage, complete brain destruction and injury to the heart and left lung caused by multiple gunshot wounds.[4] Rodolfo and Romulo proceeded to the police station of Plaridel, Bulacan where they reported the robbery and gave their respective sworn statements.[5] SPO1 Manio, Jr. was survived by his wife Rosario Manio and their four young children. Rosario spent P20,000.00 for the coffin and P10,000.00 for the burial lot of the slain police officer.[6] Manio, Jr. was 38 years old when he died and had a gross salary of P8,085.00 a month.[7] Barely a month thereafter, or on October 25, 1996, at about midnight, SPO3 Romeo Meneses, the team leader of Alert Team No. 1 of Tarlac Police Station, and PO3 Florante S. Ferrer were at the police checkpoint along the national highway in Tarlac, Tarlac. At the time, the Bambang-Concepcion bridge was closed to traffic and the police officers were tasked to divert traffic to the Sta. Rosa road. Momentarily, a white colored taxi cab without any plate number on its front fender came to view. Meneses stopped the cab and asked the driver, who turned out to be the accused Juan Gonzales Escote, Jr., for his identification card. Juan told Meneses that he was a policeman and handed over to Meneses the identification card of SPO1 Manio, Jr. and the money which Juan and Victor took from Manio, Jr. during the heist on September 28, 1996.[8] Meneses became suspicious when he noted that the identification card had already expired on March 16, 1995. He asked Juan if the latter had a new pay slip. Juan could not produce any. He finally confessed to Meneses that he was not a policeman. Meneses brought Juan to the police station. When police officers frisked Juan for any deadly weapon, they found five live bullets of a 9 millimeter firearm in his pocket. The police officers confiscated the ammunition. In the course of the investigation, Juan admitted to the police investigators that he and Victor, alias Victor Arroyo, staged the robbery on board Five Star Bus and are responsible for the death of SPO1 Manio, Jr. in Plaridel, Bulacan. Meneses and Ferrer executed their joint affiavit of arrest of Juan.[9] Juan was subsequently turned over to the Plaridel Police Station where Romulo identified him through the latters picture as one of those who robbed the passengers of the Five Star Bus with Plate No. ABS-793 and killed SPO1 Manio, Jr. on September 28, 1996. In the course of their investigation, the Plaridel Police Station Investigators learned that Victor was a native of Laoang, Northern Samar.[10] On April 4, 1997, an Information charging Juan Gonzales Escote, Jr. and Victor Acuyan with robbery with homicide was filed with the Regional Trial Court of Bulacan. The Information reads: That on or about the 28th day of September 1996, in the municipality of Plaridel, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping each other, armed with firearms, did then and there wilfully, unlawfully and feloniously, with intent of (sic) gain and by means of force, violence and intimidation, take, rob and carry away with one (1) necklace and cash in [the] undetermine[d] amount of one SPO1 Jose C. Manio, Jr., to the damage and prejudice of the said owner in the said undetermine[d] amount; that simultaneously or on the occassion (sic) of said robbery, said accused by means of violence and intimidation and in furtherance of their conspiracy attack, assault and shoot with the service firearm of the said SPO1 Jose C. Manio, Jr., thereby inflicting serious physical injuries which resulted (sic) the death of the said SPO1 Jose C. Manio, Jr.

The antecedent facts as established by the prosecution are as follows: On September 28, 1996 at past midnight, Rodolfo Cacatian, the regular driver of Five Star Passenger Bus bearing Plate No. ABS-793, drove the bus from its terminal at Pasay City to its destination in Bolinao, Pangasinan. Also on board was Romulo Digap, the regular conductor of the bus, as well as some passengers. At Camachile, Balintawak, six passengers boarded the bus, including Victor Acuyan and Juan Gonzales Escote, Jr. who were wearing maong pants, rubber shoes, hats and jackets.[2] Juan seated himself on the third seat near the aisle, in the middle row of the passengers seats, while Victor stood by the door in the mid-portion of the bus beside Romulo. Another passenger, SPO1 Jose C. Manio, Jr., a resident of Angeles City, was seated at the rear portion of the bus on his way home to Angeles City. Tucked on his waist was his service gun bearing Serial Number 769806. Every now and then, Rodolfo looked at the side view mirror as well as the rear view and center mirrors installed atop the drivers seat to monitor any incoming and overtaking vehicles and to observe the passengers of the bus. The lights of the bus were on even as some of the passengers slept. When the bus was travelling along the highway in Plaridel, Bulacan, Juan and Victor suddenly stood up, whipped out their handguns and announced a holdup. Petrified, Rodolfo glanced at the center mirror towards the passengers seat and saw Juan and Vict or armed with handguns. Juan fired his gun upward to awaken and scare off the passengers. Victor followed suit and fired his gun upward. Juan and Victor then accosted the passengers and divested them of their money and valuables. Juan divested Romulo of the fares he had collected from the passengers. The felons then went to the place Manio, Jr. was seated and demanded that he show them his identification card and wallet. Manio, Jr. brought out his identification card bearing No. 00898.[3] Juan and Victor took the identification card of the police officer as well as his service gun and told him: Pasensya ka na Pare, papatayin ka namin, baril mo rin and papatay sa iyo. The police officer pleaded for mercy: Pare maawa ka sa akin. May pamilya ako. However, Victor and Juan ignored the plea of the police officer and shot him on the mouth, right ear, chest and right side of his body. Manio, Jr. sustained six entrance wounds. He fell to the floor of the bus. Victor and Juan then moved towards the driver Rodolfo, seated themselves beside him and ordered the latter to maintain the speed of the bus. Rodolfo heard one of the felons saying: Ganyan lang ang pumatay ng tao. Parang pumapatay ng manok. The other said: Ayos na naman tayo pare. Malaki-laki ito. Victor and Juan further told Rodolfo that after they (Victor and Juan) shall have alighted from the bus, he (Rodolfo) should continue driving the bus and not report the incident along the way. The robbers assured Rodolfo that if the latter will follow their instructions, he will not be harmed. Victor and Juan ordered Rodolfo to stop the bus along the overpass in Mexico, Pampanga where they alighted from the bus. The robbery was over in 25 minutes. When the bus reached Dau, Mabalacat, Pampanga, Rodolfo and Romulo forthwith reported the incident to the police authorities. The cadaver of SPO1 Manio, Jr. was brought to the funeral parlor where Dr. Alejandro D. Tolentino, the Municipal Health Officer of Mabalacat,

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Contrary to law.[11] On the strength of a warrant of arrest, the police officers arrested Victor in Laoang, Northern Samar and had him incarcerated in the Bulacan Provincial Jail. Assisted by Atty. Ramiro Osorio, their counsel de parte, Juan and Victor were duly arraigned and entered their plea of not guilty to the charge. Trial thereafter ensued. After the prosecution had rested its case on August 26, 1998, Juan escaped from the provincial jail.[12] The trial court issued a bench warrant on September 22, 1998 for the arrest of said accused-appellant.[13] In the meantime, Victor adduced his evidence. Victor denied the charge and interposed the defense of alibi. He testified that in 1996, he worked as a tire man in the vulcanizing shop located in Banga I, Plaridel, Bulacan owned by Tony Boy Negro. On one occasion, Ilarde Victorino, a customer of Tony Boy Negro, ordered Victor to sell a tire. Victor sold the tire but did not turn over the proceeds of the sale to Ilarde. The latter hated Victor for his misdeed. The shop was later demolished and after two months of employment, Victor returned to Barangay Muwal-Buwal, Laoang, Northern Samar. On September 26, 1996, at 9:30 p.m., Victor was at the town fiesta in Laoang. Victor and his friends, Joseph Iringco and Rickey Lorcio were having a drinking spree in the house of Barangay Captain Ike Baluya. At 11:30 p.m., the three left the house of the barangay captain and attended the public dance at the town auditorium. Victor and his friends left the auditorium at 5:30 a.m. of September 27, 1996. Victor likewise testified that he never met Juan until his arrest and detention at the Bulacan Provincial Jail. One of the inmates in said provincial jail was Ilarde Victorino. Victor learned that Ilarde implicated him for the robbery of the Five Star Bus and the killing of SPO1 Manio, Jr. to hit back at him for his failure to turn over to Ilarde the proceeds of the sale of the latters tire. On January 14, 1999, Juan was rearrested in Daet, Camarines Norte.[14] However, he no longer adduced any evidence in his behalf. The Verdict of the Trial Court Anent the first assignment of error, Juan and Victor contend that the trial court committed a reversible error in relying on the testimony of Rodolfo, the bus conductor, for convicting them of the crime charged. They aver that although their counsel was able to initially crossexamine Rodolfo, the former failed to continue with and terminate his cross-examination of the said witness through no fault of his as the witness failed to appear in subsequent proceedings. They assert that even if the testimonies of Rodolfo and Romulo were to be considered, the two witnesses were so petrified during the robbery that they were not able to look at the felons and hence could not positively identify accusedappellants as the perpetrators of the crime. They argue that the police investigators never conducted a police line-up for the identification of the authors of the crime. The contentions of Juan and Victor are not meritorious. There is no factual and legal basis for their claim that they were illegally deprived of their constitutional and statutory right to fully cross-examine Rodolfo. The Court agrees that the right to cross-examine is a constitutional right anchored on due process.[17] It is a statutory right found in Section 1(f), Rule 115 of the Revised Rules of Criminal Procedure which provides that the accused has the right to confront and cross-examine the witnesses against him at the trial. However, the right has always been understood as requiring not necessarily an actual cross-examination but merely an opportunity to exercise the right to cross-examine if desired.[18] What is proscribed by statutory norm and jurisprudential precept is the absence of the opportunity to cross-examine.[19] The right is a personal one and may be waived expressly or impliedly. There is an implied waiver when the party was given the opportunity to confront and cross-examine an opposing witness but failed to take advantage of it for reasons attributable to himself alone.[20] If by his actuations, the accused lost his opportunity to cross-examine wholly or in part the witnesses against him, his right to cross-examine is impliedly waived.[21] The testimony given on direct examination of the witness will be received or allowed to remain in the record.[22] In this case, the original records show that after several resettings, the initial trial for the presentation by the prosecution of its evidence-inchief was set on November 18, 1997 and December 5, 1997, both at 9:00 a.m.[23] Rodolfo testified on direct examination on November 18, 1997. The counsel of Juan and Victor forthwith commenced his crossexamination of the witness but because of the manifestation of said counsel that he cannot finish his cross-examination, the court ordered the continuation thereof to December 5, 1997.[24] On December 5, 1997, Rodolfo did not appear before the court for the continuation of his crossexamination but Rosemarie Manio, the widow of the victim did. The prosecution presented her as witness. Her testimony was terminated. The court ordered the continuation of the trial for the crossexamination of Rodolfo on January 20, 1998 at 8:30 a.m.[25] During the trial on January 20, 1998, Rodolfo was present but accused-appellants counsel was absent. The court issued an order declaring that for failure of said counsel to appear before the court for his cross-examination of Rodolfo, Victor and Juan waived their right to continue with the crossexamination of said witness.[26] During the trial set for February 3, 1998, the counsel of Juan and Victor appeared but did not move for a reconsideration of the courts order dated January 20, 1998 and for the recall of Rodolfo Cacatian for further cross-examination. It behooved counsel for Juan and Victor to file said motion and pray that the trial court order the recall of Rodolfo on the witness stand. Juan and Victor cannot just fold their arms and supinely wait for the prosecution or for the trial court to initiate the recall of said witness. Indeed, the Court held in Fulgado vs. Court of Appeals, et al: xxx The task of recalling a witness for cross examination is, in law, imposed on the party who wishes to exercise said right. This is so because the right, being personal and waivable, the intention to utilize it must be expressed. Silence or failure to assert it on time amounts to a renunciation thereof. Thus, it should be the counsel for the opposing party who should move to cross-examine plaintiffs witnesses. It is absurd for the plaintiff himself to ask the court to schedule the cross-examination of his own witnesses because it is not his obligation to ensure that his deponents are cross-examined. Having presented his witnesses, the burden shifts to his opponent who must now make the appropriate move. Indeed, the rule of placing the burden of the case on plaintiffs shoulders can be construed to extremes as what happened in the instant proceedings. [27] The trial was reset to March 31, April 17 and 24, 1998, all at 8:30 a.m. because of the non-availability of the other witnesses of the prosecution.[28] On March 31, 1998, the prosecution presented Dr. Alejandro Tolentino, PO2 Rene de la Cruz and Romulo Digap. During the trial on April 17, 1998, the counsel of Juan and Victor failed to appear. The trial was reset to June 3, 19 and 26, 1998.[29] The trial

On March 11, 1999, the trial court rendered its Decision judgment finding Juan and Victor guilty beyond reasonable doubt of the crime charged, meted on each of them the penalty of death and ordered them to pay P300,000.00 as actual and moral damages to the heirs of the victim and to pay the Five Star Bus Company the amount of P6,000.00 as actual damages. The decretal portion of the decision reads: WHEREFORE, this Court finds both accused, Juan Gonzales Escote, Jr. and Victor Acuyan GUILTY beyond reasonable doubt of Robbery with Homicide as penalized under Art. 294 of the Revised Penal Code as amended and hereby sentences both to suffer the supreme penalty of Death and to indemnify the heirs of the late SPO1 Jose C. Manio, Jr., the amount of P300,000.00 as actual and moral damages and to pay the Five Star Bus P6,000.00 as actual damage. SO ORDERED.[15] Assignment of Errors

Juan and Victor assail the Decision of the trial court and contend that: I THE TRIAL COURT ERRED IN HOLDING THAT RODOLFO CACATIAN AND ROMULO DIGAP, DRIVER AND CONDUCTOR OF THE FIVE STAR BUS, RESPECTIVELY, WERE ABLE TO POSITIVELY IDENTIFY THE TWO (2) MEN WHO HELD-UP THEIR BUS AND KILLED ONE PASSENGER THEREOF AT AROUND 3:00 OCLOCK IN THE EARLY MORNING OF SEPTEMBER 28, 1996. II THE TRIAL COURT ERRED IN FINDING THE TWO (2) ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ROBBERY WITH HOMICIDE.[16] The Courts Verdict

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scheduled on June 3, 1998 was cancelled due to the absence of the counsel of Juan and Victor. The court issued an order appointing Atty. Roberto Ramirez as counsel for accused-appellants.[30] During the trial on August 26, 1998, Atty. Ramirez appeared in behalf of Juan and Victor. The prosecution rested its case after the presentation of SPO2 Romeo Meneses and formally offered its documentary evidence. The next trial was set on September 23, 1998 at 8:30 a.m.[31] On November 11, 1998, Juan and Victor commenced the presentation of their evidence with the testimony of Victor.[32] They rested their case on January 27, 1999 without any evidence adduced by Juan. Juan and Victor did not even file any motion to reopen the case before the trial court rendered its decision to allow them to cross-examine Rodolfo. They remained mute after judgment was rendered against them by the trial court. Neither did they file any petition for certiorari with the Court of Appeals for the nullification of the Order of the trial court dated January 20, 1998 declaring that they had waived their right to crossexamine Rodolfo. It was only on appeal to this Court that Juan and Victor averred for the first time that they were deprived of their right to crossexamine Rodolfo. It is now too late in the day for Juan and Victor to do so. The doctrine of estoppel states that if one maintains silence when in conscience he ought to speak, equity will debar him from speaking when in conscience he ought to remain silent. He who remains silent when he ought to speak cannot be heard to speak when he should be silent.[33] The contention of accused-appellants Juan and Victor that Rodolfo and Romulo failed to identify them as the perpetrators of the crime charged is disbelieved by the trial court, thus: As can be gathered from the testimonies of the witnesses for the prosecution, on September 28, 1996, the accused boarded at around 3:00 a.m. a Five Star Bus driven by Rodolfo Cacatian, bound to Pangasinan, in Camachile, Balintawak, Quezon City. Twenty (20) minutes or so later, when the bus reached the vicinity of Nabuag, Plaridel, Bulacan, along the North Espressway, the accused with guns in hand suddenly stood up and announced a hold-up. Simultaneously with the announcement of a holdup, Escote fired his gun upwards. Acuyan, meanwhile, took the gun of a man seated at the back. Both then went on to take the money and valuables of the passengers, including the bus conductors collections in the amount of P6,000.00. Thereafter, the duo approached the man at the back telling him in the vernacular Pasensiya ka na pare, papatayin ka namin. Baril mo rin ang papatay sa iyo. They pointed their guns at him and fired several shots oblivious of the plea for mercy of their victim. After the shooting, the latter collapsed on the floor. The two (2) then went back at the front portion of the bus behind the drivers seat and were overheard by the bus driver, Cacatian, talking how easy it was to kill a man. The robbery and the killing were over in 25 minutes. Upon reaching the Mexico overpass of the Expressway in Pampanga, the two (2) got off the bus. The driver drove the bus to the Mabalacat Police Station and reported the incident. During the investigation conducted by the police, it was found out that the slain passenger was a policeman, SPO1 Jose C. Manio, Jr. of the Caloocan City Police Department. The above version came from Rodolfo Cacatian and Romulo Digap, bus driver and conductor, respectively, of the ill-fated Five Star Bus.[34] The Court agrees with the trial court. It may be true that Romulo was frightened when Juan and Victor suddenly announced a holdup and fired their guns upward, but it does not follow that he and Rodolfo failed to have a good look at Juan and Victor during the entire time the robbery was taking place. The Court has held in a catena of cases that it is the most natural reaction of victims of violence to strive to see the appearance of the perpetrators of the crime and to observe the manner in which the crime was committed.[35] Rodolfo and Romulo had a good look at both Juan and Victor before, during and after they staged the robbery and before they alighted from the bus. The evidence on record shows that when Juan and Victor boarded the bus and while the said vehicle was on its way to its destination, Romulo stationed himself by the door of the bus located in the mid-section of the vehicle. The lights inside the bus were on. Juan seated himself in the middle row of the passengers seat near the center aisle while Victor stood near the door of the bus about a meter or so from Romulo.[36] Romulo, Juan and Victor were near each other. Moreover, Juan divested Romulo of his collection of the fares from the passengers.[37] Romulo thus had a face-to-face encounter with Juan. After shooting SPO1 Manio, Jr. at the rear portion of the bus, Juan and Victor passed by where Romulo was standing and gave their instructions to him. Considering all the facts and circumstances, there is no iota of doubt that Romulo saw and recognized Juan and Victor before, during and after the heist.[38] Rodolfo looked many times on the rear, side and center view mirrors to observe the center and rear portions of the bus before and during the robbery. Rodolfo thus saw Juan and Victor stage the robbery and kill SPO1 Manio, Jr. with impunity: xxx Q A Q A Q So, the announcement of hold-up was ahead of the firing of the gun? Yes, sir. And before the actual firing of the gun it was even still said bad words before saying the hold-up? After they fired the gun they uttered bad words, sir. Mr. Witness before the announcement of the hold-up you do not have any idea that you will encounter that nature which took place, is that correct? None, sir. Within the two (2) year[s] period that you are plying the route of Manila to Bolinao that was your first experience of hold-up? Yes, sir. And the speed of above 70 kilometers per hour your total attention is focus in front of the road, correct, Mr. witness? Once in a while the driver look at the side mirror and the rear view mirror, sir. Before the announcement there was no reason for you to look at any at the rear mirror, correct, Mr. witness?

A Q

A Q

A Q

Court: Every now and then they usually look at the side mirror and on the rear, that was his statement. Atty. Osorio: (to the witness) Q I am asking him if there was no reason for him....

Fiscal: Before the announcement of hold-up, there was no mention. Court: Every now and then. Atty. Osorio: (to the witness) Q A Q A Q A Q A Q A Q A When you said every now and then, how often is it, Mr. witness? I cannot tell how often but I used to look at the mirror once in a while, sir. How many mirror do you have, Mr. witness? Four (4), sir. Where are these located? Two (2) on the side mirror, center mirror and rear view mirror, sir. The two side mirror protruding outside the bus? Yes, sir, they are in the side of the bus, sir. One of them is located on the left and the other on the right, correct? Yes, sir. You only look at the side mirror when you are going to over take, Mr. witness? No, sir.

55
Q A Q A Q A Q A Q A Q A Where is this center mirror located, Mr. witness? In the center, sir. What is the purpose of that? So that I can see the passengers if they are already settled so that I can start the engine, sir. What about the remaining mirror? Rear view mirror, sir. What is the purpose and where is it located? The rear view is located just above my head just to check the passengers, sir. So that the center mirror and the rear view mirror has the same purpose? They are different, sir. How do you differentiate of (sic) one from the other? The center mirror is used to check the center aisle while the rear mirror is for the whole view of the passengers, sir. If you are going to look at any of your side mirrors, you will never see any passengers, correct, Mr. witness? None, sir. If you will look at your center mirror you will only see the aisle and you will never see any portion of the body of your passengers? Yes, sir. Seated passengers? It is only focus (sic) on the middle aisle sir. If you look at your rear mirror, you will only see the top portion of the head of your passengers, correct? Only the portion of their head because they have different hight (sic), sir. You will never see any head of your passengers if they were seated from the rear mirror portion, correct, Mr. witness? Yes, sir. Before the announcement of hold-up, all of your passengers were actually sleeping? Some of my passengers were sleeping, some were not, sir. A Q But you will agree Mr. witness that when you said every now and then you are using your mirror? It is only a glance, correct? Yes, sir. And by mere glancing, Mr. witness you were not able to identify any person on the basis of any of your mirror, correct? If only a glance but when I look at him I can recognize him, sir. You agree a while ago by every now and then it is by glancing, as a driver, Mr. witness by your side mirror? Not all glancing, there are times when you want to recognize a person you look at him intently, sir. The purposes of your mirror inside your Bus is mainly of the safety of your passengers on board, Mr. witness? Fiscal: May I request the vernacular. Nakikiramdam ako. Atty. Osorio: (to the witness) Q Q A Thats what you are doing? During the time they were gathering the money from Q A Q A Q A A Q A Q A Q Yes, sir. And as a driver, Mr. witness, you do not used (sic) your mirror to identify the person particularly when you are crossing (sic) at a speed of 70 kilometers per hour? I do that, sir. How long Mr. witness can you focus your eyes on any of these mirror before getting back your eyes into the main road? Seconds only, sir. When you said seconds, for how long the most Mr. witness that you can do to fix your eyes on any of your mirrors and the return back of (sic) your eyes into the main road? Two seconds, sir. At that time Mr. witness, that you were travelling at about 70 kilometers you were glancing every now and then on any of your mirrors at about two seconds, correct? Yes, sir. And when you heard the announcement of hold-up your natural reaction is to look either at the center mirror or rear mirror for two seconds, correct? Yes, sir. And you were instructed Mr. witness to even accelerate your speed upon the announcement of hold-up? No sir, they just told me to continue my driving, sir.

A Q

A Q

A Q

A Q

A Q A Q A Q

Fiscal: May I request the vernacular alalay ka lang, steady ka lang. Atty. Osorio: (to the witness) Q A Q Steady at what speed? 70 to 80, sir. What is the minimum speed, Mr. witness for Buses along North Expressway? 60 kilometers, sir. Are you sure of that 60 kilometers, minimum? Are you sure of that? Yes, sir. That is what you know within the two (2) years that you are driving? Along the North Expressway? Yes, sir. And while you were at the precise moment, Mr. witness, you were being instructed to continue driving, you were not looking to anybody except focus yours eyes in front of the road?

A Q

A Q

A Q

56
my passengers, that is the time when I look at them, sir. Q A Q For two seconds, correct? (to the witness) Yes, sir. xxx Which of the four (4) mirrors that you are looking at within two seconds, Mr. witness you said you are nakikiramdam? The rear view mirror, sir. A Q A Q A Q A Q A Q The Bus that you were driving is not an air con bus? Q Ordinary bus, sir. Interpreter: And at what time your passengers, most of your passengers were already sleep (sic), Mr. witness? Most of my passengers, sir. Some of my passengers were still sleep (sic), sir. And the lights inside the Bus are off, correct Mr. witness? The lights were on, sir. xxx While the passengers were sleep (sic) the light was still on, Mr. witness, at the time of the trip.? Yes, sir. A Now, Mr. witness when the hold-up was announced and then when you look for two seconds in the rear mirror you were not able to see any one, you were only sensing what is happening inside your bus? I saw something, sir. A Q You saw something in front of your Bus? You can only see inside when you are going to look at the mirror? Yes, sir. Public Pros.: Q A Q That is the only thing that you see every now and then, you said you were looking at the mirror? Yes, sir. Court: How many times, Mr. witness did you look Mr. witness at the rear mirror during the entire occurance (sic) of the alleged hold-up? There were many times, sir. A Q The most that you can remember, please inform the Honorable Court? During the occurance (sic) of the alleged hold-up, Mr. witness? I cannot estimate, sir. How long did the alleged hold-up took place? More or less 25 minutes, sir.[39] Juan Escote, Your Honor. Victor Acuyan, Your Honor. Public Pros.: May we know from the accused if his name is Juan Escote Gonzales because he just said Juan Escote. In the Information, it is one Juan Gonzales, Jr., so, we can change, Your Honor.[42] Moreover, when he was accosted by SPO3 Romeo Meneses on October 25, 1997 in Tarlac, Tarlac, Juan was in possession of the identification card[43] of the slain police officer. Juan failed to explain to the trial court how and under what circumstances he came into possession of said identification card. Juan must necessarily be considered the author of the robbery and the killing of SPO1 Manio, Jr. In People v. Mantung,[44] we held: xxx [T]he recovery of part of the loot from Mantung or the time of his arrest gave rise to a legal presumption of his guilt. As this Court has held, [I]n the absence of an explanation of how one has come into possession of stolen effects belonging to a person wounded and treacherously killed, he must necessarily be considered the author of the aggression and death of the said person and of the robbery committed on him. While police investigators did not place Juan and Victor in a police line-up for proper identification by Rodolfo and Romulo, it cannot thereby be concluded that absent such line-up, their identification by Romulo and Rodolfo as the authors of the robbery with homicide was unreliable. There is no law or police regulation requiring a police line-up for proper identification in every case. Even if there was no police line-up, (to both accused) What are your names? A May we request that the accused be identified, Your Honor. Those two (2), maam. Interpreter: Witness pointing to the two accused. A They announced a hold up maam, afterwards, they confiscated the money of the passengers including my collections. You said they who announced the hold up, whose (sic) these they you are referring to? Q You said that you were robbed inside the bus, how does (sic) the robbing took place? Witness pointing to a man wearing red T-shirt and when asked his name answered Victor Acuyan and the man wearing green T-shirt and when asked his name answered Juan Gonzales.[41] For his part, Romulo likewise spontaneously pointed to and identified Juan and Victor as the culprits when asked by the prosecutor to identify the robbers from among those in the courtroom: Point to us? Q Those two man (sic) who stated that it was a hold-up inside the bus and who fired the gun are they inside the Court room (sic) today? Yes, maam. spontaneously pointed to and identified Juan and Victor: QFiscal:

A Q A

When Rodolfo gave his sworn statement to the police investigators in Plaridel, Bulacan after the robbery, he described the felons. When asked by the police investigators if he could identify the robbers if he see them again, Rodolfo declared that he would be able to identify them: 8. T: Natatandaan mo ba kung ano ang itsura ng dalawang lalaki na nanghold-up sa minamaneho mong bus? Halos magkasing taas, 54 o 55 katam-taman ang pangangatawan, parehong nakapantalon ng maong naka-suot ng jacket na maong, parehong naka rubber shoes at pareho ring naka sumbrero. Kung sakali bang makikita mo pa ang mga ito ay makikilala mo pa sila? Makikilala ko po sila.[40]

S:

9.

T: S:

When asked to identify the robbers during the trial, Rodolfo

57
there could still be proper and reliable identification as long as such identification was not suggested or instigated to the witness by the police.[45] In this case, there is no evidence that the police officers had supplied or even suggested to Rodolfo and Romulo the identities of Juan and Victor as the perpetrators of the robbery and the killing of SPO1 Manio, Jr. The Felony Committed by Juan and Victor Juan and Victor conspired and confabulated together in robbing the passengers of the Five Star Bus of their money and valuables and Romulo of his collections of the fares of the passengers and in killing SPO1 Manio, Jr. with impunity on the occasion of the robbery. Hence, both Juan and Victor are guilty as principals by direct participation of the felony of robbery with homicide under paragraph 1, Article 294 of the Revised Penal Code, as amended by R.A. 7659, punishable by reclusion perpetua to death. The Proper Penalty The Court finds that the trial court committed no error in convicting Juan and Victor of robbery with homicide. Article 294, paragraph 1 of the Revised Penal Code, as amended by Republic Act 7659, reads: 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, or when the robbery shall have been accompanied by rape or intentional mutilation or arson. To warrant the conviction of Juan and Victor for the said charge, the prosecution was burdened to prove the confluence of the following essential elements: xxx (a) the taking of personal property with the use of violence or intimidation against a person; (b) the property thus taken belongs to another; (c) the taking is characterized by intent to gain or animus lucrandi and (d) on the occasion of the robbery or by reason thereof, the crime of homicide, which is therein used in a generic sense, was committed. xxx[46] The intent to rob must precede the taking of human life.[47] In robbery with homicide, so long as the intention of the felons was to rob, the killing may occur before, during or after the robbery. In People v. Barut,[48] the Court held that: In the controlling Spanish version of article 294, it is provided that there is robbery with homicide cuando con motivo o con ocasin del robo resultare homicidio. Basta que entre aquel este exista una relacin meramente ocasional. No se requiere que el homicidio se cometa como medio de ejecucin del robo, ni que el culpable tenga intencin de matar, el delito existe segn constanta jurisprudencia, aun cuando no concurra animo homicida. Incluso si la muerte sobreviniere por mero accidente, siempre que el homicidio se produzca con motivo con ocasin del robo, siendo indiferente que la muerte sea anterior, coetnea o posterior a ste (2 Cuello Calon, Derecho Penal, 1975 14th Ed. P. 872). Even if the victim of robbery is other than the victim of the homicide committed on the occasion of or by reason of the robbery, nevertheless, there is only one single and indivisible felony of robbery with homicide. All the crimes committed on the occasion or by reason of the robbery are merged and integrated into a single and indivisible felony of robbery with homicide. This was the ruling of the Supreme Court of Spain on September 9, 1886, et sequitur cited by this Court in People v. Mangulabnan, et al.[49] We see, therefore, that in order to determine the existence of the crime of robbery with homicide it is enough that a homicide would result by reason or on the occasion of the robbery (Decision of the Supreme Court of Spain of November 26, 1892, and January 7, 1878, quoted in 2 Hidalgos Penal Code, p. 267 and 259-260, respectively). This High Tribunal speaking of the accessory character of the circumstances leading to the homicide, has also held that it is immaterial that the death would supervene by mere accident (Decision of September 9, 1886; October 22, 1907; April 30, 1910 and July 14, 1917), provided that the homicide be produced by reason or on occasion of the robbery, inasmuch as it is only the result obtained, without reference or distinction as to the circumstances, causes, modes or persons intervening in the commission of the crime, that has to be taken into consideration (Decision of January 12, 1889 see Cuello Calons Codigo Penal, p. 501-502). Case law has it that whenever homicide has been committed by reason of or on the occasion of the robbery, all those who took part as principals in the robbery will also be held guilty as principals of robbery with homicide although they did not take part in the homicide, unless it appears that they endeavored to prevent the homicide.[50] In this case, the prosecution proved beyond reasonable doubt that

The trial court imposed the supreme penalty of death on Juan and Victor for robbery with homicide, defined in Article 294, paragraph 1 of the Revised Penal Code, punishable with reclusion perpetua. Under Article 63, paragraph 1 of the Revised Penal Code, the felons should be meted the supreme penalty of death when the crime is committed with an aggravating circumstance attendant in the commission of the crime absent any mitigating circumstance. The trial court did not specify in the decretal portion of its decision the aggravating circumstances attendant in the commission of the crime mandating the imposition of the death penalty. However, it is evident from the findings of facts contained in the body of the decision of the trial court that it imposed the death penalty on Juan and Victor on its finding that they shot SPO1 Manio, Jr. treacherously on the occasion of or by reason of the robbery: xxx The two (2) accused are incomparable in their ruthlessness and base regard for human life. After stripping the passengers of their money and valuables, including the firearm of the victim, they came to decide to execute the latter seemingly because he was a police officer. They lost no time pouncing him at the rear section of the bus, aimed their firearms at him and, in a derisive and humiliating tone, told him, before pulling the trigger, that they were rather sorry but they are going to kill him with his own gun; and thereafter, they simultaneously fired point blank at the hapless policeman who was practically on his knees begging for his life. Afterwhich, they calmly positioned themselves at the front boasting for all to hear, that killing a man is like killing a chicken (Parang pumapatay ng manok). Escote, in particular, is a class by himself in callousness. xxx.[51] The Court agrees with the trial court that treachery was attendant in the commission of the crime. There is treachery when the following essential elements are present, viz: (a) at the time of the attack, the victim was not in a position to defend himself; and (b) the accused consciously and deliberately adopted the particular means, methods or forms of attack employed by him.[52] The essence of treachery is the sudden and unexpected attack by an aggressor on the unsuspecting victim, depriving the latter of any chance to defend himself and thereby ensuring its commission without risk of himself. Treachery may also be appreciated even if the victim was warned of the danger to his life where he was defenseless and unable to flee at the time of the infliction of the coup de grace.[53] In the case at bar, the victim suffered six wounds, one on the mouth, another on the right ear, one on the shoulder, another on the right breast, one on the upper right cornea of the sternum and one above the right iliac crest. Juan and Victor were armed with handguns. They first disarmed SPO1 Manio, Jr. and then shot him even as he pleaded for dear life. When the victim was shot, he was defenseless. He was shot at close range, thus insuring his death. The victim was on his way to rejoin his family after a hard days work. Instead, he was mercilessly shot to death, leaving his family in grief for his untimely demise. The killing is a grim example of the utter inhumanity of man to his fellowmen. The issues that now come to fore are (1) whether or not treachery is a generic aggravating circumstance in robbery with homicide; and if in the affirmative, (b) whether treachery may be appreciated against Juan and Victor. On the first issue, we rule in the affirmative. This Court has ruled over the years[54] that treachery is a generic aggravating circumstance in the felony of robbery with homicide, a special complex crime (un delito especial complejo) and at the same time a single and indivisible offense (uno solo indivisible).[55] However, this Court in two cases has held that robbery with homicide is a crime against property and hence treachery which is appreciated only to crimes against persons should not be appreciated as a generic aggravating circumstance.[56] It held in another case that treachery is not appreciated in robbery with rape precisely because robbery with rape is a crime against property.[57] These rulings of the Court find support in case law that in robbery with homicide or robbery with rape, homicide or rape are merely incidents of the robbery, with robbery being the main purpose and object of the criminal.[58] Indeed, in People vs. Cando,[59] two distinguished members of this Court advocated a review of the doctrine that treachery is a generic aggravating circumstance in robbery with homicide. They opined that treachery is applicable only to crimes against persons. After all, in People

58
vs. Bariquit,[60] this Court in a per curiam decision promulgated in year 2000 declared that treachery is applicable only to crimes against persons. However, this Court held in People vs. Cando that treachery is a generic aggravating circumstance in robbery with homicide, citing its prior rulings that in robbery with homicide, treachery is a generic aggravating circumstance when the victim of homicide is killed with treachery. This Court opted not to apply its ruling earlier that year in People vs. Bariquit. Legal Luminaries in criminal law and eminent commentators of the Revised Penal Code are not in full accord either. Chief Justice Ramon C. Aquino (Retired) says that treachery is appreciated only in crimes against persons as defined in Title 10, Book Two of the Code.[61] Chief Justice Luis B. Reyes (Retired) also is of the opinion that treachery is applicable only to crimes against persons.[62] However, Justice Florenz D. Regalado (Retired) is of a different view.[63] He says that treachery cannot be considered in robbery but can be appreciated insofar as the killing is concerned, citing the decisions of this Court in People vs. Balagtas[64] for the purpose of determining the penalty to be meted on the felon when the victim of homicide is killed with treachery. It must be recalled that by Royal Order of December 17, 1886 the 1850 Penal Code in force in Spain, as amended by the Codigo Penal Reformado de 1870 was applied in the Philippines. The Penal Code of 1887 in the Philippines was amended by Act 3815, now known as the Revised Penal Code, which was enacted and published in Spanish. In construing the Old Penal Code and the Revised Penal Code, this Court had accorded respect and persuasive, if not conclusive effect to the decisions of the Supreme Court of Spain interpreting and construing the 1850 Penal Code of Spain, as amended by Codigo Penal Reformado de 1870.[65] Article 14, paragraph 16 of the Revised Penal Code reads: ART. 14. Aggravating circumstances. The following are aggravating circumstances: xxx 16. That the act be committed with treachery ( alevosia). 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. The law was taken from Chapter IV, Article 10, paragraph 2 of the 1860 Penal Code and the Codigo Penal Reformado de 1870 of Spain which reads: Art. 10 ...2. Ejecutar el hecho con alevosia. Hay alevosia cuando el culpable comete cualquiera de los delitos contra las personas empleando medios, modos o for mas en la ejecucion que tiendan directa y especialmente a asegurarla sin riesgo para su persona, que proceda de la defensa que pudiera hacer el ofendido. xxx Article 14, paragraph 16 of the Revised Penal Code is a reproduction of the 1850 Penal Code of Spain and the Codigo Penal Reformado de 1870 with a slight difference. In the latter law, the words las personas (the persons) are used, whereas in Article 14, paragraph 6, of the Revised Penal Code, the words the person are used. Going by the letter of the law, treachery is applicable only to crimes against persons as enumerated in Title Eight, Chapters One and Two, Book II of the Revised Penal Code. However, the Supreme Court of Spain has consistently applied treachery to robbery with homicide, classified as a crime against property. Citing decisions of the Supreme Court of Spain, Cuello Calon, a noted commentator of the Spanish Penal Code says that despite the strict and express reference of the penal code to treachery being applicable to persons, treachery also applies to other crimes such as robbery with homicide:[66] Aun cuando el Codigo solo se refiere a los delitos contra las personas, cabe estimarla en los que no perteneciendo a este titulo se determinan por muerte o lesiones, como, en el robo con homicidio , y en el homicidio del Jefe del Estado que es un delito contra la seguridad interior del Estado, y no obstante la referencia estricta del texto legal a los delitos contra las personas no es la alevosia aplicable a la mayoria de ellos, no lo es en el homicidio, pues como su concurrencia lo cualifica lo transforma en delito distinto, en asesinato, ni en el homicidio consentido (art. 409), ni en la ria tumultuaria (art. 408) ni en el infanticidio (art. 410). xxx. [67] Viada also says that treachery is appreciated in crimes against persons (delitos contra personas) and also in robbery with homicide (robo con homicidio).[68] Contra las personas. - Luego la circunstancia de alevosia solo puede apreciarse en los delitos provistos desde el art. 417 al 447, y en algun otro, como el de robo con homicidio, atentario, a la vez que contra la propriedad, contra la persona. Thus, treachery is a generic aggravating circumstance to robbery with homicide although said crime is classified as a crime against property and a single and indivisible crime. Treachery is not a qualifying circumstance because as ruled by the Supreme Court of Spain in its decision dated September 11, 1878, the word homicide is used in its broadest and most generic sense.[69] Article 62, paragraph 1 of the Revised Penal Code provides that in diminishing or increasing the penalty for a crime, aggravating circumstances shall be taken into account. However, 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 a penalty therefor shall not be taken into account for the purpose of increasing the penalty.[70] Under paragraph 2 of the law, the same rule shall apply with respect to any aggravating circumstances inherent in the crime to such a degree that it must of necessity accompany the commission thereof. 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. xxx 2. The same rule shall apply with respect to any aggravating circumstances inherent in the crime to such a degree that it must be of necessity accompany the commission thereof. Treachery is not an element of robbery with homicide. Neither does it constitute a crime specially punishable by law nor is it included by the law in defining the crime of robbery with homicide and prescribing the penalty therefor. Treachery is likewise not inherent in the crime of robbery with homicide. Hence, treachery should be considered as a generic aggravating circumstance in robbery with homicide for the imposition of the proper penalty for the crime. In its Sentencia dated March 14, 1877, the Supreme Court of Spain declared that treachery is a generic aggravating circumstance not only in crimes against persons but also in robbery with homicide. The high court of Spain applied Article 79 of the Spanish Penal Code (Article 62 of the Revised Penal Code) and ruled that since treachery is not a constitutive element of the crime of robbery with homicide nor is it inherent in said crime, without which it cannot be committed, treachery is an aggravating circumstance to said crime. The high court of Spain was not impervious of the fact that robbery with homicide is classified as a crime against property. Indeed, it specifically declared that the classification of robbery with homicide as a crime against property is irrelevant and inconsequential in the application of treachery. It further declared that it would be futile to argue that in crimes against property such as robbery with homicide, treachery would have no application. This is so, the high tribunal ruled, because when robbery is coupled with crimes committed against persons, the crime is not only an assault (ataca) on the property of the victims but also of the victims themselves (ofende) : xxx que la circunstancia agravante de alevosia ni es constitutiva del delito complejo de robo y homicidio, ni de tal modo inherente que sin ella no pueda cometerse, sin que quepa arguir que en los delitos contra la propiedad no debe aquella tener aplicacion, porque cuando estos son complejos de los que se cometen contra las personas, no solo se ataca a la propiedad, sino que se ofende a estas. xxx[71] In fine, in the application of treachery as a generic aggravating circumstance to robbery with homicide, the law looks at the constituent crime of homicide which is a crime against persons and not at the constituent crime of robbery which is a crime against property. Treachery is applied to the constituent crime of homicide and not to the constituent crime of robbery of the special complex crime of robbery with homicide. The crime of robbery with homicide does not lose its classification as a crime against property or as a special complex and single and indivisible crime simply because treachery is appreciated as a generic aggravating circumstance. Treachery merely increases the penalty for the crime conformably with Article 63 of the Revised Penal Code absent any generic mitigating circumstance.

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In its Sentencia, dated July 9, 1877, the high tribunal of Spain also ruled that when the victim of robbery is killed with treachery, the said circumstance should be appreciated as a generic aggravating circumstance in robbery with homicide: xxx que si aparece probado que el procesado y su co-reo convinieron en matar a un conocido suyo, compaero de viaje, para lo cual desviaron cautelosamente los carros que guiaban, en uno de los cuales iba el interfecto, dirigiendolos por otro camino que conducia a un aljibon, y al llegar a este, valiendose de engao para hacer bajar a dicho interfecto, se lanzaron de improviso sobre el, tirandolo en tierra, robandole el dinero, la manta y los talegos que llevaba, y atandole al pie una piedra de mucho peso, le arrojaron con ella a dicho aljibon, dados estos hechos, no cabe duda que constituyen el delito complejo del art. 516, num. I, con la circunstancia agravante de alevosia, puesto que los medios, forma y modos empleados en la ejecucion del crimen tendieron directa y especialmente a asegurarla sin riesgo para sus autores, procedente de la defensa del ofendido.[72] In sum then, treachery is a generic aggravating circumstance in robbery with homicide when the victim of homicide is killed by treachery. On the second issue, we also rule in the affirmative. Article 62, paragraph 4 of the Revised Penal Code which was taken from Article 80 of the Codigo Penal Reformado de 1870,[73] provides that circumstances which consist in the material execution of the act, or in the means employed to accomplish it, shall serve to aggravate or mitigate the liability of those persons only who had knowledge of them at the time of the execution of the act or their cooperation therein. The circumstances attending the commission of a crime either relate to the persons participating in the crime or into its manner of execution or to the means employed. The latter has a direct bearing upon the criminal liability of all the accused who have knowledge thereof at the time of the commission of the crime or of their cooperation thereon.[74] Accordingly, the Spanish Supreme Court held in its Sentencia dated December 17, 1875 that where two or more persons perpetrate the crime of robbery with homicide, the generic aggravating circumstance of treachery shall be appreciated against all of the felons who had knowledge of the manner of the killing of victims of homicide, with the ratiocination that: xxx si por la Ley basta haberse ejecutado un homicidio simple con motivo ocasin del robo para la imposicion de la pena del art. 516, num. I, no puede sere ni aun discutible que, concurriendo la agravante de alevosia, se aumente la criminalidad de los delincuentes; siendo aplicable a todos los autores del hecho indivisible, porque no es circunstancia que afecte a la personalidad del delincuente, de las que habla el art. 80 del Codigo penal en su primera parte, sino que consiste en la ejecusion material del hecho y en los medios empleados para llevarle a cabo, cuando de ellos tuvieron conocimiento todos los participantes en el mismo por el concierto previo y con las condiciones establecidad en la segunda parte del citado articulo.[75] Be that as it may, treachery cannot be appreciated against Juan and Victor in the case at bar because the same was not alleged in the Information as mandated by Section 8, Rule 110 of the Revised Rules on Criminal Procedures which reads: Sec. 8. Designation of the offense. - The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. Although at the time the crime was committed, generic aggravating circumstance need not be alleged in the Information, however, the general rule had been applied retroactively because if it is more favorable to the accused.[76] Even if treachery is proven but it is not alleged in the information, treachery cannot aggravate the penalty for the crime. There being no modifying circumstances in the commission of the felony of robbery with homicide, Juan and Victor should each be meted the penalty of reclusion perpetua conformably with Article 63 of the Revised Penal Code. Civil Liability of Juan and Victor PNP. The Court shall thus modify the awards granted by the trial court. Since the penalty imposed on Juan and Victor is reclusion perpetua, the heirs of the victim are entitled to civil indemnity in the amount of P50,000.00. The heirs are also entitled to moral damages in the amount of P50,000.00, Rosemarie Manio having testified on the factual basis thereof.[77] Considering that treachery aggravated the crime, the heirs are also entitled to exemplary damages in the amount of P25,000.00. This Court held in People vs. Catubig[78] that the retroactive application of Section 8, Rule 110 of the Revised Rules of Criminal Procedure should not impair the right of the heirs to exemplary damages which had already accrued when the crime was committed prior to the effectivity of the said rule. Juan and Victor are also jointly and severally liable to the said heirs in the total amount of P30,000.00 as actual damages, the prosecution having adduced evidence receipts for said amounts. The heirs are not entitled to expenses allegedly incurred by them during the wake as such expenses are not supported by receipts.[79] However, in lieu thereof, the heirs are entitled to temperate damages in the amount of P20,000.00.[80] The service firearm of the victim was turned over to the Evidence Custodian of the Caloocan City Police Station per order of the trial court on October 22, 1997.[81] The prosecution failed to adduce documentary evidence to prove the claim of Five Star Bus, Inc. in the amount of P6,000.00. Hence, the award should be deleted. However, in lieu of actual damages, the bus company is entitled to temperate damages in the amount of P3,000.00.[82] The heirs are likewise entitled to damages for the lost earnings of the victim. The evidence on record shows that SPO1 Manio, Jr. was born on August 25, 1958. He was killed on September 28, 1996 at the age of 38. He had a gross monthly salary as a member of the Philippine National Police of P8,065.00 or a gross annual salary of P96,780.00. Hence, the heirs are entitled to the amount of P1,354,920.00 by way of lost earnings of the victim computed, thus: Age of the victim Life expectancy = 38 years old = 2/3 x (80 age of the victim at the time of death) = 2/3 x (80-38) = 2/3 x 42 = Gross Annual Income 28 years

= gross monthly income x 12 months = P8,065.00 x 12 = P96,780.00

Living Expenses

= 50% of Gross Annual Income

= P96,780.00 x 0.5 = P48,390.00 Lost Earning Capacity = Life expectancy x [Gross Annual Income-

The trial court awarded the total amount of P300,000.00 to the heirs of SPO1 Manio, Jr. The court did not specify whether the said amounts included civil indemnity for the death of the victim, moral damages and the lost earnings of the victim as a police officer of the

28 x [P96,780.00 P48,390.00]

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= = 28 x P48,390.00 P1,354,920.00 of his death, to the damage and prejudice of the heirs of said Col. James N. Rowe in such amount as may be awarded under the provisions of the Civil Code. CONTRARY TO LAW." Criminal Case No. Q-89-4844 for Frustrated Murder: "That on or about the 21st day of April 1989, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, confederating with and mutually helping one another, with intent to kill, with evident premeditation and treachery and with the use of armalite rifles and motor vehicles, did, then and there wilfully, unlawfully and feloniously attack, assault and employ personal violence upon the person of JOAQUIN BINUYA, by then and there firing at him while then on board a Toyota car, hitting him on the scalp and body, thereby inflicting upon him serious and mortal gunshot wounds, thus performing all the acts of execution which would have produced the crime of murder, but nevertheless did not produce it, by reason of causes independent of their own will, that is the timely intervention of medical assistance, to the damage and prejudice of said Joaquin Binuya in such amount as may be awarded under the provisions of the Civil Code. CONTRARY TO LAW." Upon being arraigned on August 31, 1989, appellant Donato B. Continente, assisted by his counsel of choice, pleaded "Not guilty" to each of the amended Informations in both criminal cases. On the scheduled arraignment of appellant Juanito Itaas on October 31, 1989, appellant Itaas, upon the advice of his counsel, refused to enter any plea. Hence, the trial court ordered that a plea of "Not guilty" be entered in each of the amended Informations in both criminal cases for the said appellant. From the evidence adduced by the prosecution, it appears that on April 21, 1989 at around 7:00 o'clock in the morning, the car of U.S. Col. James N. Rowe, Deputy Commander, Joint U. S. Military Assistance Group (JUSMAG for brevity), was ambushed at the corner of Tomas Morato Street and Timog Avenue in Quezon City. Initial investigation by the Central Intelligence Service (CIS for brevity), National Capital District Command, Camp Crame, Quezon City which was led by Capt. Gil Meneses, Assistant Chief of the Special Investigation Branch, CIS, shows that on the date and time of the ambush, Col. James Rowe, was on board his gray Mitsubishi Galant car which was being driven by Joaquin Vinuya; and that they were at the corner of Tomas Morato Street and Timog Avenue in Quezon City on their way to the JUSMAG Compound along Tomas Morato Street when gunmen who were on board an old model Toyota Corolla car suddenly fired at his car, thereby killing Col. Rowe and seriously wounding his driver, Joaquin Vinuya. The car that was used by the gunmen was followed by a Mitsubishi Lancer car when it sped away from the site of the ambush.[2] The same Toyota Corolla car was later recovered on the same day by a team from the Philippine Constabulary (PC), North Sector Command, led by PC/Sgt. Fermin Garma, at No. 4 Windsor Street, San Francisco Del Monte in Quezon City.[3] Upon further investigation of the case, the CIS agents established through a confidential intelligence information the involvement of appellant Donato Continente, an employee of the U.P. Collegian in U.P. Diliman, Quezon City, in the ambush of Col. James Rowe and his driver. Accordingly, on June 16, 1989, the CIS investigation team proceeded to the U.P. campus in Diliman, Quezon City to conduct a surveillance on appellant Donato Continente. After accosting appellant Continente inside the said U.P. campus, the CIS team took him to Camp Crame in Quezon City for questioning.[4] During the interrogation which was conducted by CIS Investigator Virgilio Pablico in the presence of Atty. Bonifacio Manansala in Camp Crame on June 17, 1989, appellant Continente admitted to his participation in the ambush of Col. James Rowe and his driver as a member of the surveillance unit under the Political Assassination Team of the CPP-NPA.[5] Among the documents confiscated from appellant Continente by the CIS agents, and for which a receipt dated June 16, 1989 was prepared and issued by Sgt. Reynaldo dela Cruz, was a letter addressed to "Sa Kinauukulan". At the dorsal right hand side of the letter appear the acronyms "STR PATRC" which allegedly mean "Sa Tagumpay ng Rebolusyon" and "Political Assassination Team, Regional Command".[6] Another confidential intelligence information established the participation of appellant Juanito Itaas in the said ambush of Col. James Rowe and his driver on April 21, 1989. Appellant Itaas, who was a known member of the Sparrow Unit of the NPA based in Davao City was arrested in Davao City and was brought to Manila by Capt. Gil Meneses for investigation.[7] CIS Investigator Virgilio Pablico investigated and took down the statements of appellant Itaas who disclosed during the

IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Bulacan is hereby AFFIRMED with MODIFICATIONS. Accused-appellants Juan Gonzales Escote, Jr. and Victor Acuyan are hereby found guilty beyond reasonable doubt of the felony of robbery with homicide defined in Article 294, paragraph 1 of the Revised Penal Code and, there being no modifying circumstances in the commission of the felony, hereby metes on each of them the penalty of RECLUSION PERPETUA. Said accused-appellants are hereby ordered to pay jointly and severally the heirs of the victim SPO1 Jose C. Manio, Jr. the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, P1,349,920.00 for lost earnings, P30,000.00 as actual damages and P25,000.00 as exemplary damages. The award of P6,000.00 to the Five Star Bus, Inc. is deleted. However, the said corporation is awarded the amount of P3,000.00 as temperate damages. Costs de oficio. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Quisumbing, Carpio, Austria-Martinez, Corona, Carpio-Morales, and Azcuna, JJ., concur. Vitug J., please see separate opinion. Ynares-Santiago, and Sandoval-Gutierrez, JJ., join J. Vitugs separate opinion.

9. TREACHERY SECOND DIVISION [G.R. Nos. 100801-02. August 25, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DONATO B. CONTINENTE and JUANITO T. ITAAS, JOHN DOE, PETER DOE, JAMES DOE, PAUL DOE and SEVERAL OTHER DOES (at large), accused, DONATO B. CONTINENTE and JUANITO T. ITAAS, accusedappellants. DECISION DE LEON, JR., J.: Before us on appeal is the Decision[1] dated February 27, 1991 of the Regional Trial Court of Quezon City, Branch 88, in Criminal Cases Nos. 89-4843 and 89-4844 finding herein appellants guilty beyond reasonable doubt of the crimes of murder and frustrated murder, respectively for the killing of U.S. Col. James N. Rowe and for seriously wounding Joaquin Vinuya. It appears that appellant Donato Continente and several other John Does were initially charged with the crimes of murder and frustrated murder in two (2) separate Informations dated June 20, 1989 in connection with the shooting incident on April 21, 1989 at the corner of Tomas Morato Street and Timog Avenue in Quezon City which caused the death of U.S. Col. James N. Rowe while seriously wounding his driver, Joaquin Vinuya. After the arrest of another suspect, Juanito Itaas, on August 27, 1989 in Davao City, the prosecution, with prior leave of court, filed two (2) separate amended Informations for murder and frustrated murder to include Juanito T. Itaas, among the other accused. The amended Informations in Criminal Cases Nos. 89-4843 and 89-4844 read: Criminal Case No. Q-89-4843 for Murder: "That on or about the 21st day of April, 1989, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, confederating with and mutually helping one another, with intent to kill, with evident premeditation and treachery and with the use of armalite rifles and motor vehicles, did then and there wilfully, unlawfully and feloniously attack, assault, and employ personal violence upon the person of COL. JAMES N. ROWE, a U.S. Army Officer, by then and there firing at him while then on board a Toyota car, hitting him on the different parts of his body, thereby inflicting upon him serious and mortal gunshot wounds, which were the direct and immediate cause

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investigation that he was an active member of the Sparrow Unit of the NPA based in Davao City and confessed, in the presence of Atty. Filemon Corpuz who apprised and explained to him his constitutional rights, that he was one of those who fired at the gray Mitsubishi Galant car of Col. James Rowe at the corner of Tomas Morato Street and Timog Avenue on April 21, 1989.[8] The said appellant identified the Toyota Corolla car that the assailants rode on April 21, 1989 and the gray Mitsubishi Galant car of Col. Rowe.[9] Meanwhile, it appears that the ambush on Col. James Rowe and his driver was witnessed by a certain Meriam Zulueta. The testimony of prosecution eyewitness Meriam R. Zulueta reveals that at around 7:00 o'clock in the morning of April 21, 1989, she was about to cross the Tomas Morato Street on her way to the JUSMAG Compound in Quezon City to attend a practicum in the JUSMAG Mess Hall when she heard several gunshots. Upon looking at the direction where the gunshots emanated, she saw persons on board a maroon car firing at a gray car at a distance of more or less one (1) meter at the corner of Tomas Morato Street and Timog Avenue in Quezon City. Zulueta returned to the side of the street to seek for cover but could not find any so she docked and covered her head with her bag while continuously looking at the persons who were firing at the gray car.[10] She recognized appellant Juanito Itaas when the latter was presented for identification in Camp Crame as the person, directly behind the driver of the maroon car, whose body was half exposed while he was firing at the gray car with the use of along firearm.[11] The shooting incident lasted for about five (5) seconds only after which the maroon car made a U-turn to Timog Avenue toward the direction of Quezon Boulevard while being followed by a white Mitsubishi Lancer car.[12] Prosecution eyewitness Zulueta likewise recognized the driver of the white Mitsubishi Lancer car as the same person whom she had encountered on two occasions. Zulueta disclosed that in the morning of April 19, 1989, the white Mitsubishi Lancer car was parked along the side of Tomas Morato Street which was near the corner of Scout Madrinas Street. Her attention was caught by the driver of the car, who was then reading a newspaper, when the latter remarked "Hoy pare, ang sexy. She-boom!" as she was walking along the street toward the JUSMAG Compound. On April 20, 1989, she saw the same person inside the white Mitsubishi Lancer car which was then parked along the side of Tomas Morato Street while she was again on her way to attend practicum in the JUSMAG Compound. She learned of the identity of the driver as a certain Raymond Navarro, who is allegedly a member of the NPA, from the pictures shown her by the CIS investigators in Camp Crame.[13] Prosecution witness Zulueta also recognized appellant Donato Continente whom she had encountered on at least three (3) occasions at a carinderia outside the JUSMAG Compound. Her first encounter with appellant Continente was at around three o'clock in the afternoon on April 17, 1989 when she went out of the JUSMAG Compound to a carinderia nearby. She mistook the said appellant for a tricycle driver who was simply walking around the premises. She saw appellant Continente in the same carinderia again on the following day, April 18, 1989, and she was even teased by her companions that he was her escort. On April 19, 1989, Zulueta saw appellant Continente for the third time inside the same carinderia while the latter was merely standing. She came to know the identity of appellant Continente when Continente was presented to her in Camp Crame for identification. She thought that he was the tricycle driver whom she had seen in the carinderia near the JUSMAG Compound.[14] Joaquin Vinuya testified that he was employed by the JUSMAG, as driver, and assigned to Col. James Rowe. On April 21, 1989, he fetched Col. Rowe from his house in Potsdam Street, Greenhills, Mandaluyong to report for work in JUSMAG, Quezon City. He drove along EDSA and turned left upon reaching Timog Avenue in Quezon City. While he was making a right turn at the intersection of Timog Avenue toward Tomas Morato Street, he noticed four (4) people on board a red car, two (2) of whom suddenly opened fire at the car that he was driving hitting him in the process. The shooting incident happened very fast and that he had no opportunity to recognize the persons inside the red car. Despite the incident, Vinuya managed to drive the car to the JUSMAG Compound. Upon arrival at the JUSMAG Compound, he found out that Col. James Rowe, who was sitting at the back seat of the car, was also hit during the shooting incident.[15] Col. James Rowe and Joaquin Vinuya were initially brought to the V. Luna Hospital in Quezon City for treatment. Subsequently, they were transferred to the Clark Air Base Hospital in Pampanga. It was only then that Vinuya learned of Col. James Rowe's death whose body was already wrapped in a blanket. Vinuya was treated in the Clark Air Base Hospital in Pampanga for four (4) days for the injuries he sustained on his head, shoulder, and on the back portion of his left hand. Thereafter, he was taken back to JUSMAG Compound in Quezon City to recuperate.[16] Prosecution witnesses Dr. Walter Divers and Dr. Jose Santiago testified on their respective medical findings[17] on the victims. Dr. Divers confirmed in court the contents of his medical report dated April 21, 1989 which shows that Col. Rowe sustained a gunshot wound on the left side of his head and abrasions on other parts of his body and that he was pronounced dead upon arrival at the V. Luna Hospital in Quezon City.[18] On the other hand, Dr. Santiago identified the medical report dated April 25, 1989 that he prepared relative to the treatment that he administered on Joaquin Vinuya. The report shows that Vinuya sustained three (3) superficial injuries on the scalp, on the left shoulder, and on the back of the left hand which could have been caused by bullets that came from a gun; and that the wounds could have caused the death of Vinuya without the medical treatment that lasted for four (4) days.[19] For the defense, appellant Juanito Itaas testified and denied the truth of the contents of his sworn statements which are respectively dated August 29, 1989 and August 30, 1989, insofar as the same establish his participation in the ambush of Col. James Rowe and his driver on April 21, 1989. Appellant Itaas testified that he was allegedly tortured by his captors on August 27 and 28, 1989 in Davao City; that he was blindfolded and a masking tape was placed on his mouth; and that subsequently, he was hit and mauled while a cellophane was placed on his head thus, causing him to loss consciousness.[20] Appellant Itaas further testified that he affixed his signatures on his sworn statements dated August 29 and 30, 1989 in the presence of the CIS officers and that Atty. Filemon Corpus was not present during those two occasions. The said appellant admitted having sworn to the truth of the contents of his said sworn statements before the administering fiscal, but he disclosed that the CIS officers previously threatened him to admit the contents of the two sworn statements.[21] Appellant Donato Continente testified that he was working as messenger with the U.P. Collegian, an official monthly publication of the University of the Philippines. He was walking on his way home inside the U.P. campus in Diliman, Quezon City from his workplace in Vinzon's Hall in the late afternoon of June 16, 1989 when four (4) persons blocked his way and simultaneously held his body and covered his mouth. He asked if they had any warrant of arrest but the persons simply boarded him inside a waiting car where he was handcuffed and blindfolded. Thereafter, they took his wallet that contained his NBI clearance, SSS, tax account number (TAN), identification card, two (2) pictures, and a typewritten certification from "SINAG" where he used to work.[22] Appellant Continente learned that he was taken to Camp Crame in Quezon City only in the following morning when his blindfold was removed so that he could give his statement in connection with the killing of Col. James Rowe before a CIS Investigator whom he later identified during the trial as Virgilio Pablico. Appellant Continente affirmed the truth of his personal circumstances only which appear on his sworn statement dated June 17, 1989 but denied having made the rest of the statements embodied therein. The said appellant claimed that he initially denied any knowledge in the killing of Col. James Rowe but CIS Investigator Pablico maintained that he (Continente) knew something about it; that appellant Continente was alone with Investigator Pablico during the investigation; that he signed his sworn statement in the presence of Pablico and swore to the truth thereof before the administering fiscal for fear that something might happen to him while he was alone; that he signed the last page of his sworn statement first before signing the waiver of his constitutional rights upon arrival of Atty. Bonifacio Manansala whose legal services was engaged by the CIS Investigators; and that he had no opportunity to talk with Atty. Manansala who left after he (Atty. Manansala) signed, merely as witness, the first page of his sworn statement, which is the waiver of his constitutional rights.[23] On rebuttal, prosecution witness Sgt. Reynaldo dela Cruz testified that he prepared and issued the receipt for the documents which he confiscated from appellant Continente on June 16, 1989; and that it is the standard operating procedure in the CIS to put a blindfold on an arrested suspected NPA member in order to withhold from him the view and location of the entrance, the exit and the terrain in the camp.[24] The testimony of CIS Investigator Virgilio Pablico on rebuttal reveals that during the investigation of appellants Donato Continente and Juanito Itaas, their respective lawyers namely, Atty. Bonifacio Manansala and Atty. Filemon Corpuz, were present; that appellants Continente and Itaas conferred with their lawyers before they gave their statements to the CIS investigator; that the CIS investigator typed only the statements that the appellants had given him in response to his questions during the investigation; that both appellants were accompanied by their respective lawyers when they were brought to the fiscal for inquest; and that said appellants were never tortured nor threatened during the investigations of these cases.[25] The trial court rendered its decision[26] in Criminal Cases Nos. Q-

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89-4843 to 44 on February 28, 1991 finding both appellants Juanito Itaas and Donato Continente guilty beyond reasonable doubt of the crimes of murder and frustrated murder. It ruled, thus: "In assessing the evidence against co-accused Continente, it is undeniable that the yardstick of his culpability hangs in the validity of the extra-judicial confession he had executed. A close scrutiny of the document would reveal that the confession is free from any taint of illegality and thus serves as a basis for his conviction. The presumption of law that official duty has been regularly performed has not been satisfactorily controverted by the accused. Circumstances show that Continente's waiver was done with the assistance of a counsel of his choice. The records indicate that Atty. Bonifacio Manansala was accused's counsel during his custodial investigation and his arraignment and that his counsel during the trial was a relative of the aforementioned lawyer. These factors are undeniable evidence of trust reposed upon Atty. Bonifacio Manansala by the accused. Continente also admitted on cross-examination that he had read his statement which included the PAGPAPATUNAY containing his waiver of constitutional rights (TSN 29 August 1990 p. 29). Accused was raised in Metro Manila and spoke Tagalog, thus would not have any difficulty in comprehending the questions addressed to him and the information relayed to him with respect to his rights. The court can not equate that whenever a suspect is taken into custody and is fearful of his safety, the police authorities had exercised pressure or had threatened if not subjected them to physical abuse. Moreover, the fact that the accused admitted that his answers were typed as he spoke them (TSN August 30 1990 p.4) leaves no room for Pablico to fabricate an answer. xxx xxx xxx. SO ORDERED." From the foregoing judgment of the trial court, appellants Donato Continente and Juanito Itaas separately instituted the instant appeal. On March 15, 1993, appellant Donato Continente filed his Appellant's Brief[27] while appellant Juanito Itaas filed his Appellant's Brief[28] on March 5, 1993. The Office of the Solicitor General filed the Appellee's Brief[29] for the People on October 4, 1993. Appellant Itaas filed a Reply Brief[30] on December 3, 1993. Appellant Continente raised the following assignments of error by the trial court: I THE HONORABLE LOWER COURT ERRED IN ADMITTING AND GIVING PROBATIVE VALUE TO THE EXTRA-JUDICIAL CONFESSION OF ACCUSED-APPELLANT CONTINENTE. II THE HONORABLE LOWER COURT ERRED IN GIVING CREDENCE TO THE IDENTIFICATION OF ACCUSEDAPPELLANT CONTINENTE BY THE PROSECUTION'S LONE WITNESS. III THE HONORABLE LOWER COURT ERRED IN FINDING ACCUSED-APPELLANT CONTINENTE GUILTY BEYOND REASONABLE DOUBT OF THE CRIMES CHARGED. On the other hand, appellant Itaas interposed the following assignments of error:

The prosecution evidence gathered against accused Itaas cradles on two incriminating points. The Zulueta testimony and his extra judicial confession working independently, one without the other, have the force capable of convicting the accused. The interplay of these two valuable evidence solidifies a ruling of guilt against accused Itaas. The defense raised by the accused is not sufficient to overrule this Court's determination of guilt against Itaas. The testimony of Zulueta has been candid and straightforward, devoid of any material contradiction. No motive has been imputed to assail the credibility of her testimony. xxx xxx xxx xxx.

I THE LOWER COURT COMMITTED REVERSIBLE ERROR IN ADMITTING AND APPRECIATING THE EYEWITNESS TESTIMONY OF MERIAM ZULUETA. II THE LOWER COURT COMMITTED REVERSIBLE ERROR IN ADMITTING AND APPRECIATING THE ALLEGED EXTRAJUDICIAL CONFESSIONS OF ACCUSED-APPELLANT ITAAS. III THE LOWER COURT COMMITTED REVERSIBLE ERROR IN ADMITTING TESTIMONIAL AND PHOTOGRAPHIC EVIDENCE SHOWING THE ACCUSED-APPELLANT POSING BESIDE THE AMBUSHER'S AND THE VICTIM'S ALLEGED CARS. IV THE LOWER COURT COMMITTED REVERSIBLE ERROR IN HOLDING THAT THE PROSECUTION WAS ABLE TO PROVE ALL THE ESSENTIAL ELEMENTS OF THE CRIMES CHARGED. V THE EXTENSIVE PUBLICITY BY THE AUTHORITIES DEPICTING ACCUSED-APPELLANT ITAAS AS "THE ROWE KILLER", A "COMMUNIST" AND A MEMBER OF THE CPP/NPA/NDF/ABB INFLUENCED MERIAM ZULUETA'S IDENTIFICATION OF ACCUSED-APPELLANT AND THE LOWER COURT'S JUDGMENT. The principal issues are: 1. Whether or not the waivers of the constitutional rights during custodial investigation by the appellants were valid; and 2. Whether or not the testimony of prosecution eyewitness Meriam Zulueta was credible.

With respect to the extra-judicial confession executed by accused Itaas, the Court finds that such was made pursuant to the Constitution. Although it may be argued that accused resides in Davao, the fact that he could understand Tagalog as admitted by him in his testimony and proven by the proceedings in court where he was answering questions addressed to him in Tagalog militates against his inability to comprehend his right and its subsequent waiver. Counsel for accused contests the independence and competence of Atty. Filemon Corpuz on the ground that said lawyer was a military lawyer. Although the military background of Atty. Corpuz is admitted, this does not automatically disqualify him to act as lawyer for the accused. Proof of the fact that he failed to render his duty to safeguard the rights of the accused must be shown before this court nullifies the weight of Itaas' extra-judicial confession. The allegation of torture similarly rings hollow. No medical certificate had been shown by the accused that he had indeed suffered brutal treatment from his jailers specially since he had alleged to have been treated by a doctor for his injuries." Thereafter, the trial court meted out the following penalties on the appellants: "WHEREFORE, in view of all the foregoing, this Court finds accused DONATO CONTINENTE y BUENVENIDA and JUANITO ITAAS y TURA GUILTY beyond reasonable doubt of the crimes of MURDER and FRUSTRATED MURDER, and each is hereby sentenced to suffer an imprisonment of RECLUSION PERPETUA for the killing of Col. James Rowe, to pay P30,000.00 to the heirs; and an imprisonment from 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 for the crime committed against Joaquin Vinuya, and to pay the cost.

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The rights of the accused during custodial investigation are enshrined in Article III, Section 12 (1) of the 1987 Constitution which provides that: "Sec. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel." The rights to remain silent and to counsel may be waived by the accused provided that the constitutional requirements are complied with. It must appear clear that the accused was initially accorded his right to be informed of his right to remain silent and to have a competent and independent counsel preferably of his own choice. In addition, the waiver must be in writing and in the presence of counsel. If the waiver complies with the constitutional requirements, then the extrajudicial confession will be tested for voluntariness,[31] i. e., if it was given freely-without coercion, intimidation, inducement, or false promises; and credibility,[32] i.e., if it was consistent with the normal experience of mankind. In assailing the validity of their written statements, appellants Donato Continente and Juanito Itaas contend that they were not properly informed of their custodial rights under the constitution as to enable them to make a valid waiver. The pertinent portion of appellant Donato Continente's written statement dated June 17, 1989 is quoted hereunder, to wit: PALIWANAG: G. Donato Continente, ang pagsisiyasat na ito ay may kinalaman sa pagkaka-ambush at pagpatay kay U.S. Army Colonel James Rowe ng JUSMAG. Bago kita simulang tanungin ay nais ko munang ipabatid sa iyo ang iyong mga karapatan alinsunod sa ating umiiral na Saligang Batas. Ito ay ang mga sumusunod: Una, ikaw ay may karapatang manahimik o huwag magbigay ng salaysay. Kung ikaw ay magbibigay ng salaysay, ipinaalala ko sa iyo na anumang sasabihin mo sa salaysay mong ito ay maaaring gamiting ebidensiya pabor o laban sa iyo sa anumang hukuman dito sa Pilipinas. Ikalawa, karapatan mong magkaroon ng abogado ayon sa iyong sariling pili habang ikaw ay aking tinatanong. Kung ikaw ay walang kakayanang umupa ng abogado, ikaw ay bibigyan namin ng isang abogado ng gobyerno bilang tumayo na iyong tagapayo at ng sa gayon ay maprotektahan ang iyong mga karapatan. Ikatlo, karapatan mong malaman at mapagpaliwanagan ng mga karapatan mong ito. TANONG: Nauunawaan mo ba ang mga karapatan mong ito? SAGOT: Opo. Nauunawaan ko po. driver. Bago kita simulang tanungin ay nais ko munang ipabatid sa iyo ang iyong mga karapatan alinsunod sa ating Bagong Saligang Batas. Ito ay mga sumusunod. Una, ikaw ay may karapatang manahimik o huwag magbigay ng salaysay. Kung ikaw ay magbibigay ng salaysay, ipinaalala ko sa iyo na anumang sabihin mo sa salaysay mong ito ay maaaring gamiting ebidensiya pabor o laban sa iyo sa anumang hukuman dito sa Pilipinas. Ikalawa, karapatan mong magkaroon ng pili at sarili mong abogado habang ikaw ay aking tinatanong. Kung ikaw ay walang pambayad ng abogado, ikaw ay bibigyan ng gobyerno ng abogado na wala kang aalalahaning anumang kabayaran. Ikatlo, karapatan mong malaman at mapagpaliwanagan ng mga karapatan mong ito. TANONG: Nauunawaan mo ba ang mga karapatan mong ito? SAGOT: Opo.

TANONG: Mayroon ka bang abogado na naririto sa ngayon upang ikaw ay patnubayan? SAGOT: Wala po pero ako ay nakahandang magbigay ng salaysay kahit na wala akong nakaharap na abogado. TANONG: G. Itaas, ayon din sa batas, ang pagsusuko ng mga karapatan ay kailangan ding pagtibayin sa harap ng isang abogado, nakahanda ka bang magsuko ng iyong mga karapatan sa harap ng isang abogado na bigay sa iyo ng gobyerno? SAGOT: Opo. Nakahanda po ako.

TANONG: Nakahanda ka rin bang lumagda sa isang pagpapatunay na ikaw ay napagpaliwanagan ng iyong mga karapatan at nauunawaan mo naman ang mga karapatan mong ito? SAGOT: Opo.[34]

Also, the pertinent portion of his (Itaas) supplemental written statement dated August 30, 1989 is quoted hereunder, to wit: PALIWANAG: G. Itaas, ang pagsisiyasat na ito ay may kinalaman pa rin sa pagkaka-ambush at pagpatay kay U.S. Colonel James Rowe. Tulad sa nauna mong pagbibigay ng salaysay, ipinaalala ko sa iyo na muli ang iyong mga karapatang manahimik, magkaroon ng pili at sariling abogado at karapatang mapagpaliwanagan ng mga karapatan mong ito. Nauunawaan mo ba ang mga karapatan mong ito? SAGOT: Opo.

TANONG: Nakahanda ka pa rin bang magbigay ng salaysay at ipapatuloy ang pagbibigay mo ng salaysay? SAGOT: Opo.

TANONG: Mayroon ka bang abogado na naririto sa ngayon upang siya mong maging tagapayo? SAGOT: Wala po pero nakapagdesisyon na po ako na ako ay magbibigay ng salaysay kahit na wala akong nakaharap na abogado. TANONG: G. Continente, ang pagsusuko ng mga karapatan, ayon narin sa batas, ay kinakailangang gawin sa harap ng isang abogado. Payag ka bang magsuko ng iyong mga karapatan sa harap ng isang abogado ng gobyerno? SAGOT: Pumapayag po ako.

TANONG: Nakahanda ka bang lumagdang muli ng isang pagpapatunay na ikaw ay napagpaliwanagan ng iyong mga karapatan at handa ka ring isuko ang mga karapatan mo? SAGOT: Opo.[35]

TANONG: Nakahanda ka rin bang lumagda sa isang pagpapatunay na ikaw ay napagpaliwanagan ng iyong mga karapatan, at nauunawaan mo ang mga karapatan mong ito? SAGOT: Opo.[33]

We have consistently declared in a string of cases that the advice or Paliwanag found at the beginning of extrajudicial confessions that merely enumerate to the accused his custodial rights do not meet the standard provided by law. They are terse and perfunctory statements that do not evince a clear and sufficient effort to inform and explain to the appellant his constitutional rights.[36] We emphasized that when the constitution requires a person under investigation "to be informed" of his rights to remain silent and to have an independent and competent counsel preferably of his own choice, it must be presumed to contemplate the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle.[37] In other words, the right of a person under investigation "to be informed" implies a correlative obligation on the part of the police investigator to explain, and contemplates an effective communication that results in understanding of what is conveyed. Short of this, there is a denial of the right.[38] In the case of People vs. Jara,[39] we declared that: "This stereotyped "advice" appearing in practically all extrajudicial confessions which are later repudiated has assumed the nature of a "legal form" or model. Police investigators either automatically type it together with the curt "Opo" as the answer or ask the accused to sign it or even

On the other hand, the pertinent portion of appellant Itaas' written statement dated August 29, 1989 is quoted, to wit: 01. PALIWANAG: G. Juanito Itaas, ang pagsisiyasat na ito ay may kinalaman sa pagkakaambush at pagpatay kay Colonel James Rowe ng JUSMAG at pagkasugat ng kanyang

64
copy it in their own handwriting. Its tired, punctilious, fixed, and artificially stately style does not create an impression of voluntariness or even understanding on the part of the accused. The showing of a spontaneous, free, and unconstrained giving up of a right is missing." It must be noted however, that far from being a mere enumeration of the custodial rights of an accused, the aforequoted portions ("Paliwanag") of the written statements contain an explanation as to the nature of the investigation that is, regarding the respective participations of the appellants in the ambush on April 21, 1989 that resulted in the killing of U.S. Col. James Rowe while seriously wounding his driver, Joaquin Vinuya. They also include an advice that the appellants may choose not to give any statement to the investigator and a warning that any statement obtained from the appellants may be used in favor or against them in court. In addition, they contain an advice that the appellants may engage the services of a lawyer of their own choice. If they cannot afford the services of a lawyer, they will be provided with one by the government for free. Thereafter, both appellants manifested to CIS Investigator Virgilio Pablico their intentions to give their statements even in the absence of counsel. Despite the manifestations of the appellants, Investigator Pablico requested for the legal services of Atty. Bonifacio Manansala to act as counsel for appellant Continente and Atty. Felimon Corpuz for appellant Itaas. Significantly, Investigator Pablico disclosed that appellant Continente conferred with Atty. Manansala in his presence for about half an hour before the investigation started.[40] Nevertheless, the appellant (Continente) maintained his decision to give a statement even in the absence of counsel. As proof thereof, the appellant signed[41] the "Pagpapatunay" that contains an express waiver of his constitutional rights in the presence of Atty. Manansala who also signed the same as counsel of the appellant. With respect to appellant Itaas, Atty. Felimon Corpuz testified that his legal services were requested on two (2) occasions to act as counsel for appellant Itaas after the latter purportedly manifested his intention to waive his rights to remain silent and to counsel during the investigation. Atty. Corpuz stated that he conferred with the appellant before the investigations and explained to him his rights under the constitution and the consequences of waiving said rights. After the explanation, appellant Itaas decided to sign the "Pagpapatunay", which are entirely written in Tagalog, a dialect which he understands, in his written confessions respectively dated August 29, 1989 and August 30, 1989 stating that his constitutional rights to remain silent and to counsel were explained to him; that he fully understood the same; and that he was willing to give a written confession even without the assistance of counsel.[42] Appellants Donato Continente and Juanito Itaas likewise impugn their respective written statements. They allege that the statements appearing therein were supplied by the CIS investigator. CIS Investigator Pablico however, categorically denied on rebuttal the allegations of the appellants. Pablico disclosed that during his investigations of the appellants on separate occasions he simultaneously typewrote his questions to the appellants including their answers thereto which are done entirely in Tagalog, thus leaving no room for Pablico to fabricate an answer. After the investigation, he allowed the appellants to read their respective confessions,[43] a fact that was admitted by appellant Continente.[44] Thereafter, the appellants voluntarily affixed their signatures on every page of their written confessions. On July 18, 1989 appellant Continente appeared before City Prosecutor Galicano of Quezon City and affirmed under oath the truth of his statements by affixing his signature on the left hand portion of every page of his written confession.[45] Likewise, appellant Itaas, accompanied by Atty. Corpuz, affirmed under oath the truth of his statements in his written confessions by affixing his signature on every page thereof before the administering officer.[46] In a desperate attempt to cast doubt on the voluntariness of his confessions, appellant Continente claims that he was under pressure to read entirely his written confession before he affixed his signature thereon. The unsubstantiated claim of the appellant is belied by his own admission that he was treated fairly during the investigation, thus: Court: Proceed. correct? A: No, sir.

Q: In fact, from the time you were arrested when that blindfold was removed, you were treated fairly, am I correct? A: Yes, sir.[47]

There is also no basis to support the claim of appellant Itaas that he was tortured into giving a confession and was threatened by the CIS agents to admit the truth of the same before the administering officer. This Court held that where the appellants did not present evidence of compulsion or duress or violence on their persons; where they failed to complain to the officers who administered the oaths; where they did not institute any criminal or administrative action against their alleged intimidators for maltreatment; where there appeared to be no marks of violence on their bodies and where they did not have themselves examined by a reputable physician to buttress their claim, all these should be considered as factors indicating voluntariness of confessions.[48] It has been established by the evidence that Atty. Filemon Corpuz was present during both occasions that appellant Itaas was being investigated by Investigator Virgilio Pablico in Camp Crame and even accompanied the said appellant before the administering officer. Appellant Itaas did not present any evidence in court to buttress his bare claim despite the fact that a doctor was summoned for his check up immediately upon his arrival in Manila after he was previously arrested in Davao City.[49] He did not complain to the administering officer about the threats and torture he allegedly suffered in the hands of the CIS agents. Neither did he file any criminal nor administrative complaint against said agents for maltreatment. The failure of the appellant to complain to the swearing officer or to file charges against the persons who allegedly maltreated him, although he had all the chances to do so, manifests voluntariness in the execution of his confessions.[50] To hold otherwise is to facilitate the retraction of his solemnly made statements at the mere allegation of torture, without any proof whatsoever.[51] The Court also notes that the respective written confessions of appellants are replete with details which could be supplied only by someone in the know so to speak.[52] They reflect spontaneity and coherence which psychologically cannot be associated with a mind to which violence and torture have been applied.[53] In particular, appellant Juanito Itaas admitted in his written confession[54] dated August 29, 1989 that he was an active member of the New People's Army (NPA) and performed different functions mainly in the province of Davao; that he was one of the two other members of the NPA who were sent to Manila sometime in March 1989; that appellant stayed in Merville, Paranaque before moving to an apartment in Santolan, Pasig together with certain Vicky and her husband Ronnie, Onie, Bosyo and Bernie; that one day before the ambush on Col. Rowe he (Itaas) was told by Ronnie to take part in a major operation by the NPA; that he (Itaas) was not informed by Ronnie about the identity of their supposed target; that on the following day, Ronnie and the appellant boarded a dark brown Toyota car together with certain Edgar and James; that he (Itaas) was seated directly behind the driver beside Edgar and James while Ronnie sat beside the driver; that they were armed with M-16 rifles while Ronnie was armed with an ultimax; that after several minutes their car reached a junction (circle) and was running alongside a dark gray car; that he fired automatic shots toward the dark gray car only after his companions started firing at the said car; and that after the ambush they drove back to their apartment in Santolan, Pasig while they were being followed by a back up car allegedly being occupied by certain Liway, Fred and Eddie. Appellant Itaas also identified in his written confession[55] dated August 30, 1989 the gray Mitsubishi car that they ambushed on April 21, 1989 and the car that they used on the same date of ambush. On the other hand, the written statement[56] dated June 17, 1989 of appellant Donato Continente reveals that he had been a member of several revolutionary groups before becoming a full fledged member of the Communist Party of the Philippines (CPP) under the Political Assassination Team (PAT) headed by a certain Kit; that the objective of their team was primarily to conduct surveillance on foreigners and diplomats; that he did not know Col. James Rowe prior to the shooting incident on April 21, 1989; that his participation in the ambush was merely for having conducted a surveillance of the vicinity of the JUSMAG in Tomas Morato Avenue in Quezon City; that he gathered certain data, specifically: the number of people and volume of vehicles around the area, the measurement of the streets, as well as the distance of the JUSMAG Compound from Tomas Morato Avenue; that his surveillance activity was continued by certain Freddie Abella and Taddy who are also members of the PAT; and that he came to know the identity of the victim of the ambush on April 21, 1989, through Freddie Abella who informed him two days after the incident.

Q: Now, Mr. Witness, since the time you were arrested on June 16, 1989 until this time, you said you were staying in Camp Crame, am I correct? A: Yes, sir.

Q: And from the time you were arrested up to this time, you were never harmed by anybody in Camp Crame, that is also

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Appellants Continente and Itaas may not validly repudiate the counsels who rendered them legal assistance during their respective investigations as biased and incompetent. It must be emphasized that both appellants never signified their desire to have lawyers of their own choice. In any case, it has been ruled that while the initial choice of the lawyer in cases where a person under custodial investigation cannot afford the services of the lawyer is naturally lodged in the police investigators, the accused really has the final choice as he may reject the counsel chosen for him and ask for another one. A lawyer provided by the investigators is deemed engaged by the accused where he never raised any objection against the former's appointment during the course of the investigation and the accused thereafter subscribes to the veracity of his statement before the swearing officer.[57] If Atty. Manansala and Atty. Corpuz decided against advising the appellants not to give their statements involving the ambush, the said lawyers were merely complying with their oaths to abide by the truth. The counsel should never prevent an accused from freely and voluntarily telling the truth.[58] Whether it is an extrajudicial statement or testimony in open court, the purpose is always the ascertainment of truth.[59] What is sought to be protected with the constitutional right to counsel is the compulsory disclosure of incriminating facts. The right is guaranteed merely to preclude the slightest coercion as would lead the accused to admit something false, not to provide him with the best defense.[60] We agree with the trial court's observation that the retention by appellant Continente of Atty. Bonifacio Manansala as his counsel until the early stages of his case in the lower court and his subsequent decision to engage the legal services of Atty. Manansala's relative, Atty. Ceferino Manansala, who represented the said appellant throughout the proceedings in the absence of the former bespeaks of the trust he had for the said lawyer. On the other hand, while it is admitted that Atty. Felimon Corpuz served in the military as prosecutor in the Efficiency and Separation Board of the armed forces, such fact is not sufficient to adjudge the said lawyer as biased against the appellant (Itaas) in the absence of any concrete evidence to that effect. The defense also failed to adduce substantial evidence to support a finding that Atty. Corpuz was short of being a vigilant and effective counsel for the said appellant. Moreover, the testimony of prosecution eyewitness Meriam Zulueta confirms to a large extent the statements made by the appellants in their written confessions. Zulueta positively identified appellant Juanito Itaas as among the persons on board a car, directly behind the driver, whose body was half exposed, while firing at the car of Col. James Rowe at the corner of Tomas Morato Street and Timog Avenue in Quezon City. She also testified that she had seen appellant Donato Continente on at least three (3) occasions at the carinderia outside the JUSMAG compound. She mistook appellant Continente for a tricycle driver on April 17, 1989 while the latter was simply walking around the premises. The second and third encounters with the appellant (Continente) took place on April 18 and 19, 1989 while the said appellant was standing inside the same carinderia. The defense assails the propriety of the pre-trial identification by Meriam Zulueta of appellants Donato Continente and Juanito Itaas as pointedly suggestive. However, there is no sufficient evidence on record to show that the appellants were previously indicated by the CIS investigators to Zulueta that they were the perpetrators of the crime.[61] Besides, a police line-up is not essential to a proper identification of the appellants.[62] The defense for appellant Itaas further argues that the so-called "positive identification" of appellant Itaas by Meriam Zulueta cannot be considered reliable inasmuch as the same was based on a fleeting glimpse of a stranger. To support its argument, the defense cited cases[63] where the Court rejected the testimonies of prosecution eyewitnesses for not being credible, such as: where the identification of a stranger is based upon a single brief observation made during a startling occurrence; where the testimony of the witness defies human nature and reason; where there are serious inconsistencies and glaring omissions in the testimony of the eyewitness; and where the witness only identified the suspect after he was arrested and the witness was informed by the police that the suspect was one of the killers. It should be pointed out that the above rulings of the Court are based on the circumstances peculiar to each of the abovecited cases that do not exactly obtain in the cases at bench. It is accepted legal precept that persons react differently to a given situation.[64] In the same way, certain witnesses to an unfolding crime may run or scamper to safety while others would remain transfixed and strive to identify the perpetrators thereof. As found by the trial court, Zulueta testified in an honest and straightforward manner that she was about to cross the Tomas Morato Street on her way to the JUSMAG Compound in Quezon City to attend a practicum in the JUSMAG Mess Hall when she heard several gunshots. Upon looking at the direction where the gunshots emanated, she saw persons on board a maroon car firing at a gray car. Zulueta returned to the sidewalk to seek for cover but could not find any so she docked and covered her head with her bag while continuously looking at the persons who were firing at the gray car. In acting the way she did, Meriam Zulueta was merely reacting naturally to the crime that was unfolding before her. And while the shooting incident lasted for only about five (5) seconds, that was all that Zulueta needed under the situation to recognize appellant Itaas whose body was incidentally half exposed. The testimony of Meriam Zulueta does not suffer from any serious and material contradictions that can detract from her credibility. The trial court accorded full faith and credence to her said testimony. The defense failed to adduce any evidence to establish any improper motive that may have impelled the same witness to falsely testify against the appellants. It is well-settled rule that the evaluation of the testimonies of witnesses by the trial court is received on appeal with the highest respect because such court has the direct opportunity to observe the witnesses on the stand and determine if they are telling the truth or not.[65] Article 248 of the Revised Penal Code, as amended, provides: ART. 248. Murder.-- Any person who, not falling within the provisions of Article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion perpetua to death if committed with any of the following attendant circumstances: 1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or means or persons to insure or afford impunity. 2. In consideration of a price, reward or promise. 3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of an airship, or by means of motor vehicles, or with the use of any other means involving great waste and ruin. 4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity. 5. With evident premeditation. 6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse." The trial court erroneously found that the appellants allegedly conspired in the commission of the crimes charged in the instant criminal cases. While it is clear that the appellants did not even know each other, the lower court opined that the Alex Boncayao Brigade is such a large organization that there is great likelihood that the participants of the various stages of the crime are unknown to each other. To justify its position, it cited the ruling in the case of People vs. Geronimo[66], thus: When the defendants by their acts aimed at the same object, one performing one part and the other performing another part as to complete it, with a view to the attainment of the same object, and their acts, though apparently independent, were in fact concerted and cooperative, indicating closeness of personal associations, concerted action and concurrence of sentiments, the Court will be justified in concluding that said defendants were engaged in a conspiracy. We disagree. Article 8 of the Revised Penal Code provides that a conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. To prove conspiracy, the prosecution must establish the following three (3) requisites: (1) that two or more persons come to an agreement; (2) that the agreement concerned the commission of a crime; and (3) that the execution of the felony was decided upon.[67] While conspiracy must be proven just like any criminal accusation, that is, independently and beyond reasonable doubt,[68] the same need not be proved by direct evidence and may be inferred from the conduct of the accused before, during, and after the commission of the crime.[69] The case against appellant Donato Continente is primarily anchored on the written statement[70] that he gave during the investigation of these cases. The pertinent portions of his written statements are quoted hereunder, to wit: T: Ikaw ba'y naging full fledged member ng Partido?

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S: T: S: Nito pong Oktubre 1988. Sino naman ang iyong kinikilalang puno sa inyong Partido? Ganito po iyon. Mayroon kaming sariling grupo na kung tawagin ay PAT. Ang ibig sabihin nito ay POLITICAL ASSASSINATION TEAM. Ang aming puno ay tinatawag naming PO o Political Officer. Ang susunod sa kanya ay ang TL o Team Leader; tapos po ay ang Vice Team Leader; at mga miembro na nagsasagawa ng activities tulad ng gawaing edukasyon, surveillance at intelligence. x Ano ang mga alam mong objectives ng inyong team? charged as accomplice.[72] The prosecution failed to establish, either directly or by circumstantial evidence, that appellant Donato Continente was privy to any conspiracy to carry out the ambush on Col. James Rowe and his driver on that fateful morning of April 21, 1989. The evidence adduced disclose that the participation of appellant Continente was made only after the plan or decision to ambush Col. Rowe was already a fait accompli. Continente was merely assigned to the vicinity of the JUSMAG Compound in Tomas Morato Street, Quezon City, before the shooting incident to gather certain data, specifically the number of people and volume of vehicles in the area, the measurement of the streets, and the distance of the JUSMAG Compound from Tomas Morato Street. Subsequently, Continente reported his findings to Freddie Abella and that thereafter the latter had taken over the activity. Significantly, appellant Continente was not even present at the scene of the crime on April 21, 1989. The error of the trial court in its appreciation of appellant Continente's participation in the crimes charged lies in its apparent confusion regarding the distinction between a conspirator and an accomplice. In view of its effect on the liability of appellant Continente, the distinction between the two concepts as laid down by this Court in the case of People vs. de Vera, et al.[73] needs to be reiterated, thus: Conspirators and accomplices have one thing in common: they know and agree with the criminal design. Conspirators, however, know the criminal intention because they themselves have decided upon such course of action. Accomplices come to know about it after the principals have reached the decision, and only then do they agree to cooperate in its execution. Conspirators decide that a crime should be committed; accomplices merely concur in it. Accomplices do not decide whether the crime should be committed; they merely assent to the plan and cooperate in its accomplishment. Conspirators are the authors of the crime; accomplices are merely their instruments who perform acts not essential to the perpetration of the offense. With respect to appellant Juanito Itaas, however, the trial court correctly found that the evidence against him which consist of his written confession and the straightforward and credible testimony of prosecution eyewitness Meriam Zulueta, even if taken independently, are sufficient to convict him. Appellant Itaas categorically admitted in his written confession that he and his companions fired at the gray Mitsubishi car of Col. James Rowe at the corner of Timog Avenue and Tomas Morato Street in Quezon City. Moreover, prosecution witness Meriam Zulueta positively identified appellant Itaas as one of the persons she saw on board a car who fired at a gray car at the same time and place where Col. Rowe and his driver were ambushed. The shooting of Col. James Rowe and his driver, Joaquin Vinuya, was attended by treachery. There is treachery when the offender commits any of the crimes against person, employing means, methods or forms in the execution thereof which tend directly and especially to ensure its execution, without risk to himself arising from any defense which the offended party might make.[74] The evidence clearly shows that the mode of execution was deliberately adopted by the perpetrators to ensure the commission of the crime without the least danger unto themselves arising from the possible resistance of their victims. Appellant Itaas and his companions, who were all armed with powerful firearms, waited for the car of Col. Rowe which was being driven by Joaquin Vinuya at the corner of Timog Avenue and Tomas Morato Street in Quezon City. Without any warning, appellant Itaas and his companions suddenly fired at the said car upon reaching the said place. Hence, the crime committed for the killing of Col. James Rowe during the said ambush is murder. With respect to the liability of appellant Itaas for the wounding of Joaquin Vinuya, it appears that the said victim sustained injuries on his scalp, on the left shoulder and on the back portion of the left hand from the ambush. Under Article 6 of the Revised Penal Code, as amended, a felony is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. The evidence adduced by the prosecution, particularly the opinion of Dr. Jose Santiago in his testimony, is not sufficient to establish the crime of frustrated murder. This Court notes that the wounds sustained by the victim are not fatal wounds but merely superficial wounds.[75] The records disclose that Joaquin Vinuya managed to drive the car of Col. Rowe toward the JUSMAG Compound which is 200 meters away from the site of the ambush.[76] It also appears that Vinuya was treated for his wounds for only four (4) days at the Clark Air Base Hospital in Pampanga after which he was brought back to the JUSMAG Compound in Quezon City to recuperate. Hence, the crime committed as against him is only attempted murder. In view of the foregoing, appellant Juanito Itaas should be held

x T:

S: , Ang mga objectives po namin ay magsagawa ng surveillance sa mga foreigner o diplomat. Kinukuha namin ang plate number ng kanilang mga sasakyan, make, model at kulay nito at ito ay aming tinitipon. x x T: S: x Nakikilala mo ba itong si Col. James Rowe ng U.S. Army na nagtrabaho sa JUSMAG? Nakilala ko po lamang siya ng mapabalitang patay siya sa ambush sa may malapit sa JUSMAG noong buwan ng Abril 1989. x Ano ang iyong naging partisipasyon sa pagkakapatay nitong si Col. Rowe? Surveillance po lamang ang aking naging papel dito. Paano mo naman isinagawa itong pag-surveillance kay Colonel Rowe? Nagpunta po ako sa area ng JUSMAG doon sa Tomas Morato Avenue, Q. C. at nagmanman doon tungkol sa dami ng tao at sasakyang dumadaan tuwing tanghali. Inalaman ko din ang lawak ng kalsada at layo ng Timog Avenue sa gate ng JUSMAG. Sa report ko ay sinabi ko na mga anim (6) na hakbang ang luwag ng Tomas Morato Avenue, madalang ang daan ng tao at sasakyan at ang layo ng Timog Avenue sa gate ng JUSMAG ay may tatlong poste o apat na poste lamang. Ang pagrereport mo bang ito ay ginawa mo ng verbal lamang? Verbal lamang po. Kanino ka naman nagreport? Kay Ka Freddie Abella po. x Bakit mo natiyak na ang ABB ang nagsagawa ng pag-ambush kay Colonel Rowe? Dalawang (2) araw po matapos ang pag-ambush kay Col. Rowe ay nagkita kaming dalawa ni Freddie sa aming bahay. Sa pagkikita naming iyon ay ikinuwento niya sa akin ang mga pangyayari. xxx

x T: S: T: S:

T: S: T: S: x x T: S:

It should be emphasized that conspirators are the authors of the crime, being the ones who decide that a crime should be committed. Strictly speaking, a person may not be considered a conspirator by his mere subsequent assent or cooperation in the commission of a crime absent a clear showing, either directly or by circumstantial evidence, that he participated in the decision to commit the same;[71] in which case, his culpability will be judged based on the extent of his participation in the commission of the crime. In the case at bench, appellant Donato Continente is liable for the crimes charged in these criminal cases only as an accomplice under Article 18 of the Revised Penal Code. In order that a person may be considered an accomplice in the commission of a criminal offense, the following requisites must concur: (a) community of design, i.e., knowing the criminal design of the principal by direct participation, he concurs with the latter in his purpose; (b) he cooperates in the execution of the offense by previous or simultaneous acts; and (c) there must be a relation between the acts done by the principal and those attributed to the person

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liable for the crimes of murder and attempted murder for his direct participation in the killing of Col. James Rowe and in the wounding of his driver Joaquin Vinuya, respectively. Due to the absence of any mitigating nor aggravating circumstance in both cases, the penalty to be imposed on appellant Itaas is reclusion perpetua for the murder of Col. James Rowe and the medium period of prision mayor for the attempt on the life of Joaquin Vinuya. Applying the Indeterminate Sentence Law in the latter case, the maximum of the penalty to be imposed on appellant Itaas is the medium period of prision mayor and the minimum shall be within the range of the penalty next lower to that prescribed by the Revised Penal Code for the offense, that is, prision correccional. On the other hand, being an accomplice to the crimes of murder and attempted murder, the penalty to be imposed on appellant Donato Continente shall be the medium periods of reclusion temporal and prision correccional, respectively. Applying the Indeterminate Sentence Law in both cases, the maximum of the penalty to be imposed on appellant Continente as an accomplice to the crime of murder is the medium period of reclusion temporal and the minimum shall be prision mayor, while the maximum of the penalty to be imposed on the said appellant as an accomplice to the crime of attempted murder is the medium period of prision correccional and the minimum shall be arresto mayor. WHEREFORE, the appealed Decision of the Regional Trial Court, Branch 88, in Criminal Cases Nos. Q-89-4843 and Q-89-4844 is hereby MODIFIED, as follows: In Criminal Case No. Q-89-4843, appellants Juanito Itaas and Donato Continente are found GUILTY beyond reasonable doubt of the crime of murder, as principal and as accomplice, respectively. Appellant Itaas, as principal, is hereby sentenced to suffer imprisonment of reclusion perpetua. Appellant Continente as accomplice, is hereby sentenced to suffer imprisonment for twelve (12) years of prision mayor, as minimum, to fourteen (14) years and eight (8) months of reclusion temporal, as maximum. Both appellants Itaas and Continente are ORDERED to pay jointly and severally the amount of P50,000.00 to the heirs of the victim, Col. James Rowe, by way of civil indemnity. In Criminal Case No. Q-89-4844, appellants Juanito Itaas and Donato Continente are found GUILTY beyond reasonable doubt of the crime of attempted murder, as principal and as accomplice, respectively. Appellant Itaas, as principal, is hereby sentenced to suffer imprisonment for six (6) years of prision correccional, as minimum, to nine (9) years and six (6) months of prision mayor, as maximum. Appellant Continente, as accomplice, is hereby sentenced to suffer imprisonment of six (6) months of arresto mayor, as minimum, to two (2) years and four (4) months of prision correccional, as maximum. SO ORDERED. Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ., concur. Accused-appellant Rene Siao and Reylan Gimena pleaded "not guilty" to the charge. Hence, trial proceeded in due course. After trial, the Regional Trial Court of the City of Cebu convicted accused-appellant Rene Siao of the crime of rape as principal by induction and acquitted Reylan Gimena. The dispositive portion of the decision rendered on March 29, 1996 reads: "WHEREFORE, in view of all the foregoing, judgment is hereby rendered finding accused Rene Siao GUILTY beyond reasonable doubt as principal by induction in the crime of rape committed against the person of Ester Raymundo and imposes upon him the penalty of RECLUSION PERPETUA. He is, likewise, directed to indemnify private complainant Ester Raymundo the sum of P50,000.00 as and for moral damages. Accused Reylan Gimena is hereby ACQUITTED because he acted under the impulse of uncontrollable fear of an equal, if not greater injury. For want of evidence, his cross-claim against Rene Siao should be, as it is hereby ordered, DISMISSED."[2] Hence, this appeal by Rene Siao. The Office of the Solicitor General[3] summarized the evidence for the prosecution in this wise: Joy Raymundo and private complainant Estrella Raymundo are cousins. They worked as house maids of appellants family. Reylan Gimena was also a helper of appellants family. Estrella was then a 14-year old "probinsiyana" from Palompon, Leyte (p. 5, TSN, September 16, 1994). On May 27, 1994, at about 3:00 p.m., in the Siao residence located at 417-A Basak Brotherhood, Cebu City, appellant ordered Reylan Gimena, a houseboy of the Siaos, to pull Estrella to the room of the women. Gimena dragged her toward the womens quarters and once inside, appellant pushed her to the wooden bed (naomog). Appellant pointed a pistol colored white at Gimena and the face of Estrella (pp. 7-8, TSN, September 16, 1994). Producing a candle and a bottle of sprite, appellant asked Estrella to choose one among a pistol, candle or a bottle of sprite. He also told Gimena "Reylan, birahi si Ester." (Reylan do something to Ester.) Appellant lighted the candle and dropped the melting candle on her chest (p. 7, TSN, September 20, 1994). Estrella chose a bottle of sprite because she was afraid of the pistol. She was made to lie down on her back on the bed with her head hanging over one end. Whereupon, appellant poured sprite into her nostrils as she was made to spread her arms. While appellant dropped the bottle of sprite into her nostrils, he pointed the gun at her face. Estrella felt dizzy and her eyesight became blurred (p. 6, TSN, September 20, 1994). She tried to fold her arms to cover her breasts but appellant ordered Gimena to hold her hands (p. 10-15, TSN, September 16, 1994). Appellant then tied her feet and hands with an electric cord or wire as she was made to lie face down on the bed. After that, appellant untied her hands and feet but tied her back with the same wire (p. 17, TSN, September 16, 1994). As appellant pointed his pistol at her, he ordered Estrella to remove her pants and T-shirt, she sat on the bed and did as she was told and when she was naked, appellant commanded her to take the initiative (ikaw ang mauna sa lalaki.) She did not understand what appellant meant. At this point, appellant poked the gun at her temple (pp. 19-20, TSN, September 16, 1994). Appellant then commanded Gimena to remove his shorts. But Gimena refused. Gimena did not remove his shorts but let his penis out (p. 21, TSN, September 1, 1994; p. 11, TSN, September 20, 1994). Appellant spread the arms of Estrella and made her lie down spread-eagled (pp. 4-5, TSN, September 29, 1994). She felt dizzy and shouted for help twice. Appellant ordered Gimena to rape Estrella. At first Gimena refused to heed the command of appellant to rape Estrella (birahi) because, according to Gimena, he has a

10. IGNOMINY THIRD DIVISION [G.R. No. 126021. March 3, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RENE SIAO, accused-appellant. DECISION GONZAGA_REYES, J.: Accused-appellant Rene Siao together with Reylan Gimena were charged before the Regional Trial Court of the City of Cebu with the crime of rape committed as follows: "xxx xxx xxx:

That on or about the 27th day of May, 1994, about 3:00 P.M., in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, conniving and confederating together and mutually helping each other, with deliberate intent and with force and intimidation upon person, did then and there willfully, unlawfully and feloniously have carnal knowledge with the undersigned, Estrella Raymundo, a minor, 14 years old, against the latters will."[1]

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sister. Appellant said that if they would not obey, he would kill both of them (pp. 4-10, TSN, September 20, 1994. Appellant told Gimena, "Reylan, do something (birahi) to Ester!" Estrella was made to suck the penis of Gimena at gunpoint. She complied with the order of appellant and when the penis of Gimena was inside her mouth, appellant kept looking and pointing his handgun at them (pp. 11-14, TSN, September 20, 1994; pp. 19-20, TSN, September 21, 1994). Thereafter, Gimena got on top of Estrella (gisakyan) and did the sexual act (kayatan). She felt excruciating pain. Gimena made pushand-pull movements for around 10 minutes. Appellant looked on and said, "why did it take you long to penetrate?" While Gimena was making the push-and-pull movements, appellant held the legs of Estrella to keep them apart (pp. 21-24, TSN, September 20, 1994). After Gimena had sexual intercourse with Estrella, she sat down. Not long after, appellant said: "You do it again." Gimena said that he could not do it again because he was already very tired. But appellant pointed the pistol at Gimenas temple. Gimena obeyed the order of appellant because the pistol was pointed at him (pp. 25-26, TSN, September 20, 1994). They were made to lay side by side while appellant kept on pointing the pistol at them. Gimena, who was behind Estrella made a push-and-pull movements so that his organ would reach her private part (pp. 27-29, TSN, September 20, 1994). After the side by side position, they were made to assume the dog position (patuwad). Appellant commanded her to do it but she refused because she was already tired. Appellant pointed the pistol at her, so she obeyed his order. Gimena said: "I will not do that because I am already tired." At that, appellant pointed the pistol at Gimena. Thus, Gimena copulated with Estrella in the manner dogs perform the sexual intercourse. Gimena shouted for help. Somebody knocked on the door and they heard the voice of Teresita Paares, the older sister of appellant. Appellant ignored Paares and kept on pointing the pistol at Estrella and Gimena, as he looked at them with wide-open eyes (siga) (pp. 30-31, TSN, September 20, 1994). Shortly, appellant told them to go to the boys room. They complied with his order tearfully, after he followed them laughing all the while. Appellant then warned them: "If you will tell the police, I will kill your mothers." (pp. 33-34, TSN, September 20, 1994). At around 6:00 oclock in the evening of the same day, Estrella and Joy Raymundo sought permission to go home. On their way home, they met an old man who saw Estrella crying. The old man took them to his house. After the incident was reported to the police, Senior Police Officer Reynaldo Omaa conducted the investigation and arrested Gimena, who was identified by Esrtrella as the one who raped her on orders of appellant. The police officers looked for appellant to shed light on the reported rape. But they could not locate him (Exhibit "B"; pp. 5-7, TSN, December 13, 1994).[4] Accused-appellant Rene Siao, anchoring his defense mainly on denial, presents a different version of the case; his story "Private complainant Ester or "Estrella" Raymundo, together with her cousin Joy Raymundo, was employed as a maid by the Siao family on May 9, 1994. In the morning of May 27, 1997, a commotion in the household of Jose Siao awakened Teresita Paares, a sister of accusedappellant. Ms. Paares learned that accused Reylan Gimena, one of the houseboys of the Siao family, was accusing private complainant of stealing his wristwatch. This was not the first time accused Gimena confronted private complainant with the loss of his watch. Earlier in the week, Teresita had also lost money in the amount of P1,300.00, while her daughter Jan Bianca Abellana lost a necklace. It would turn out that the other househelpers of the Siaos had likewise lost personal articles. Marilyn Resujent, a maid, lost a brand new panty and sleeveless blouse. Simeon Siroy Jr., a houseboy, lost two T-shirts. Until the employment of the Raymundo cousins, the household of the Siaos had not fallen victim to thievery. At around noontime of the same day, upon his return from his morning chores, accused Gimena inquired from Ms. Paares whether his watch had been found. When informed that his watch had not been recovered, he confronted private complainant, who offered to pay for the value of the watch instead. Joy Raymundo agreed to accompany accused Gimena to the house of an aunt (of Joy and private complainant) for financial assistance. An hour later, accused Gimena and Joy Raymundo returned to the Siao compound and reported to Ms. Paares that the aunt was unable willing (sic) to help. In the meantime, private complainant admitted to Ms. Paares that she stole the P1,300.00 but denied having taken the necklace. Private complainant initially returned the sum of P600.00 to Ms. Paares. When Ms. Paares stated that what she lost was P1,300.00, private complainant went to her quarters and returned with an additional P200.00. Private complainant explained that she could no longer produce the remaining money because she had already purchased a number of personal effects (pail, basin, pants, shorts) for herself with it. A little while after accused Gimena and Joy returned from the house of Joy and Esters aunt, accused Gimena and private complainant went to the males quarters. Sometime thereafter, accused Gimena emerged from the males quarters and announced the recovery of his watch. Private complainant had revealed to accused Gimena the hiding place of his watch, which was under the ironing board. In the afternoon of May 24, 1994,[5] many people were present in the household of Jose Siao, father of accused-appellant. Ms. Beatriz Baricuatro was in the sala praying the rosary as was were habit. Joy Raymundo was in the kitchen. Ms. Paares was likewise downstairs going about her daily business. The grandchildren of Jose Siao were running in and out of the house. At about 3:00 p.m., Ms. Paares left their residence to seek the assistance of the barangay with respect to the lost necklace of her daughter. (Until this time, private complainant would not admit to stealing the necklace). Within an hour, Ms. Paares returned to the compound accompanied by Barangay Tanod Arturo Jabines. Private complainant was inside the males quarters when the two arrived. Accused had earlier reported for work at the retail store owned by Jose Siao. When Barangay Tanod Jabinez introduced himself, private complainant immediately begged for his forgiveness and promised not to do it again. Barangay Tanod Jabinez instructed the private complainant to address her pleas to her victims and not to him. Before the barangay tanod, private complainant admitted to stealing the necklace. Dissatisfied with the piece-meal confession of the private complainant, Ms. Paares decided to bring her to the barangay hall where she could report the theft. On the way to the barangay hall, private complainant confessed to selling the necklace and begged for forgiveness. At the last minute Ms. Paares relented and decided to give the private complainant a second chance. Upon their return to the Siao compound, private complainant and Joy Raymundo sought permission from Ms. Baricuatro to just return to their home in Leyte. Ms. Beatriz gave her consent and even handed them money for boat fare. At about 6:00 p.m., both housemaids left the Siao residence, bringing with them all their personal belongings. An hour later, some people came to the house of Jose Siao looking for private complainant and her cousin. At this time, accused-appellant Rene Siao remained unaware of the developments that unraveled in the residence of Jose Siao. In the morning of May 24, 1994,[6] accused-appellant made his usual rounds ]collecting the obligations of his fathers creditors. At noontime, accused-appellant went directly to the retail store of his father where he had lunch with his wife Gina, as was his habit. This was the usual hour of his fathers siesta and he would tend to the store in his fathers absence, as was his custom. At about 9:00 p.m. of the same evening, a barangay tanod came to the retail store and invited accused Gimena to the barangay hall. Jose Siao and Ms. Paares would follow. At the barangay hall, upon the complaint of a certain Rosalie Sallentes (who claimed to be related to the Raymundo cousins), Barangay Captain George Rama asked accused Gimena of the whereabouts of Ester and Joy Raymundo. Accused Gimena answered that he did not know. During the course of the investigation, and under threat by the Barangay Captain that his

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head would be broken if he did not tell the truth, accused Gimena confessed to tying up the private complainant to force her to reveal the place where his watch was being kept. He untied her after he recovered his watch from under the ironing board. The following evening, on May 28, 1994, accused Gimena was picked up by policemen at the retail store of Jose Siao and brought to the Tabo-an Police Station. Neither the police nor the barangay tanod looked for accusedappellant on the evenings of May 27 and 28, 1994. Private complainant would file a complaint against accusedappellant and accused Gimena on June 21, 1994. After the case was filed but before trial commenced, a person who presented himself as the father of private complainant set a meeting with the Siaos. The father of private complainant demanded 1 Million Pesos from the Siaos to drop the rape case."[7] As stated earlier, the trial court rendered a decision finding accusedappellant Rene Siao guilty of the crime of rape as principal by induction in accordance with Article 17(2) of the Revised Penal Code.[8] Insisting on his innocence, accused-appellant assigns to the trial court the following alleged errors: "THE TRIAL COURT ERRED IN FINDING ACCUSEDAPPELLANT SIAO GUILTY BY INDUCEMENT THE TRIAL COURT ERRED IN CHARACTERIZING THE INCONSISTENCIES AS MINOR AND IMMATERIAL THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE TESTIMONY OF THE PROSECUTION WITNESSES"[9] The Court has carefully reviewed the records of this case and has found accused-appellants contentions to be without merit. Against the victims story, accused-appellant urges us to accept his own version. But we cannot do so, for we agree with the trial courts observation that a 14 -year old girl from the province, nave and innocent to the ways of the world, is incapable of concocting serious charges against her employer and fabricating a story of aberrant sexual behavior as can only be told by one who has been subjected to it. First, accused-appellants assertion that the failure of the prosecution to present the gun used by him to force and intimidate Ester Raymundo and Reylan Gimena to perform sexual intercourse is fatal to the prosecutions cause is clearly untenable. This Court has held in People vs. Travero, that "[t]he non-presentation of the weapon used in the commission of the rape is not essential to the conviction of the accused. It suffices that the testimony of the rape victim is credible because the established rule is that the sole testimony of the offended party is sufficient to sustain the accuseds conviction if it rings the truth or is otherwise credibl e."[10] As to fact that accused-appellant Rene Siao forced and intimidated at gunpoint Ester Raymundo and Reylan Gimena to have carnal knowledge of each other, we are convinced that the same has been adequately proved by the prosecutions evidence. Even as under settled jurisprudence, the evidence for conviction must be clear and convincing to overcome the constitutional presumption of innocence, we find the straightforward, consistent and candid manner in which Ester Raymundo related her harrowing experience in the hands of accused-appellant as bearing all the earmarks of verity. Not only that, the corroborative testimony of Reylan Gimena was consistent in material respects with that of Ester Raymundo. Ester Raymundo testified as follows: Q: Now, in your position which you have stated awhile ago, what did Reylan do with his penis? COURT "If he did anything?" To avoid any leading question. You can ask, "What happened next?" "What did he do?" But to ask what did he do with his penis . . . FISCAL BUENVIAJE My questions are personal and very . . . COURT You can frame your question by just adding a few words "if he did anything." WITNESS A: We did the sexual act (kayatan).

FISCAL BUENVIAJE Q: A: Q: Was he successful in penetrating you? Yes. And all the time Rene Siao was holding both of your legs?

ATTY. SENINING One of the . . . COURT Sustained. That is very leading. Q: A: Now, what did you feel when Reylan penetrated you? I felt excruciating pain.

FISCAL BUENVIAJE Q: So, what did you do because of that pain?

WITNESS A: I sat down when it was finished.

Q: How many minutes was Reylan doing the sexual act, the push-and-pull above you? ATTY. FERNANDEZ Your Honor, I would suggest, because there is no testimony to the effect that there was a push and pull. There was no establishment, Your Honor, the penetration was established but whether there was a push and pull after the first penetration. Just for justice in this matter it must be established by simple questions. COURT Okay, ask simple questions. FISCAL BUENVIAJE Q: Did Reylan make a push-and-pull?

ATTY. SENINING

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That is leading also. FISCAL BUENVIAJE That is natural, that necessarily follows: COURT Let the Court ask the question: Q: What was the body movement of Reylan when he had a sexual intercourse with you? A: He kept on push . . . Sustained. Anyway, you have the medical certificate. Next question. COURT FISCAL BUENVIAJE "He made a push-and-pull movement." ATTY. FERNANDEZ Making pumping action. FISCAL BUENVIAJE That is push-and-pull. I object that "pumping." This is not an artesian well. COURT ATTY. SENINING You will just Americanize "pumping." I would suggest . . . (not finished) FISCAL BUENVIAJE FISCAL BUENVIAJE Q: For how many minutes was Reylan doing the sexual act of push-and-pull? WITNESS A: Ten (10) minutes, more or less. "Sexual act." ATTY. SENINING All right. WITNESS A: Rene Siao then said that "You do it again." Q: Now, after that 10 minutes wherein Gimena raped you while Rene Siao was holding both of your legs, what happened next? ATTY. SENINING I would just like to correct the word "rape." ATTY. FERNANDEZ I would also . . COURT Sustained; she does not even know what is a climax. FISCAL BUENVIAJE Q: Was Gimena able to consummate the act of rape on you?

ATTY. SENINING That is a matter of law and interpretation. COURT

Q: Now, while Reylan was doing the push-and-pull for about 10 minutes, what was Rene Siao doing all the time? A: Rene Siao kept on looking and said, "Why did it take long to penetrate? Q: Now, what was the position of both of the hands of Rene Siao? COURT INTERPRETER Witness demonstrating that Rene Siao held her both legs in order to spread it apart. FISCAL BUENVIAJE I would like to add some comments to the interpretation. According to the witness, while Reylan Gimena was doing the sexual act, all the time Rene Siao was holding both her legs. That is precisely the meaning. Another question. Q: Did Reylan Gimena reach that climax wherein he was like being electrocuted?

COURT Then continue. WTNESS A: Then Reylan Gimena answered that he cannot do it because he is already very tired. FISCAL BUENVIAJE Q: Did Rene Siao allow Gimena to take a rest?

ATTY. SENINING Again, Your Honor, please. COURT What is your ground?

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ATTY. SENINING Leading. COURT Reform. ATTY. SENINING FISCAL BUENVIAJE May I just request, Your Honor, that the . . . (not finished) Q: What did Rene Siao do when at first Gimena refused because he was tired? A: He pointed the handgun to Reylan Gimena. COURT Reform. FISCAL BUENVIAJE Q: A: At the left temple. COURT Q: So, what did Reylan do when Siao pointed the pistol on his temple? A: He obeyed the order because he was afraid of the handgun. Just ask, "What happened next?" WITNESS A: Q: He kept on push-and-pull toward my private part. Where did Gimena position himself in relation to you? You said Gimena also . . . (not finished) A: Me.

FISCAL BUENVIAJE Q: Was Gimena able to successfully penetrate you this second time around?

Q: What portion of the body of Gimena was pointed with a gun by Rene Siao?

FISCAL BUENVIAJE Q: So, what did Reylan do to you for the second sexual act?

ATTY. FERNANDEZ Your Honor, please, I would object, I would rather suggest that the question, "What did Reylan do after?" FISCAL BUENVIAJE: After the statement. COURT Sustained. You already assumed that there was a second. FISCAL BUENVIAJE Okay, I will reform. Q: What did Reylan Gimena do when Siao pointed his gun on his temple? WITNESS

COURT INTERPRETER The witness demonstrated by pointing at her left back. COURT Q: A: Were you face-to-face or was he behind you? He is behind.

FISCAL BUENVIAJE Q: And what did he do?

ATTY. FERNANDEZ I think that has been answered that he made push-and-pull. Q: Was he able to penetrate you the second time?

WITNESS A: Q: A: Q: A: Q: A: Q: He obeyed the order because he is pointed with a handgun. A: What position this time? He was made to lie at my side. As you were now on your side, what did Reylan Gimena do? Reylan Gimena also laid at his side. What did Rene Siao do, if any? He kept on pointing the handgun. To whom? Q: For how many minutes, if you still remember, did Gimena do the push-and-pull action from your behind? A: Q: Ten (10) minutes. Was he able to accomplish his act? Yes, Sir.

ATTY. SENINING What act? FISCAL BUENVIAJE

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Sexual act. ATTY. SENINING Already answered, penetrated. FISCAL BUENVIAJE But there is still climax that is why I am asking. ATTY. FERNANDEZ WITNESS I think I have no objection to the question whether Reylan Gimena ejaculated. ATTY. SENINING In fact that will be part of my cross-examination. WITNESS A: Q: Maybe. Now, after that 10 minutes, what happened next? A: He kept on pointing the handgun and kept on looking with wide eyes (siga). Q: For about how many minutes was that dog position continued until termination? A: Q: Five (5) minutes. After that, what happened next? A: Yes, Sir. Q: What did you shout?

A: "Tabang!" I asked for help "Tabang!" and then there was somebody who knocked. There was a knock made by my Ate and she asked, "What are you doing there?" And Rene Siao did not listen. FISCAL BUENVIAJE Q: According to you Rene Siao did not listen. In effect, did he order you and Reylan to continue the act?

Q: While Reylan Gimena was doing the sexual act on you, what was Rene Siao doing all the time?

A: After the 10 minutes he let me assume a dog position (patuwad). FISCAL BUENVIAJE Q: A: Q: Who ordered you to do the dog position? Rene Siao. What did he do to you?

A: Then Rene Siao told us to do the act in the room of the boys."[11] Corroborating the foregoing, Reylan Gimena testified as follows: FISCAL BUENVIAJE Q: A: After the sucking incident, what happened next? The woman was ordered to lie down.

A: He told me to do it again but I was already tired and he pointed the handgun to me. Q: Did you assume the dog position upon the order of Rene Siao? A: Q: Yes, because I was afraid of the handgun. And what did Reylan do this time, if any?

COURT The Court would like to ask one question. Q: When Ester was sucking your penis, did you ejaculate or did you feel warm liquid coming out of your penis? A: No, Your Honor.

A: Reylan answered that "I will not do that because I am already very tired." Q: What did Rene Siao do upon hearing the statement of Reylan that he would not comply? A: Q: A: Q: He again pointed his handgun. Did Reylan comply wen Rene Siao pointed the gun to him?

Continue, Fiscal. FISCAL BUENVIAJE Q: Now, you said Rene Siao ordered Ester to lie down, did she comply? A: Yes, because he was afraid. Q: And what did Reylan do to you? A: A: Reylan made a push-and-pull because I was made by Rene Siao to assume the dog position (patuwad). Q: A: Was Reylan able to penetrate you this time? Yes, and I even shouted. Q: A: Q: On the bed, sir. What was the position of Ester as she was lying down? She was lying face upward. What was the position of her legs? Where did she lie down? Yes, because he pointed a firearm to her.

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A: Straight, sir. Q: When you were not able to penetrate Ester, what was the reaction of Rene? A: He said, "How is that?" Is it not inserted yet?" And I answered back, "Not yet, Pard, because it is hard." And he said, "If it is hard we will separate her legs." Q: In effect, did Rene fulfill his words of spreading the legs of Ester? ATTY. SENINING Leading, Your Honor, because the word is "we." "We will spread her legs." COURT A: Q: A: Yes, sir. You just reform. What was your understanding? Q: He wants the woman to be raped. FISCAL BUENVIAJE COURT Q: Q: I think you have not answered the question of the prosecuting fiscal. If you can still recall, what were the words uttered or used by Rene Siao? A: fast. Q: He said that he wants me to fuck the woman and he wants it After uttering those words that we will separate her legs? What, if anything, did Rene do?

FISCAL BUENVIAJE Q: Now, as Ester was already lying down straight upon order of Rene Siao, what happened then? A: Q: A: Q: I was told by him to go on top of the woman. What was the exact word of Rene Siao in ordering you so? He said go on top of the woman so that you can deflower her. Did you understand what Rene Siao told you?

ATTY. FERNANDEZ No. He answered "bilangkad," Your Honor. COURT

And did you lie on top of the woman of Ester? No, Its on tape.

ATTY. SENINING ATTY. FERNANDEZ Leading. After he said "kuan, he said "bilangkad." COURT COURT Your just reform. Although you put it on record. No. FISCAL BUENVIAJE COURT INTERPRETER Q: A: Q: What did you do? Witness motioning as if he was spreading. I got on top of the woman. COURT Did you make a push and pull action on the vagina of Ester? To satisfy Atty. Fernandez. You rewind. ATTY. SENINING (The tape was rewinded and played by the stenographer.) Leading, Your Honor. COURT FISCAL BUENVIAJE What is audible is the use of the word "kuan." Naturally, it follows. In the interest of justice, Your Honor. You clarify this point. COURT FISCAL BUENVIAJE Let the Court ask the question. We have the prerogative to ask. Q: A: Were you able to penetrate or not? COURT I was not able to penetrate yet. Never mind. You ask. FISCAL BUENVIAJE FISCAL BUENVIAJE

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Please do not refrain us from clarifying. COURT Clarify. FISCAL BUENVIAJE Because we will clarify what is not clarified. Q: A: After uttering those words, what did Rene do, if any? He held the woman and spread her legs. FISCAL BUENVIAJE Q: You said you were able to penetrate Ester while Rene Siao was holding both of her thighs, then spreading it, and you said you ejaculated. After that, what happened next? A: Q: A: He told the woman to lie on her side. Did Ester comply to lie on her side? Yes, because a firearm was pointed at her.

COURT Q: A: Did you notice if Ester was bleeding? No, Your Honor. In her vagina? Yes, Your Honor.

Q: At this juncture wherein Rene Siao was already holding the legs of Ester in order to spread it, were you able to penetrate Ester? ATTY. SENINING

Q: Leading again, Your Honor, please. A: FISCAL BUENVIAJE

FISCAL BUENVIAJE This is cross-examination. COURT I will allow. FISCAL BUENVIAJE How can we . . . COURT Never mind. I will allow. WITNESS A: Yes, that was the time I penetrated. ATTY. SENINING COURT He told . . . Q: A: Q: A: So your penis was stiff? COURT Yes, Your Honor. Not yet. He only testified that Ester was made to lie sideways. Did you like what you do? FISCAL BUENVIAJE No, Your Honor. Q: After Ester complied to the order of Rene to lie on her side, what more happened? A: Q: That was the time that mine penetrated. Was that upon order of Rene? Q: At that position wherein Ester was lying on her side, what did Rene do? A: He ordered another position.

Q: Did you comply to fuck Ester in that position as ordered by Rene ATTY. SENINING There is no basis yet. COURT There was no question yet. There was no evidence that he was commanded to have sexual intercourse.

Next question. FISCAL BUENVIAJE Q: A: Did you ejaculate? Yes, sir.

ATTY. SENINING Leading again, Your Honor. COURT Sustained.

COURT Q: What did you feel when you ejaculated?

A: I do not know because that was my first time, Your Honor, with a woman.

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FISCAL BUENVIAJE Q: You said you were able to penetrate Ester as she was on her side, is that your own volition to fuck her on that position? ATTY. SENINING Leading, Your Honor. FISCAL BUENVIAJE That is precisely the consequence. COURT COURT Let the Court ask the question. Q: A: Why did you fuck her on that position? Because it was the order of Rene, Your Honor. I am warning the representative of the DSWD to leave the interpreter alone. ATTY. SENINING Are you interested in this case? COURT Never mind, Compaero. There is a warning already. (The last question of Fiscal Buenviaje was interpreted and answered by the witness). COURT I understand because he is not used to using obscene words. FISCAL BUENVIAJE He is not accustomed. ATTY. FERNANDEZ We just would like to manifest that the witness is not familiar in using obscene words. COURT FISCAL BUENVIAJE Q: A: In effect, did Ester comply to pose in a doggy position? Yes, because a firearm was pointed to her. We do not know. The understanding of the court is he is hesitant to use obscene words. ATTY. SENINING Not because that . . . ATTY. FERNANDEZ I would like to manifest that the witness is hesitant to use obscene words. FISCAL BUENVIAJE Q: A: Q: What did you do upon that order of Rene? He ordered me to fuck the woman, sir. Did you comply with the order to fuck Ester? Q: After Ester assumed that dog position, what did Rene do, if any? A: Q: He ordered me. What was the order?

ATTY. SENINING I only request that the DSWD at my back, Your Honor, should not be allowed to coach the witness. I have no objection . . .

Sometimes it is the way you phrase the question. Okay, continue. FISCAL BUENVIAJE Q: A: After this side position, what happened next? He ordered the woman to assume the doggy position.

COURT Lets just understand. "Gipatuwad." Lets just assume. ATTY. FERNANDEZ Crouching position. COURT Crouching.

COURT You just put there parenthesis (gipatuwad). FISCAL BUENVIAJE Q: As Ester was in a dog position, did Rene utter anything to you? ATTY. SENINING Hearsay again, Your Honor. Leading, Your Honor. COURT You just reform. FISCAL BUENVIAJE

A: Yes, because I was afraid as he kept on pointing his firearm to me.

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Q: A: And you were able to penetrate Ester on that position? Yes, sir. interrogation. Second, accused-appellant faults the trial court for giving credence to the testimonies of Ester Raymundo and Reylan Gimena despite being fraught with substantial inconsistencies with regard to the following points: 1. Ester testified that Reylan pulled her to the womens quarter, while Reylan testified that when he entered the room Ester was already tied up in the bed; 2. Ester testified that she was lying "face down" on the bed, while Reylan testified that she was lying "face upward"; 3. Ester testified that before being made to undress, accused-appellant Rene Siao wound electrical wire around her neck and Gimena made no mention of this; 4. Ester testified that Gimena ejaculated while performing the sexual acts while Gimena testified that he did not ejaculate; and lastly, 5. Ester testified that she had sought help from her cousin Joy Raymundo on the way out from the womens quarter while Reylan testified that she just walked slowly towards the mens quarters as ordered by accused appellant. It can readily be seen that the alleged inconsistencies are inconsequential considering that they refer to trivial matters which have nothing to do with the essential fact of the commission of rape, that is carnal knowledge through force and intimidation. This Court has consistently adhered to the rule that inconsistencies on minor details of the testimonies of witnesses serve to strengthen their credibility as they are badges of truth rather than an indicia of falsehood.[15] If at all, they serve as proof that the witnesses were not coached and rehearsed. Third, accused-appellant contends that the testimonies of the prosecution witnesses do not conform to common experience due to the following reasons: Reylan Gimena ejaculated three times in a span of less than 30 minutes; the rape took place within earshot and near the presence of other people; Ester and Reylan did not make a dash for freedom during the ten minutes it took Rene Siao to follow them from the womens quarter to the males quarter where the latter wanted them to resume their copulation; a barangay tanod was present at the place of the alleged rape at about 4:00 p.m.; the private complainant reported the incident to an old man she chanced upon on her way home. Again, the points raised by accused-appellant are trite and of no consequence. First of all, the important consideration in rape is not the emission of semen but the penetration of the female genitalia by the male organ.[16] Well-settled is the rule that penetration, however slight, and not ejaculation, is what constitutes rape.[17] Thus, this factor could not affect the case for the prosecution. Second, accused-appellants argument that it is impossible to commit a rape in house where there are many occupants is untenable. We have held in a number of cases that lust is no respecter of time and place.[18] It is not impossible to perpetrate a rape even in a small room. Rape can be committed in a house where there are many other occupants.[19] Third, Ester and Reylan could not be expected to flee or even to attempt to flee under the circumstances. Undoubtedly, considering that Ester was only fourteen-years old and a newly employed housemaid, while Reylan Gimena a seventeen-year old houseboy, they were easily intimidated and cowed into submission by accused-appellant, who aside from being their "amo" or employer, was menacingly threatening to kill them or their family with a gun if they did not do as he commanded them to do. Thus, it was not improbable for them not to attempt to escape when as accused-appellant perceived they had an opportunity to do so. Moreover, while most victims will immediately flee from their aggressors, others become virtually catatatonic because of the mental shock they experience.[20] It was also not improbable for them to report the incident to an old man they met on the road as there was no on else to turn to. In a bid to exculpate himself, accused-appellant presents a totally different version of the story. Accused-appellant sought to establish by his story that since Ester was caught stealing money and the personal belongings of the people in the household she had motive to implicate accusedappellant in such a serious charge. We cannot see how a 14-year old girl from the rural area could fabricate such charges borne out of a desire for revenge. We agree with the following explanation by the trial court: "The court cannot believe that a 14-year-old girl who is a stranger in the city will vent her ire on Rene Siao. If Rene Siao were to be believed that he did not confront Ester about the latters act of committing the crime of theft, why would Ester take revenge on Rene Siao? The court cannot believe that this 14year-old probinsyana will concoct a story so as to do damage against business men like Jose Siao, Beatriz Baricuatro and Rene Siao. As a matter of fact, filing a case in court would mean untold misery and inconvenience. It will expose her to shame. She mustered enough courage if only to make the truth prevail.

COURT Q: By the way, at this juncture your penis was still stiff after the third position? ATTY. SENINING Fourth. ATTY. FERNANDEZ Third, Your Honor. COURT Third. The sexual intercourse. Oral sex first. After the third sexual intercourse. ATTY. FERNANDEZ Third penetration, Your Honor. WITNESS A: Yes, Your Honor.

COURT Q: Were you afraid at that juncture or point of time?

A: I was still afraid, Your Honor, because he kept on pointing his firearm to me. Q: Did you like what did the third time, that is, penetrating Ester in a doggy position? A: Q: A: Q: A: No, Your Honor. But you insist that your penis was still stiff? Yes, Your Honor. Did you easily penetrate the vagina of Ester? Not so easy, Your Honor."[12]

To sum up, Ester Raymundo and Reylan Gimena were forced and intimidated at gunpoint by accused-appellant Rene Siao to have carnal knowledge of each other. Rene Siao called Reylan Gimena inside the womens quarter. After Rene Siao closed the door, he told Reylan, "Reylan, birahi si Ester". Since Reylan was at a loss as to what to do, Rene Siao commanded Ester at gunpoint to "suck (um-um) the penis" of Reylan Gimena.[13] Both Reylan and Ester performed the sexual act because they were afraid they will be killed. Thereafter, accused-appellant commanded Reylan to rape Ester in three (3) different positions, pointing the handgun at them the whole time. The testimony of Ester and Reylan were assessed by the trial court to be credible. Unless certain facts of substance and value were overlooked which, if considered, might affect the result of the case, its assessment must be respected for it had the opportunity to observe the conduct and demeanor of the witnesses while testifying and detect if they are lying.[14] We find no reason to deviate from the findings of the trial court. If their story had only been contrived, Ester and Reylan would not have been composed and consistent in the face of such intense and lengthy

77
She ventured to assume the role of David against Goliath."[21] On the contrary, this theory of accused-appellant backfires on him because it appears that due to the thefts allegedly committed by Ester, Rene Siao decided to vent his ire by subjecting her to a perverted form of punishment and using Reylan as an instrument thereof. As to the charge of accused-appellant that the father of Ester tried to extort a huge sum of money from the accused-appellants family so that the case against him will be dropped, we agree with the trial court that this contention is largely self-serving as it is uncorroborated. All told, we agree with the trial court that the testimony of Ester Raymundo as well as the testimony of Reylan Gimena corroborating the same support the prosecutions version of the fateful incident. The rape was committed on May 27, 1994 or after the effectivity of R.A. 7659 on December 31, 1993.[22] The governing law, Article 335 of the Revised Penal Code as amended by R.A. No 7659 imposes the penalty of reclusion perpetua to death, if committed with the use of a deadly weapon. It reads: "When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 7. when by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation. Accused-appellant was held guilty of rape with the use of a deadly weapon, which is punishable by reclusion perpetua to death.[23] But the trial court overlooked and did not take into account the aggravating circumstance of ignominy and sentenced accused-appellant to the single indivisible penalty of reclusion perpetua. It has been held that where the accused in committing the rape used not only the missionary position, i.e. male superior, female inferior but also the dog position as dogs do, i.e. entry from behind, as was proven like the crime itself in the instant case, the aggravating circumstance of ignominy attended the commission thereof.[24] However, the use of a weapon serves to increase the penalty.[25] Since the use of a deadly weapon increases the penalty as opposed to a generic aggravating circumstance which only affects the period of the penalty, said fact should be alleged in the information, because of the accuseds right to be informed of the nature and cause of the accusation against him.[26] Considering that the complaint (which was later converted into the Information) failed to allege the use of a deadly weapon, specifically, that herein accused-appellant was armed with a gun, the penalty to be reckoned with in determining the penalty for rape would be reclusion perpetua, the penalty prescribed for simple rape under Article 335, as amended by R.A. No. 7659. Simple rape is punishable by the single indivisible penalty of reclusion perpetua, which must be applied regardless of any mitigating or aggravating circumstance which may have attended the commission of the deed.[27] Hence, the penalty of reclusion perpetua imposed by the trial court is correct. As a final matter, the trial court erred in ordering accused-appellant Rene Siao to pay the complainant only the civil liability arising from the offense in the amount of P50,000.00. In addition, it should have ordered accusedappellant to pay the offended party moral damages, which is automatically granted in rape cases without need of any proof.[28] Currently, the amount of moral damages for rape is fixed at P50,000.00.[29] Moreover, the presence of one aggravating circumstance justifies the award of exemplary damages pursuant to Article 2230 of the Civil Code of the Philippines[30] We find the amount of P20,000.00 as exemplary damages reasonable on account of the fact that the aggravating circumstance of ignominy attended the commission of the crime of rape. WHEREFORE, the decision of the Regional Trial Court, Branch 13, Cebu City, is hereby AFFIRMED with the MODIFICATION that accusedappellant Rene Siao is ordered to pay P50,000.00 to Ester Raymundo by way of moral damages, and P20,000.00 by way of exemplary damages in addition to the amount of P50,000.00 which the trial court ordered him to pay as indemnity. SO ORDERED. When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. when the victim is under eighteen (18)years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the commonlaw spouse of the parent of the victim. 2. when the victim is under the custody of the police or military authorities. 3. when the rape is committed in full view of the husband, parent, any of the children or other relative within the third degree of consanguinity. 4. old. when the victim is a religious or child below seven (7) years Melo, (Chairman), Vitug, Panganiban, and Purisima, JJ., concur.

2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented. The crime of rape shall be punished by reclusion perpetua. Whenever the crime of rape is committed with the use of a deadly weapon, the penalty shall be reclusion perpetua to death. When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death. When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death.

11. IGNOMINY Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-28232 February 6, 1971 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JAIME JOSE Y GOMEZ, ET AL., defendants. JAIME JOSE Y GOMEZ, BASILIO PINEDA, JR., alias "BOY," EDGARDO AQUINO Y PAYUMO and ROGELIO CAAL Y SEVILLA, defendants-appellants. Office of the Solicitor General Antonio P. Barredo and Solicitor Augusto M. Amores for plaintiff-appellee. Baizas, Alberto and Associates, Andreciano F. Caballero and Lota, Paraiso, Garcia and Dueas for defendant-appellant Jaime G. Jose. Mabanag, Eliger and Associates for defendant-appellant Basilio Pineda, Jr. Sycip, Salazar, Luna, Manalo and Feliciano for defendant-appellant

5. when the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease. 6. when committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency.

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Edgardo P. Aquino. Antonio Coronel Law Office and Roberto J. Ignacio for defendantappellant Rogelio S. Canial. PER CURIAM: The amended complaint filed in this case in the court below, reads as follows: The undersigned complainant accuses JAIME JOSE Y GOMEZ, BASILIO PINEDA, JR. Alias "BOY," EDUARDO AQUINO Y PAYUMO alias "EDDIE" and ROGELIO CAAL Y SEVILLA alias "ROGER," as principals, WONG LAY PUENG, SILVERIO GUANZON Y ROMERO and JESSIE GUION Y ENVOLTARIO as accomplices, of the crime of Forcible Abduction with rape, committed as follows: That on or about the 26th day of June, 1967, in Quezon City, and within the jurisdiction of this Honorable Court, the above-named principal accused, conspiring together, confederating with and mutually helping one another, did, then and there, wilfully, unlawfully and feloniously, with lewd design, forcibly abduct the undersigned complainant against her will, and did, then and there take her, pursuant to their common criminal design, to the Swanky Hotel in Pasay City, where each of the four (4) accused, by means of force and intimidation, and with the use of a deadly weapon, have carnal knowledge of the undersigned complainant against her will, to her damage and prejudice in such amount as may be awarded to her under the provisions of the civil code. That WONG LAY PUENG, SILVERIO GUANZON y ROMERO, and JESSIE GUION y ENVOLTARIO without taking a direct part in the execution of the offense either by forcing, inducing the principal accused to execute, or cooperating in its execution by an indispensable act, did, then and there cooperate in the execution of the offense by previous or simultaneous acts, that is, by cooperating, aiding, abetting and permitting the principal accused in sequestering the undersigned complainant in one of the rooms of the Swanky Hotel then under the control of the accused Wong Lay Pueng, Silverio Guanzon y Romero and Jessie Guion y Envoltario, thus supplying material and moral aid in the consummation of the offense. That the aforestated offense has been attended by the following aggravating circumstances: 1. Use of a motor vehicle. 2. Night time sought purposely to facilitate the commission of the crime and to make its discovery difficult; 3. Abuse of superior strength; 4. That means were employed or circumstances brought about which added ignominy to the natural effects of the act; and 5. That the wrong done in the commission of the crime be deliberately augmented by causing other wrong not necessary for the commission. CONTRARY TO LAW. Upon arraignment, Basilio Pineda, Jr. pleaded guilty to the charge imputed in the above-quoted amended complaint; however, in an order dated July 11, 1967, the court reserved judgment "until such time as the prosecution shall have concluded presenting all of its evidence to prove the aggravating circumstances listed in the complaint." Upon the other hand, the rest of the defendants went to trial on their respective pleas of not guilty. After the merits, the court below rendered its decision on October 2, 1967, the dispositive portion of which reads as follows: WHEREFORE, the Court finds the accused Jaime Jose, Rogelio Caal, Eduardo Aquino and Basilio Pineda, Jr. guilty beyond reasonable doubt of the crime of forcible abduction with rape as described under Art. 335 of the Revised Penal Code, as amended, and hereby sentences each of them to the death penalty to be executed at a date to be set and in the manner provided for by law; and each to indemnify the complainant in the amount of ten thousand pesos. On the ground that the prosecution has failed to establish a prima facie case against the accomplices Wong Lay Pueng, Silverio Guanzon y Romero, and Jessie Guion y Envoltario, the Motion to Dismiss filed for and in their behalf is hereby granted, and the case dismissed against the aforementioned accused. Insofar as the car used in the abduction of the victim which Jaime Jose identified by pointing to it from the window of the courtroom and pictures of which were submitted and marked as Exhibits "M" and "M-1," and which Jaime Jose in his testimony admitted belonged to him, pursuant to Art. 45 of the Revised Penal Code, which requires the confiscation and forfeiture of the proceeds or instruments of the crime, the Court hereby orders its confiscation. This case is now before us by virtue of the appeal interposed by Basilio Pineda, Jr., Edgardo Aquino, and Jaime Jose, and for automatic review as regards Rogelio Caal. However, for practical purposes all of them shall hereafter be referred to as appellants. The complainant, Magdalena "Maggie" de la Riva, was, at the time of the incident, 25 years old and single; she graduated from high school in 1958 at Maryknoll College and finished the secretarial course in 1960 at St. Theresa's College. Movie actress by profession, she was receiving P8,000.00 per picture. It was part of her work to perform in radio broadcasts and television shows, where she was paid P800.00 per month in permanent shows, P300.00 per month in live promotional shows, and from P100.00 to P200.00 per appearance as guest in other shows. So it was that at about 4:30 o'clock in the morning of June 26, 1967, Miss De la Riva, homeward bound from the ABS Studio on Roxas Blvd., Pasay City, was driving her bantam car accompanied by her maid Helen Calderon, who was also at the front seat. Her house was at No. 48, 12th Street, New Manila, Quezon City. She was already near her destination when a Pontiac two-door convertible car with four men aboard (later identified as the four appellants) came abreast of her car and tried to bump it. She stepped on her brakes to avoid a collision, and then pressed on the gas and swerved her car to the left, at which moment she was already in front of her house gate; but because the driver of the other car (Basilio Pineda, Jr.) also accelerated his speed, the two cars almost collided for the second time. This prompted Miss De la Riva, who was justifiably annoyed, to ask: "Ano ba?" Forthwith, Pineda stopped the car which he was driving, jumped out of it and rushed towards her. The girl became so frightened at this turn of events that she tooted the horn of her car continuously. Undaunted, Pineda opened the door of Miss De la Riva's car and grabbed the lady's left arm. The girl held on tenaciously to her car's steering wheel and, together with her maid, started to scream. Her strength, however, proved no match to that of Pineda, who succeeded in pulling her out of her car. Seeing her mistress' predicament, the maid jumped out of the car and took hold of Miss De la Riva's right arm in an effort to free her from Pineda's grip. The latter, however, was able to drag Miss De la Riva toward the Pontiac convertible car, whose motor was all the while running. When Miss De la Riva, who was being pulled by Pineda, was very near the Pontiac car, the three men inside started to assist their friend: one of them held her by the neck, while the two others held her arms and legs. All three were now pulling Miss De la Riva inside the car. Before she was completely in, appellant Pineda jumped unto the driver's seat and sped away in the direction of Broadway Street. The maid was left behind. The complainant was made to sit between Jaime Jose and Edgardo Aquino at the back seat; Basilio Pineda, Jr. was at the wheel, while Rogelio Caal was seated beside him. Miss De la Riva entreated the appellants to release her; but all she got in response were jeers, abusive and impolite language that the appellants and threats that the appellants would finish her with their Thompson and throw acid at her face if she did not keep quiet. In the meantime, the two men seated on each side of Miss De la Riva started to get busy with her body: Jose put one arm around the complainant and forced his lips upon hers, while Aquino placed his arms on her thighs and lifted her skirt. The girl tried to resist them. She continuously implored her captors to release her, telling them that she was the only breadwinner in the family and that her mother was alone at home and needed her company because her father was already dead. Upon learning of the demise of Miss De la Riva's father, Aquino remarked that the situation was much better than he thought since no one could take revenge against them. By now Miss De la Riva was beginning to realize the futility of her pleas. She made the sign of the cross and started to pray. The appellants became angry and cursed her. Every now and then Aquino would stand up and talk in whispers with Pineda, after which the two would exchange knowing glances with Caal and Jose. The car reached a dead-end street. Pineda turned the car around and headed towards Victoria Street. Then the car proceeded to Araneta Avenue, Sta. Mesa Street, Shaw Boulevard, thence to Epifanio de los

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Santos Avenue. When the car reached Makati, Aquino took a handkerchief from his pocket and, with the help of Jose, blindfolded Miss De la Riva. The latter was told not to shout or else she would be stabbed or shot with a Thompson. Not long after, the car came to a stop at the Swanky Hotel in Pasay City The blindfolded lady was led out of the car to one of the rooms on the second floor of the hotel. Inside the room Miss De la Riva was made to sit on a bed. Her blindfold was removed. She saw Pineda and Aquino standing in front of her, and Jose and Caal sitting beside her, all of them smiling meaningfully. Pineda told the complainant: "Magburlesque ka para sa amin." The other three expressed their approval and ordered Miss De la Riva to disrobe. The complainant ignored the command. One of the appellants suggested putting off the light so that the complainant would not be ashamed. The idea, however, was rejected by the others, who said that it would be more pleasurable for them if the light was on. Miss De la Riva was told to remove her stocking in order, according to them, to make the proceedings more exciting. Reluctantly, she did as directed, but so slowly did she proceed with the assigned task that the appellants cursed her and threatened her again with the Thompson and the acid. They started pushing Miss De la Riva around. One of them pulled down the zipper of her dress; another unhooked her brassiere. She held on tightly to her dress to prevent it from being pulled down, but her efforts were in vain: her dress, together with her brassiere, fell on the floor. The complainant was now completely naked before the four men, who were kneeling in front of her and feasting their eyes on her private parts. This ordeal lasted for about ten minutes, during which the complainant, in all her nakedness, was asked twice or thrice to turn around. Then Pineda picked up her clothes and left the room with his other companions. The complainant tried to look for a blanket with which to cover herself, but she could not find one. Very soon, Jose reentered the room and began undressing himself. Miss De la Riva, who was sitting on the bed trying to cover her bareness with her hands, implored him to ask his friends to release her. Instead of answering her, he pushed her backward and pinned her down on the bed. Miss De la Riva and Jose struggled against each other; and because the complainant was putting up stiff resistance, Jose cursed her and hit her several times on the stomach and other parts of the body. The complainant crossed her legs tightly, but her attacker was able to force them open. Jose succeeded in having carnal knowledge of the complainant. He then left the room. The other three took their turns. Aquino entered the room next. A struggle ensued between him and Miss De la Riva during which he hit, her on different parts of the body. Like Jose, Aquino succeeded in abusing the complainant. The girl was now in a state of shock. Aquino called the others into the room. They poured water on her face and slapped her to revive her. Afterwards, three of the accused left the room, leaving Pineda and the complainant After some struggle during which Pineda hit her, the former succeeded in forcing his carnal desire on the latter. When the complainant went into a state of shock for the second time, the three other men went into the room again poured water on the complainant's face and slapped her several times. The complainant heard them say that they had to revive her so she would know what was happening. Jose, Aquino and Pineda then left the room. It was now appellant Canal's turn. There was a struggle between him and Miss De la Riva. Like the other three appellants before him, he hit the complainant on different parts of the body and succeeded in forcing his carnal lust on her. Mention must be made of the fact that while each of mention must be made the four appellants was struggling with the complainant, the other three were outside the room, just behind the door, threatening the complainant with acid and telling her to give in because she could not, after all, escape what with their presence. After the appellants had been through with the sexual carnage, they gave Miss De la Riva her clothes, told her to get dressed and put on her stockings, and to wash her face and comb her hair, to give the impression that nothing had happened to her. They told her to tell her mother that she was mistaken by a group of men for a hostess, and that when the group found out that she was a movie actress, she was released without being harmed. She was warned not to inform the police; for if she did and they were apprehended, they would simply post bail and later hunt her up and disfigure her face with acid. The appellants then blindfolded Miss De la Riva again and led her down from the hotel room. Because she was stumbling, she had to be carried into the car. Inside the car, a appellant Jose held her head down on his lap, and kept it in that position during the trip, to prevent her from being seen by others. Meanwhile, the four appellants were discussing the question of where to drop Miss De la Riva. They finally decided on a spot in front of the Free Press Building not far from Epifanio de los Santos Avenue near Channel 5 to make it appear, according to them, that the complainant had just come from the studio. Pineda asked Jose to alight and call a taxicab, but to choose one which did not come from a well-known company. Jose did as requested, letting several taxicabs pass by before flagging a UBL taxicab. After they warned again Miss De la Riva not to inform anyone of what had happened to her, appellant Canal accompanied her to the taxicab. The time was a little past 6:00 o'clock. When Miss De la Riva was already inside the cab and alone with the driver, Miguel F. Campos, she broke down and cried. She kept asking the driver if a car was following them; and each time the driver answered her in the negative. It was 6:30 o'clock or some two hours after the abduction when Miss De la Riva reached home. Her mother, her brother-in-law Ben Suba, as well as several PC officers, policemen and reporters, were at the house. Upon seeing her mother, the complainant ran toward her and said, "Mommy, Mommy, I have been raped. All four of them raped me." The mother brought her daughter upstairs. Upon her mother's instruction, the complainant immediately took a bath and a douche. The older woman also instructed her daughter to douche himself two or three times daily with a strong solution to prevent infection and pregnancy. The family doctor, who was afterwards summoned, treated the complainant for external physical injuries. The doctor was not, however, told about the sexual assaults. Neither was Pat. Pablo Pascual, the police officer who had been sent by the desk officer, Sgt. Dimla, to the De la Riva residence when the latter received from a mobile patrol a report of the snatching. When Miss De la Riva arrived home from her harrowing experience, Pat. Pascual attempted to question her, but Ben Suba requested him to postpone the interrogation until she could be ready for it. At that time, mother and daughter were still undecided on what to do. On the afternoon of June 28, 1967, the complainant family gathered to discuss what steps, if any, should be taken. After some agonizing moments, a decision was reached: the authorities had to be informed. Thus, early on the morning of June 29, 1967, or on the fourth day after the incident, Miss De la Riva, accompanied by her lawyer, Atty. Regina O. Benitez, and by some members of the family, went to the Quezon City Police Department Headquarters, filed a complaint and executed a statement (Exh. "B") wherein she narrated the incident and gave descriptions of the four men who abused her. In the afternoon of the same day, the complainant submitted herself ito a medico-internal examination by Dr. Ernesto Brion, NBI Chief Medico-Legal Officer. During the physical examination of the complainant by Dr. Brion on June 29, 1967, Pat. Pascual was also at the NBI office. There he received a telephone call from the police headquarters to the effect that one of the suspects had been apprehended. That evening, the complainant and Pat. Pascual proceeded to the headquarters where Miss De la Riva identified appellant Jaime Jose from among a group of persons inside the Office of the Chief of Police of Quezon City as one of the four men he abducted and raped her. She executed another statement (Exh. "B-1") wherein she made a formal identification of Jose and related the role played by him. At about 9:00 o'clock of the same evening, appellant Jose executed a statement (Exh. "I") before Pat. Marcos G. Vias. In his statement, which was duly sworn. Jose admitted that he knew about, and was involved in, the June 26 incident. He named the other line appellants as his companions. Jose stated, among other things, that upon the initiative of Pineda, he and the other three waited for Miss De la Riva to come out of the ABS Studio; that his group gave chase to the complainant's car; that it was Pineda who blindfolded her and that only Pineda and Aquino criminally assaulted the complainant. After Exh, "I" was executed by Jose, an informant furnished Pat. Vinas with a picture of appellant Edgardo Aquino. The picture was shown to Miss De la Riva, who declared in her sworn statement (Exh. "B-3") that the man in the picture was one of her abductors and rapists. The same picture was shown to Jose, who, in another sworn statement (Exh. "I-l"), identified the man in the picture as appellant Aquino. After the apprehension of Jose, the other three soon fell into the hands of the authorities: Pineda and Caal on July 1, 1967, in Lipa City, and Aquino on July 5, 1967, in the province of Batangas. On the evening of July 1, 1967. Miss De la Riva pointed to Pineda and Caal as among the four persons who abducted and raped her. She picked them out from among several person in the Office of the Chief of Police of Quezon City. Later in the same evening, Miss De la Riva executed a sworn statement (Exh. B-2)wherein she made the same identification of the two appellants from among a group of persons in the Office of the Chief of the Detective Bureau, adding that appellant Caal had tattoo marks on his right hip. After the identification, one of the policemen took appellant Caal

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downstairs and undressed him, and he saw, imprinted on the said appellant's right hip, the words "Bahala na Gang." Appellant Caal and Pineda executed and swore to separate statements on the day of their arrest. In his statement (Exh. "G"), appellant Caal confirmed the information previously given by Jose that the four of them waited for Miss De la Riva to come down from the ABS Studio, and that they had planned to abduct and rape her. Appellant Caal admitted that all four of them participated in the commission of the crime, but he would make it appear that insofar as he was concerned the complainant yielded her body to him on condition that he would release her. Pineda executed a statement (Exh. "J") stating that he and his other three companions wept to the ABS Studio, and that, on learning that Miss De la Riva was there, they made plans to wait for her and to follow her. He admitted that his group followed her car and snatched her and took her to the Swanky Hotel. He would make it appear, however, that the complainant voluntarily acceded to having sexual intercourse with him. In his medical report (Exh. "K"), Dr. Brion noted the presence of multiple contusions and bruises on different parts of the complainant's body, as well as of genital injuries. On the witness stand the doctor was shown several photographs of the complainant taken in his presence and under his supervision. With the aid of the photographs and the medical reports, the doctor explained to the court that he found contusions or bruises on the complainant's chest, shoulders, arms and fore-arms, right arm index finger, thighs, right knee and legs. He also declared that when he was examining her, Miss De la Riva complained of slight tenderness around the neck, on the abdominal wall and at the sites of the extragenital physical injuries, and that on pressing the said injuries, he elicited a sigh of pain or tenderness on the part of the subject. The injuries, according to Dr. Brion, could have been caused blows administered by a closed fist or by the palm of the hand, and could have been inflicted on the subject while she was being raped. It was the doctor's opinion that they could have been sustained on or about June 26, 1967. In connection with the genital examination, the doctor declared that he found injuries on the subject's genitalia which could have been produced by sexual intercourse committed on June 26, 1967. He said that he failed to find spermatozoa. He explained, however, that spermatozoa are not usually found in the vagina after the lapse of three days from the last intercourse, not to mention the possibility that the subject might have douched herself. The three appellants who pleaded not guilty (Jose, Aquino and Caal) took the witness stand. We quote hereunder the portions of the decision under review relative to the theory of the defense: Their story is that they and their co-accused Pineda had gone to the Ulog Cocktail Lounge somewhere in Mabini street in Manila, and there killed time from 9:30 in the evening of June 25 until closing time, which was about 3:30 in the early morning of the next day. At the cocktail lounge they had listened to the music while enjoying some drinks. Between them they had consumed a whole bottle of whisky, so much so that at least Aquino became drunk, according to his own testimony. They had been joined at their table by a certain Frankie whom they met only that night. Come time to go home, their new acquaintance asked to be dropped at his home in Cubao. The five men piled into the red-bodied, black topped two-door convertible Plymouth (Pontiac) car of Jaime Jose, and with Pineda at the wheel repaired to Cubao After dislodging their new friend, Pineda steered the car to Espaa Extension to bring Aquino to his home in Mayon Street. But somewhere in Espaa Extension before the Rotonda a small car whizzed to them almost hitting them. They saw that the driver was a woman. Pineda gave chase and coming abreast of the small car he shouted, "Putang ina mo, kamuntik na kaming mamatay." The woman continued on her way. Now Pineda saying "let us teach her a lesson," sped after her and when she swerved ostensibly to enter a gate, Pineda stopped his car behind being hurriedly got down, striding to the small car, opened the door and started dragging the girl out. Both Jose and Aquino confirm the presence of another woman inside the girl's car, who helped the girl struggle to get free from Pineda's grip; and that the struggle lasted about ten minutes before Pineda finally succeeded in pushing the girl into the red convertible. All the three accused insist they did nothing to aid Pineda: but they also admit that they did nothing to stop him. Now the defense contends that Pineda cruised around and around the area just to scare the girl who was in truth so scared that she begged them to let her be and return her to her home. She turned to Jose in appeal, but this one told her he could net do anything as the "boss" was Pineda. Aquino heard her plead with Jose "do you not have a sister yourself?" but did not bear the other plea 'do you not have a mother?' Then Pineda stopped at the corner of the street where he had forcibly snatched the girl presumably to return her, but then suddenly changing his mind he said, 'why don't you do a strip tease for us. I'll pay you P1,000.00 and the girl taunted, 'are you kidding?': that after a little while she consented to do the performance as long as it would not last too long and provided the spectators were limited to the four of them. Pineda sped the car until they got to Swanky Hotel where he and Maggie alighted first, but not before Maggie had borrowed a handkerchief from one of them to cover her face as she went up the Hotel. The three followed, and when they saw the pair enter a room, they quickly caught up. All the three accused testify that as soon as they got into the room, Maggie de la Riva asked the boys to close the windows before she. undressed in front of them. They themselves also removed their clothing. Two of them removed their pants retaining their briefs, while Boy Pineda and Caal stripped to the skin "because it was hot." The three accused declared that they saw Boy Pineda hand P100.00 to Maggie and they heard him promise her that he would pay the balance of P900.00 later. Whereupon, the show which lasted about 10 minutes began with the naked girl walking back and forth the room about 4 to 5 times. This accomplished, all of them dressed up once more and the three accused (Jaime Jose, Eduardo Aquino and Rogelio Caal) left the room to wait in the car for Boy Pineda and Maggie de la Riva who were apparently still discussing the mode of payment of the balance. Three minutes later Maggie de la Riva and Boy Pineda joined them. Now, the question of how and where to drop Maggie came up and it is testified to by the accused that it was Maggie's idea that they should drop her near the ABS Studio so that it would appear as if she had just come from her work. Jaime Jose was picked by the police on the morning of June 29 along Buendia Avenue. Aquino testifies how, on June 29 Pineda went to him with a problem. He did not have the P900.00 with which to pay Maggie the balance of her "show" and he was afraid that if he did not pay, Maggie would have her goons after him. He wanted Aquino to go with him to Lipa City where he had relatives and where he could help raise the money. Aquino readily obliged, and to make the company complete they invited Caal to join them. They used another car of Jaime Jose, different from the one they had used the day before. At Lipa, Aquino detached himself from his compassions and proceeded alone to the barrio allegedly to visit his relatives. In the meantime his two companions had remained in the City and had, according to Canal, gone to live in a house very close to the municipal hall building. They later moved to another house where the PC and Quezon City police posse found and arrested them. Aquino was the last to be apprehended, when having read in the newspapers that he was wanted, he surrendered on July 5 to Mrs. Aurelia Leviste, wife of the governor of Batangas. The striptease-act-for-a-fee story on which the defense theory is anchored, defies one's credulity and reason, and had utterly to counteract the evidence for the prosecution, particularly the complainant's testimony and Dr. Brion's medical report and testimony. We quote with approval the able dissertion of the trial judge on this point: As main defense in the charge of rape, the three accused advance the proposition that nothing happened in Swanky Hotel except a strip-tease exhibition which the complaint agreed to do for them for fee of P1,000.00, P100.00 down and the balance to be paid "later." The flaw in this connection lies in its utter inverisimilitude. The Court cannot believe that any woman exists, even one habitual engaged in this kind of entertainment (which Maggie de la Riva has not been proven to be) who would consent (and as easily and promptly as defense claims) to do a performance, not even for all money in the worlds after the rough handling she experienced from these wolves in men's clothing who now hungered for a show. There is no fury to match a woman stirred to indignation. A woman's pride is far stronger than her yen for money, and her revenge much more keen. The Court cannot believe that after the rudeness and meanness of these men to her, Maggie would in so short an interval of time forget her indignation and so readily consent to satisfy their immoral curiosity about her. The woman in her would urge her to turn the men's hankering as a weapon of revenge by denying them their pleasure. Besides, the manner of payment offered for the performance is again something beyond even the wildest expectations. Assuming that the woman whom the accused had abducted was in this kind of trade assuming that the price offered was to her satisfaction, whom woman would be willing to perform first and be paid later? It is simply preposterous to believe that Maggie de la Riva should have consent to do a striptease act for a measly down-payment of P100.00 and the balance to be paid God knows when. Since when are exposition of the flesh paid on the installment basis? By the very precautious nature of their pitiful calling, women who sell their attractions are usually very shrewed and it is to be expected that they could demand full payment before curtain call. How was Maggie to collect later when she did not even know who these man were, where they lived, whether they could be trusted with a promise to pay later (!) whether she could ever find them again? If there is anything that had struck the Court about the complaint, it is her courage, her intelligence and her alertness. Only a stupid woman, and a most stupid one that, could have been persuaded to do what the defense want this

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Court to believe Maggie de la Riva consented to do. Finally, it is odd that not one of these men should have mentioned this circumstances during their interview with anyone, either the press, their police interrogator, the person who negotiated their surrender (as in the case of Aquino) or even their counsel. One cannot escape the very strong suspicion that this story is a last ditch, desperate attempt to save the day for the accused. It truly underscores the hopelessness of their stand and projects all the more clearly their guilt. Then there is the incident of the men's stripping themselves. Why was there need for this? The Court realizes that in its desperate need of an explanation for Maggie's positive identification of Caal as the man with the tattoo mark on his right buttock, the defense concocted the sickeningly incident story that the four men removed their underclothing in the presence of a woman simply "because it was hot." What kind of men were these who were so devoid of any sense of decency that they thought nothing of adding insult to injury by not only inducing a woman a strip before them, but for forcing her to perform before a naked audience? And then they have gall to argue that "nothing" happened. For males of cold and phlegmatic blood and disposition it could be credible, but not for men of torrid regions like ours where quick passions and hot tempers are the rule rather than the exception! All of these consideration set aside, notwithstanding, it is quite obvious that the version of the defense has not been able to explain away a very vital piece of evidence of prosecution which, if unexplained, cannot but reduce any defense unavailing. The result of the physical (external and internal) examination conducted on the person of Maggie de la Riva in the afternoon of June 29, the pertinent findings of which quoted earlier in this decision, establish beyond doubt that at the time that Maggie de la Riva was examined she bore on her body traces of physical and sexual assault. The only attempt to an explanation made by the defense is either one of the following: (1) the insinuation that when Maggie de la Riva and Boy Pineda were left behind in the hotel room the bruises and the sexual attack could have taken place then. But then, the defense itself says that these two persons rejoined the three after three or four minutes! It is physically impossible, in such a short time, for Boy Pineda to have attacked the girl and inflicted on her all of these injuries; (2) it was suggested by the defense that Maggie de la Riva could have inflicted all of those injuries upon herself just to make out a case against the accused. The examining physician rules out this preposterous proposition, verily it does not take much stretch of the imagination to see how utterly impossible this would be, and for what purpose? Was P900.00 which she had failed to collect worth that much self-torture? And what about all the shame, embarrassment and publicity she would (as she eventually did) expose herself to? If she really had not been raped would she have gone thru all of these tribulation? A woman does not easily trump up rape charges for she has much more to lose in the notoriety the case will reap her, her honor and that of her family, than in the redress she demands (Canastre 82-480; Medina, C.A. 1943 O.G. 151; Medina y Puno, CA O.G. 338; CA 55 O.G. 7666; Galamito, L-6302, August 25, 1954); (3) it could also be argued that the contusions and bruises could have been inflicted on Maggie during her struggle with Pineda when the latter pulled and pushed her into the red convertible car. The telltale injuries, however, discount this possibility, for the location in which many of the bruises and traumas were located (particularly on the inner portion of her thighs) could not have been cause by any struggle save by those of a woman trying to resists the brutal and bestial attack on her honor. In their Memorandum the accused contend that Maggie's sole and uncorroborated testimony should not be rated any credence at all as against the concerted declaration of the the accused. In the first place, it is not correct to say that Maggie's declaration was uncorroborated she has for corroboration nothing less than the written extra-judicial statements of Jose and Canal. But even assuming that Maggie stood alone in her statements, the cases cited by the accused in their Memorandum notwithstanding which the Court does not consider in point anyway, jurisprudence has confirmed the ruling that numbers is the least vital element in gauging the weight of evidence. What is more important is which of the declarations is the more credible, the more logical, the more reasonable, the more prone to be biased or polluted. (Ricarte 44 OG 2234; Damian CA-GR No. 25523, April 24, 1959). Besides, it should be borne in maid that in the most detestable crime of rape in which a man is at his worst the testimony of the offended party most often is the only one available to prove directly its commission and that corroboration by other eyewitnesses would in certain cases place a serious doubt as to the probability of its commission, so trial courts of justice are most often placed in a position of having to accept such uncorroborated testimony if the same is in regards conclusive, logical and probable (Landicho, VIII ACR 530). We shall now consider the points raised by the appellants in their briefs. 1. Appellants Jose, Aquino and Caal deny having had anything to do with the abduction of Miss De la Riva. They point to Pineda (who entered a plea of guilty) as the sole author thereof, but they generously contend that even as to him the act was purged at any taint of criminality by the complainant's subsequent consent to perform a striptease show for a fee, a circumstance which, it is claimed, negated the existence of the element of lewd design. This line of defense has evidently leg no to stand on. The evidence is clear and overwhelming that all the appellants participated in the forcible abduction. Miss De la Riva declared on the witness stand, as well as in her sworn statements, that they helped one another in dragging her into the car against her will; that she did not know them personally; that while inside the car, Jose and Aquino, between whom she was seated, toyed with her body, the former forcing his lips on hers, and the latter touching her thighs and raising her skirt; that meaningful and knowing glances were in the meanwhile being exchanged among the four; and that all of them later took turns in ravishing her at the Swanky Hotel. This testimony, whose evidentiary weight has not in the least been overthrown by the defense, more than suffices to establish the crimes charged in the amended complaint. In the light thereof, appellants' protestation that they were not motivated by lewd designs must be rejected as absolutely without factual basis. 2. The commission of rape by each of the appellants has, as held by the court below, likewise been clearly established. Jose, Aquino and Canal contend that the absence of semen in the complainant's vagina disproves the fact of rape. The contention is untenable. Dr. Brion of the NBI, who testified as an expert, declared that semen is not usually found in the vagina after three days from the last intercourse, especially if the subject has douched herself within that period. In the present case, the examination was conducted on the fourth day after the incident, and the complainant had douched herself to avoid infection and pregnancy. Furthermore, the absence of spermatozoa does not disprove the consummation of rape, the important consideration being, not the emission of semen, but penetration (People vs Hernandez, 49 Phil., 980). Aquino's suggestion that the abrasions on the cervix were caused by the tough tip of a noozle deliberately used by the complainant to strengthen her alleged fabricated tale of rape, is absurd, if not cruel. It is difficult to imagine that any sane woman, who is single and earning as much Miss Dela Riva did, would inflict injuries on her genital organ by puncturing the same with a sharply-pointed instrument in order to strike back at four strangers who allegedly would not pay her the sum of P900.00 due her for a striptease act. Besides, Dr. Brion testified that the insertion of such an instrument in the genital organ would not result in the kind of injuries he found in the mucosa of the cervix. 3. Other evidence and considerations exist which indubitably establish the commission of successive rapes by the four appellants. Upon Miss De la Riva's arrival at her house in the morning of June 26, 1967, she immediately told her mother, " Mommy Mommy, I have been raped. All four of them raped me." This utterance, which is part of the res gestae, commands strong probative value, considering that it was made by the complainant to her mother who, in cases of this nature was the most logical person in whom a daughter would confide the truth. Aquino and Canal would make capital of the fact that Miss De la Riva stated to the reporters on the morning of June 26, that she was not abused. Her statement to the press is understandable. At that time the complainant, who had not yet consulted her family on a matter which concerned her reputation as well as that of her family, and her career, was not then in a position to reveal publicly what had happened to her. This is one reason why the complainant did not immediately inform the authorities of the tragedy that befell her. Another reason is that she was threatened with disfiguration. And there were, of course, the traumas found by Dr. Brion on different parts of the complainant's body. Could they, too, have been self-inflicted? Or, as suggested, could they possibly have been inflicted by appellant Pineda alone, when the story given by the other three is that Pineda and the complainant were left in the hotel room for only three or four minutes, and that they came out to join them in what they would picture to be a cordial atmosphere, the complainant even allegedly suggesting that she be dropped on a spot where people would reasonably presume her to have come from a studio? Equally important is the complainant's public disclosure of her tragedy, which led to the examination of her private parts and lay her open to risks of future public ridicule and diminution of popularity and earnings as a movie actress. 4. Jose and Canal seek the exclusion of their extrajudicial statements from the mass of evidence on the grounds that they were secured from them by force and intimidation, and that the incriminating details therein were

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supplied by the police investigators. We are not convinced that the statements were involuntarily given, or that the details recited therein were concocted by the authorities. The statements were given in the presence of several people and subscribed and sworn to before the City Fiscal of Quezon City, to whom neither of the aforesaid appellants intimated the use of inordinate methods by the police. They are replete with details which could hardly be known to the police; and although it is suggested that the authorities could have secured such details from their various informers, no evidence at all was presented to establish the truth of such allegation. While in their statements Jose and Canal admitted having waited together with the two other appellants for Miss De la Riva at the ABS Studio, each of them attempted in the same statements to exculpate himself: appellant Jose stated that only Pineda and Aquino criminally abused the complainant; while appellant Canal would make it appear that the complainant willingly allowed him to have sexual intercourse with her. Had the statements been prepared by the authorities, they would hardly have contained matters which were apparently designed to exculpate the affiants. It is significant, too, that the said two appellants did not see it fit to inform any of their friends or relatives of the alleged use of force and intimidation by the police. Dr. Mariano Nario of the Quezon City Police Department, who examined appellant Canal after the latter made his statement, found no trace of injury on any part of the said appellant's body in spite of the claims that he was boxed on the stomach and that one of his arms was burned with a cigarette lighter. In the circumstances, and considering, further, that the police officers who took down their statements categorically denied on the witness stand that the two appellants were tortured, or that any detail in the statements was supplied by them or by anyone other than the affiants themselves, We see no reason to depart from the trial court's well-considered conclusion that the statements were voluntarily given. However, even disregarding the incustody statements of Jose and Canal, We find that the mass of evidence for the prosecution on record will suffice to secure the conviction of the two. The admissibility of his extrajudicial statements is likewise being questioned by Jose on the other ground that he was not assisted by counsel during the custodial interrogations. He cites the decisions of the Supreme Court of the United States in Messiah vs. U.S. (377 U.S. 201), Escobedo vs. Illinois (378 U.S. 478) and Miranda vs. Arizona (384 U.S. 436). The provision of the Constitution of the Philippines in point is Article III (Bill of Rights), Section 1, par. 17 of which provides: "In all criminal prosecutions the accused shall ... enjoy the right to be heard by himself and counsel ..." While the said provision is identical to that in the Constitution of the United States, in this jurisdiction the term criminal prosecutions was interpreted by this Court, in U.S. vs. Beecham, 23 Phil., 258 (1912), in connection with a similar provision in the Philippine Bill of Rights (Section 5 of Act of Congress of July 1, 1902) to mean proceedings before the trial court from arraignment to rendition of the judgment. Implementing the said constitutional provision, We have provided in Section 1, Rule 115 of the Rules of Court that "In all criminal prosecutions the defendant shall be entitled ... (b) to be present and defend in person and by attorney at every stage of the proceedings, that is, from the arraignment to the promulgation of the judgment ." The only instances where an accused is entitled to counsel before arraignment, if he so requests, are during the second stage of the preliminary investigation (Rule 112, Section 11) and after the arrest (Rule 113, Section 18). The rule in the United States need not be unquestioningly adhered to in this jurisdiction, not only because it has no binding effect here, but also because in interpreting a provision of the Constitution the meaning attached thereto at the time of the adoption thereof should be considered. And even there the said rule is not yet quite settled, as can be deduced from the absence of unanimity in the voting by the members of the United States Supreme Court in all the three above-cited cases. 5. Appellant Pineda claims that insofar as he is concerned there was a mistrial resulting in gross miscarriage of justice. He contends that because the charge against him and his co-appellants is a capital offense and the amended complaint cited aggravating circumstances, which, if proved, would raise the penalty to death, it was the duty of the court to insist on his presence during all stages of the trial. The contention is untenable. While a plea of guilty is mitigating, at the same time it constitutes an admission of all the material facts alleged in the information, including the aggravating circumstances, and it matters not that the offense is capital, for the admission (plea of guilty) covers both the crime and its attendant circumstances qualifying and/or aggravating the crime (People vs. Boyles, et al., L-15308, May 29, 1964, citing People vs. Ama, L-14783, April 29, 1961, and People vs. Parete, L-15515, April 29, 1961). Because of the aforesaid legal effect of Pineda's plea of guilty, it was not incumbent upon the trial court to receive his evidence, much less to require his presence in court. It would be different had appellant Pineda requested the court to allow him to prove mitigating circumstances, for then it would be the better part of discretion on the part of the trial court to grant his request. (Cf. People vs. Arconado, L-16175, February 28, 1962.) The case of U.S. vs. Agcaoili (31 Phil., 91), cited by Pineda, is not in point, for there this Court ordered a new trial because it found for a fact that the accused, who had pleaded guilty, "did not intend to admit that he committed the offense with the aggravating circumstances" mentioned in the information. We are not in a position to make a similar finding here. The transcript of the proceedings during the arraignment shows that Pineda's counsel, Atty. Lota prefaced his client's plea of guilty with the statement that . I have advised him (Pineda) about the technicalities in plain simple language of the contents of aggravating circumstances and apprised him of the penalty he would get, and we have given said accused time to think. After a while I consulted him for three times and his decision was still the same. Three days after the arraignment, the same counsel stated in court that he had always been averse to Pineda's idea of pleading guilty, because "I know the circumstances called for the imposition of the maximum penalty considering the aggravating circumstances ," but that he acceded to his client's wish only after the fiscal had stated that he would recommend to the court the imposition of life imprisonment on his client. To be sure, any such recommendation does not bind the Court. The situation here, therefore, is far different from that obtaining in U.S. vs. Agcaoili, supra. 6. Two of the appellants Jose and Caal bewail the enormous publicity that attended the case from the start of investigation to the trial. In spite of the said publicity, however, it appears that the court a quo was able to give the appellants a fair hearing. For one thing, three of the seven (7) original accused were acquitted. For another thing, Jose himself admits in his brief that the Trial Judge "had not been influenced by adverse and unfair comments of the press, unmindful of the rights of the accused to a presumption of innocence and to fair trial." We are convinced that the herein four appellants have conspired together to commit the crimes imputed to them in the amended information quoted at the beginning of this decision. There is no doubt at all that the forcible abduction of the complainant from in front of her house in Quezon City, was a necessary if not indispensable means which enabled them to commit the various and the successive acts of rape upon her person. It bears noting, however, that even while the first act of rape was being performed, the crime of forcible abduction had already been consummated, so that each of the three succeeding (crimes of the same nature can not legally be considered as still connected with the abduction in other words, they should be detached from, and considered independently of, that of forcible abduction and, therefore, the former can no longer be complexed with the latter. What kind of rape was committed? Undoubtedly, it is that which is punishable by the penalty of reclusion perpetua to death, under paragraph 3, Article 335, as amended by Republic Act No. 4111 which took effect on June 20, 1964, and which provides as follows: ART. 335. When and how rape committed.Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present. 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. When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death. When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be likewise death. When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death.

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As regards, therefore, the complex crime of forcible abduction with rape, the first of the crimes committed, the latter is definitely the more serious; hence, pursuant the provision of Art. 48 of the Revised Penal Code, the penalty prescribed shall be imposed in its maximum period. Consequently, the appellants should suffer the extreme penalty of death. In this regard, there is hardly any necessity to consider the attendance of aggravating circumstances, for the same would not alter the nature of the penalty to be imposed. Nevertheless, to put matters in their proper perspective and for the purpose of determining the proper penalty to be imposed in each of the other three crimes of simple rape, it behooves Us to make a definite finding in this connection to the effect that the commission of said crimes was attended with the following aggravating circumstances: (a) nighttime, appellants having purposely sought such circumstance to facilitate the commission of these crimes; (b) abuse of superior strength, the crime having been committed by the four appellants in conspiracy with one another (Cf. People vs. De Guzman, et al., 51 Phil., 105, 113); (c) ignominy, since the appellants in ordering the complainant to exhibit to them her complete nakedness for about ten minutes, before raping her, brought about a circumstance which tended to make the effects of the crime more humiliating; and (d) use of a motor vehicle. With respect to appellants Jose, Aquino and Ca__al, none of these aggravating circumstances has been offset by any mitigating circumstance. Appellant Pineda should, however, be credited with the mitigating circumstance of voluntary plea of guilty, a factor which does not in the least affect the nature of the proper penalties to be imposed, for the reason that there would still be three aggravating circumstances remaining. As a result, appellants should likewise be made to suffer the extreme penalty of death in each of these three simple crimes of rape. (Art. 63, par. 2, Revised Penal Code.) In refusing to impose as many death penalties as there are offenses committed, the trial court applied by analogy Article 70 of the Revised Penal Code, which provides that "the maximum duration of all the penalties therein imposed upon the appellant shall not be more than threefold the length of time corresponding to the most severe of the penalties imposed upon the appellant, which should not exceed forty years." The said court is of the opinion that since a man has only one life to pay for a wrong, the ends of justice would be served, and society and the victim would be vindicated just as well, if only one death penalty were imposed on each of the appellants. We cannot agree with the trial court. Article 70 of the Revised Penal Code can only be taken into account in connection with the service of the sentence imposed, not in the imposition of the penalty (People vs. Escares, 55 Off. Gaz., 623). In holding that only one death penalty should be imposed because man has only one life, the trial court ignored the principle enunciated in the very case it cited, namely, U.S. vs. Balaba, 37 Phil., 260, where this Court, in affirming the judgment of the trial court, found the accused guilty of two murders and one homicide and imposed upon him two death sentences for the murders and a prison term for the homicide. In not applying the said principle, the court a quo said that the case of Balaba is different from the present case, for while in the former case the accused was found to have committed three distinct offenses, here only one offense is charged, even if complex. As We have explained earlier herein, four crimes were committed, charged and proved. There is, therefore, no substantial difference between the two cases insofar as the basic philosophy involved is concerned, for the fact remains that in the case of Balaba this Court did not hesitate to affirm the two death sentences imposed on the accused by the trial court. In People vs. Peralta, et al., L-19060, October 29, 1968, in which this Court imposed on each of the six accused three death penalties for three distinct and separate crimes of murder, We said that "since it is the settled rule that once conspiracy is established, the act of one conspirator is attributable to all, then each conspirator must be held liable for each of the felonious acts committed as a result of the conspiracy, regardless of the nature and severity of the appropriate penalties prescribed by law." In the said case (which was promulgated after the decision of the court a quo had been handed down) We had occasion to discuss at length the legality and practicality of imposing multiple death penalties, thus: The imposition of multiple death penalties is decried by some as a useless formality, an exercise in futility. It is contended, undeniably enough, that a death convict, like all mortals, has only one life to forfeit. And because of this physiological and biological attribute of man, it is reasoned that the imposition of multiple death penalties is impractical and futile because after the service of one capital penalty, the execution of the rest of the death penalties will naturally be rendered impossible. The foregoing opposition to the multiple imposition of death penalties suffers from four basic flaws: (1) it fails to consider the legality of imposing multiple capital penalties; (2) it fails to distinguish between imposition of penalty and service of sentence; (3) it ignores the fact that multiple death sentences could be served simultaneously; and (4) it overlooks the practical merits of imposing multiple death penalties. The imposition of a penalty and the service of a sentence are two distinct, though related, concepts. The imposition of the proper penalty or penalties is determined by the nature, gravity and number of offenses charged and proved, whereas service of sentence is determined by the severity and character of the penalty or penalties imposed. In the imposition of the proper penalty or penalties, the court does not concern itself with the possibility or practicality of the service of the sentence, since actual service is a contingency subject to varied factors like the successful escape of the convict, grant of executive clemency or natural death of the prisoner. All that go into the imposition of the proper penalty or penalties, to reiterate, are the nature, gravity and number of the offenses charged and proved and the corresponding penalties prescribed by law. Multiple death penalties are not impossible to serve because they will have to be executed simultaneously. A cursory reading of article 70 will show that there are only two moves of serving two or more (multiple) penalties: simultaneously or successively. The first rule is that two or more penalties shall be served simultaneously if the nature of the penalties will so permit. In the case of multiple capital penalties, the nature of said penal sanctions does not only permit but actually necessitates simultaneous service. The imposition of multiple death penalties, far from being a useless formality, has practical importance. The sentencing of an accused to several capital penalties is an indelible badge of his extreme criminal perversity, which may not be accurately projected by the imposition of only one death sentence irrespective of the number of capital felonies for which he is liable. Showing thus the reprehensible character of the convict in its real dimensions, the possibility of a grant of executive clemency is justifiably reduced in no small measure. Hence, the imposition of multiple death penalties could effectively serve as deterrent to an improvident grant of pardon or commutation. Faced with the utter delinquency of such a convict, the proper penitentiary authorities would exercise judicious restraint in recommending clemency or leniency in his behalf. Granting, however, that the Chief Executive, in the exercise of his constitutional power to pardon (one of the presidential prerogatives which is almost absolute) deems it proper to commute the multiple death penalties to multiple life imprisonments, then the practical effect is that the convict has to serve the maximum forty (40) years of multiple life sentences. If only one death penalty is imposed, and then is commuted to life imprisonment, the convict will have to serve a maximum of only thirty years corresponding to a single life sentence. We are, therefore, of the opinion that in view of the existence of conspiracy among them and of our finding as regards the nature and number of the crimes committed, as well as of the presence of aggravating circumstances, four death penalties should be imposed in the premises. Before Us is a petition for intervention filed by Filipinas Investment & Finance Corporation asking for reversal of that portion of the judgment of the court below ordering the confiscation of the car used by the appellants in abducting the complainant. The aforesaid car is a 1965 two-door Pontiac sedan with Motor No. WT-222410, Serial No. 2376752110777, Plate No. H-33284, File No. 11584171, alleged by the intervenor to be in the custody of Major Ernesto San Diego of the Quezon City Police Department. The car is registered in the name of Mrs. Dolores Gomez. On April 4, 1967, Mrs. Dolores Gomez, mother of an appellant Jaime G. Jose, bought the car from the Malayan Motors Corporation and simultaneously executed a chattel mortgage thereon to secure payment of the purchase price of P13,200, which was stipulated to be payable in 24 monthly installments of P550 beginning May 4, 1967 up to April 4, 1969. The mortgage was duly registered with the Land Transportation Commission and inscribed in the Chattel Mortgage Registry. The mortgage lien was annotated on the motor registration certificate. On April 17, 1967, for value received and with notice to Mrs. Gomez, the Malayan Motors Corporation assigned its credit against Mrs. Gomez, as well as the chattel mortgage, to the intervenor. The assignment was duly registered with the Land Transportation Commission and annotated on the registration certificate. Mrs. Gomez failed to pay any of the installments due, in view of which the intervenor filed on July 5, 1967, an action for replevin against her (Civil Case No. 69993, Court of First Instance of Manila) as a preliminary step to

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foreclosure of the chattel mortgage. On July 7, 1967, the court issued an order for the seizure of the car. The sheriff, however, could not enforce the writ of replevin because the car was not in Mrs. Gomez' possession, the same having been used by her son, appellant Jaime G. Jose, together with the other appellants in this case, in the abduction of Miss De la Riva, as a result of which the car was seized by the Quezon City police and placed in the custody of Major San Diego, who refused to surrender it to the sheriff on the ground that it would be used as evidence in the trial of the criminal case. During the pendency of that criminal case in the court below, or on July 26, 1967, the intervenor filed with the said court a petition for intervention. The said petition was not, however, acted upon. On October 2, 1967, the trial court rendered its judgment in the present case ordering the car's confiscation as an instrument of the crime. Although not notified of the said decision, the intervenor filed, on October 17, 1967, a motion for reconsideration of the order of confiscation; but the same was denied on October 31, 1967, on the ground that the trial court had lost jurisdiction over the case in view of the automatic elevation thereof to this Court. The intervenor then filed a petition for relief from judgement, but the same was also denied. On February 5, 1968, judgement was rendered in the replevin case ordering Mrs. Gomez to deliver the car to the intervenor so that the chattel mortgage thereon could be foreclosed, or, in the alternative, to pay the intervenor the sum of P13,200 with interest thereon at 12% per annum from July 5, 1968, the premium bond, attorney's fees, and the costs of suit. The judgment became final and executory. Attempts to execute the judgment against the properties of Mrs. Gomez were unavailing; the writ of execution was returned by the sheriff unsatisfied. On July 26, 1968, the present petition for intervention was filed with this Court, which allowed the intervenor to file a brief. In his brief the Solicitor General contends, among others, that the court a quo having found that appellant Jose is the owner of the car, the order of confiscation is correct. Considering that the car in question is registered in the name of Mrs. Dolores Gomez, who, in the absence of strong evidence to the contrary, must be considered as the lawful owner thereof; that the only basis of the court a quo in concluding that the said car belongs to appellant Jose were the latter's statements during the trial of the criminal case to that effect; that the said statement were not, however, intended to be, nor could constitute, a claim of ownership over the car adverse to his mother, but were made simply in answer to questions propounded in court for the sole purpose of establishing the identity of the defendant who furnished the car used by the appellants in the commission of the crime; that the chattel mortgage on the car and its assignment in the favor of the intervenor were made several months before the date of commission of the crimes charged, which circumstance forecloses the possibility of collusion to prevent the State from confiscating the car; that the final judgement in the replevin case can only be executed by delivering the possession of the car to the intervenor for foreclosure of the chattel mortgage; and the Article 45 of the Revised Penal Code bars the confiscation and forfeiture of an instrument or tool used in the commission of the crime if such "be the property of a third person not liable for the offense," it is the sense of this Court that the order of the court below for confiscation of the car in question should be set aside and that the said car should be ordered delivered to the intervenor for foreclosure as decreed in the judgment of the Court of First Instance of Manila in the replevin case, Civil Case No. 69993. Before the actual promulgation of this decision, this Court received a formal manifestation on the part of the Solicitor General to the effect that Rogelio Caal, one of the herein appellants, died in prison on December 28, 1970. As a result of this development, this case is hereby dismissed as to him alone, and only insofar as his criminal liability is concerned, with one-fourth (1/4) of the costs declared de oficio. WHEREFORE, the judgment under review is hereby modified as follows: appellants Jaime G. Jose, Basilio Pineda, Jr., and Edgardo P. Aquino are pronounced guilty of the complex crime of forcible abduction with rape, and each and every one of them is likewise convicted of three (3) other crimes of rape. As a consequence thereof, each of them is hereby sentenced to four (4) death penalties; all of them shall, jointly and severally, indemnify the complainant of the sum of P10,000.00 in each of the four crimes, or a total of 40,000.00; and each shall pay one-fourth (1/4) of the costs. Insofar as the car used in the commission of the crime is concerned, the order of the court a quo for its confiscation is hereby set aside; and whoever is in custody thereof is hereby ordered to deliver its possession to intervenor Filipinas Investment & Finance Corporation in accordance with the judgment of the Court of First Instance of Manila in Civil Case No. 69993 thereof. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Fernando, Villamor and Makasiar, JJ., concur. Barredo and Teehankee, JJ., took no part. DIGEST Nature: Appeal from and automatic revue of a decision of Rizal CFI ? June 26, 1967 Magdalena de la Riva was abducted outside her own by Jaime Jose, Edgardo Aquino, Basilio Pineda and Rogelio Canal. They brought Maggie to Swanky Hotel. Jose, Aquino, Pineda and Canal took turns raping Maggie. ? They decided to leave her on a spot in front of the Free Press Building not far from Epifanio de los Santos Avenue near Channel 5 to make it appear, according to them, that the complainant had just come from the studio. ? They threatened that she would be doused with acid if she would inform anyone of the incident. ? When she was inside the cab and alone with the driver, Miguel F. Campos, she broke down and cried. She kept asking the driver if a car was following them; and each time the driver answered her in the negative ? When she reached home she informed her mother of the incident ? Appellant Canal and Pineda executed swore to separate statements on the day of their arrest 1. Caal confirmed the information previously given by Jose that the four of them waited for Miss De la Riva to come down from the ABS Studio, and that they had planned to abduct and rape her. Appellant Caal admitted that all four of them participated in the commission of the crime, but he would make it appear that insofar as he was concerned the complainant yielded her body to him on condition that he would release her 2. Pineda executed a statement stating that he and his other three companions wept to the ABS Studio, and that, on learning that Miss De la Riva was there, they made plans to wait for her and to follow her. He admitted that his group followed her car and snatched her and took her to the Swanky Hotel. He would make it appear, however, that the complainant voluntarily acceded to having sexual intercourse with him. ? Jose, Aquino, Canal pleaded not guilty while Pineda pleaded guilty. Issues 1. WON the accused were motivated by lewd designs. YES ? YES. Jose, Aquino and Caal deny having had anything to do with the abduction of Miss De la Riva. They point to Pineda (who entered a plea of guilty) as the sole author thereof, but they generously contend that even as to him the act was purged at any taint of criminality by the complainants subsequent consent to perform a striptease show for a fee, a circumstance which, it is claimed, negated the existence of the element of lewd design. ? This testimony of Ms. De la Riva, whose evidentiary weight has not in the least been overthrown by the defense, more than suffices to establish the crimes charged in the amended complaint. The claims of the accused that they were not motivated by lewd designs must be rejected as absolutely without factual basis. 2. WON the accused rape Ms. de la Riva. ? YES. Jose, Aquino and Canal contend that the absence of semen in the complainants vagina disproves the fact of rape. ? Dr. Brion stated that semen is not usually found in the vagina after three days from the last intercourse, especially if the subject has douched herself within that period ? The absence of spermatozoa does not disprove the consummation of rape, the important consideration being, not the emission of semen, but penetration. ? When the victim got home she immediately told her mother that the four raped her. The statement was made by the complainant to her mother who, in cases of this nature was the most logical person in whom a daughter would confide the truth. 3. WON the extrajudicial statements is admissible. ? YES. The accused contends that secured from them by force and intimidation, and that the incriminating details therein were supplied by the police investigators. ? The statements were given in the presence of several people & subscribed & sworn to before the City Fiscal of QC, to whom neither of the aforesaid appellants intimated the use of inordinate methods by the police. They are replete w/ details which could hardly be known to the police; & although it is suggested that the authorities could have secured such details from their various informers, no evidence at all was presented to establish the truth of such allegation. ? Even disregarding the in-custody statements of Jose and Canal, We find that the mass of evidence for the prosecution on record will suffice to secure the conviction of the two.

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4. WON there was a mistrial for Pineda. ? NO. Pineda contends that there was a mistrial resulting in gross miscarriage of justice. He contends that because the charge against him and his co-appellants is a capital offense & the amended complaint cited aggravating circumstances, which, if proved, would raise the penalty to death, it was the duty of the court to insist on his presence during all stages of the trial. ? The court held that plea of guilty is mitigating, at the same time it constitutes an admission of all the material facts alleged in the information, including the aggravating circumstances, and it matters not that the offense is capital, for the admission (plea of guilty) covers both the crime and its attendant circumstances qualifying and/or aggravating the crime it was not incumbent upon the trial court to receive his evidence, much less to require his presence in court. It would be different had appellant Pineda requested the court to allow him to prove mitigating circumstances, for then it would be the better part of discretion on the part of the trial court to grant his request. 5. WON the enormous publicity of the case affected the decision of the trial court. ? NO. The appellants took notice of the enormous publicity that attended the case from the start of investigation to the trial. ? Jose himself admits in his brief that the Trial Judge had not been influenced by adverse and unfair comments of the press, unmindful of the rights of the accused to a presumption of innocence and to fair trial. 6. WON aggravating circumstances were present. ? YES. Nighttime, appellants having purposely sought such circumstance to facilitate the commission of these crimes ? Abuse of superior strength, the crime having been committed by the four appellants in conspiracy with one another (Cf. People vs. De Guzman, et al., 51 Phil., 105, 113) ? Ignominy, since the appellants in ordering the complainant to exhibit to them her complete nakedness for about ten minutes, before raping her, brought about a circumstance which tended to make the effects of the crime more humiliating ? use of a motor vehicle. 7. WON the imposition of four death penalty is valid. ? YES. The Supreme Court held that in view of the existence of conspiracy among the accused and of its finding regards the nature and number of crimes committed, as well as the presence of aggravating circumstances, four death penalties can be imposed. At his arraignment, Rufino pleaded not guilty to the crime charged. At the trial on the merits, the prosecution presented as witnesses Liza Galang, Edgar Bawar, and Dr. Erwin Escal; while the defense presented Rufino himself, Myrna Mallari, Dr. Divina Palarca, and Dr. Escal. Liza Galang testified that on 7 July 1996 at around 4:00 p.m., her common-law husband Joseph admonished Rufino and his brothers Ino and Felix Mallari not to drive fast while passing by Josephs house. Rufino and his brothers, who were then hot-tempered, challenged Joseph to a fight. The latter just ignored the challenge; and, instead he and his own brothers Radi and Manny asked apology from Rufino.[2] Later that afternoon, while Joseph and Liza were watching a basketball game at the barangay basketball court, Rufino and his brothers, who were then carrying bladed weapons, arrived and attempted to stab Joseph; but Joseph was able to run away. When they were not able to catch up with him, Rufino boarded and drove the truck parked near the basketball court and continued chasing Joseph until the truck ran over the latter, which caused his instantaneous death.[3] Liza further testified that at the time of his death, Joseph was 37 years old. He was a foreman in a construction firm with a daily income of P350 and also a carpenter and mason with a daily income of P250. She spent less than P20,000 for the coffin, tomb, funeral, and other expenses during the wake of Joseph.[4] Edgar Bawar, a friend of Joseph, testified that at 6:24 p.m. on 7 July 1996, while Joseph was watching a basketball game, Rufino and his brothers Ino and Felix, who were carrying bladed weapons, arrived and chased Joseph. Joseph ran away, and Rufino pursued him with the truck. Upon catching up with him, Rufino bumped Joseph, as a result of which the latter died on the spot.[5] Dr. Erwin Escal testified that the cause of death of Joseph, as stated in the Medico-Legal Report,[6] was [c]rushing injury on the head secondary to vehicular accident. Josephs head was deformed with multiple skull fractures and lacerations and brain tissue evisceration.[7] The defense had a different story. Rufino testified that on 7 July 1996 at around 6:30 p.m., while he was driving a truck at a speed of eighty kilometers per hour, with his wife Myrna seated on the passenger side, he saw Joseph on the road about four meters away from him. Rufino, who was then on his way to the garage to park the truck, blew thrice the horn. But Joseph went to the middle of the road and threw stones, which went through the windshield and hit Rufino on the chest. As a result thereof, Rufino lost control of the truck, and ran over Joseph. Because of fear, Rufino did not alight from the truck; instead, he proceeded to the municipal hall of Sta. Rosa, Laguna, where he surrendered and was immediately detained.[8] Myrna Mallari testified that prior to the incident in question, she saw Joseph at the basketball court. He was apparently drunk and was carrying a balisong. Much to her consternation, he gave a dagger look. Myrna reacted by simply crying and going inside her house. She corroborated Rufinos testimony that while Rufino was driving the truck, Joseph threw stones, which went through the windshield and hit the chest of Rufino.[9] As a result of which, Rufino had chest pains and vomited blood while in detention. Dr. Divina Palarca testified that she examined Rufino on 29 October 1996 and found him to be suffering from pulmonary tuberculosis, which possibly could have afflicted him six months prior to its discovery.[10] Dr. Escal confirmed the testimony of Dr. Palarca, as in fact, it was he who diagnosed the illness of Rufino.[11] The trial court gave full credence to the testimonies of prosecution witnesses Liza Galang and Edgar Bawar that Rufino deliberately bumped Joseph. Appreciating the qualifying circumstance of use of motor vehicle, it convicted Rufino of murder and sentenced him to suffer the death penalty and to pay the victims heirs P100,000 as compensatory damages; P75,000 as moral damages; P50,000 as exemplary damages; and costs.[12] The case is now before us on automatic review pursuant to Article 47 of the Revised Penal Code, as amended. In his Appellants Brief, Rufino imputes to the trial court the following errors:

12. AID OF MINOR OR BY MEANS OF MOTOR VEHICLES EN BANC [G.R. No. 145993. June 17, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. RUFINO MALLARI y ILAG, appellant. DECISION DAVIDE, JR., C.J.: In its decision of 16 June 2000, in Criminal Case No. 9621-B, the Regional Trial Court, Branch 25, of Bian, Laguna, convicted appellant RUFINO MALLARI y ILAG of murder and sentenced him to suffer the penalty of death for having fatally bumped Joseph Galang with an Isuzu Canter Elf truck. On 12 December 1996, an information[1] for Murder was filed against Rufino, the accusatory portion of which reads: That on or about July 7, 1996, in the Municipality of Sta. Rosa, Province of Laguna, Philippines, and within the jurisdiction of this Honorable Court, accused Rufino Mallari y Ilag, with intent to kill, with evident premeditation, treachery and with the use of motor vehicle, did then and there willfully, unlawfully, and feloniously hit and bump with his driven Brand New Isuzu Canter Elf with conduction sticker number 33 LAB one Joseph Galang, thereby inflicting [on] him mortal wounds on the head which directly cause[d] his death, to the damage and prejudice of his surviving heirs. That the crime was committed by means of a motor vehicle as a qualifying circumstance. CONTRARY TO LAW.

I IN FINDING THAT THE INCIDENT WHICH KILLED JOSEPH GALANG WAS DONE BY ACCUSED-APPELLANT WITH CRIMINAL INTENT AND MALICE.

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II IN CONSIDERING THE USE OF A MOTOR VEHICLE AS A QUALIFYING CIRCUMSTANCE IN THE IMPOSITION OF THE DEATH PENALTY. III IN NOT APPRECIATING THE MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER.[13] We note that in his prayer in the Appellants Brief, Rufino seeks his acquittal of the crime of murder, or in the alternative, his conviction for homicide only. In his discussion of his first and second assignments of error, however, Rufino does not seek his acquittal but merely the downgrading of his crime from murder to homicide on the grounds that no evident premeditation was proved and that the motor vehicle was merely incidental to the commission of the crime. In his third assignment of error, Rufino argues that voluntary surrender should have been appreciated as a mitigating circumstance in his favor, considering that after the bumping incident, he proceeded to the municipal hall of Sta. Rosa, Laguna, where he was immediately detained. In its Appellees Brief, the Office of the Solicitor General (OSG) seeks the affirmance of Rufinos conviction but argues that the penalty to be imposed on him should be reclusion perpetua only because of the presence of the mitigating circumstance of voluntary surrender. In view of the diametrically opposed versions of the prosecution and the defense, the resolution of the present case hinges on the credibility of the witnesses who had come forward to testify. We have long recognized that the assessment of the credibility of witnesses and their testimonies lies within the province and competence of the trial court because it has the direct opportunity to observe the witness attitude, demeanor, deportment, and manner of testifying,[14] all of which aid in determining whether the witness is telling the truth or merely prevaricating. Thus, the trial courts evaluation of the credibility of witnesses is accorded great weight and respect and even finality by appellate courts[15] unless some fact or circumstance of weight and substance which could affect the result or disposition of the case was ignored, misapplied, misunderstood, or overlooked by the trial court or when the finding of fact was reached arbitrarily or capriciously.[16] We find no cogent reason to disturb the trial courts assessment of the credibility of the witnesses and its factual findings as to what actually happened, the same being amply supported by evidence. Neither the prosecution nor the defense disputes two important facts: one, Joseph died instantly after he was hit by the truck; and second, the truck was driven by Rufino. There being no question on the identity of the person responsible for Josephs death, what is left to be resolved is whether Rufino deliberately bumped Joseph with the truck he was driving. The antecedent events show that, indeed, Rufino deliberately ran over Joseph. At around 4:00 p.m. of 7 July 1996, when Rufino passed by Josephs house while driving the truck, he got angry when Joseph admonished him not to drive at high speed in front of Josephs house. Rufino, already in a fighting mood, challenged Joseph to a fight, but the latter just ignored it. To put an end to the argument, Joseph and his brothers apologized to Rufino. Apparently, Rufino was not appeased by the apology and continued to harbor ill-feelings against Joseph. Rufino got the chance to vent his anger not long thereafter. At around 5:30 p.m., while Joseph was watching a basketball game at the basketball court located beside Rufinos house, Rufino and his brothers Ino and Felix, carrying with them bladed weapons, attempted to stab Joseph. But before they could do it, Joseph was able to run away. They chased Joseph, but were unable to catch up with him. Instead of giving up on his evil design, Rufino went back to the basketball court, boarded the truck parked nearby, and resumed his pursuit of Joseph. Upon seeing Joseph on the road, Rufino hit him with the truck. We note that the testimonies of Liza and Edgar were consistent with their respective sworn statements,[17] which they gave to the police investigator in the morning of 8 July 1996. Considering that less than twenty-four hours had elapsed from the time of the bumping incident, Liza and Edgar could not have concocted a story to pin down Rufino for the death of Joseph. Thus, there is no reason to doubt the veracity of the sworn statements and the testimonies of Liza and Edgar. Moreover, the defense has not shown any reason why Edgar, who corroborated Lizas testimony about the incident, would perjure himself to pin down Rufino. Absent any evidence showing any reason or motive for the prosecution witnesses to perjure, the logical conclusion is that no such improper motive exists, and their testimonies are thus worthy of full faith and credit.[18] In comparison, Rufino and Myrna gave inconsistent testimonies. Myrna wanted the court to believe that her husband was in no way at fault by stating that Rufino was driving at a slow pace,[19] while Rufino himself declared that he was driving at a speed of eighty kilometers per hour.[20] Myrnas attempt to cover up the misdeed of her husband is obvious; hence, the integrity of her declarations becomes questionable. Rufino himself made inconsistent statements. At first, in the course of the direct examination, Rufino declared that prior to the bumping incident he saw Joseph pass by his house, walking in a zigzag manner.[21] This testimony was an attempt to give credence to his allegation that Joseph was drunk, which was why he threw stones at the truck for no reason at all. But when he was asked during his crossexamination about his altercation with Joseph earlier that fateful day, Rufino made a complete turnaround and declared that he saw Joseph for the first time at the place where he was run over.[22] Moreover, the testimonies of Rufino and Myrna do not inspire belief for being improbable and not in accord with human experience. It is axiomatic that for testimonial evidence to be credible, it should come not only from the mouth of a credible witness, but should also be credible, reasonable, and in accord with human experience.[23] According to Rufino, he saw Joseph when the truck was four meters away from the latter and he blew his horn three times. This is altogether unbelievable. At a speed of eighty kilometers per hour, a fourmeter distance could easily be covered by the truck in a split second, and there would be no time for the driver to blow the horn before the impact. Much less could there be time for a person on the road to pick up a stone and hurl the same to an oncoming truck. Thus, it is simply impossible that Joseph was able to hurl a stone at the truck before he was run over. Neither can we believe Rufinos testimony that he first saw Joseph on the road when the truck was just four meters away from him. According to Rufino, the road was clear because only Joseph and the truck he was driving were on the road. He testified as follows: Q Mr. Witness, when you saw for the first time Joseph Galang along the road, there was no other vehicle from [the] opposite direction where you were heading? None, sir. So that your driven vehicle and Joseph Galang were the only [ones] in that road? Yes, sir. And the road could accommodate two (2) ten wheeler trucks? Yes, sir. And you said likewise that when you first saw Joseph Galang, he was about four (4) meters away from your driven vehicle? Yes, sir.[24]

A Q A Q A Q

From Rufinos own testimony, it appears that his view was unobstructed. He could have seen Joseph from afar and could therefore have avoided bumping the latter had he really wanted to. Obviously, the stone-throwing incident was concocted by the defense as a last ditch effort to have Rufino absolved from his criminal act. Unlike the prosecution witnesses who executed their sworn statements on the morning after the subject incident, Rufinos sworn statement[25] was executed only on 15 August 1996, or more than one month after the incident. Thus, Rufino had enough time to reflect and come up with a plot. Unfortunately for him, the story he concocted is so incredible that we are not inclined to believe it. To prove that Rufinos driving ability was adversely affected by his illness, the defense presented a medical certificate[26] stating that Rufino was treated at the Sta. Rosa Community Hospital for Minimal PTB, Bilateral with partial collapse of Right Upper Lobe on 1 November 1996, or almost four months after the bumping incident. That certificate is not competent evidence to prove that at the time, Rufino was already suffering from pulmonary tuberculosis. But even granting arguendo that Rufino was already suffering from said illness at the time of the incident, there is no evidence that it had affected his driving ability to the extent that Rufino was no longer able to control the vehicle he was driving. In view of the foregoing, we affirm the trial courts finding that Rufino deliberately bumped Joseph with the truck he was driving.

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Rufinos culpability having been resolved, we now come to the penalty to be imposed. The trial court imposed the death penalty on the ground that the qualifying circumstance of use of motor vehicle is present. Rufino, however, argues that the use of a motor vehicle was only incidental, considering that he resorted to it only to enable him to go after Joseph after he failed to catch up with the latter. The fallacy of this argument is obvious. The evidence shows that Rufino deliberately used his truck in pursuing Joseph. Upon catching up with him, Rufino hit him with the truck, as a result of which Joseph died instantly. It is therefore clear that the truck was the means used by Rufino to perpetrate the killing of Joseph. The case of People v. Muoz[27] cited by Rufino finds no application to the present case. In the said case, the police patrol jeep was merely used by the accused therein in looking for the victim and in carrying the body of the victim to the place where it was dumped. The accused therein shot the victim, which caused the latters death. In t he present case, the truck itself was used to kill the victim by running over him. Under Article 248 of the Revised Penal Code, a person who kills another by means of a motor vehicle is guilty of murder. Thus, the use of motor vehicle qualifies the killing to murder.[28] The penalty for murder is reclusion perpetua to death. Since the penalty is composed of two indivisible penalties, we shall apply Article 63(3) of the Revised Penal Code, which reads: 3. When the commission of the act is attended by some mitigating circumstances and there is no aggravating circumstance, the lesser penalty shall be applied. In the present case, the aggravating circumstances of evident premeditation and treachery, which were alleged in the information, were not proved. What was proved was the mitigating circumstance of voluntary surrender through the testimonies of Rufino and Myrna, which were not rebutted by the prosecution. We have held that for voluntary surrender to be appreciated as a mitigating circumstance, the following requisites must concur: (1) the offender had not been actually arrested; (2) the offender surrendered himself to a person in authority or to an agent of a person in authority; and (3) the surrender was voluntary.[29] A surrender is considered voluntary if it is spontaneous and shows the intention of the accused to submit himself unconditionally to the authorities because he either acknowledges his guilt or wishes to save the government the trouble and expense necessarily included for his search and capture.[30] All these requisites are present in this case. In view of the absence of an aggravating circumstance and the presence of one mitigating circumstance, reclusion perpetua, not death, should be the penalty to be imposed on Rufino. We now discuss the damages to be awarded. The trial courts award of P100,000 compensatory damages is erroneous because it was without basis. The records show that the prosecution presented only two receipts, for the amounts of P9,000[31] and P200[32] representing payment for the casket and funeral services, and the niche, respectively, or a total of P9,200. Only expenses supported by receipts and which appear to have actually been expended in connection with the death of the victim should be allowed for actual damages.[33] Hence, the award of P100,000 should be reduced to P9,200. We sustain the courts award of moral damages but at a reduced rate of P50,000, consistent with recent jurisprudence. In cases of violent death, moral damages is awarded even in the absence of proof because an untimely and violent death invariably brings about emotional pain and anguish on the part of the victims family.[34] In addition, the amount of P50,000[35] as indemnity for the death of Joseph should be awarded to his heirs. The award of exemplary damages is proper in view of the qualifying aggravating circumstance of use of a motor vehicle. However, the amount of P50,000 awarded by the trial court should be reduced to P25,000 pursuant to current case law. Finally, we note that the prosecution offered the testimony of the victims widow on the age and daily income of her husband, without supporting the same with documentary evidence. The rule is that documentary evidence should be presented to substantiate a claim for damages for loss of earning capacity. By way of exception, damages therefore may be awarded despite the absence of documentary evidence provided that there is testimony that the victim was either (1) self-employed earning less than the minimum wage under current labor laws, and judicial notice may be taken of the fact that in the victims line of work no documentary evidence is available; or (2) employed as a daily-wage worker earning less than the minimum wage under current labor laws.[36] There is no showing that the victim was self-employed or employed as a daily-wage worker with an average daily income of less than the minimum wage provided under the labor laws in force at the time of his death. In the absence of such proof, the exception cannot be applied to this case. Hence, no award for loss of earning capacity can be granted in favor of the victims heirs. WHEREFORE, the appealed decision of the Regional Trial Court, Branch 25, of Bian, Laguna, in Criminal Case No. 9621-B convicting appellant RUFINO MALLARI y ILAG of the crime of murder is hereby AFFIRMED with the following modifications: 1. The penalty is reduced from death to reclusion perpetua; 2. The award of exemplary damages in the amount of P50,000 is reduced to P25,000, and the awards of actual and moral damages are reduced to P9,200 and P50,000, respectively; and 3. Appellant Rufino Mallari y Ilag is further ordered to pay the heirs of Joseph Galang an indemnity ex delicto in the amount of P50,000. Costs de oficio. SO ORDERED. Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur. DIGEST June 17, 2003, Criminal Law Aggravating Circumstance Use of Motor Vehicle On July 7, 1996 at 4 pm, Joseph Galang admonished Mallari for driving so fast in front of the farmers house. Mallari got irked and challenged Galang into a fist fight. Galang did not accede and apologized instead. At about 6:30 pm, Mallari returned and tried to stab Galang but Galang was able to run. Mallari boarded his truck and drove after Galang until he was able to catch up with him. He bumped him and crushed Galangs head. Galang voluntarily surrendered. He was convicted for murder and was sentenced to death. ISSUE: Whether or not evident premeditation is attendant. HELD: No. Evident premeditation and treachery was not proven to be present. However, Mallaris use of a motor vehicle which is h is truck qualifies him for the crime of murder. He used his truck in killing Galang. Voluntary surrender is to be appreciated in favor of Mallari. He is sentenced to reclusion perpetua.

13. MOTOR VEHICLE THIRD DIVISION [G.R. No. 128812. February 28, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. THADEOS ENGUITO, defendant-appellant. DECISION GONZAGA-REYES, J.: This case was certified for review pursuant to Section 13, Rule 124 of the Rules on Criminal Procedure by the Court of Appeals[1] which found accused-appellant Thadeos Enguito guilty beyond reasonable of the crime of murder with less serious physical injuries and sentenced him to suffer

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the penalty of reclusion perpetua. Thadeos Enguito was charged with the crime of Murder with Multiple Less Serious Physical Injuries under the following Information: Ky-calr "That on September 22, 1991 at about 3:00 o'clock early dawn at Marcos Bridge, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with intent to kill and with treachery and with evident premeditation, did then and there wilfully, unlawfully, and feloniously chased, bumped and hit the motorela which Wilfredo S. Achumbre was riding with his Ceres Kia automobile bearing Plate No. 722 and as a consequence thereof, the motorela was dragged and fell on the road causing the driver (Felipe Requerme) and its passenger Rosita Requerme to sustain serious bodily injuries while the deceased Wilfredo S. Achumbre was able to run towards the railings at Marcos Bridge but accused with intent to kill him hit instantaneously immediately rammed and hit him with his driven vehicle cutting his right leg and thereafter ran over him thereby causing mortal harm on his body which was the direct and immediate cause of his instantaneous death. That the wrong done in the commission of the crime was deliberately augmented by causing other wrong not necessary for its commission. Contrary to Article 248 of the Revised Penal Code in relation to paragraphs 13 and 21 of Article 14 thereof."[2] Upon arraignment, accused, assisted by counsel, pleaded not guilty to the crime charged.[3] Trial ensued. The prosecution presented the following witnesses: Felipe Requerme, Rosita Requerme, PO3 Ricardo Catiil, SPO1 Albert Calingasan, PO3 Virgilio Maquiling, SPO1 Franklin Alamban, Sr., Georgita Achumbre, Dr. Sofronio Sescon and Dr. Apolinar Vacalares. The defense presented Alberto Chaves, Anita Enguito and the accused himself. In his brief, accused-appellant states that he is in conformity with the findings of facts of the court a quo[4] which we quote hereunder: "Prosecution's Evidence: Ms-esm From the testimonies of prosecution witnesses Felipe Requerme, Rosita Requerme, PO3 Ricardo Catiil, SPO1 Albert Calingasan, PO3 Virgilio Maquiling, SPO1 Franklin Alamban, Sr., complainant Georgita Achumbre, wife of the deceased, Dr. Sofronio Sescon and Dr. Apolinar Vacalares, it was established that at about 3:00 o'clock dawn of September 22, 1991, Felipe Requerme, a motorela driver who while driving his motorela with his wife on board, from Lapasan towards Poblacion, Cagayan de Oro City, picked up a passenger near the Nazareno church. The passenger was later identified as the deceased, Engr. Wilfredo Achumbre. Achumbre asked him to bring him across the Marcos bridge towards his home. After travelling a distance of 300 meters more or less and near the Sacred Heart of Jesus Montessori School, Requerme's motorela was bumped by a white motor vehicle. The vehicle kept pushing the motorela causing it to run very fast for the next 400 meters until it reached the area in front of Wheels Marketing. Because of the violent push the motorela turned around facing the direction from where it came from and fell on its right side. Felipe Requerme screamed for help thinking that his wife was pinned underneath. A tamaraw pick-up stopped near them and he immediately informed that they were intentionally hit by the white vehicle. A short time later a police mobile patrol arrived and with the assistance of the people around, they pushed the motorela to return it to its natural position. Requerme and his wife were brought to the Operation Kahusay ug Kalinaw (OKK), a 24-hour police station where all victims of crimes report in Cagayan de Oro. At the OKK the driver of the white service pick-up who bumped his motorela arrived. Requerme identified the driver as Thadeos Enguito whom he pointed inside the courtroom. Later, Requerme and his wife were brought to the city hospital for medical check-up. They were also brought to the Northern Mindanao Regional Training Hospital to identify the deceased. The following day the Requerme spouses went to the police station and executed their affidavits which are attached to the record. Felipe Requerme presented a medical certificate issued by the examining physician to establish the injuries he suffered (Exh. "A"). Likewise, he presented prescription for medicines and he said that he spent a total amount of P1,000.00 (Exhs. "B", "B-1", "B-2", "B3").E-xsm Rosita Requerme was riding along with her husband and she noticed that when they were near the Sacred Heart of Jesus Montessori School their motorela was bumped by a white motor vehicle. She observed that the face of the driver of the vehicle bumping them was bloody. Mrs. Requerme shouted and waved her hand signalling the driver to stop but the driver kept pushing the motorela violently. The push was so fast and strong that the motorela was already uncontrolled and running very fast. Their passenger jumped out when they were already at the Marcos bridge near the Wheels Marketing. Then the motorela made a 180 degrees turn facing the direction where they came from and fell on its right side. Struggling out of the motorela she noticed that the white vehicle went up the elevated catwalk or pathway pursuing Achumbre who was hit when he was already at the railing (barandilla). Then she observed that the white vehicle drove across the bridge towards Iligan City. At the OKK she saw the accused brought by policemen and she asked him why he bumped them and the accused answered "I have to do it Manang because look at me now" (TSN, Dec. 16, 1991). She also observed that the face of the accused was bleeding. She identified the accused in court, as the same person she saw at the OKK. She was treated at the hospital and was issued a medical certificate (Exh. "C"). Together with her husband, they spent P1,000.00 for medicines. PO3 Ricardo Catiil was assigned as driver of the mobile division patrol no. 07 on September 22, 1991 together with SPO1 Albert Calingasan and Armando Mana. They parked the mobile car at the other end of the Marcos bridge along C. M. Recto Avenue at about 2:30 in the morning. Shortly thereafter, he saw a car coming from Cagayan de Oro poblacion crossing the bridge running fast with a damage on its right portion. He estimated the speed at 80 kph. Observing something unusual they pursued the vehicle, switched on their siren and caught up with the vehicle at Km. 3, 2.6 kilometers from the place of incident. Catiil and the other two policemen alighted from the car and accosted the driver and brought him to the OKK. He noticed that the face of the driver was bleeding which he believed may have been caused by the splintered windshield. Examining the vehicle, they noticed that in addition to the broken windshield, the right portion of the signal light and the head light were also damaged. The right front tire was flat. When asked, the driver admitted that he bumped someone at the Marcos bridge. SPO1 Albert Calingasan, supporting the testimony of Ricardo Catiil who was the driver of the mobile patrol car 07, declared that they were at the middle of the Marcos bridge when they saw a Ceres Kia car running fast and they pursued it until it stopped at Km. 3. After delivering the accused at the OKK, Calingasan together with his two companions drove back to the place of incident. They saw blood on the street. There were also bits of human flesh found on the cemented road and the right leg was completely severed. Calingasan explained that when they followed at the hospital and viewed the body of the victim, they saw that the right leg was severed from the body. Calr-ky PO3 Virgilio Maquiling was assigned with mobile patrol 05 of the Cagayan de Oro Police Station at about 2:00 o'clock dawn of September 22, 1991. They were on patrol near the Golez residence almost near the foot of the Marcos bridge facing Iligan City. Maquiling and his companions saw a Ceres Kia coming from Liceo de Cagayan and turned right at the bridge and went towards the place where the incident occurred. Maquiling observed that the way the vehicle was driven, the driver may have been drunk. Twenty minutes later, the same vehicle came back with its right portion damaged. Suspecting that something untoward may have occurred, he called mobile patrol 101 to intercept the vehicle. Not long after a PU driver informed Maquiling and his companions that a motorela was involved in a traffic accident at the other end of the bridge near Licoan Bakery and Restaurant. Proceeding to the place of incident, he saw a body of a person at Abellanosa Street which is located immediately below the bridge about 10 feet high. He also saw that the right leg of the person was hanging at the Marcos bridge railing about seven meters away from the body. Maquiling, using his radio, called the paramedic. They immediately brought the body of the victim to the NMRTH. Maquiling inspected the crime scene and he observed that the latex paint of the railing was scraped and the trailing was dented.

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Dr. Sofronio Sescon identified the medical certificate and he described his findings as follows: "October 19, 1991 MEDICAL CERTIFICATE TO WHOM IT MAY CONCERN: THIS IS TO CERTIFY that MR. FELIPE REQU(I)ERME, 42 years old, of Consolacion, Cagayan de Oro City was examined by the undersigned in this hospital on September 22, 1991 at about 3:12 A.M. for: "Abrasions, about 2 x 4 cm. and 0.5 x 2 cm., with hematoma, Right lumbar area." Sd-aad-sc =================================== ==== Healing Period: Two (2) weeks barring complications. This certificate is issued for whatever purpose it may serve. Q.....You mean to tell this honorable court hemorrhage on the brain? (SGD.) SOFRONIO C. SESCON, M.D. Medical Officer" A.....There was a massive hemorrhage." (TSN, Dec. 19, 1991, p. 12) Dr. Rogelio Gannaban examined Rosita Requerme at about 3:00 o'clock dawn of Sept. 22, 1991 and he issued a medical certificate (Exh. "C") indicating the following injuries: "October 19, 1991 MEDICAL CERTIFICATE TO WHOM IT MAY CONCERN: THIS IS TO CERTIFY that MRS. ROSITA REQU(I) ERME, 41 years old, of Consolacion, Cagayan de Oro City was examined by the undersigned in this hospital on September 22, 1991 at about 3:12 a.m. for: -.....Contusion 2.0 x 6.0 cm. Right arm, M/3, medial; -.....Contusion 3.0 x 4.0 cm. Right leg, P/3, anterior =================================== ==== HEALING PERIOD: Three to Five (3-5) days barring complications. This certificate is issued for whatever purpose it may serve. (SGD.) ROGELIO R. GANNABAN, M. D. Medical Officer IV" Dr. Apolinar Vacalares, chief of the Pathology Department of the NMRTH identified the death certificate of Wilfredo Achumbre (Exh. "D", "D-1"). He conducted an autopsy on the cadaver of Wilfredo Achumbre and the following are his external findings: "x x x Prosecutor Gamotin: Rtc-spped Q.....Now, you made mention that you were the one who conducted on the cause of death of the victim on this particular case - will you please tell the honorable court what was your findings on the victim? A.....On the autopsy table the external findings are - 1) There was a laceration of the forehead and contusions on the left forehead, and Expenses she incurred as a result of her husband's death are the following: 1) P 7,000.00 for the Greenhills Funeral Homes; 2) P 9,000.00 for Divine Shepherd Memorial Park; 3) P 5,000.00 for vigil and prayers for 10 days; 4) P 2,000.00 for the 40th day prayer; and 5) P20,000.00 attorney's fees. She leaves to the discretion of the Court the When asked by the defense counsel regarding a fall from a certain height which would result to a damage of the brain, Dr. Vacalares answered: "x x x A.....With this drawing with multiple injuries on the leg, it could have fall from a certain height fifty feet or twenty feet but not from five feet height or even ten feet height." (TSN, Dec. 19, 1991, p. 21) Scl-aw Dr. Vacalares declared that the victim suffered massive hemorrhage and, in fact, it was impossible for the victim to survive even with the most modern medical attendance. There was massive accumulation of clot and no amount of surgery could have saved the victim. Death was almost instantaneous. Georgita Achumbre, wife of the deceased, declared that her husband used to receive P5,000.00 monthly salary and with other incentives, giving him a total income of P10,000.00 a month. They have 5 children namely: Charles Ian (9 yrs. old.), Lou Aiza (6 yrs. old), Charmie Aimee (3 yrs. old), Charlene Irene (1 yr. and 10 mos. old), and Christine Ivy Lou (6 mos. old). Georgita Achumbre knows the accused because he used to come to their house and he and her husband were both employed with G & P Builders and they used to play basketball together. At 5:00 o'clock in the morning of September 22, 1991 she received news of her husband's death. Together with her brother-in-law she proceeded to the NMRTH and saw the body of her husband lying on a table and covered with white cloth. She was informed that her husband was dead on arrival. From the hospital she went to the police station to retrieve the wallet of her husband which contained P3,000.00. When she confronted the accused at the police station why he killed her husband, Thadeos Enguito answered that he was mauled by her husband and it was an act of revenge. The accused explained that the victim became angry when he was made to pay the bills of Enguito's friend who was seated on the other table. 2) Multiple injuries on the head and right extremity, traumatic." (TSN, Dec. 19, 1991, p.9) x x x" He also presented an autopsy table showing a diagram of the human body showing therein the injuries suffered by the victim (Exh. "E", "E-1", "E-2"). In examining the body he saw that the right leg was cut at the upper third just below the knee. In the diagram of the human body he identified the injuries on the brain (Exh. "E-5", "E-6, "E-7", "E-8"). The complete findings of Dr. Vacalares are as follow: "x x x Prosecutor Gamotin: Q.....Now, what was your findings on the brain of the victim in this case? A.....In opening the brain or the skull, there were blood clots on the external portion of the covering portion and below the distal portion or surface, again there was a blood clot and then the thin membrane that covers the brain is also covered with blood.

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moral and exemplary damages. Defendant's Evidence: Sc-lex Maintaining that the death of the victim was purely an accident, accused Thadeos Enguito, a co-employee of the victim, declared that he and the deceased Wilfredo Achumbre were close friends and they used to play basketball together. He is also acquainted with the wife of the victim because he used to go to their residence. Enguito maintained that on September 22 at about 3:00 o'clock in the morning he was about to bring Achumbre to his house located at Kauswagan near Kong Hua School. Enguito was driving a Ceres Kia pick-up owned by G & P Builders Construction. At the crossroad going to the house of Achumbre, he (Achumbre) refused to step down, compelling Enguito to go back to where they came from at Divisoria. Enguito observed that Achumbre was already drunk. Achumbre invited Enguito to eat bulalo but the latter refused and because Achumbre still refused to alight from the pick-up, Enguito decided to go home to his residence at Gaabucayan-Osmea Extension passing by the Coca-Cola plant. Nearing the house of Enguito, Achumbre suddenly stepped on the brakes and attempted to take over the vehicle. The Ceres Kia stopped and Enguito quickly jumped out and ran towards his house with Achumbre pursuing him. After a short while Achumbre was able to catch up with Enguito and he (Achumbre) said, "You are a braggart" (TSN, May 18, 1992, p. 17) and mauled him. Enguito failed to put up a fight because Achumbre was very much bigger having a height of approximately 5'11". Achumbre's blows resulted to Enguito's dizziness and when his mind was cleared, he noticed that Achumbre already left. The Ceres Kia pick-up which Achumbre wanted to take away from him was left parked near Enguito. xl-aw Accused Enguito drove back the Ceres Kia in order to report the incident to the police authorities. Turning towards Recto Avenue he saw a motorela which had Achumbre as passenger cruising along Recto Avenue a little beyond the Nazareno Church. Enguito followed the motorela with intentions of compelling Achumbre to surrender to the police having observed earlier that a police mobile patrol was parked at the other end of the Marcos bridge. Still very closely following the motorela, Achumbre suddenly jumped towards the right of the Ceres Kia and when he attempted to cross the road towards Wheels Marketing he was hit (TSN, May 18, 1992, p. 23-24). Enguito attempted to apply the brakes but it was so sudden and Achumbre was too near. Without verifying what happened to Achumbre, Enguito drove on across the bridge passing by a patrol car and stopping near the Km. 3 at a distance of 1.7 kilometers beyond the mobile patrol parked at the foot of the other side of the bridge towards Iligan City. In trying to avoid hitting Achumbre, the Ceres Kia hit the railings damaging the windshield, the right front headlight and the right siding of the vehicle. Noticing the police car pursuing him, Enguito stopped his vehicle and approached the policemen. He was brought to the OKK where he was informed that Achumbre was killed. On September 23 at the police station during the confrontation, Mrs. Achumbre asked Enguito why he killed her husband and he explained that it was not intentional (TSN, May 18, 19, p. 26-27). On Cross examination the accused claimed that the bumper of the Ceres Kia hit the back portion of the motorela. He also maintained that other than the driver there was a woman passenger together with Achumbre. He affirmed that Achumbre having mauled him and bloodied his face he was very angry with the latter. Enguito saw the woman waiving at him to stop but he still continued to very closely follow even hitting the motorela. The accused did not apply the brake because he was afraid that his vehicle might turn turtle. Asked why he did not stop his vehicle after hitting the deceased he explained that there were people gathered from the distance and he was afraid that he might be harmed by them. When again asked why he did not stop at the middle of the bridge, he said that he already saw the mobile patrol and he directly went to them. Scx As character witness the accused presented Alberto Chaves, 76 years old, former mayor of Kalilangan, Bukidnon where the accused grew up. Mr. Chaves was former superintendent of the defunct NARRA and in 1964 he was municipal mayor of Pangantucan, an adjoining municipality of Kalilangan. He was also elected municipal mayor of Kalilangan in 1968 up to 1986. He knew very well the accused Thadeos Enguito as a young boy. The father of the accused was a construction foreman in the municipal government where he was mayor and the wife was employed with the NARRA assigned under the health services. During all the years when the accused was residing in Kalilangan, Bukidnon he was never involved in any crime. As far as he knows, he is a good boy and this charge against him (Enguito) is a complete surprise to him. Anita Enguito, wife of the accused, testified that they have been married for nine years and they have four children, the eldest being 9 years old and the youngest 3 years old. As far as she can remember the deceased Wilfredo Achumbra and her husband were good friends and she did not know of any quarrel that transpired between them."[5] After trial, the court a quo rendered judgment on October 5, 1992 finding accused guilty beyond reasonable doubt of the crime of Homicide with Less Serious Physical Injuries. The dispositive portion[6] of which reads: "IN VIEW OF THE FOREGOING, the Court is of the considered opinion and so holds that the prosecution clearly established beyond reasonable doubt that the crime of homicide with less serious physical injuries was committed by the accused Thadeos Enguito with the aggravating circumstance of the use of motor vehicle (Art. 14, par. 20, RPC) without any mitigating circumstance and hereby sentences him to an indeterminate sentence ranging from TWELVE (12) YEARS of prision correccional as minimum to TWENTY (20) YEARS of reclusion temporal as maximum penalty. On the civil liability, the accused is hereby ordered to pay the following: 1) P 50,000.00 representing death compensation; 2) P 23,000.00 representing funeral expenses; x-sc 3) P200,000.00 representing moral and exemplary damages; 4) P 20,000.00 attorney's fee. The accused is likewise ordered to pay spouses Felipe and Rosita Requerme the following: 1) P 1,000.00 representing medical expenses; 2) P30,000.00 representing moral and exemplary damages." On appeal, the Court of Appeals found that since the prosecution's evidence showed that accused killed the victim by means of motor vehicle, he should be guilty of the crime of murder and not of homicide. The dispositive portion[7] of the Decision dated October 17, 1996 reads: "WHEREFORE, the appealed decision is hereby AFFIRMED with the following modification: appellant Thadeos Enguito is hereby found guilty beyond reasonable doubt of the crime of MURDER WITH LESS SERIOUS PHYSICAL INJURIES and is sentenced to suffer the penalty of Reclusion Perpetua. Pursuant to Section 13 (par. 2) of Rule 124 of the Revised Rules on Criminal Procedure, let this case be certified and the entire records thereof be elevated to the Supreme Court for review. Costs against the appellant." Accused-appellant filed his brief raising the following assignment of errors: "1. The Honorable Third Division of the Court of Appeals committed error in finding that accused is guilty of less serious physical injuries suffered by Felipe Requerme. "2. The Honorable Third Division of the Court of Appeals committed grave abuse of discretion in affirming the conviction of accused for the Crime of Murder with the use of motor vehicle." In the first assigned error, accused-appellant avers that no evidence was presented by the prosecution to show that the motorela driven by Felipe Requerme suffered any damage as a result of the alleged bumping. Appellant argues that the motorela turned on its left side in a reverse direction because of the act of Felipe who was not able to balance the

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motorela when the deceased Achumbre jumped out from the rear. Appellant contends that he could not be guilty of any physical injuries suffered by the spouses Requerme because the direct cause of the motorela turning on its left side was the act of Felipe in guiding the vehicle while the proximate cause is the thrust which resulted when Achumbre suddenly jumped out of the motorela. Spped The argument is devoid of merit. The defense disregards the basic rule in criminal law that a person is responsible for all the consequences of his unlawful or wrongful act although such consequences were different from those which he originally intended.[8] Even if it be assumed that the real intention of accused-appellant was to surrender the victim to the police for mauling him, his act of pursuing the victim, who was a passenger of the motorela, resulted in the injuries of the driver and the other passenger of the motorela. Appellant himself testified[9] that when he followed the motorela, he was "very near"[10] and that he saw the deceased Achumbre jump out on the right side of the motorela but he went ahead; he allegedly "tried to evade, but he was so near."[11] Upon seeing that Achumbre was trying to jump out of the motorela, accused-appellant should have known that by closely following, pushing and bumping the motorela, he could injure the passengers, which is what happened in this case. Moreover, accused-appellant ignored the pleas of Rosita Requerme, the other passenger and wife of the driver of the motorela, for him to stop bumping and pushing the motorela.[12] Instead, he persisted resulting in the motorela turning on its side and in the opposite direction. Verily, the act of accused-appellant in relentlessly pursuing the motorela is a manifestation of his intention to perpetrate the crime. Appellant further contends that he did not intentionally choose the motor vehicle he was driving as a means of committing the offense, and that at most, the vehicle was the only available means to stop the deceased from escaping. He argues that it was his intention to apprehend and surrender the deceased to the police for his previous act of mauling him but in the process, he killed the deceased. Misspped The indictment against accused-appellant is murder attended by the use of motor vehicle. The use of a motor vehicle qualifies the killing to murder if the same was perpetrated by means thereof.[13] Appellant's claim that he merely used the motor vehicle, Kia Ceres van, to stop the victim from escaping is belied by his actuations. By his own admission, he testified that there was a police mobile patrol near the crossing.[14] Accusedappellant could have easily sought the assistance of the police instead of taking the law into his own hands. Moreover, accused-appellant already noticed the deceased trying to jump out of the motorela[15] but he still continued his pursuit. He did not stop the vehicle after hitting the deceased[16] who was hit when he (Achumbre) was at the railing of the Marcos bridge.[17] Accused-appellant further used the vehicle in his attempt to escape. He was already more than one (1) kilometer away from the place of the incident that he stopped his vehicle upon seeing the police mobile patrol which was following him.[18] Appellant contends that he should have been convicted of the crime of homicide with two (2) mitigating circumstances of acting in passion and voluntary surrender; and had the charge been homicide he could have pleaded guilty. We find that these mitigating circumstances cannot be appreciated in his favor. Accused-appellant was allegedly "still very angry"[19] while he was following, bumping and pushing the motorela which was in front of him. He was previously mauled by the deceased and he was allegedly rendered unconscious by the blows inflicted on him. When he regained consciousness, he claims that he wanted to look for a policeman to report that he was mauled.[20] Clearly, accused-appellant's state of mind after he was mauled and before he crushed Achumbre to death was such that he was still able to act reasonably. In fact, he admitted having seen a police mobile patrol nearby but instead, he chose to resort to the dastardly act which resulted in the death of Achumbre and in the injuries of the spouses Requerme. For passion to be considered as a mitigating circumstance, facts must be proved to show causes sufficient to produce loss of self-control and to overcome reason.[21] The turmoil and unreason which naturally result from a quarrel or fight should not be confused with the sentiment or excitement in the mind of a person injured or offended to such a degree as to deprive him of his sanity and selfcontrol.[22] The mitigating circumstance of voluntary surrender cannot be appreciated. Evidence shows that accused-appellant was further pursued by the police. Appellant himself testified that he stopped his vehicle just after the police mobile stopped but admitted having "stopped farther than the police mobile".[23] SPO3 Catiil further testified that appellant did not surrender but only stopped his vehicle when its right tire was already flat.[24] His testimony was corroborated by PO3 Makiling who was patrolling the portion of Marcos Bridge. He testified that he saw the vehicle being driven by accused-appellant already destroyed and the right portion of the vehicle a little bit lower as it was running flat.[25] Clearly, accusedappellant could have eluded arrest but his situation became futile when his vehicle suffered a flat tire. Missc The foregoing notwithstanding, the existence or non-existence of a mitigating circumstance in the case at bar will not affect the penalty to be imposed pursuant to Article 63 of the Revised Penal Code. The crime committed by accused-appellant is the complex crime of murder with less serious physical injuries. Under Article 48 of the Revised Penal Code, the penalty for a complex crime shall be the maximum period of the penalty for the most serious crime. The crime was committed in 1992 where the penalty for the crime of murder, which is the most serious crime, was reclusion temporal in its maximum period to death under Article 248 of the Revised Penal Code. The death penalty being the maximum period of the penalty for murder should be imposed for the complex crime of murder with less serious physical injuries considering that under Article 63, an indivisible penalty cannot be affected by the presence of any mitigating or aggravating circumstance.[26] And, consonant with the ruling in People vs. Muoz[27] that Article III, Section 19 (1) of the 1987 Constitution[28] did not change the period of the penalty for murder except only insofar as it prohibits the imposition of the death penalty and reduces it to reclusion perpetua, the Court of Appeals was correct in imposing the penalty of reclusion perpetua. There is a need to modify the award of damages to the heirs of the victim Achumbre. We affirm the award of P50,000.00 as civil indemnity for death to the heirs of the deceased Achumbre. There is, however, no justification for the award of exemplary damages there being no aggravating circumstance;[29] hence, the same should be deleted. Anent the award of moral damages, his widow testified that she was sad and worried for the children and their future and that there were nights that she cannot sleep.[30] The award of moral damages in favor of the heirs of the deceased Achumbre is in order, however, the amount should be reduced to P50,000.00 in light of the purpose for making such award, which is to compensate the heirs for injuries to their feelings and not to enrich them.[31] Scmis As to the award of actual damages, the same cannot be based on the allegation of a witness without any competent document to support such claim.[32] Proof is required to be adequately supported by receipts.[33] The amount of P23,000.00 awarded by the trial court as funeral expenses should be reduced. Georgita Achumbre, widow of the deceased-victim, testified that she spent P7,000.00 for embalming and funeral cortege as evidenced by a receipt issued by the Green Hills Memorial Homes which is marked as Exhibit "H"[34] and another P9,300.00 as internment fee as shown in the receipt issued by the Divine Shepherd Memorial Gardens, Inc. which is marked as Exhibit "I".[35] She also spent "about P5,000.00 or more" for a one (1) week vigil, but no receipt was presented;[36] hence, the same cannot be included in the award for actual damages.[37] A party is entitled to compensation only for such pecuniary loss suffered by him as he has duly proved.[38] The amount of "not less than P2,000.00" allegedly spent during the 40th day[39] cannot likewise be considered as the same was incurred after a considerable lapse of time from the burial of the victim.[40] Hence, only the total amount of P16,300.00 as actual damages should be awarded to the heirs of the deceased. The lower courts failed to consider the fact that under Article 2206 of the Civil Code, in addition to civil indemnity of P50,000.00 for the death of the victim, the accused-appellant is liable for the loss of earning capacity of the deceased and such indemnity should be paid to the heirs of the latter. The widow of deceased Achumbre testified that before her husband died, he was working with G & P Builders as a licensed civil engineer receiving salary and other incentives in the amount of "more or less, a total of P10,000.00 a month" or a gross annual income of P120,000.00. They had five (5) children.[41] At the time Achumbre died, he was 38 years old.[42] The deceased's loss of earning capacity is computed as follows: Josp-ped net earni ng capac ity (x) X = life expectancy = x gross annual income (GAI) less living expense s (50% of GAI) 50% of GAI)

2 (80 - age at time of death 3

(GAI x

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2 (80 - 38) 3 = x (P 120,000.00 -P 60,000.0 0) Court, the above-named accused did then and there wilfully, unlawfully and feloniously, with intent to kill and taking advantage of superior strength, attack, assault and use personal violence upon the person of one Elsa Elsie Santos Castillo by then and there stabbing her with a bladed weapon in different parts of her body, thereby inflicting upon her mortal wounds which were the direct and immediate cause of her death and thereafter outraged or scoffed her corpse by then and there chopping off her head and different parts of her body. CONTRARY TO LAW.[3] The case was filed with the Regional Trial Court of Pasig City and was raffled to Branch 152. On January 6, 1994, accused-appellant was arraigned with the assistance of counsel de parte. He entered a plea of not guilty.[4] The evidence shows that accused-appellant and the deceased, Elsa Santos-Castillo, also known as Elsie, were lovers. They met at the Apex Motor Corporation where accused-appellant was the Manager while Elsa was the Assistant Personnel Manager. Both accused-appellant and Elsa were married, but they were estranged from their respective spouses. In April 1993, Elsa resigned from Apex presumably to avoid the nasty rumors about her illicit affair with accused-appellant.[5] It appears, however, that she continued her affair with accused-appellant even after she resigned from Apex Motor Corporation. On September 23, 1993, Demetrio Ravelo, an Apex employee assigned to drive for accused-appellant, reported for work at 8:30 a.m. at the latters condominium unit at the Platinum Condominium, Annapolis Street, Greenhills, San Juan, Metro Manila.[6] Accused-appellant ordered him to fetch Elsa at her parents house in Blumentritt, M anila at 10:30 a.m. He found Elsa standing at a corner near her parents house, wearing a violet-colored blouse with floral prints, and was carrying three bags --- a paper bag, a violet Giordano bag and a thick brown leather bag with the trademark of Mitsubishi. He brought Elsa to accused-appellants condominium unit.[7]

= =

28 P 1,680,000.00

P 60,000.00

Pursuant to Article 2202 of the Civil Code, accused-appellant is liable for all damages which are the natural and probable consequences of the act or omission complained of. Moral damages are recoverable since the criminal offense resulted in physical injuries[43] of the spouses Requerme. The total amount of P20,000.00 as moral damages in favor of the spouses Requerme is believed to be reasonable. Anent the amount of P1,000.00 representing medical expenses awarded to the spouses Felipe and Rosita Requerme, the prosecution presented the doctor's prescription marked as Exhibits "B" to "B-3"[44] but no receipts were presented. Medical expenses are in the nature of actual damages which should be duly proved and the award for actual damages cannot be made on the basis of the doctor's prescriptions alone. There must be evidence of the actual amount thereof. Likewise the award of exemplary damages to the spouses Requerme should be deleted for lack of basis. WHEREFORE, the decision convicting accused-appellant Thadeos Enguito of the complex crime of Murder with Less Serious Physical Injuries and sentencing him to the penalty of reclusion perpetua is hereby AFFIRMED with the MODIFICATION that accused-appellant is ordered to pay the heirs of deceased Wilfredo Achumbre the amount of P50,000.00 as civil indemnity; P1,680,000.00 for loss of earning capacity; P 16,300.00 as actual damages; P 50,000.00 as moral damages; and to further pay the spouses Felipe and Rosita Requerme the amount of P20,000.00 as moral damages. SO ORDERED. Spp-edjo Melo, (Chairman), Vitug, Panganiban, and Purisima, JJ., concur.

14. CRUELTY FIRST DIVISION [G.R. No. 123819. November 14, 2001]

At 2:00 p.m., Elsa told Demetrio to go to the Apex office in Mandaluyong to deliver a paper bag to Amy Serrano, the Personnel Manager. He proceeded to the Apex office, and then returned to Platinum. Accused-appellant asked him to stay because he had to drive Elsa home at 10:00 p.m. He waited until a little past 10:00 p.m. When he had not heard from accused-appellant, he told Lucy, the housemaid, that he was going home.[8] The following day, Demetrio again reported at accused-appellants unit. At around noon, Lucy asked if he had seen a kitchen knife which was missing. He then overheard Lucy ask accused-appellant who told her that the kitchen knife was in his bedroom. Demetrio saw accusedappellant go inside the room and, shortly thereafter, hand the knife to Lucy.[9] At 3:40 p.m., Lucy told Demetrio to buy cigarettes for accusedappellant. He went out to buy the cigarettes and gave them to Lucy. At 5:00 p.m., accused-appellant told Demetrio to go home.[10] On September 25, 1993, Demetrio reported at the Platinum Condominium at around 8:00 a.m. He was allowed by accused-appellant to go to Apex to follow up his salary. While he was there, Amy Serrano asked him if Elsa was still in accused-appellants condominium unit. Although Demetrio did not see Elsa there, he answered yes. Amy gave him black plastic garbage bags which he turned over to accusedappellant upon his return to the condominium. The latter then ordered him to drive Lucy to Cubao and to go home to get some clothes, since they were leaving for Bagac, Bataan. On the way to Cubao, Lucy told Demetrio that she was going home. He dropped her off in front of the Farmers Market. Thereafter, he proceeded to his house in Fairview, Quezon City, to pick up some clothes, then returned to the condominium at around 10:00 a.m.[11] Accused-appellant asked him to check the fuel gauge of the car. He was told to go to Apex to get a gas slip and then to gas up. At around noon, he went back to the condominium. He had lunch outside at Goodah, then returned to accused-appellants unit and stayed in the servants quarters.[12] While Demetrio was in the servants quarters watching television, accused-appellant came in. He asked Demetrio how long he wanted to work for him. Demetrio replied that he was willing to work for him forever, and expressed his full trust in him. Upon hearing this, accused-appellant shed tears and embraced Demetrio. Then accused-appellant said, May problema ako, Rio. Demetrio asked what it was, and accused-appellant

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. STEPHEN MARK WHISENHUNT, accused-appellant. DECISION YNARES-SANTIAGO, J.: This is a direct appeal from the decision[1] of the Regional Trial Court of Pasig City, Branch 152, in Criminal Case No. 102687, the dispositive portion of which states: WHEREFORE, finding the accused Stephen Mark Whisenhunt guilty beyond reasonable doubt of murder defined and penalized under Art. 248, Revised Penal Code, he is hereby sentenced to suffer the penalty of reclusion perpetua, with the accessory penalties provided for by law, to pay the heirs of the deceased the amount of P100,000.00 representing actual expenses for the funeral services and wake for 5 days, P3,000,000.00 by way of moral damages, exemplary damages in the amount of P1,000,000.00 and attorneys fees in the amount of P150,000.00. SO ORDERED.[2] On November 19, 1993, accused-appellant was formally charged with the murder of Elsa Santos-Castillo, under an Information which read: That on or about September 24, 1993, in the Municipality of San Juan, Metro Manila, Philippines, and within the jurisdiction of this Honorable

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told him that Elsa was dead. Demetrio asked, Bakit mo siya pinatay?[13] Accused-appellant answered that he did not kill Elsa, rather she died of bangungot.[14] Demetrio suggested that Elsas body be autopsied, but accusedappellant said that he had already beheaded her. He asked Demetrio if he wanted to see the decapitated body, but the latter refused. The two of them went to Shoppesville at the Greenhills Shopping Center and bought a big bag with a zipper and rollers, colored black and gray.[15] Demetrio noticed that accused-appellant seemed nervous and his eyes were teary and bloodshot. When they returned to the condominium, accused-appellant asked Demetrio to help him wrap the body in the black garbage bags. Demetrio entered accused-appellants bathroom and found the dismembered hands, feet, trunk and head of a woman. He lifted the severed head by the hair and, when he lifted it, he saw Elsas face. He placed this in a black trash bag. He helped accused-appellant place the other body parts in three separate garbage bags. They packed all the garbage bags in the bag with the zipper and rollers, which they had bought in Shoppesville. Then, they brought the bag down and loaded it in the trunk of accused-appellants car. After that, they boarded the car. Demetrio took the wheel and accused-appellant sat beside him in front.[16] It was almost 2:00 p.m. when Demetrio and accused-appellant left the condominium. Accused-appellant told Demetrio to drive around Batangas and Tagaytay City. After leaving Tagaytay, they entered the South Luzon Expressway and headed towards Sta. Rosa, Laguna. When they were near Puting Kahoy and Silangan, accused-appellant told Demetrio to turn into a narrow road. Somewhere along that road, accused-appellant ordered Demetrio to stop the car.[17] Accused-appellant alighted and told Demetrio to get the bag in the trunk. Accused-appellant took the plastic bags inside the bag and dumped them by the roadside. Then, accused-appellant returned the empty bag in the trunk and boarded the car. He called Demetrio and said, Tayo na Rio, tuloy na tayo sa Bataan. It was already 6:30 p.m.[18] Demetrio drove to the Sta. Rosa exit gate, along the South Luzon Expressway, through EDSA and towards the North Luzon Expressway. They stopped at a gasoline station to refuel. They then took the San Fernando, Pampanga exit, and were soon en route to the Whisenhunt family mansion in Bagac, Bataan.[19] Before reaching Bagac, accused-appellant ordered Demetrio to stop the car on top of a bridge. Accused-appellant told Demetrio to get off and to throw a bag into the river. Later, they passed another bridge and accused-appellant again told Demetrio to pull over. Accused-appellant alighted and threw Elsas clothes over the bridge. On the way, Demetrio noticed that accused-appellant took something from a bag, tore it to pieces and threw it out of the window. When they passed Pilar, Bataan, accused-appellant threw Elsas violet Giordano bag. As they reached the road boundary of Bagac, accused-appellant wrung a short-sleeved dress with violet and green stripes, and threw it on a grassy lot.[20] It was about midnight when accused-appellant and Demetrio arrived at the mansion. Demetrio was unable to sleep that night, as he was scared that he might be the next victim.[21] The next morning, at 11:00 a.m., accused-appellant ordered Demetrio to clean the trunk of the car, saying, Rio, linisan mo ang sasakyan para ang compartment hindi babaho.[22] At 1:00 p.m., accused-appellant and Demetrio started off for Manila. As they passed a place called Kabog-kabog, he saw accused-appellant take out an ATM card. Accused-appellant burned the middle of the card, twisted it and threw it out of the window. They arrived at the corner of EDSA and Quezon Avenue at 2:30 p.m. Demetrio asked accused-appellant if he can get off since he wanted to go home to Fairview. Before Demetrio left, accused-appellant told him, Rio, you and your family can go on a vacation. I will give you money. Accused-appellant then gave Demetrio P50.00 for his transportation going to Fairview.[23] When Demetrio got home, he immediately told his family what happened. His wife told him to report the incident to Fiscal Joey Diaz. Demetrio and his wife went to the house of Fiscal Diaz in Fairview to talk to him.[24] The following morning, September 27, 1993, Fiscal Diaz, Demetrio, his wife and his brothers went to the Department of Justice. They were referred to the National Bureau of Investigation, where Demetrio gave his statement before Atty. Artemio Sacaquing, head of the Anti-Organized Crime Division.[25] Initially, Atty. Sacaguing could not believe what he heard and thought Demetrio was exaggerating. He dispatched a team of NBI agents, headed by Marianito Panganiban, to verify Demetrios report. [26] Accompanied by Demetrio, the team proceeded to Barangay Polong, Sta. Cruz, Sta. Rosa, Laguna. There, they found a crowd of people gathered around the mutilated parts of a human body along the road.[27] The body parts had been discovered by tricycle drivers. The Sta. Rosa Police, under Chief Investigator SPO3 Alipio Quintos, was already conducting an investigation. Agent Panganiban radioed Atty. Sacaguing in Manila that Demetrios report was positive.[28] The mutilated body parts were brought to the Lim de Mesa Funeral Parlor in Sta. Rosa. Two NBI agents, together with Demetrio, went to the house of Elsas family to inform them of her death. The NBI agents accompanied Elsas two sisters, Amelia Villadiego and Elida Santos, to the funeral parlor, where they identified the body parts as belonging to Elsa. In the morning of September 28, 1993, accused-appellant was arrested by operatives of the NBI as he drove up to his parking space at Apex Motor Corporation.[29] When Atty. Sacaguing approached and introduced himself, accused-appellant became nervous and started to tremble.[30] Accused-appellant was brought to the NBI in his car. When he arrived there, Atty. Sacaguing informed him that it may be necessary to impound the car since, based on Demetrios statement, the same was used in the commission of the crime. Accused-appellant asked permission to retrieve personal belongings from the car. After getting his things from the car, accused-appellant opened the trunk to place some items inside. When he opened the compartment, the people around the car moved away because of the foul stench that emanated from inside. Atty. Sacaguing inspected the interior of the trunk and found stains on the lawanit board lying flat inside the compartment, which he suspected to be blood. Thus, he instructed his agents to fetch a technician from the NBI Chemistry Division to examine the stain.[31] During Atty. Sacaguings interview of accused-appellant, he noticed contusions on accused-appellants lower lip and cheek. As standard procedure, and in order to rule out any accusation of violence on accused-appellant on the part of the NBI agents, Atty. Sacaguing ordered a medical examination of accused-appellant.[32] The Medico-Legal Officer found contusions on accused-appellants left periumbilical region, right elbow, left and right forearms and right leg.[33] That same afternoon, before the close of office hours, accusedappellant was brought to the Department of Justice for inquest.[34] However, accused-appellant moved that a preliminary investigation be conducted, and signed a waiver of the provisions of Article 125 of the Revised Penal Code. Hence, he was detained at the NBI.[35] On September 29, 1993, armed with a search warrant,[36] the NBI agents conducted a search of the condominium unit of accusedappellant. They recovered hair strands from underneath the rubber mat and rugs inside accused-appellants bathroom.[37] In accused-appellants bedroom, they found bloodstains on the bedspread and covers. They also found a pair of Topsider shoes with bloodstains, a bottle of Vicks Formula 44 cough syrup, and some more hair strands on the lampshade.[38] Later that day, Demetrio Ravelo accompanied some NBI agents to retrace the route he took with accused-appellant going to Bataan, with the objective of retrieving the items thrown away by accused-appellant. They were able to recover a violet bag, one brown sandal and a shirt with violet and green floral prints,[39] which were brought to the NBI office. Amelia Santos Villadiego, Elsas sister, was summoned to identify the items. [40] In the meantime, Caroline Y. Custodio, Supervising Forensic Biologist of the NBI, who conducted comparative examinations between the hair specimens found in accused-appellants bathroom and hair samples taken from the victim while she lay in state, found that the questioned hair specimen showed similarities to the hair taken from the victim.[41] Custodio further reported that the bloodstains on the bed cushion cover, bedspread and Topsider shoes, all found inside accusedappellants bedroom, gave positive results for human blood, showing reactions of Group B.[42] The bloodstains on the plywood board taken from accused-appellants vehicle were also examined and found to give positive results for human blood showing reactions of Group B. [43] On the other hand, the examination of blood taken from the victim likewise showed reactions of Group B.[44] Dr. Ronaldo B. Mendez, the Medico-Legal Officer who conducted the autopsy, concluded that the cause of death of Elsa Santos Castillo were stab wounds.[45] Dr. Mendez found one stab wound on the right breast which penetrated the right lung. He also found two stab wounds under the left breast which penetrated the diaphragm and abdominal

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cavity, and also penetrated the right portion of the liver.[46] More particularly, the autopsy yielded the following postmortem findings: Body in moderately advanced stage of decomposition. Head, decapitated, level above 4th cervical vertebra; both hands severed cutting completely the lower ends of both radius and ulna; both legs, disarticulated at knee joints and cut-off with both patellar bones, missing; both feet, disarticulated at the ankle joints and cut-off; all soft tissues of both thighs and perineum, removed, exposing completely the femoral bones and partially the pelvic bone, Incised wounds: 19.5 cms., left axillary area; 55.0 cms., thoracoabdominal area, along median line, with the abdominal incision involving the whole thickness and the thoracic incision involving the soft tissues and cutting the sternum from the xiphoid process up to the level of the third cartilage; from the 3rd cartilage up to the lower border of the neck. Abdominal organs, removed from the abdominal cavity. Contusions: 26.0 x 16.5 cms., face, more on the left side involving the forehead, temporal, nasal, orbital and maxillary areas; 25.0 x 11.0 cms., deltoid area, extending down to the upper 2/3, arm, left. Incised Wound, 3.0 cms., neck area, along anterior median line. Hematoma, scalp, massive, temporo-parietal, left. Steve, STAB WOUNDS: 1. 1.8 cms., elliptical, clean-cut edges, oriented obliquely with sharp infero-lateral extremity and blunt supero-medial extremity, located at the mammary area, right; 3.0 cms., from the anterior median line, directed backwards, downwards and laterally, involving the soft tissues, cutting completely the 4th cartilage, right side, into the right thoracic cavity, penetrating the lower of the right lung with an approximate depth 8.5 cms. 2. 0.8 cm., elliptical, clean-cut edges, oriented almost vertically, with sharp inferior extremity and blunt superior extremity, located at the inframammary area, left, 1.1 cms., from the anterior median line, directed backwards, downwards and medially, involving the soft tissues only with an approximate depth of 2.0 cms. 3. 2.0 cms., elliptical, clean-cut edges, oriented obliquely, with sharp infero-lateral extremity and blunt supero-medial extremity, located at the inframammary area, left, 2.2 cms., from the anterior median line, directed backwards, downwards, and from left to right, involving the soft tissues, into the left thoracic cavity, perforating the diaphragm, into the abdominal cavity, penetrating the right lobe of the liver with an approximate depth 10.0 cms. Brain, markedly softened and reduced to grayish white, pultaceous mass. Other visceral organs, putrified, Stomach is almost empty. CAUSE OF DEATH: --- STAB WOUNDS.[47] In his defense, accused-appellant alleged that he stayed home on September 23, 1993 because he was not feeling well. He denied that he asked Demetrio Ravelo to fetch Elsa. He refuted Demetrios testimony that accused-appellant asked him to buy cigarettes, or that accusedappellant told him to go home at 5:00 p.m.. Rather, accused-appellant maintained that he did not see Demetrio at any time in the afternoon of September 24, 1993.[48] On September 25, 1993, accused-appellant alleged that he was feeling better, hence, told Demetrio that they were to leave for Bagac, Bataan that afternoon. They left the condominium at about 1:00 to 1:30 p.m. and proceeded straight to Bagac. When they arrived at Bagac, accused-appellant went straight to the kitchen and met his mother, father, aunt and grandmother. Demetrio got the things out of the car and then asked accused-appellants permission to take the car to go to the town.[49] Ang kay Pedro kay Pedro. Kapag pinakialaman ay kay San Pedro ang tungo. Mahal mo ba ang pamilya mo? Iniingatan mo ba ang pangalan mo? Nakakasagasa ka na.[56] At first, accused-appellant ignored the letters. But when he told Elsa about them, she got very upset and worried. She said the letters came from Fred, her estranged husband.[57] Ms. Frances Sison, accused-appellants aunt, testified that she and her mother visited accused-appellant at 3:00 p.m. on September 23, 1993. She went inside the bedroom and talked to accused-appellant for about 30 minutes. While they were there, Ms. Sison testified that she did not see anyone else in the bedroom. She also said the door of the bathroom inside the room was open, and there was nobody inside. The next day, at 4:00 p.m., she went back to visit accused-appellant. Again, they went inside accused-appellants bedroom and stayed there for one hour. The door of the bathroom was open, and she saw that there was nobody inside. The following morning, they passed by the condominium before proceeding to Bagac, Bataan. They went inside accusedappellants bedroom and talked to him. As in the last two occasions, Ms. Sison saw through the open door of the bathroom that there was no one inside.[58] Theresa Whisenhunt, accused-appellants sister-in-law, testified that between December 21, 1991 and January 15, 1992, and again from the middle of April, 1992 to May 15, 1992, she slept in the bedroom subsequently occupied by accused-appellant in the Platinum Condominium; that she regularly has her menstruation around the end of every month; and that her blood type is B.[59] On January 31, 1996, the trial court promulgated the appealed judgment, convicting accused-appellant of the crime of murder, sentencing him to suffer the penalty of reclusion perpetua, and ordering him to pay the heirs of the deceased actual damage, moral damages, exemplary damages and attorneys fees. [60] Accused-appellant interposed an appeal from the adverse decision of the trial court, alleging that: I. THE LOWER COURT ERRED IN CONVICTING ACCUSED OF THE CRIME CHARGED; II. THE LOWER COURT ERRED IN FINDING THAT THE PROSECUTION WAS ABLE TO PRESENT ENOUGH CIRCUMSTANTIAL EVIDENCE TO SUPPORT THE CONCLUSION THAT THE ACCUSED IS GUILTY OF THE CRIME CHARGED; III THE LOWER COURT ERRED IN REJECTING, DISREGARDING AND/OR NOT GIVING CREDENCE TO THE DEFENSE OF THE ACCUSED.[61] Accused-appellants mother, Mrs. Nieves Whisenhunt, testified that accused-appellant arrived at their beach house in Bagac, Bataan on September 25, 1993 at 5:00 p.m. At 7:00 the next morning, she saw accused-appellant clad in beach attire. Later that day, she and her husband had lunch at the clubhouse, which was about three to four minutes drive from their house. When they returned home at 2:00 p.m., accused-appellant and his driver, Demetrio, had already left.[50] This was corroborated by accused-appellants aunt, Ms. Frances Sison.[51] Accused-appellant claimed that he went jet-skiing in the morning of September 25, 1993. He alleged that the water was choppy and caused his jet-ski to lose control. As a result, he suffered bruises on his chest and legs. Thereafter, he went home, cleaned up, changed clothes and rested. Later, as he was going down the stairs, he slipped and extended his arm to stop his fall. He had lunch with this family. At 1:30 p.m., he and Demetrio left Bagac for Manila.[52] According to accused-appellant, he first learned of Elsas death when he was arrested by the NBI on September 28, 1993.[53] He denied having anything to do with her death, saying that he had no reason to kill her since he was in love with her.[54] Sometime during his relationship with Elsa, he claimed having received in the mails two anonymous letters. The first one reads: Salamat sa pagpapahiram mo ng sasakyan at driver. Pero masyado kang pakialamero, Steve. Walanghiya ka. Para kang demonyo. Pinakialaman mo ang di sa yo. Lintik lang ang walang ganti. Matitiyempuhan din kita. Putang ina mo.[55] The second letter says:

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Much of the evidence on accused-appellants complicity was elicited from Demetrio Ravelo, the so-called prosecution star witness.[62] On the premise that accused-appellants guilt or innocence depends largely on the weight of his testimony, this Court has carefully scrutinized and examined his version of the events, and has found that Demetrio Ravelos narrative is both convincing and consistent in all material points. Before accused-appellant confessed to Demetrio Ravelo what had happened to Elsa Castillo, he first asked the latter how long he was willing to work for him, and how far his loyalty will go. This was logical if accused-appellant wanted to ensure that Demetrio would stand by his side after learning what he was about to reveal. More importantly, Demetrios description of Elsas dismembered body, as he found it in accused-appellants bathroom, perfectly jibed with the appearance of the mutilated body parts, as shown in the photographs presented by the prosecution.[63] Likewise, the mutilated body parts, as well as the other items thrown by accused-appellant along the road to Bataan, were found by the NBI agents as Demetrio pointed, which confirms that, indeed, the latter witnessed how accused-appellant disposed of Elsas body and personal belongings one by one. All in all, the testimony of Demetrio Ravelo bears the ring of truth and sincerity. The records show that he did not waver even during lengthy and rigorous cross-examination. In fact, the trial court gave full faith and credit to his testimony, stating: The Court had opportunity to observe the demeanor of Demetrio Ravelo when he took the witness stand on several occasions. He was extensively cross-examined by one of the defense counsel and he withstood the same creditably. Demetrio Ravelo is a very credible witness and his testimony is likewise credible.[64] This Court has consistently ruled that factual findings of the trial court deserve the highest respect. This is based on the fact that the trial judge is in the best position to assess the credibility of the witnesses who appeared before his sala as he had personally heard them and observed their deportment and manner of testifying during the trial.[65] Especially, where issues raised involve the credibility of witnesses, t he trial courts findings thereon will not be disturbed on appeal absent any clear showing that it overlooked, misunderstood or misapplied some facts, or circumstances of weight or substance, which could have affected the result of the case.[66] Succinctly put, findings of fact of the trial court pertaining to the credibility of witnesses command great weight and respect since it had the opportunity to observe their demeanor while they testified in court.[67] Perhaps more damning to accused-appellant is the physical evidence against him. The findings of the forensic biologist on the examination of the hair samples and bloodstains all confirm Elsas death inside accused-appellants bedroom. On the other hand, the autopsy report revealed that Elsa was stabbed at least three times on the chest. This, taken together with Demetrios testimony that accused appellant kept the kitchen knife inside his bedroom on September 24, 1993, leads to the inescapable fact that accused-appellant stabbed Elsa inside the bedroom or bathroom. Physical evidence is a mute but eloquent manifestation of truth, and it ranks high in the hierarchy of our trustworthy evidence.[68] For this reason, it is regarded as evidence of the highest order. It speaks more eloquently than a hundred witnesses.[69] While it may be true that there was no eyewitness to the death of Elsa, the confluence of the testimonial and physical evidence against accused-appellant creates an unbroken chain of circumstantial evidence that naturally leads to the fair and reasonable conclusion that accusedappellant was the author of the crime, to the exclusion of all others. Circumstantial evidence may be resorted to in proving the identity of the accused when direct evidence is not available, otherwise felons would go scot-free and the community would be denied proper protection. The rules on evidence and jurisprudence sustain the conviction of an accused through circumstantial evidence when the following requisites concur: (1) there must be more than one circumstance; (2) the inference must be based on proven facts; and (3) the combination of all circumstances produces a conviction beyond doubt of the guilt of the accused.[70] In the case at bar, the following circumstances were successfully proven by the prosecution without a shadow of doubt, to wit: that Elsa Santos Castillo was brought to accused-appellants condominium unit on September 23, 1993; that on September 24, 1993, accused-appellants housemaid was looking for her kitchen knife and accused-appellant gave it to her, saying that it was in his bedroom; that on September 25, 1993, accused-appellant and Demetrio Ravelo collected the dismembered body parts of Elsa from the bathroom inside accused-appellants bedroom; that accused-appellant disposed of the body parts by a roadside somewhere in San Pedro, Laguna; that accused-appellant also disposed of Elsas personal belongings along the road going to Bagac, Bataan; that the mutilated body parts of a female cadaver, which was later identified as Elsa, were found by the police and NBI agents at the spot where Demetrio pointed; that hair specimens found inside accused-appellants bathroom and bedroom showed similarities with hair taken from Elsas head; and that the bloodstains found on accused-appellants bedspread, covers and in the trunk of his car, all matched Elsas blood type. Accused-appellant makes capital of the fact that the Medico-Legal Officer, Dr. Mendez, did not examine the pancreas of the deceased notwithstanding Demetrios statement that, according to accusedappellant, Elsa died of bangungot, or hemorrhage of the pancreas. Because of this, accused-appellant insists that the cause of death was not adequately established. Then, he relied on the controverting testimony of his witness, lawyer-doctor Ernesto Brion, who was himself a Medico-Legal Officer of the NBI for several years, to the effect that the autopsy report prepared by Dr. Mendez was unreliable and inconclusive. The trial court noted, however, that Dr. Brion was a biased witness whose testimony cannot be relied upon because he entered his appearance as one of the counsel for accused-appellant and, in such capacity, extensively cross-examined Dr. Mendez. Accused-appellant counters that there is no prohibition against lawyers giving testimony. Moreover, the trial courts ruling would imply that lawyers who testify on behalf of their clients are presumed to be lying. By rejecting the testimony of Dr. Brion, the trial court did not mean that he perjured himself on the witness stand. Notably, Dr. Brion was presented as expert witness. His testimony and the questions propounded on him dealt with his opinion on the probable cause of death of the victim. Indeed, the presentation of expert testimony is one of the well-known exceptions to the rule against admissibility of opinions in evidence.[71] In like manner, Dr. Mendez was presented on the stand to give his own opinion on the same subject. His opinion differed from that of Dr. Brion, which is not at all unusual. What the trial court simply did was to choose which --- between two conflicting medico-legal opinions --was the more plausible. The trial court correctly lent more credence to Dr. Mendezs testimony, not only because Dr. Brion was a biased witness, but more importantly, because it was Dr. Mendez who conducted the autopsy and personally examined Elsas corpse up close. In any event, the foregoing does not detract from the established fact that Elsas body was found mutilated inside accused -appellants bathroom. This clearly indicated that it was accused-appellant who cut up Elsas body to pieces. Naturally, accused-appellant would be the only suspect to her killing. Otherwise, why else would he cut up Elsas body as if to conceal the real cause of her death? As already stated above, Demetrios testimony was convincing. Accused-appellant attempts to refute Demetrios statements by saying that he had repeatedly reprimanded the latter for discourteous and reckless driving, and that he had already asked the latter to tender his resignation. Thus, accused-appellant claims that Demetrio imputed Elsas death on him in order to get back at him. This Court finds the cruel treatment by an employer too flimsy a motive for the employee to implicate him in such a gruesome and hideous crime. Rather than entertain an accusation of ill-motive and bad faith on Demetrio Ravelo, this Court views his act of promptly reporting the incident to his family and, later, to the authorities, as a genuine desire to bring justice to the cruel and senseless slaying of Elsa Santos Castillo, whom he knew well. Accused-appellant also argues that his arrest was without a warrant and, therefore, illegal. In this regard, the rule is settled that any objection involving a warrant of arrest or procedure in the acquisition by the court of jurisdiction over the person of an accused must be made before he enters his plea, otherwise the objection is deemed waived.[72] In other words, it is too late in the day for accused-appellant to raise an issue about his warrantless arrest after he pleaded to a valid information and after a judgment of conviction was rendered against him after a fullblown trial. Accused-appellant presented in evidence two supposedly threatening letters which, according to Elsa, were written by the latter s husband. There is nothing in these letters which will exculpate accusedappellant from criminal liability. The threats were directed at accusedappellant, not Elsa. The fact remains that Elsa was last seen alive in accused-appellants condominium unit, and subsequently discovered dead in accused-appellants bathroom. Surely, the place where her dead body was found does not support the theory that it was Fred Castillo who was probably responsible for her death. We do not agree with the trial court that the prosecution sufficiently

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proved the qualifying circumstance of abuse of superior strength. Abuse of superiority is present whenever there is inequality of forces between the victim and the aggressor, assuming a situation of superiority of strength notoriously advantageous for the aggressor and selected or taken advantage of by him in the commission of the crime.[73] The fact that the victim was a woman does not, by itself, establish that accused-appellant committed the crime with abuse of superior strength. There ought to be enough proof of the relative strength of the aggressor and the victim.[74] Abuse of superior strength must be shown and clearly established as the crime itself.[75] In this case, nobody witnessed the actual killing. Nowhere in Demetrios testimony, and it is not indicated in any of the pieces of physical evidence, that accused-appellant deliberately took advantage of his superior strength in overpowering Elsa. On the contrary, this Court observed from viewing the photograph of accused-appellant[76] that he has a rather small frame. Hence, the attendance of the qualifying circumstance of abuse of superior strength was not adequately proved and cannot be appreciated against accused-appellant. However, the other circumstance of outraging and scoffing at the corpse of the victim was correctly appreciated by the trial court. The mere decapitation of the victims head constitutes outraging or scoffing at the corpse of the victim, thus qualifying the killing to murder.[77] In this case, accused-appellant not only beheaded Elsa. He further cut up her body like pieces of meat. Then, he strewed the dismembered parts of her body in a deserted road in the countryside, leaving them to rot on the ground. The sight of Elsas severed body p arts on the ground, vividly depicted in the photographs offered in evidence, is both revolting and horrifying. At the same time, the viewer cannot help but feel utter pity for the sub-human manner of disposing of her remains. In a case with strikingly similar facts, we ruled: Even if treachery was not present in this case, the crime would still be murder because of the dismemberment of the dead body. One of the qualifying circumstances of murder under Article 248, par. 6, of the Revised Penal Code is outraging or scoffing at (the) person or corpse of the victim. There is no question that the corpse of Billy Agotano was outraged when it was dismembered with the cutting off of the head and limbs and the opening up of the body to remove the intestines, lungs and liver. The killer scoffed at the dead when the intestines were removed and hung around Victorianos neck as a necklace, and the lungs and liver were facetiously described as pulutan.[78] Hence, the trial court was correct in convicting accused-appellant of the crime of murder, qualified by outraging and scoffing at the victims person or corpse.[79] This circumstance was both alleged in the information and proved during the trial. At the time of its commission, the penalty for murder was reclusion temporal maximum to death.[80] No aggravating or mitigating circumstance was alleged or proved; hence, the penalty shall be imposed in its medium period.[81] Therefore, the trial courts imposition of the penalty of reclusion perpetua was correct, and need not be modified. However, the damages awarded by trial court should be modified. Elida Santos, Elsas sister, testified that the funeral expenses was only P50,000.00.[82] Hence, the trial court erred when it awarded the amount of P100,000.00. Basic is the jurisprudential principle that in determining actual damages, the court cannot rely on mere assertions, speculations, conjectures or guesswork but must depend on competent proof and on the best obtainable evidence of the actual amount of the loss. Actual damages cannot be presumed but must be duly proved with reasonable certainty.[83] The award of moral damages in murder cases is justified because of the physical suffering and mental anguish brought about by the felonious acts, and is thus recoverable in criminal offenses resulting in death.[84] It is true that moral damages are not intended to enrich the victims heirs or to penalize the convict, but to obviate the spiritual sufferings of the heirs.[85] Considering, however, the extraordinary circumstances in the case at bar, more particularly the unusual grief and outrage suffered by her bereaved family as a result of the brutal and indecent mutilation and disposal of Elsas body, the moral damages to be awarded to them should be more than the normal amount dictated by jurisprudence. However, the amount of P3,000,000.00 awarded by the trial court as moral damages is rather excessive. The reasonable amount is P1,000,000.00 considering the immense sorrow and shock suffered by Elsas heirs. The award of attorneys fees of P150,000.00 was duly proved, [86] and thus should be affirmed. Finally, the heirs of Elsa Santos Castillo should be indemnified for her death. In murder, the civil indemnity has been fixed by jurisprudence at P50,000.00. The grant of civil indemnity in murder requires no proof other than the fact of death as a result of the crime and proof of accusedappellants responsibility therefor. [87] WHEREFORE, the decision of the Regional Trial Court of Pasig City, Branch 152, in Criminal Case No. 102687, finding accused-appellant guilty beyond reasonable doubt of murder, and sentencing him to suffer the penalty of reclusion perpetua, is AFFIRMED with the following MODIFICATIONS: Accused-appellant is ORDERED to pay the heirs of Elsa Santos Castillo actual damages in the amount of P50,000.00; civil indemnity in the amount of P50,000.00; moral damages in the amount of P1,000,000.00; exemplary damages in the amount of P1,000,000.00; and attorneys fees in the amount of P150,000.00. Costs against accusedappellant. SO ORDERED. Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur. D I G E S T (INCOMPLETE) FACTS: On November 19, 1993, accused-appellant was formally charged withthe murder of Elsa Santos-Castillo. During the trial the following circumstanceswere successfully proven by the prosecution without a shadow of doubt, to wit:that Elsa Santos Castillo was brought to accusedappellants condominium unit on September 23, 1993; that on September 24, 1993, accusedappellants housemaid was looking for her kitchen knife and accused-appellant gave it toher, saying that it was in his bedroom; that on September 25, 1993, accused-appellant and Demetrio Ravelo collected the dismembered body parts of Elsafrom the bathroom inside accusedappellants bedroom; that accused -appellant disposed of the body parts by a roadside somewhere in San Pedro,Laguna; that accusedappellant also disposed of Elsas personal belongings along the road going to Bagac, Bataan; that the mutilated body parts of afemale cadaver, which was later identified as Elsa, were found by the policeand NBI agents at the spot where Demetrio pointed; that hair specimens foundinside accusedappellants bathroom and bedroom showed similarities with hair taken from Elsas hea d; and that the bloodstains found on accusedappellantsbedspread, covers and in the trunk of his car, all matched Elsas blood type. OnJanuary 31, 1996, the trial court promulgated the appealed judgment,convicting accused-appellant of the crime of murder, sentencing him to suffer the penalty of reclusion perpetua , and ordering him to pay the heirs of thedeceased actual damage, moral damages, exemplary damages and attorneys fees .ISSUE: Whether or not the trial court is correct in appreciating the crime to bemurder with qualifying circumstances of abuse of superior strength andoutraging and scoffing a t the victims person or corpse? HELD: Abuse of superiority is present whenever there is inequality of forcesbetween the victim and the aggressor, assuming a situation of superiority ofstrength notoriously advantageous for the aggressor and selected or takenadvantage of by him in the commission of the crime. The fact that the victimwas a woman does not, by itself, establish that accused-appellant committedthe crime with abuse of superior strength. There ought to be enough proof of therelative strength of the aggressor and the victim. Abuse of superior strength mustbe shown and clearly established as the crime itself. In this case, nobodywitnessed the actual killing. N owhere in Demetrios testimony, and it is notindicated in any of the pieces of physical evidence, that accused-appellantdeliberately took advantage of his superior strength in overpowering Elsa. Onthe contrary, this Court observed from viewing the photograph of accused-appellant that he has a rather small frame. Hence, the attendance of the