November 20, 1978

G.R. No. L-30117

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FAUSTO DAMASO, LORENZO ALVIAR alias ORING, defendant-appellant.
Carlos, Valdez, Ibarra & Caunan Law Offices for appellants. Solicitor General Felix Q.
Antonio, Acting Assistant Solicitor General Dominador L. Quiroz and Solicitor Concepcion
T. Agapinan for appellees.
, J.:
The penalty of death imposed on Fausto Damaso, Victoriano Eugenio Lorenzo Alviar and
Bonifacio Espejo by the Court of First Instance of Tarlac in its Criminal Case No. 2253 for
"robbery with double homicide" is now before this Court on automatic review together with
a related case No. 2293 "for illegal possession of firearm and ammunition" involving only
the accused, Lorenzo Alviar.
The Information in Criminal Case No. 2253 charged the accused therein of "robbery with
double homicide" alleged to have been committed as follows:
That on or about the 21st day of November, 1959, at nighttime, in the Municipality of
Victoria, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court,
the above named accused, four of whom are armed with a scythe and firearms, namely:
Fausto Damaso with a rifle, springfield Cal. 30, Victoriano Eugenio with a paltikCal. 12 ga.,
Estanislao Gregorio with a scythe, and Lorenzo Alviar with a paltik Cal. 22, confederating,
conspiring, helping and aiding one another, by means of force, violence, threats and
intimidation upon the persons of Donata Rebolledo, Victoriano de la Cruz and Susana
Sabado, did then and there, willfully, unlawfully and feloniously, with intent to gain, take,
steal and carry away with them the following.
PROPERTY OF DONATA REBOLLEDO:
One jacket valued atP25.00
One necklace valued at 50.00
One earring valued at25.00
One ring valued at 15.00
One hat valued at 5.00
Three scythes valued at. 3.60
A document valued at 2.30
Total.P125.90
PROPERTY OF VICTORIANO DE LA CRUZ
Cash money in the amount of</TD>P15.00
PROPERTY OF SUSANA SABADO:
Cash money in the amount of 15.00
Ten bottles of liquor Bicolana;
Six bottles of Cana Rum;
One dozen Ligo Sardines;
One dozen Eatwell Sardines;
Six packages of Golden Star cigarettes;
three packages of cigarettes (Inyog);
and four packages of cigarettes
(La Ventaja) with a total value of.P21.02

to the damage and prejudice of the said owners in the respective amounts of P125.90,
P15.00 and P36,02, Philippine currency; that the said accused, on the occasion of the
commission of the crime above-mentioned, held and brought Catalina Sabado and Susana
Sabado, daughters of the said Donata Rebolledo, to a sugarcane field which is a secluded
and uninhabited place, at Barrio Bangar, Victoria, Tarlac, and once there and after tying
together the respective forearms of the said Catatina Sabado and Susana Sabado, in
pursuance of their concerted conspiracy, by means of force and grave abuse of superior
strength, the said accused did then and there, willfully, unlawfully and feloniously, stab the
said Catalina Sabado and Susana Sabado on different parts of their body and cut their
necks with a sharp pointed instrument (scythe), as a result of which the latter died
instantly. That in the commission of the crime above mentioned, there concurred the
aggravating circumstances of (1) abuse of superior strength, (2) nighttime, (3)
uninhabited place, (4) by a band, (5) treachery, and (6) disregard of sex. (pp. 116-117,
rollo)
In Criminal Case No. 2293 Lorenzo Alviar was also charged of illegal possession of firearm
and ammunition, viz.That on or about November 24, 1959, in the Municipality of Victoria, Province of Tarlac,
Philippines, and within the jurisdiction of this Honorable Court, the above named accused,
without authority of law, did then and there, willfully, unlawfully and feloniously have in his
posssession and under his control a firearm, to wit; a paltikrevolver caliber 22 with eight
(8) rounds of ammunition, without first obtaining the corresponding license or permit to
keep and possess the same. (pp. 117-118, Ibid.)
The two cases were jointly heard by the trial court. In a joint decision rendered on
December 10, 1968, by then Presiding Judge, Hon. Arturo B. Santos, all the accused were
found guilty as charged. In Criminal Case No. 2253 (robbery with double homicide) the
accused Fausto Damaso, Lorenzo Alviar, Bonifacio Espejo and Victoriano Eugenio were
each sentenced to suffer the "penalty of death, to indemnify the legal heirs of the victims,
Catalina Sabado and Susana Sabado, jointly and severally in the amount of P12,000.00 for
each of the victims, plus the sum of P15,00 which was the money taken by the accused,
and to pay the costs, share and share alike." One of the accused, Estanislao Gregorio, was
no longer included in the sentence because he died on April 6, 1967 while the cases were
still undergoing trial. In Criminal Case No. 2293, accused Lorenzo Alviar was sentenced "to
three years imprisonment and to pay the costs," 1 The evidence of the prosecution as
found by the trial court establish the following incidents: 2 Donata Rebolledo and her sonin-law, Victoriano de la Cruz were residents of Barrio Bangar, municipality of Victoria,
province of Tarlac. At about 9 o'clock in the evening of November 21, 1959, Donata and
Victoriano heard the barkings of dogs outside their house. Shortly, two men armed with
guns, entered, pointed their weapons at them, tied up the hands of Victoriano, covered
him with a blanket and asked Donata for the wereabouts of her daughter Catalina Sabado.
Stricken by fear, Donata kept silent and blocked the door leading to her daughter's room
but was promptly pushed aside. Donata was then ordered to open an "aparador" from
which the two men took valuables like jewelry, clothing, documents, and cutting
instruments. All the while, Donata and Victoriano could hear the movements and voices of
some three to four other persons beneath the house. The two men brought Catalina
Sabado down from the house and then asked where they could find Susana Sabado,
Donata's other daughter who was then in her store located about five meters away in the
same house. Thereafter, Donata heard the men opening the door to Susana's store. After
several minutes, feeling that the intruders had left, Donata untied the hands of Victoriano

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

of the house; that he was then armed with a 12- gauge paltik, Damaso with a
caliber.22 paltikrevolver, Alviar with a Springfield caliber .30 rifle, Gregorio with a reaping
knife and Espejo with two stones; and that he was with the group that night because at
about 7 o'clock in the evening, Gregorio dropped by his house and invited him
to Barrio Bangar where the crime was committed. In his separate statement (Exhibit "Q"),
Estanislao Gregorio narrated that in the afternoon of November 21, 1959, his four coaccused came and informed him of a plan to rob the Sabado sisters, to which plan he
agreed; that Damaso and Eugenio went up Donata Rebolledo's house, got P15 in cash and
brought out Catalina and Susana by force; that he stabbed and cut the throats of the
victims with all his co-accused present; that Eugenio held Catalina while Damaso held
Susana as he killed them both with a reaping knife; that the two women were killed
because they had recognized Eugenio and Damaso and might testify against them in
court; that during the commission of the crime, his only weapon was a reaping knife while
Alviar was carrying a caliber .22 paltik revolver, Damaso, a Springfield caliber .30 rifle,
Eugenio a 12-gauge single shot paltik and Espejo was unarmed. Exhibit "N" is Bonifacio
Espejo's sworn statement. Here he declared that he happened to be with the group
because Damaso and Eugenio invited him to Barrio Bangar and they dropped by the
houses of Alviar and Gregorio before actually proceeding to the barrio; that they had a
previous agreement to commit the crime; that they planned the same in a lot owned by a
certain Don Juan Garcia in Barrio Bangar; that it was Damaso and Eugenio who entered
Donata Rebolledo's house while he, Alviar and Gregorio were left downstairs to keep
watch; that they were able to get P15 from the house; that it was Gregorio who actually
killed the two women; and that Damaso and Eugenio were armed with a 12gauge paltik and another long arm the caliber of which he did not know; that Alviar had a
caliber .22 paltik revolver, Gregorio a knife and he had two big stones. Substantially
similar were the admissions of Lorenzo Alviar in his sworn statement (Exhibit "R"). He
likewise declared that he and his co-accused took P15 from the house of the victims; that
it was Gregorio who stabbed and cut the throats of the victims with a reaping knife; that
the killing was done in a sugarcane plantation between 10:00 and 11:00 o'clock in the
evening of November 21, 1959; that Catalina was killed before Susana; that he was armed
with a caliber .22 paltik revolver, Eugenio with a single shot, 12-gauge paltik, Damaso with
a Springfield caliber .30 rifle and Espejo with two stones. He claimed, however, that he
was only forced and intimidated by his co-accused to join the group. At the trial, the five
accused set up the defense of alibiand repudiated their respective sworn statements
alleging that these were obtained from them through duress, force and intimidation.
Instances of the use of third degree methods like boxing, pouring of "7-up" into the
nostrils, stripping of clothes, pricking of the penis, kicking and slapping of the ears were
narrated by the accused on the witness stand, all of which were not believed by the trial
court. The accused-appellants are here represented by a counsel de oficio, Atty. Clemente
A. Madarang, Jr., who filed an exhaustive brief for the accused. Taken as a whole, the
assigned errors boil down to the question of credibility and sufficiency of the evidence to
sustain the conviction of appellants for the special complex crime of robbery with double
homicide. It is argued that (a) there is no evidence of the alleged robbery; (b) that the
homicide was not committed by reason or on occasion of the robbery; and (c) that the
crime was not attended by the aggravating circumstances of armed band, treachery and
uninhabited place. There is no merit to appellants' submittal. 1. That robbery was
committed is evident from the declaration of prosecution witness Donata Rebolledo who
testified that the two men who barged into her house, one of whom she recognized as

21

Fausto Damaso, ordered her to open her "aparador" and then they took therefrom the
following items with their respective values a jacket-P25; a necklace P50; earrings - P25;
a ring-P15; a hat-P5; scythes-P3.60; and documents worth P2.30. 3 Moreover the
appellants admitted in their separate statements that they were able to get P15 from
Donata's house. On this point, We agree with the Solicitor General that it matters not from
what part of the house the accused got the P15. What is important is that the culprits
carried away personal property belonging to another by the use of force, intimidation or
violence. 4 2. Counsel points out that because there was a motive, at least on the part of
Gregorio, for the killing of the Sabado sisters, the double homicide could not have been
"committed by reason or on occasion of the robbery" as the law contemplates. He calls
Our attention to the sworn statement wherein Fausto Damaso declared that Gregorio killed
Catalina and Susana because Catalina bought a carabao from him and did not pay for it.
Harping further on this motive theory, counsel mentions such circumstances as why the
accused specifically asked for Catalina and Susana upon entering Donata Rebolledo's
house and why Donata and Victoriano were not killed together with the sisters if the
purpose was to remove all opposition to the robbery or to eliminate witnesses thereto. As
to Damaso's declaration, it should be noted that Damaso himself, in his subsequent sworn
statement, changed his motive theory and stated that the victims were killed in order to
eliminate witnesses to the crime. This was corroborated by Gregorio in the latter's own
written confession. Even assuming, however, that such a motive for vengeance existed on
the part of Gregorio, it does not necessarily exclude the fact that he and co-accused also
intended, when they went to Donata's house that night, to rob the family. In a complex
crime of robbery with homicide, while an intent to commit robbery must precede the
taking of human life, the fact that the intent of the culprit was tempered with a desire also
to avenge grievances against the person killed does not prevent the punishment of the
accused for the complex crime. 5 3. Counsel for appellants also argues that the trial court
erred in its appreciation of the aggravating circumstances of armed band, treachery and
uninhabited place. The aggravating circumstance of band exists whenever more than three
armed malefactors act together in the commission of an offense. 6 Counsel concedes that
at least three of the accused-appellants, namely Eugenio, Alviar, and Gregorio, ,were
armed during the commission of the crime. He doubts, however, whether accused Damaso
carried any weapon and whether the "two stones" carried by accused Espejo fall under the
category of "arms." But even granting that Espejo's stones do not constitute arms, the
prosecution presented the following evidence to show that Damaso was also armed and,
as such, there were more than three of the accused who were armed: (1) that
extrajudicial confession of Damaso himself (Exhibit "P") that he was carrying a caliber .
22 paltik revolver; (2) the sworn statement of accused Eugenio (Exhibit "O") that Damaso
had a caliber .22 paltikrevolver; (3) the separate written confessions of Alviar, Gregorio
and Espejo (Exhibits R, Q, and "N") that Damaso had a caliber .30 Springfield rifle; and
(4) the testimonies of Donata Rebolledo and Victoriano de la Cruz that both men who
entered their house (one of whom they later Identified as Damaso) were carrying
firearms. It is clear from the above, that Damaso was armed during the night of the
commission of the crime, and it is immaterial what kind of firearm he carried, the only
important thing being that he was armed. In this case, the presence of an armed band is
to be considered as a generic aggravating circumstance under Article 14(6) of the Revised
Penal Codeinasmuch as the crime committed was that provided for and penalized in Article
294, paragraph 1 and not under Article 295, Revised Penal Code (see People v. Apduhan,
Jr., per Justice, now Chief Justice Fred Ruiz Castro, 24 SCRA 798) Treachery is present if

the victim is killed while bound in such a manner as to be deprived of the opportunity to
repel the attack or escape with any possibility of success. 7 The fact that the bodies of
Catalina and Susana were found dead with their arms tied behind their backs as well as
the admission of Gregorio in his confession (Exhibit "Q") that he killed the sisters while
their arms were held by Eugenio and Damaso lead Us to conclude that the killing of the
two women was done under treacherous circumstances. Anent the circumstances of
uninhabited place, counsel disclaims its existence by pointing to the proximity of the
sugarcane field where the victims were killed to the national highway as well as to certain
houses in the barrio. The uninhabitedness of a place is determined not by the distance of
the nearest house to the scene of the crime, but whether or not in the place of
commission, there was reasonable possibility of the victim receiving some help. 8
Considering that the killing was done during nighttime and the sugarcane in the field was
tall enough to obstruct the view of neighbors and passersby, there was no reasonable
possibility for the victims to receive any assistance. That the accused deliberately sought
the solitude of the place is clearly shown by the fact that they brought the victims to the
sugarcane field although they could have disposed of them right in the house of Donata
Rebolledo where they were found. Thus, in People v. Saguing, the Court considered the
crime as having been committed in an uninhabited place because the killing was done in a
secluded place at the foot of a hill, forested, and uninhabited. 9 The trial court considered
separately the three circumstances of armed band, treachery and uninhabited place where
under other situations one may be considered absorbed or inherent in the other. There is
ample justification for this. The elements of each circumstance subsist independently and
can be distinctly perceived thereby revealing a greater degree of perversity on the part of
the accused. 4. In the third assignment of error, defense counsel assails the sufficiency of
the evidence for the prosecution. He urges that the extrajudicial confessions, having been
repudiated during the trial, are insufficient to sustain the trial court's judgment of
conviction, specially so since no direct evidence was introduced of any conspiracy or of the
involvement of appellants in the crime in question. Regarding this matter, the following are
strongly persuasive. First, the appellants' separate extrajudicial confessions were
subscribed and sworn to before Municipal Judge Conrado de Gracia of Paniqui, Tarlac. On
the witness stand, Judge de Gracia testified as to the authenticity and due execution of the
statements. He declared that before the statements were sworn to before him, he had the
appellants' PC escorts excluded from the room. He then took pains in translating and
explaining to the appellants the contents of their written statements and got their
assurance that such statements were freely and voluntarily made. 10 If it were true that
appellants were forced or intimidated into making the confessions, they could have easily
manifested before the judge that they did not voluntarily give the same. Certainly, they
could have then been afforded the necessary protection from any untoward incident that
could happen. Their failure there and then to air any injustice or misdeed committed upon
them belies their stories of maltreatment. Too, there is no credible proof of the alleged
maltreatment that they suffered in the hands of the police or other authorities as a result
of which they executed the confessions. Considering that repudiation of confessions comes
very easily, the same must be taken with a grain of salt. it occurs all too often that guilty
persons, after confession to crime, experience a change of heart and repudiate their
confessions in the hope of escaping liability. Secondly, there was the reenactment of the
robbery and the killings. The movements reconstructed by the appellants conform
substantially with the details set forth in their individual sworn statements. The
reenactment was done in the presence of people, including a photographer who had no

21

connection with the police or the prosecution. Fiscal Magin Ta?edo who was present during
the reenactment testified that the entire proceeding was spontaneous and free from
coercion. On several occasions, appellants, even corrected themselves in certain details.
Nobody directed the whole show except the appellants themselves. 11 Fiscal Ta?edo's
testimony was corroborated by photographer Manuel Gamalinda who also declared that
there was no dictation, violence, force or intimidation employed upon the appellants during
the reenactment. 12 Gamalinda also testified as to the authenticity of the pictures he took
during the reenactment, which the prosecution also submitted as evidence. 13 Again,
concerning the confessions, other circumstances are equally significant. Some of the
statements made, specifically the one of accused Alviar, were exculpatory in nature and
would not have been included had the confessant been coerced into making his
confession. Others cite plausible facts and details which only actual participants in the
crime could have known. Also, partial corroboration of appellants' statements are found in
the testimonies of Donata Rebolledo and Victoriano de la Cruz, more particularly, as to the
robbery. As such, the confessions, coupled by evidence of the corpus delicti the human
remains of Catalina and Susana Sabado, are sufficient bases for the trial court's
declaration of guilt. 5. With regards to the defense of alibi, We find no justifiable reason for
discarding the findings of the trial court on this matter. In People v. Berdida, et al., this
Court held that the defense of alibi is an issue of fact that hinges on credibility, which
depends much on the credibility of the witnesses who seek to establish it. In this respect
the relative weight which the trial judge assigns to the testimony of the witnesses must,
unless patently and clearly inconsistent with the evidence on record, be accepted. The
defense of alibi is worthless in the face of positive Identification by prosecution witnesses,
pointing to the accused as participants in the crime. (17 SCRA 520, citing People v.
Tansiangco, L-19448, February 28,1964; People v. Rivera, L-14077, March 31, 1964) 6. As
to conspiracy, the trial court's inference as to the existence of the same is well-founded
and is amply discussed in its decision. Said His Honor:
From the simultaneous and cooperative acts of the accused, the Court finds and so holds
that there was conspiracy among them. For conspiracy to exist, direct proof is not
essential The same may be inferred from the acts of the conspirators in the commission of
the offense. It is not essential that each conspirator takes part in every act or that he
should know the exact part to be performed by the others in the execution of the
conspiracy. Conspiracy merely implies concert of design and does not require participation
in every detail of execution. Neither is it necessary to show any previous plan or that the
parties should actually come together and agree in express terms in pursuing a common
design. It is sufficient if it is proved that the acts of the conspirators were in fact
connected and cooperative in accomplishing the unlawful object, thereby indicating a
closeness of personal association and concurrence of sentiments. In the case of the
accused herein, they got together and planned the criminal act shortly before its
execution; they proceeded together to the house of the victims and, while Damaso and
Eugenio went upstairs, the other accused stayed under the house as lookout; once inside
the house, the two asked and demanded for the victims, forcibly dragged them
downstairs, handed them to those waiting under the house and, together as a group, they
brought the victims to the sugarcane field and mercilessly stabbed them to death. Clearly,
there was a concert of acts among the accused aimed at one common design, and each
act was connected to and cooperative with the others.
The basic rule is that when conspiracy is established, like in the present case, the act of
one conspirator is imputable to the others and the criminal liability of each participant is

the same as those of the others. 7. On the matter of accused Lorenzo Alviar's conviction
for illegal possession of firearms in Criminal Case No. 2293, two errors are assigned. First,
that the trial court had no jurisdiction over the case because the same having been
previously filed before the Justice of the Peace Court of Victoria, Tarlac, which also
acquired jurisdiction over the person of the accused, the latter court acquired jurisdiction
to the exclusion of all other courts. This is untenable. That the Justice of the Peace Court
has concurrent jurisdiction with the Court of First Instance in this case is not questioned.
It, however, appears from the order of the justice of the Peace Court forwarding the
records of the case to the Court of First Instance 14 that the case was brought before the
former court merely for purposes of a preliminary investigation. Where a Justice of the
Peace acquires jurisdiction for the purpose of preliminary investigation and not for trial on
the merits, such court does not necessarily acquire exclusive jurisdiction to try the case on
the merits. 15 In the second assigned error, counsel attacks the flimsiness of the evidence
for the prosecution. He questions the sufficiency of a document (Exhibit "B"), purportedly
a receipt issued to Alviar upon the confiscation from him of the alleged firearm. It is
argued that from the manner the receipt is worded as well as from the fact that it is
thumb marked by Alviar and not signed by the person confiscating, it appears to be a
confession rather than a receipt. The controversial receipt, however, is not the only
evidence presented by the prosecution. Sgt. Melencio Fiesta of the Philippine Constabulary
also declared on the witness stand that Alviar verbally confessed to him his (Alviar's)
possession of a caliber .22 paltik revolver. 16 He further stated that he properly translated
from English to Ilocano the contents of the receipt before Alviar affixed his thumbmark on
the same. 17 Whether Exhibit " B " is taken as a receipt or as a confession, it has its own
weight as an evidence against appellant Alviar. Still on the illegal possession of firearm,
the prosecution also presented as evidence Exhibit "C" properly sworn to before Judge
Conrado de Gracia, wherein Alviar confessed that he did own and possess a caliber .
22 paltik which he carried on the night the robbery and killings were committed. The
voluntariness of this confession has not been disproved. 8. In conclusion, the crime
committed by appellants in Criminal Case No. 2253 is robbery with homicide defined in
Article 294, paragraph 1, Revised Penal Code, to wit:
Robbery with violence against or intimidation of persons Penalties - Any person guilty of
robbery with the use of violence against or intimidation of any person shall suffer: 1. The
penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the
crime of homicide shall have been committed. xxx xxx xxx
The penalty is to be imposed in its maximum period by reason of the presence of three
aggravating circumstances found by the trial court, to wit: that the robbery was
committed by a band, 18 with treachery, 19 and in an uninhabited place. 20 There is
likewise the additional aggravating circumstance that the robbery was committed in the
dwelling of the victim. Donata Rebolledo which although not alleged in the Information is
however established by the evidence. IN VIEW OF THE FOREGOING CONSIDERATIONS,
We hereby affirm in toto the decision of the trial court in the two cases. Without
pronouncement as to costs at this instance. SO ORDERED.

Republic of the Philippines

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

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PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CLARITO ARIZOBAL (at

large), ERLY LIGNES and TWO (2) JOHN DOES, accused-appellants.
DECISION
PER CURIAM:
Man in his inordinate pursuit of lucre oft equates human life with mere chattels and
plunges himself into the bottomless pit of his own folly. He is thus driven to plunder and
kill, crimes which are most reprehensible and ignominious as the criminal apparently leans
towards material gains than to the inestimable value of human life. Clarito Arizobal and
Erly Lignes come to us to assert and prove, if they must, that they are not cast of that
mold.
The factual backdrop: On 12 August 1994 two (2) separate Informations were filed before
the Regional Trial Court of Cataingnan, Masbate, charging Clarito Arizobal, Erly Lignes,
Rogelio Gemino and two (2) John Does with Robbery in Band with Homicide for robbing
and slaying Laurencio Gimenez[1], Original Records.1 and his son Jimmy Gimenez.[2]
After arraignment, the two (2) cases were tried jointly. However, on 14 May 1997, upon
motion of accused Rogelio Gimeno, without objection from the prosecution, the two (2)
Informations were dismissed as against him for lack of evidence. But the same cases
remained as against accused Erly Lignes and Clarito Arizobal. Only accused Lignes
appeared at the trial until its termination as Arizobal escaped from detention and had to be
tried in absentia.[3] The two (2) John Does were never apprehended as they were not
sufficiently identified.
The prosecution presented, among others, Clementina Gimenez, wife of victim Laurencio
Gimenez. She testified that on 24 March 1994 she together with her husband Laurencio
Gimenez and a grandchild were sound asleep in their house in Tuybo, Cataingan,
Masbate. At around 9:30 in the evening, Laurencio roused her from sleep and told her to
open the door because there were persons outside the house. Since it was pitch-dark she
lit a kerosene lamp and stood up to open the door. She was suddenly confronted by three
(3) armed men pointing their guns at her. She recognized two (2) of them as Clarito
Arizobal and Erly Lignes but failed to recognize the third person who was wearing
a maskara. She readily identified Clarito because she used to pass by his house in San
Rafael while Erly was also a familiar face as he was a regular habitue of the flea market.
According to Clementina, Clarito asked her husband, "Tay, where is your gun." But she
promptly interjected, "We have no gun, not even a bolo. If you want, you can look around
for it."[4] While the man in maskara stood guard at the door, Clarito and Lignes barged
into the master's bedroom and forcibly opened the aparador. The terrified couple could not
raise a finger in protest but had to leave their fate to the whims of their assailants. The
intruders ransacked their cabinet and scattered everything on the floor until they
found P8,000.00 among sheets of paper. Before leaving with their loot they ordered
Laurencio to go with them to Jimmy's house because "we have something to talk
about."[5] Against his will, Laurencio went with them.Clementina recalled that shortly
after the group left she heard a volley of shots. Her grandchild, as if sensing what befell
her grandfather, could only mutter in fear, "Lolo is already dead!"
Erlinda Gimenez, wife of Jimmy Gimenez, narrated that on 24 March 1994, after she and
her son had taken supper, her husband Jimmy with one Francisco Gimenez arrived. Jimmy
informed Erlinda that they had already bought a carabao. After he handed her the
certificate of large cattle, and while he was in the process of skinning a chicken for their
supper, three (3) men suddenly appeared and ordered them to lie face down. One of them
pushed her to the ground while the others tied Francisco and Jimmy as they whipped the

latter with an armalite rifle. She noticed one of them wearing a mask, another a hat, and
still another, a bonnet.[6]
Realizing the utter helplessness of their victims, the robbers took the liberty of consuming
the food and cigarettes Erlinda was selling in her sari-sari store. Finding no softdrinks to
complete their snack, two (2) of the intruders ordered Erlinda to buy coke for them at the
neighboring store. But they warned her not to make any noise, much less alert the
vendor. When they returned to the house of Jimmy, the robbers proceeded to ransack the
household in search for valuables. They took around P1,000.00 from her sari-sari store
and told them to produceP100,000.00 in exchange for Jimmy's life. Since the couple could
not produce such a big amount in so short a time, Erlinda offered to give their certificate
of large cattle. The culprits however would not fall for the ruse and threw the document
back to her. Three (3) masked men then dragged Jimmy outside the house and together
with Laurencio brought them some fifty (50) meters away while leaving behind Clarito
Arizobal and Erly Lignes to guard Francisco and Erlinda's son. Moments later she heard a
burst of gunfire which reverberated through the stillness of the night.
When the masked men returned to Jimmy's house, one of them informed Erlinda that her
husband and father-in-law had been killed for trying to escape. Upon hearing this, Erlinda,
as if the heavens had fallen on her, slowly lost consciousness.
The post-mortem examination report prepared by Dr. Allen Ching showed that Jimmy
Gimenez sustained injuries: (a) a gunshot wound located at the victim's zygomatic area
(right side near the ear) which may have caused brain hemorrhage; (b) a non-serious
gunshot wound at the upper back right side (armpit area); (c) a wound located at the
middle side of the trunk - considered as exit of wound No. 2; (d) gunshot wound at the
right forearm; and, (e) a wound considered as a complication of the trajectory point of
wound No. 4 that caused the fracturing of a bone and exited as lacerated bone at the
posterior.[7]
The medico-legal examination conducted on Laurencio Gimenez also showed: (a) a chest
wound penetrating the pericardium; (b) gunshot wound at the right thigh exiting at the
lumbar area, back; (c) gunshot wound at the left thigh below the knee; and, (d) cause of
death was respiratory arrest secondary to gunshot wounds.[8]
Erly Lignes who testified in his defense explained that on 24 March 1994 at around 9:30 in
the evening he was at the house of a neighbor, one Noli Hermosa, attending a house
blessing in San Pedro, Cataingan, Masbate. He helped as cook and food server. The
occasion was attended by around twenty (20) well-wishers who feasted on fried chicken
and tuba. In fact, two (2) of his friends, Andres Lapay and Alberto Senelong, were among
the group of drinkers. The celebration finally ended at 1:00 o'clock in the morning. Early
that morning he went home, which was only about a hundred meters away.[9]
Erly Lignes also presented Andres Lapay who confirmed his defense of alibi. Andres
recounted that at 9:30 in the evening of 24 March 1994 he was at the house of Noli
Hermosa for the latter's house blessing. There he saw Erly in the kitchen preparing food
and drinks for the visitors. He also attended to Andres' group whenever they needed
additional food and tuba.According to witness Andres, he was certain that from the time of
his arrival at 7:00 o'clock in the evening to 11:00 o'clock Erly never went out of the house
of Hermosa. When asked whether he knew where Tuybo was, Andres answered in the
affirmative. He also clarified that it would take a person about one and a-half (1-) hours
by foot and about one hour (1) by horseback to travel from San Pedro to Tuybo.
On 30 March 1994 Erly Lignes was arrested in the house of Noli Hermosa and then
detained at the Cataingan Municipal Jail. Erlinda Gimenez, accompanied by three (3)

21

policemen, later went to the municipal jail and pointed to Clarito Arizobal as one of the
suspects in the robbing and killing of Laurencio and Jimmy Gimenez. Erly insisted that he
was not implicated by Erlinda as a suspect in the crime.
But the trial court gave full credence to the testimony of the prosecution witnesses and
rejected the alibi of accused-appellant Erly Lignes. On 7 July 1998 the court found both
accused Clarito Arizobal and Erly Lignes guilty of robbery with homicide, sentenced them
to suffer the supreme penalty of Death and to indemnify the legal heirs of Laurencio
Gimenez P50,000.00 for his death and P20,000.00 for moral damages, and the legal heirs
of Jimmy Gimenez P50,000.00 also for his death and P20,000.00 for moral damages,
plus P30,000.00 for exemplary damages.[10] Their cases are now before us on automatic
review in view of the penalty imposed.
As the lower court explained x x x x There is direct relation and intimate connection between the robbery and the
killing. The accused were positively identified as perpetrators of the crime by witnesses
Clementina Gimenez and Erlinda Gimenez who have no motive to falsely testify x x x x
Inasmuch as no improper motive have (sic) been ascribed to prosecution witnesses and no
shadow of evidence appears on record to blacken their credibility, their testimony is
worthy of full faith and credit x x x x[11]
Going to the denial and alibi interposed by accused Erly Lignes that he was at San Pedro,
Cataingnan, Masbate, helping as cook and food server of his neighbor Noli Hermosa during
a house blessing at the time of the robbing and killing and his belief that he was not
identified (Exh. "2") by witnesses (especially Erlinda Gimenez), and that he did not know
Clarito Arizobal, the same cannot be given any credence in the face of the testimony of
Clementina Gimenez and Erlinda Gimenez positively identifying him (Erly Lignes) and his
co-accused Clarito Arizobal as the culprits x x x x The place of the crime is only about six
kilometers and more or less one and a half hour travel by foot from the place where the
accused Erly Lignes was at the time of the commission of the crime.
The robbery with killing was aggravated: 1) By a band because the malefactors were more
than three armed robbers acting together; 2) With treachery because the robbers tied the
hand of the victims before killing them; 3) By nighttime (nocturnity) because the accused
took advantage of the night; and, 4) By dwelling because the robbery is (sic) committed
with violence against or intimidation of persons x x x and the commission of the crime
begun in the dwelling x x x x[12]
Accused-appellant Erly Lignes attempted to discredit the testimonies of the prosecution
witnesses by underscoring their alleged inconsistent, conflicting and incredible
statements. He pointed out that: (a) Clementina testified on direct examination that she
saw Erly Lignes in the flea market four (4) times, but on cross-examination she averred
that she saw the accused at the flea market in only three (3) occasions; (b) she stated
that three (3) persons entered their house and recognized Arizobal and Lignes because
they lighted a kerosene lamp and that she did not recognize the third person because he
was wearing a mask thus implying that Arizobal and Lignes were not wearing masks, in
utter disregard of the risk of being identified; (c) she failed to witness the actual killing
when she stated in her testimony that she came to know of it only the following morning
after she was informed by a neighbor thus implying that accused-appellant Erly Lignes was
not positively identified as the killer of the two (2) victims; and, (d) Erlinda Gimenez
stated that three (3) robbers were not wearing masks while two (2) were wearing masks
but later contradicted herself when she stated that three (3) of the masked robbers
executed her husband and father-in-law.[13]

In essence, the issues raised are factual and involve the credibility of the witnesses. It is
doctrinally settled that in the absence of any showing that the trial court's calibration of
factual issues, particularly on the matter of credibility, is flawed this Court is bound by its
assessment. The rationale is the presumption that the trial court is in a better position to
decide the question, having heard the witnesses and observed their deportment and
manner of testifying during the trial.[14] We find no plausible reason to deviate therefrom.
Admittedly, the prosecution witnesses did not give a consistent account of the whole gutwrenching episode, particularly on the matter of the number of times Clementina allegedly
saw the accused-appellant at the flea market; the exact number of masked robbers and
other minor details. These lapses however are not so serious as to warrant the reversal of
the verdict of conviction of accused-appellant and his co-accused who, as the record
shows, were categorically identified as two (2) of the perpetrators of the crime.
Accused-appellant Erly Lignes asserts that the failure of Clementina Gimenez to actually
witness the killing of her son and her husband is adequate proof that she failed to identify
him as the killer. We do not agree. Accused-appellant seems to have overlooked the
significance of conspiracy, as a rule for collective criminal liability, where it is not necessary
to show that all the conspirators actually hit and killed the victim; what is important is that
all participants performed specific acts with such closeness and coordination as
unmistakably to indicate a common purpose or design in bringing about the death of the
victim.[15] The fact that accused-appellant conspired in the commission of the crime
charged was sufficiently and convincingly shown by his active participation in ransacking
the belongings of the two (2) Gimenez families, tying and holding Francisco and Erlinda's
son immobile while the others led the two (2) hapless victims to the threshold of their
obliteration.
Alibi, as it has been repeatedly held, is one of the weakest defenses as it is easy to
concoct although difficult to prove. In the face of positive identification by credible
prosecution witnesses, accused-appellant's defense of alibi must necessarily crumble. For
alibi to be believed, credible and tangible proof of physical impossibility for the accused to
be at the scene of the crime is indispensable.[16]
The
trial
court
is
correct
in
appreciating
dwelling
as
an
aggravating
circumstance. Generally, dwelling is considered inherent in the crimes which can only be
committed in the abode of the victim, such as trespass to dwelling and robbery in an
inhabited place. However, in robbery with homicide the authors thereof can commit the
heinous crime without transgressing the sanctity of the victim's domicile.[17] In the case
at bar, the robbers demonstrated an impudent disregard of the inviolability of the victims'
abode when they forced their way in, looted their houses, intimidated and coerced their
inhabitants into submission, disabled Laurencio and Jimmy by tying their hands before
dragging them out of the house to be killed.
But treachery was incorrectly considered by the trial court. The accused stand charged
with, tried and convicted of robbery with homicide. This special complex crime is primarily
classified in this jurisdiction as a crime against property, and not against persons,
homicide being merely an incident of robbery with the latter being the main purpose and
object of the criminals. As such, treachery cannot be validly appreciated as an aggravating
circumstance under Art. 14 of The Revised Penal Code.[18] This is completely a reversal of
the previous jurisprudence on the matter decided in a litany of cases before People v.
Bariquit.[19]
While it appears that at least five (5) malefactors took part in the commission of the
crime, the evidence on record does not disclose that "more than three" persons were

21

armed, and robbery in "band" means "more than three armed malefactors united in the
commission of robbery." Nowhere in the records can we gather that more than three (3) of
the robbers were armed. Hence, "band" cannnot be aggravating where no proof is
adduced that at least four (4) of the five (5) perpetrators involved in this case were
armed. In this regard, we are quoting pertinent portions of Clementina Gimenez's
testimony Q: While you were in your house do you still remember of any unusual incident that
happened?
A: Yes, sir.
Q: What was that incident about?
A: Armed persons entered our house.
Q: How many?
A: Three (3).
Q: You said that these 3 persons were armed, will you tell this Honorable Court the kind of
weapon or arms they were bringing with them at that time?
A: One person carrying a long firearm.
Q: How about the other two?
A: One person standing at the door carrying a long firearm and the two went upstairs.
Q: Were they carrying weapons?
A: They have (sic) both of them were carrying short firearms.[20]
On cross examination she further clarified Q: Where were you when you saw that the two accused Clarito Arizobal and Erly Lignes
got the money?
A: At the sala.
Q: When they ransacked your aparador you did not object?
A: They let us sit and warned us not to move.
Q: But you have not seen them armed with any firearm, is that correct?
A: They have.
Q: Who were armed with firearms?
A: Clarito Arizobal and Erly Lignes.
Q: What kind of firearm?
A: Short arm.
Q: And where was the third person who was wearing mask at the time these two accused
Erly Lignes and Clarito Arizobal ransacked your aparador and got the money?
A: At the door of our house.
Q: What was he doing?
A: On guard.
Q: Was he armed?
A: Bringing a long gun, masked.[21]
For her part, Erlinda Gimenez testified Q: Did you see who killed your husband?
A: My husband was brought towards a distance about 50 meters because it could be seen
from where I was and then I heard a burst of firearm thereafter the one who brought him
told me that he ran so that they have (sic) to kill him.
Q: Who told you?
A: The one wearing mask.
Q: Where were accused Clarito Arizobal and Erly Lignes at that time?
A: The two (2) took guard on Boboy Gimenez (referring to Francisco) and my son.

Q: Were they armed?

A: Yes sir, short gun, sir.
Q: When your husband was brought by three of these five (5) persons, your son and
Francisco Gimenez were left behind?
A: Yes sir, because they were tied.[22]
We likewise hold that the aggravating circumstance of nighttime did not attend the
commission of the crime. The fact that the offense was committed at 9:30 in the evening
does not suffice to sustain nocturnidad for, by itself, nighttime is not an aggavating
circumstance.[23] To be properly so considered, it must be shown that nocturnidad was
deliberately and intentionally sought by accused-appellants to help them realize their evil
intentions.[24] Nowhere can we infer from the records that the malefactors sought the
cover of darkness to facilitate the accomplishment of their devious design. On the
contrary, the locus criminis was well lighted and nighttime was merely an incidental
element to the whole drama.
First. The houses of the victims were adequately lighted by kerosene lamps when the
robbers entered and went about their looting spree. In People v. Pallarco[25] this Court
clarified this modifying circumstance thus Nor can the aggravating circumstance of nighttime be appreciated, for the prosecution
failed to demonstrate (a) that the malefactor particularly sought or took advantage of the
darkness to commit the offense, or (b) that nighttime facilitated the commission of the
crime. In any event, the prosecution presented no evidence to establish the fact
that nocturnidad attended the killing. Nighttime cannot be considered if it is shown that
the place was adequately lighted. In this case, it was established that the place was
sufficiently illuminated by a kerosene lamp.
Second. The robbers, particularly referring to accused-appellant and his co-accused,
lingered in the locus criminis and even conversed with their intended victims for an
appreciable period of time inside the well-lit houses. As Erlinda Gimenez testified, the
place where the victims were gunned down was adequately illuminated by the moonlight,
although for undisclosed reasons she did not see the actual shooting.[26]
All these taken together belie the assumption that the culprits took advantage of the
intrinsic impunity afforded by the cover of darkness and made the same as an ally to
accomplish their nefarious plan. Nocturnity lures those who crave for blood to yield to their
baser impulses with the false courage borne out of the belief that their identity would not
be brought in the open. We do not discern any such intention in this case.
We also note with approval the view of the trial court that the offenders did not commit
two (2) separate counts of robbery with homicide but only a delito continuado, as the
ransacking of the two (2) houses and the killing of the victims were not entirely
disconnected and distinct acts of depredation. They arose from a single criminal impulse
and intent, "there being unity of purpose and of right violated."[27]
As to actual damages, it was proved that the robbers took the amount of P8,000.00 from
the family of the deceased Laurencio Gimenez and P1,000.00 from that of Jimmy
Gimenez.Their legal heirs must therefore be indemnified for these losses. However, the
award of the trial court of P20,00.00 for moral damages and P30,000.00 for exemplary
damages must be modified to P50,000.00 and P20,000.00 for moral damages and
exemplary damages, respectively for the legal heirs of each victim.
The trial court correctly found accused-appellant and his co-accused Clarito Arizobal guilty
of the crime of robbery with homicide as defined in Art. 294, par. (1), of The Revised Penal
Code. The prosecution has established beyond any scintilla of doubt through the

21

prosecution witnesses that Erly Lignes in conspiracy with Clarito Arizobal and three (3)
other unidentified persons used violence and intimidation against the members of the two
(2) Gimenez families in carrying out the robbery and on the occasion thereof killed
Laurencio and Jimmy Gimenez.
The special complex crime of robbery with homicide carries with it the penalty of reclusion
perpetua to death. In conformity with Art. 63, par. (1), of The Revised Penal Code, when
the crime is attended by an aggravating circumstance with no circumstance mitigating it,
the higher penalty shall be imposed.
Four (4) members of the Court are steadfast in their adherence to the view that RA 7659
is unconstitutional insofar as it prescribes the death penalty. However, they bow to the
majority opinion that the aforesaid law is constitutional and, therefore, the penalty
prescribed thereunder has to be imposed.
WHEREFORE, the Decision of the Regional Trial Court of Cataingan, Masbate, finding
accused-appellant ERLY LIGNES and accused CLARITO ARIZOBAL GUILTY of Robbery with
Homicide and imposing upon both of them the penalty of DEATH, is AFFIRMED with the
MODIFICATION that accused-appellant ERLY LIGNES and his co-accused CLARITO
ARIZOBAL (who is still at large) are ordered in addition: (a) to pay jointly and solidarily
the legal heirs of Laurencio Gimenez and Jimmy Gimenez P50,000.00 for civil indemnity,
another P50,000.00 for moral damages, and P20,000.00 for exemplary damages, for each
set of heirs; and, (b) to pay jointly and solidarily the legal heirs of Laurencio
Gimenez P8,000.00 and those of Jimmy Gimenez P1,000.00 representing their respective
actual damages.
In accordance with Sec. 25 of RA 7659 amending Art. 83 of The Revised Penal Code, upon
the finality of this Decision, let the records of the case be forwarded to His Excellency, the
President of the Philippines, for the possible exercise of his pardoning power. Costs against
both accused.
SO ORDERED.

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

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANTONIO GARCIA Y CABARSE alias "TONY MANOK" and REYNALDO ARVISO V
REBELLEZA alias "RENE BISUGO," defendants-appellants.
Wenceslao B. Trinidad for appellants.
Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V. Bautista and
Solicitor Adolfo J. Diaz for appellee.

ABAD SANTOS, J.:

This is an appeal from the decision of April 17, 1969 by the Circuit Criminal Court at Pasig,
Rizal, which found the accused guilty of murder and sentenced them to the death penalty.
The legal verdict hinges on the testimony of the lone eyewitness for the prosecution, Mrs.
Corazon Dioquino Paterno, sister of the deceased, Apolonio Dioquino, Jr. She testified that
at the time of the incident, she resided at Ventanilla Street, Pasay City. She lived at Pasay
City for about five months before moving to another dwelling at Timog Avenue, Quezon
City. While residing at Pasay City, she conceived a child and during this period, it was not
unusual for her, accompanied by her husband, to step out of the house in the wee hours of
the morning. They set out on these irregular walks about five times.
During her residence at Pasay City, her brother Apolonio visited her family for about
twenty times. Sometimes her brother would stay instead at their parents' house at
Muntinlupa, Rizal. He usually spent his weekends in his residence at Bo. Balubad, Porac,
Pampanga. Apolonio and her husband were very close to each other; whenever Apolonio
paid them a visit, he usually slept in the house and sought their help on various problems.
Before the incident which gave rise to this case, Corazon's husband informed her that he
saw Apolonio engaged in a drinking spree with his gang in front of an establishment
known as Bill's Place at M. de la Cruz Street. Pasay City. In her sworn statement before
the Pasay City Police executed on November 3, 1968, Corazon surmised that her husband
must have been painting the town red ("nag good time") in that same place. Upon
learning this information from her husband, Corazon obtained permission to leave the
house at 3:00 a.m. so she could fetch her brother. At that time, she had not been aware
that Apolonio was in Pasay City; she had been of the belief that he was with his family in
Pampanga. She went to fetch him because she wanted him to escape the untoward
influence of his gang. In explaining the rationale for her noctural mission, she employed in
her sworn statement the following language: "Dahil itong si Junior ay meron na kaming
nabalitaan na naaakay ng barkada niya sa paggawa ng hindi mabuti."
On her way, as she rounded the corner of P.C. Santos Street, Corazon saw her brother
fleeing a group of about seven persons, including the two accused, Antonio Garcia and
Reynaldo Arviso. She recognized the two accused because they were former gangmates of
her brother; in fact, she knew them before the incident by their aliases of "Tony Manok"
and "Rene Bisugo, " respectively.

21

Corazon saw that the chase was led by the two accused, with Antonio carrying a long
sharp instrument. Later, in the course of giving her sworn statement before the Pasay City
Police on , November 3, 1968, Corazon positively Identified Antonio and Reynaldo, who
were then at the office of the General Investigation Section, Secret Service Division, Pasay
City Police Department. She also stated that if she saw the other members of the group
again, perhaps she could likewise Identify them. At the trial, Corazon likewise pointed out
the two accused. During the incident, she exerted efforts to Identify the other group
members, taking care to conceal herself as she did so. She heard a gunshot which caused
her to seek cover.
When she ventured to look from where she was hiding, about 20 meters away, she saw
the group catch up with her brother and maltreat him. Some beat him with pieces of
wood, others boxed him. Immediately afterwards, the group scampered away in different
directions. Antonio was left behind. He was sitting astride the prostrate figure of Apolonio,
stabbing the latter in the back with his long knife. Corazon was not able to observe where
Antonio later fled, for she could hardly bear to witness the scene.
When Corazon mustered the courage to approach her brother, she saw that he was bathed
in a pool of his own blood. The incident threw her in a state of nervous confusion, and she
resolved to report the incident to her younger sister, who lived at Lakandula Street, Pasay
City. Her sister in turn decided to break the news to their father at Muntinlupa.
Subsequently, Corazon learned that the police authorities were searching for her brother's
gangmates for having killed him. She also learned that the suspects were in hiding. On the
same day October 19, 1968 accompanied by her family, she went at 2:00 p.m. to the
Police Department to inquire about her brother's corpse. They were directed to the
Funeraria Popular, where an autopsy was held. Sometime later, on November 1, 1968, she
transferred residence to Quezon City.
Dr. Mariano Cueva, Jr. testified that he conducted a post-mortem examination on the
cadaver of the decedent Apolonio, and that he prepared the corresponding Necropsy
Report. Dr. Cueva found that the deceased suffered 22 stab wounds in the different
portions of his hips; in the front portion of the chest and neck; in the back portion of the
torso; and in the right hand. He testified that the wounds sustained by the deceased
brought about a massive hemorrhage which caused death. He also testified that it is
possible that the instrument marked as Exhibit "B" could have been used in inflicting the
multiple stab wounds sustained by the deceased, except the stab wounds on the neck.
Both the accused took refuge in the defense of alibi. Antonio Garcia claimed that at that
time of the incident starting with the chase and ending with the victim's death in the
morning of October 19, 1968, he was at a place called Pacita's Canteen which adjoins Bill's

Place at M, de la Cruz Street. Reynaldo Arviso claimed that in the evening of the preceding
night (October 18, 1968) he went on a drinking spree with his friends at Pacita's Canteen.
He went home at 10:30 p.m. and slept up to 7:00 a.m. of October 19, 1968. From 7:00
a.m. of that day, he performed his duties as a bus conductor by calling for passengers
near Pacita's Canteen.
The trial court pinpointed the issue as revolving around the Identity of the persons who
participated in the killing of the deceased. it banked on the testimony of the witness,
Corazon Dioquino, who positively Identified the accused as participants in the attack.
Noting that "the defense did not even attempt to present any evil motive on the part of
the witness," the court concluded that "the two accused took part in the perpetuation of
the crime charged." It gave short shrift to the defense of alibi presented by the two
accused, noting that, by their own admission, the two accused were residents of the
vicinity of the crime.
In respect of the circumstances attending the crime it said:
But considering the aggravating circumstances of nighttime; superior
strength; and treachery, which three aggravating circumstances had been
sufficiently established by the prosecution, the same cannot be offset by
said voluntary surrender to a person in authority of his agent, plus the
uncontested fact that deceased, Apolonio Dioquino, Jr. suffered no less
than 22 stab wounds, convincing evidence of the apparent criminal
perversity of the accused, the court, therefore, has no alternative but to
impose the supreme penalty.
And rendered judgment as follows:
IN VIEW OF THE FOREGOING, the Court finds the accused, Antonio Garcia
v Cabarse and Reynaldo Arviso y Rebelleza, GUILTY, beyond reasonable
doubt, of the crime of Murder under Article 248, of the Revised Penal
Code, as charged under Article 248, of the Revised Penal Code, as charged
in the information, and considering the aggravating circumstances
surrounding the commission of the crime, each one of them is hereby
sentenced to suffer the penalty of DEATH.
The two accused are further ordered to indemnify, the heirs of the
deceased, Apolonio Dioquino, Jr. in the amount of TWELVE 'THOUSAND
(P12,000,00) PESOS, jointly and severally and to pay their proportionate
share of the costs.

21

In their Brief, the accused contended that the lower court erred: in not considering
nighttime and superior strength as absorbed in treachery: in finding nighttime as an
aggravating circumstance despite absolute absence of evidence that nighttime was
purposely sought to insure the execution of the crime; in finding superior strength as an
aggravating circumstance despite absence of evidence to sustain such a finding; in finding
treachery as an aggravating circumstance despite absence of evidence to that effect; in
not stating the qualifying circumstance of the alleged crime; in holding that the accused
Reynaldo Arviso stabbed and hit the victim when there is no evidence as to the
participation of the said accused Arviso in the execution of the alleged crime; and in failing
to consider the material inconsistencies, prejudice and other circumstances in the
uncorroborated testimony of the only eyewitness, rendering said testimony not worthy of
belief.
The assignment of errors by the accused is anchored on their attempt to discredit the lone
eyewitness for the prosecution, a function which, if successfully undertaken, would totally
obliterate the nexus between the accused and the crime. The defense vigorously
maintained that the testimony of the only eyewitness is a fabrication, and that she was in
fact absent from the scene which she described in both her sworn statement and in her
testimony at the trial.
The defense asserted that Corazon Dioquino's testimony was riddled by material
inconsistencies. The defense sought to capitalize on the discrepancy of a sketch made by
Corazon and the sketch made by Pasay City Electrical Engineer Jaime Arriola. Corazon's
sketch shows Juan Sumulong Elementary School to be right in front of P.C. Santos Street;
while Arriola's sketch shows that the school is about 135 meters from the corner of the
street. The defense contended that the discrepancy was a deliberate falsehood on the part
of the witness,
Corazon testified that she was near the corner of P.C. Santos Street when she saw her
brother under chase in front of the school, and that she met the group in front of the
school in a matter of five seconds, more or less. The defense assailed her testimony on
this point as incredible on the ground that the distance between the point where she saw
her brother being chased, up to the point where she met them, is 135 meters, and no
human being can cover that distance in five seconds. Moreover, Corazon testified that she
was 20 meters away from the place where the accused caught up with her brother. Again,
the defense criticized her testimony in this respect by pointing out that the true distance is
175 meters.
The defense insisted that Corazon's sketch of the locale of the crime (Exhibit "1")
constitutes "the high point of falsity of her testimony." The defense sought to substantiate
this claim by arguing that from her sketch, it appears that she never crossed paths with

her brother or his pursuers. The witness testified that she saw her brother at the point
which is four to five meters from the corner of P.C. Santos Street. Yet she also testified
that she saw the incident from 20 meters. The witness claimed she hid after hearing the
shot at a point which is 170 meters from the scene of the crime. The defense argued that
she could not have covered the distance in such a short time, and that this belies her
claim that she was only 20 meters from the scene of the crime. The defense pointed out
that Arriola's sketch (Exhibit "2") shows that the school is 135 meters from the scene of
the crime, and the point where the witness claimed she viewed the crime is 170 meters
from the scene of the crime thus giving the lie to her claim that she was 20 meters away.
The alleged inconsistencies in Corazon's testimony which the defense makes much of
are not irreconcilable with the physical facts, At the outset, it should not be overlooked
that Corazon was testifying as an eyewitness to the traumatic incident by which her
brother met a violent death at the hands of a mob. Naturally, Corazon can not be expected
to deliver a testimony which passes microscopic scrutiny and scrupulous armchair analysis
of the facts, conducted under circumstances far removed from the turbulence and
emotional color of the event as it actually transpired. Al contrario, if Corazon's testimony
were meticulously accurate with respect to distance covered and the time taken to
negotiate it, an impartial observer would wonder whether such exactitude were not the
product of previous rehearsal, if not of fabrication. In times of stress, the human mind is
frequently overpowered by the ebb and flow of emotions in turmoil; and it is only judicious
to take into consideration the natural manifestations of human conduct, when the physical
senses are subdued by the psychological state of the individual.
Corazon was a resident of Pasay City for only about five months. She testified that she is
not familiar with the streets along M. de la Cruz Street. Moreover, Corazon did not
categorically testify that she covered the distance of 135 meters in five seconds. Mole
accurately, she testified that she walked for a period of from five to ten seconds, more or
less. Put in this way, the period was sufficient to allow her to negotiate the distance.
Moreover, Corazon did not stay rooted to one spot while the incident was taking place, but
surreptitiously edged her way up to Magtibay Street, which is closer to the place of the
killing.
The defense also claims that the delay which Corazon allowed to transpire, before
reporting the crime to the authorities and giving her sworn statement (on November 3,
1968), is indicative of fabrication. The killing took place before dawn of October 19, 1968,
In the afternoon of the same day, Corazon and her family went to the Police Department
to inquire about the remains of her brother. Corazon already knew that the police were
taking steps to round up the killers. She incurred no fault in waiting until the culprits were
arrested before confronting them and giving her statement. It would have been the better
part of legal procedure if she had given her statement earlier; but since she was only a

21

22-year old housekeeper at that tune, she can not be held to a higher standard of
discretion.

in concert, pursuant to the same objective. (PP vs. San Luis, L-2365, May 29, 1950, 86
Phil. 485).

The defense further contends that the failure to present Corazon's husband in court
indicates that Corazon was not actually at the scene of the crime at 3:00 o'clock in the
morning. It the defense felt that the husband had a contribution to make in the cause of
truth, there was nothing which prevented them from compelling his process by summons.
This they failed to do; and their omission should not be taken to reflect adversely on the
prosecution, who evidently believed that the husband's testimony was unnecessary,

Conspiracy need not be established by direct evidence of acts charged, but may and
generally must be proven by a number of indefinite acts, conditions and circumstances
which vary according to the purpose to be accomplished. If it be proved that two or more
persons aimed by their acts towards accomplishment of the same unlawful object, each
doing a part. so that their acts, though apparently independent, were in fact connected
and cooperative, indicating a closeness of personal association and concurrence of
sentiment, a conspiracy maybe inferred though no actual meeting among them to concert
is proven (PP v. Colman L-6652-54, Feb. 28, 1958, 103 Phil. 6). A conspiracy may be
entered into after the commencement of overt acts leading to the consummation of the
crime. (PP v. Barredo, L-2728, Dec. 29, 1950, 87 Phil. 800). Conspiracy implies concert of
design and not participation in every detail of execution (PP v. Carbonel, L-24177, March
15, 1926, 48 Phil. 868; PP v. Danan, L-1766, March 31, 1949, 83 Phil. 252).

Finally, the defense claims that it was unnatural for Corazon, after viewing her brother's
body, to proceed to her sister's house one kilometer away, instead of returning to her own
house, which was just a block or so away. It is not unnatural for a witness to a gruesome
event, to choose to confer with a person bound to her by ties of consanguinity, even if
such a conference necessitates that she traverse a longer distance. The exercise of
judgment, on the spot, should not be gauged by reason applied in hindsight with a
metrical yard stick.
The next major burden which the defense undertook to assume was to contend that the
accused Reynaldo Arviso is innocent because there is no evidence as to his participation in
the execution of the crime. It is claimed that there is absolute absence of evidence to
show that Reynaldo was a direct participant and that the only evidence against him is that
he was seen pursuing the victim. However, the finding of Reynaldo's guilt stems, not from
his direct participation in the criminal execution, but from his participation in the
conspiracy to kill the deceased. His participation in the conspiracy is supported by
Corazon's testimony that he and Antonio were the leaders of the pack following closely at
the heels of the victim.
It is well established that conspiracy may be inferred from the acts of the accused
themselves, when such acts point to a joint purpose and design. A concerted assault upon
the victim by the defendants may indicate conspiracy. (PP v. Monroy & Idica, L-11177, Oct.
30, 1958, 104 Phil. 759). Conspiracy exists if, at the time of the commission of the
offense, the defendants had the same criminal purpose and were united in its execution.
(PP v. Datu Dima Binahasing, L-4837, April 28, 1956, 98 Phil. 902). Those who are
members of the band of malefactors by which a murder is committed and are present at
the time and place of the commission of the crime, thus contributing by their presence to
augment the power of the band and to aid in the successful realization of the crime, are
guilty as principals even if they took no part in the material act of killing the deceased. (US
v. Abelinde, No. 945, Dec. 10, 1902, 1 Phil. 568; People v. Carunungan, L-13283, Sept.
30, 1960, 109 Phil. 534). To establish conspiracy, it is not essential that there be proof as
to previous agreement to commit a crime. It is sufficient that the malefactors have acted

When a group of seven men, more or less, give chase to a single unarmed individual
running for his life, and they overtake him and inflict wounds on his body by means of
shooting, stabbing, and hitting with pieces of wood, there is conspiracy to kill; and it does
not detract from their status as conspirators that there is no evidence of previous
agreement, it being sufficient that their wills have concurred and they labored to achieve
the same end.
The defense submits that the failure of the lower court to specify the qualifying
circumstance in the crime of murder is violative of the Constitution and the Rules of Court.
We find no such infirmity. Since the principle concerned is "readily understood from the
facts, the conclusion and the penalty posed., an express specification of the statute or
exposition of the law is not necessary." (People vs. Silo, L-7916, May 25, 1956, 99 Phil.
216). In the absence of a specification by the trial court, the defense surmised that the
qualifying circumstance in this case is evident premeditation: but the defense argued that
evident premeditation was not shown. We agree. Under normal conditions, conspiracy
generally presupposes premeditation. But in the case of implied conspiracy, evident
premeditation may not be appreciated, in the absence of proof as to how and when the
plan to kill the victim was hatched or what time elapsed before it was carried out, so that
it can not be determined if the accused had "sufficient time between its inception and its
fulfillment dispassionately to consider and accept the consequences." There should be a
showing that the accused had the opportunity for reflection and persisted in executing his
criminal design. (PP v. Custodia, L-7442, October 24,1955, 97 Phil. 698; PP v. Mendoza
and Sinu-ag, L-4146 and L-4147, March 28, 1952, 91 Phil. 58; PP v. Yturiaga, L-2816, May
31, 1950, 86 Phil. 534; PP v. Lozada, No. 46998, Nov. 16, 1940, 70 Phil. 525; PP v. Upao
Moro, L-6771, May 28, 1957, Phil. 101 Phil. 1226; PP v. Sakam, No. 41566, Dec. 7, 1934,

21

61 Phil. 27: PP v. Peralta, L-19069, Oct. 29, 1968, 25 SCRA 759; PP v. Pareja, L-21937,
Nov. 29, 1969, 30 SCRA 693).
Even in the absence of evident premeditation, the crime of murder in this case might still
be qualified by treachery, which is alleged in the information. But the defense argued that
treachery was not present. We are so convinced. It is an elementary axiom that treachery
can in no way be presumed but must be fully proven. (US v. Asilo, No. 1957, Jan. 30,
1905, 4 Phil, 175; US v. Arciga, No. 1129, April 6, 1903, 2 Phil. 110; PP v. Durante, No.
31101, Aug. 23, 1929, 53 Phil. 363; PP v. Pelago, L-24884, Aug. 31, 1968, 24 SCRA
1027), Where the manner of the attack was not proven, the defendant should be given the
benefit of the doubt, and the crime should be considered homicide only. (Carpio, 83 Phil.
509; Amansec, So Phil, 424).
In People vs. Metran (L-4205, July 27, 1951, 89 Phil. 543). the aggravating circumstances
of aid of armed men, abuse of superiority, and nocturnity, were considered as constituting
treachery, which qualified the crime as murder, since there was no direct evidence as to
the manner of the attack. However, in this case we believe that the correct qualifying
circumstance is not treachery, but abuse of superiority. Here we are confronted with a
helpless victim killed by assailants superior to him in arms and in numbers. But the attack
was not sudden nor unexpected, and the element of surprise was lacking. The victim could
have made a defense; hence, the assault involved some risk to the assailants. There being
no showing when the intent to kill was formed, it can not be said that treachery has been
proven. We believe the correct rule is found in People vs. Proceso Bustos (No. 17763, July
23, 1923, 45 Phil. 9), where alevosia was not appreciated because it was deemed included
in abuse of superiority.
We find that abuse of superiority attended the offense, following a long line of cases which
made this finding on parallel facts Our jurisprudence is exemplified by the holding that
where four persons attacked an unarmed victim but there was no proof as to how the
attack commenced and treachery was not proven, the fact that there were four assailants
would constitute abuse of superiority. (People vs. Lasada, No. 6742, Jan. 26, 1912, 21
Phil. 287; US v. Banagale, No. 7870, Jan. 10, 1913, 24 Phil. 69). However, the information
does not allege the qualifying circumstance of abuse of superiority; hence, this
circumstance can only be Created as generic aggravating. (People v. Acusar, L-1798, Dee.
29, 1948, 82 Phil. 490; People v. Beje, L-8245, July 19, 1956, 99 Phil. 1052; People v.
Bautista, L-23303, May 20, 1969, 28 SCRA 184).
The offense took place at 3:00 o'clock in the morning. It may therefore be said that it was
committed at night, which covers the period from sunset to sunrise, according to the New
Civil Code, Article 13. Is this basis for finding that nocturnity is aggravating? The Revised
Penal Code, Article 14, provides that it is an aggravating circumstance when the crime is

committed in the nighttime, whenever nocturnity may facilitate the commission of the
offense. There are two tests for nocturnity as an aggravating circumstance: the objective
test, under which nocturnity is aggravating because it facilitates the commission of the
offense; and the subjective test, under which nocturnity is aggravating because it was
purposely sought by the offender. These two tests should be applied in the alternative.
In this case, the subjective test is not passed because there is no showing that the
accused purposely sought the cover of night time. Next, we proceed and apply the
objective test, to determine whether nocturnity facilitated the killing of the victim. A group
of men were engaged in a drinking spree, in the course of which one of them fled, chased
by seven others. The criminal assault on the victim at 3:00 a.m. was invited by nocturnal
cover, which handicapped the view of eyewitnesses and encouraged impunity by
persuading the malefactors that it would be difficult to determine their Identity because of
the darkness and the relative scarcity of people in the streets. There circumstances
combine to pass the objective test, and e find that nocturnity is aggravating because it
facilitated the commission of the offense. Nocturnity enticed those with the lust to kill to
follow their impulses with the false courage born out of the belief that they could not be
readily Identified.
The information alleges that the crime of murder was attended by the two qualifying
circumstances of treachery and evident premeditation. Neither of these qualifying
circumstances was proved; hence, the killing can not be qualified into murder, and
constitutes instead the crime of homicide, which is punished by reclusion temporal. It is
not controverted that the accused voluntarily surrendered to the authorities; they are
therefore entitled to the mitigating circumstance of voluntary surrender. This lone
mitigating circumstance offset by the two generic aggravating circumstances of abuse of
superiority and nocturnity, produces the result that in the crime of homicide, one
aggravating circumstance remains.
WHEREFORE, the judgment of the court a quo is hereby modified in that the two accused,
Antonio Garcia y Cabarse and Reynaldo Arviso y Rebelleza, are sentenced to undergo an
indeterminate imprisonment of 10 years as minimum to 18 years as maximum, but in all
other respects affirmed.
SO ORDERED.

G.R. No. L-2390, People v. Baldera et al., 86 Phil. 189

Republic of the Philippines
SUPREME COURT
Manila
EN BANC

21

April 24, 1950

G.R. No. L-2390
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PEDRO BALDERA, MIGUEL BLAY, JOSE DE LA CRUZ, and FOUR
OTHERS,defendants.
PEDRO BALDERA, appellant.
August Francisco for appellant.
Office of the Solicitor General Felix Bautista Angelo and Solicitor Florencio
Villamor for appellee.
REYES, J.:
We are called upon to review the sentence of death passed upon the appellant Pedro
Baldera, who was found guilty of robbery in band with homicide and serious and less
serious physical injuries by the Court of First Instance of Batangas.
The evidence shows that at about 4 a.m. on December 23, 1947, a Casa Manila bus
loaded with passenger left Batangas, Batangas, bound for Manila. On the highway in barrio
Calansayan, municipality of San Jose, same province, it was held up by a group of five or
six armed men. One of these, later identified as herein appellant Pedro Baldera, who was
then armed with a .45 caliber pistol, fired a shot, and this was followed by a hail of bullets
coming from different directions. As a result, several passengers, among them Jose
Cabrera, Jose Pastor and Francisco Mendoza, were wounded. After the firing had ceased,
appellant got on the bus and, threatening the passengers with his gun, took P90 from Jose
Pastor and P34 from Ponciana Villena. Another passenger named Francisco Mendoza was
also relieved of his P3. Appellant then alighted and ordered the bus to proceed, whereupon
the driver headed for the municipal building of San Jose and there reported the incident to
the authorities. The wounded were taken to the hospital, where Jose Cabrera died from his
wounds on the following day. Jose Pastor, who was wounded in the left leg, was cured in
two months, while Francisco Mendoza's gunshot wound in the right shoulder healed in 15
days.
For the above crime four persons were prosecuted and tried under an information charging
"robo en cuadrilla con homicidio y lesiones graves y lesiones menos graves." The case was
dismissed as to two of the accused due to insufficiency of evidence. But the other two,
Pedro Baldera and Miguel Blay, were, after trial, found guilty as charged and sentenced,
the first to capital punishment, and the second to life imprisonment, both to pay the
corresponding indemnity and proportionate costs.
Only the case against Pedro Baldera is now before us.
There is no dispute as to the perpetration of the crime. The only question is as to the
identification of this appellant as one of the authors thereof. On this point the evidence for
the prosecution shows that shortly after the commission of this crime, appellant was
arrested in the municipality of Batangas in connection with the theft of a radio, and as his
features tallied with the personal description of one of the highway men given to the chief
of police by some of the passengers of the held-up bus, he was also investigated in
connection with the hold-up, and he then made a confession, which was reduced to writing
and later subscribed by him before the justice of the peace, admitting his participation in
the crime as the one who, armed with a pistol, boarded the bus and though intimidation
relieved Ponciana Villena of her money.
At the trial, Ponciana also identified appellant as the one who relieved her of her money at
gunpoint, saying that she had a good look at his face for she was watching him closely for

fear that he might fire at her. She also declared that when she was sent for by the chief of
police to identify appellant, the latter approached her as she came into the office of said
officer and asked her forgiveness. Two other passengers of the bus declared at the trial
that appellant resembles the one who stopped the bus and robbed its passengers.
Testifying in his own defense, appellant denies participation in the crime charged,
declaring that he passed the night in question in a house of prostitution in Batangas,
where he was employed by the prostitutes for drawing water. But this alibi is without
corroboration and can not stand up against the clear and positive testimony of Ponciano
Villena, who has not shown to have any motive for falsely testifying against him.
Counsel de oficio impugns the admissibility of appellant's confession on the ground that
the same was made on a promise to render him protection from his co-accused and also
to utilize him as a government witness. But appellant himself denied that such a promise
was ever made and the record shows that, when the confession was offered in evidence, it
was objected to the sole ground that "it was taken through force and intimidation," which,
however, was not proved. Moreover, this court has already held that "where one of several
codefendants turns state's evidence on a promise of immunity ... but later retracts and
fails to keep his part of the agreement, his confession made under such promise may then
be used against him." (People vs. Panaligan and Andulan, 43 Phil., 131.) In any event,
even without the said confession, we find that appellant's participation in the crime herein
charged has been clearly and satisfactorily proved.
Counsel also contends that the lower court erred in holding that the crime committed is
robbery in band, alleging that there was no sufficient proof that the perpetrators thereof
numbered more than three armed men. The fact, however, that there were more than
three armed men in the group that held up the bus appears in appellant's own confession
and is also established by the uncontradicted testimony of one of the government
witnesses. And the point is really not material because in the crime of robbery with
homicide it is not essential that the robbery be in band, although that circumstance may
be taken into account as an aggravation in the imposition of the penalty. And even if it be
not be taken into account as such in this case, there would still remain the other
aggravating circumstance that the robbery was perpetrated by attacking a vehicle (art.
295, R. P. C.), which is not offset by any mitigating circumstance.
The lower court did, however, err in appreciating against the accused the circumstance of
recidivism by reason of his previous conviction for theft, it appearing that crime was
committed on or about December 30, 1947 (Exhibit E) while the offense now charged took
place seven days before that date.
In conclusion, we find appellant guilty of the crime of robbery with homicide and serious
and less serious physical injuries with two aggravating circumstances. But there being no
sufficient vote to impose the extreme penalty, appellant can be sentenced to life
imprisonment only.
Wherefore, reducing appellant's sentence to life imprisonment but increasing the
indemnity to be paid by him to the heirs of the deceased Jose Cabrera to P6,000, the
judgement below as so modified is affirmed, with costs against the appellant.
G.R. No. 73489 April 25, 1994
PEOPLE
OF
vs.
CIC
LORETO
GAPASIN,

THE
PC

PHILIPPINES, plaintiff-appellee,
NICANOR

21

SALUDARES,

LORENZO

SORIANO, alias "Olit", AMOR SALUDARES, FRANK SALUDARES, BEL SALUDARES,

and NICK SALUDARES, accused, CIC LORETO GAPASIN,accused-appellant.
The Solicitor General for plaintiff-appellee.
Silvestre Br. Bello for accused-appellant.
QUIASON, J.:
This is an appeal from the decision of the Regional Trial Court, Branch XVI, Isabela in
Criminal Case No. IV-781, finding appellant guilty beyond reasonable doubt of murder
qualified by treachery, with the attendance of the mitigating circumstance of voluntary
surrender, and the aggravating circumstances of taking advantage of public position and
evident premeditation. The trial court sentenced him to suffer the penalty of reclusion
perpetua and to pay to the heirs of the late Jerry Calpito, Sr., the sum of P88,596.00 as
actual or compensatory damages; P30,000.00 as death indemnity; P20,000.00 as moral
damages; P30,000.00 as exemplary damages; and the costs.
I
The information in Criminal Case No. IV-781 reads as follows:
That on or about the 6th day of October, 1979, at Barangay San Jose, municipality of
Roxas, province of Isabela, Philippines, and within the jurisdiction of this Honorable Court,
the accused CIC LORETO GAPASIN, PC NICANOR SALUDARES, LORENZO SORIANO alias
Olit, AMOR SALUDARES, FRANK SALUDARES, BEL SALUDARES, and NICK SALUDARES,
conspiring and confederating together and all helping one another, with evident
premeditation and treachery, did then and there wilfully, unlawfully, criminally and
feloniously, with intent to kill, attack and shoot Jerry Calpito, with an Armalite rifle SN No.
3267485
Cal. 5.56 duly issued to the accused PC soldier under Memorandum Receipt dated
September 17, 1979 by the 118th PC Company, inflicting multiple gunshot wounds on the
body of the latter, step and kick (sic) the victim several times, causing his instantaneous
death due to hemorrhage secondary to gunshot wounds, to the damage and prejudice of
the heirs of the deceased Jerry Calpito in the amount of P12,000.00, Philippine Currency.
That the crime was committed with the aggravating circumstances of (1) ignominy, the
accused having stepped and kicked the body of the deceased; (2) abuse of superior
strength, and (3) taking advantage of public position, with respect to the accused CIC
Loreto Gapasin who is a PC soldier" (Rollo, pp. 35-36).
A warrant for the arrest of all the accused was issued on December 14, 1980. However, as
of January 10, 1980, only Nicanor Saludares and appellant had been arrested. On January
17, 1980, the trial court granted the petition for bail of the two accused and fixed the
same at P20,000.00 each. Having posted bail, Nicanor Saludares was ordered released on
January
22,
1980.
On
the
other hand, appellant was ordered by the court to remain in the custody of
Capt. Alexander M. Bellen, commanding officer of the 118th Constabulary Company, in
Roxas, Isabela.
On February 4, 1980, Frank, Bel and Amor, all surnamed Saludares, were arrested.
Lorenzo Soriano, alias Olit, was arrested the following day. They were all allowed to post
bail bonds in the amount of P20,000.00 each and thereafter they were released from
custody.
On the strength of LOI No. 947, as amended by LOI No. 1011, vesting jurisdiction on the
Military Tribunals of all crimes against persons and property committed with the use of
unlicensed firearms, the provincial fiscal filed a motion praying that Criminal Case No. IV-

781 be transferred to the Military Tribunal and that the bail bonds posted be cancelled. The
prosecution reiterated the motion in a manifestation dated August 21, 1980.
Accordingly, on August 27, 1980, the trial court ordered: (a) the cancellation of the bail
bonds of the accused; (b) the issuance of the warrants of arrest for all the accused except
for Nicanor Saludares, who was reported to have died; (c) the turn over of appellant to the
Provincial Warden of Isabela as he was not entitled to technical rearrest under Executive
Order No. 106; (d) the turn over to the said Provincial Warden of all the other accused
upon their rearrest; and (e) thereafter, the turn over of the case and the accused to the
Military Tribunal thru the Provincial Commander of the PC/INP, Ilagan, Isabela for further
proceedings.
Pursuant to the endorsement dated September 19, 1980 of Lt. Col. Oscar M. Florendo,
Isabela Provincial Commander, appellant, together with Lorenzo Soriano, Amor Saludares
and Bel Saludares, was rearrested; while Nick and Frank Saludares remained at-large. On
September 29, 1980, the trial court ordered the dismissal of the case against Nicanor
Saludares on account of his death on June 7, 1980.
The accused, however, filed a motion for the reconsideration of the Order of August 27,
1980
on
the
grounds
that
the
case
was
not
covered
by
LOI
No. 947, the crime having been committed on October 6, 1979 or several days before the
issuance of said LOI. The trial court denied their motion.
By virtue of General Order No. 69 dated January 12, 1981, the records of the case were
transferred back to the trial court from the Military Tribunal. On April 1, 1981, the
prosecution moved for the recommitment of the accused to the provincial jail. The defense
opposed the motion fearing retaliation from a provincial jail guard, who was a relative of
the victim. On May 12, 1981, the trial court denied the motion and set the arraignment of
the accused on June 1, 1981.
On May 18, 1981, Col. Florendo informed the trial court that Bel and Amor Saludares have
escaped from the Rehabilitation Center of the Provincial Command on April 10, 1981.
On May 29, 1981, the provincial fiscal moved for the reconsideration of the Order of May
12, 1981, alleging that the accused were not actually detained at the PC Headquarters and
that, except for appellant, the accused have absconded. Hence, to prevent a miscarriage
of justice, the provincial fiscal prayed for the recommitment of accused Soriano and
appellant at the provincial jail and for the issuance of the warrants of arrest for Amor, Bel
and Frank Saludares.
The trial court granted the motion and issued warrants of arrest. Despite diligent efforts,
however, the other accused were not rearrested and hence, trial proceeded against
accused Soriano and appellant only. On June 1, 1981, they both pleaded not guilty.
Two years later, on June 1, 1983, the trial court denied appellant's application for bail but
granted that of accused Soriano, whose bail bond was fixed at P30,000.00. Being so
persistent, appellant filed a second motion for bail, which was denied by the trial court on
June 1, 1984. He filed a third motion to fix bail, which was likewise denied.
Relying on the provisions of Section 4 of P.D. No. 1850, appellant filed an urgent motion
praying that he be transferred to the custody of Col. Alfonso M. Mesa, then Provincial
Commander of Isabela. The trial court denied the motion. His motion for reconsideration
having been denied, appellant filed a petition for certiorari before the then Intermediate
Appellate Court, alleging that the trial court acted with grave abuse of discretion in
refusing to apply Section 4 of P.D. No. 1850. The appellate court granted the petition and
ordered the immediate transfer of appellant to the custody of his military commander.

21

Meanwhile, accused Frank Saludares was arrested and he entered a plea of not guilty at
his arraignment. He was later allowed to post bail. Since Soriano and Frank Saludares
were both out on bail, the defense opted to present evidence on behalf of appellant only
and to submit the case for decision as soon as possible. Thus, after almost six years, trial
on the case ensued.
II
According to prosecution witness Alberto Carrido, he and Rodrigo Ballad left the house of
Enteng Teppang at about 2:00 P.M. of October 6, 1979 after attending the "pamisa" for the
deceased father of Teppang. Jerry Calpito followed them. While they were walking along
the barangay road, Calpito was shot by appellant with an armalite rifle. When Calpito fell
on the ground, appellant fired more shots at him. Thereafter, accused Amor Saludares
planted a .22 caliber revolver on the left hand of Calpito. Upon hearing the shots, Faustina
Calpito ran to succor her fallen husband.
Accused Nicanor Saludares pointed his gun at Faustina while accused Soriano fired his gun
upwards. Saludares warned that he would kill any relative of Jerry Calpito who would come
near him. Faustina and the other relatives of the victim scampered away as the Saludares'
group chased them.
The body of Calpito was autopsied by Dr. Bernardo Layugan, who found that the victim
sustained four bullet wounds: (1) on the right lateral side of the arm fracturing the
humerus; (2) on the right lateral side of the thorax between the 7th and 8th ribs with exit
wound at the sternum; (3) on the left side of the thorax, anterior, between the 5th and 6th
ribs; and (4) on the right fronto-parietal portion of the head "severing the skull and brain
tissues" (Exh. "F"). Dr. Layugan opined that the victim was in a standing position when he
was shot by someone positioned at his right.
Appellant invoked self-defense. He testified that he was issued a mission order on
September 23, 1979 to investigate a report regarding the presence of unidentified armed
men in Barrio San Jose, Roxas, Isabela. The following day, he was instructed by Sgt.
Dominador Ignacio to get in touch with Nicanor Saludares who may be able to give him
information on the identities of the persons with unlicensed firearms in the place. When
appellant met Nicanor Saludares on September 29, 1979, he was informed that Jerry
Calpito had an unlicensed firearm.
On October 5, 1979, Nicanor Saludares went to the P.C. Headquarters in Roxas and told
appellant that it would be best for him to see Jerry Calpito the following day as a relative
of the latter would be buried. The next day, appellant went to Barangay San Jose, arriving
there at 12 noon. Instead of going to the cemetery, he went to the house of Nicanor
Saludares. From there, they went to the house of Enteng Teppang to attend the "pamisa."
While they were having lunch, Nick Saludares advised appellant against confronting
Calpito because it would create a disturbance at the "pamisa." He also told appellant that
Calpito would surely pass his (Saludares) house on his way home.
Appellant and Nicanor Saludares positioned themselves inside the yard of the latter. When
appellant saw Calpito, he went out of the yard into the barangay road. When Calpito was
about three meters away from him, appellant asked him what was bulging in his waist.
Instead of answering, Calpito took a step backward, drew his firearm from the waist and
fired twice at appellant. He missed because appellant dropped to the ground
simultaneously firing his armalite.
After fifteen minutes, the police arrived and took the body of the victim to the morgue.
Appellant was brought to the P.C. Headquarters in Roxas, where he was investigated.
III

The appeal hinges primarily on the credibility of the prosecution witnesses. Appellant
claims that the prosecution witnesses, all of them being relatives of the victim, were
naturally biased against him.
This Court has time and again reiterated the principle that it will not interfere with the
findings of the trial court on the issue of credibility of witnesses and their testimonies
unless the trial court has plainly overlooked undisputed facts of substance and value which
would have altered the result of the case (People v. Matrimonio, 215 SCRA 613 [1992]).
Findings of the trial court are generally accorded great respect by an appellate tribunal for
the latter can only read in cold print the testimonies of the witnesses.
In the trial before the lower court, the eye-witnesses testified in their local dialect and
their testimonies had to be translated to English. In the process of converting into written
form the testimonies of the witnesses, not only the fine nuances but a world of meaning
apparent only to the trial judge, may escape the reader of the translated words (People v.
Baslot, 209 SCRA 537 [1992]).
The fact that the prosecution witnesses are relatives of the victim does not necessarily
indicate that they were biased as to impair their credibility. In the absence of proof of ill
motive on the part of witnesses, relationship between them and the victim does not
undermine their credibility. On the contrary, it would be unnatural for persons such as the
relatives of the victim who themselves seek justice to commit the injustice by imputing the
crime on persons other than those who are actually responsible (People v. De Paz, 212
SCRA 56 [1992]).
Appellant's claim of self-defense is belied by the finding of the trial court that the victim
was shot by someone who was standing on his right side. Appellant's version that he was
in front of the victim when the latter fired a shot at him and that he retaliated while
dropping on the ground, crumbles in the face of the physical evidence that the victim
sustained two gunshot wounds which entered the right side of his body and a gunshot
wound on the right side of his head. The nature and number of wounds inflicted by the
appellant disprove the plea of self-defense (People v. Bigcas, 211 SCRA 631 [1992]).
Had appellant and Nicanor Saludares, Sr. not intended to harm the victim, they could have
simply apprehended him. Or, having verified that Calpito possessed an unlicensed firearm,
appellant could have reported the matter to his superiors so that warrants for Calpito's
arrest and the seizure of his unlicensed firearm could have been obtained.
Appellant contended that the crime committed is homicide. The trial court correctly ruled
that the crime of murder under Article 248 of the Revised Penal Code was indeed
committed. Treachery attended the commission of the crime. The two conditions to
constitute treachery were present in the case at bench, to wit: (a) the employment of
means of execution that gives the person who is attacked no opportunity to defend himself
or to retaliate; and (b) the means of execution were deliberately or consciously adopted
(People v. Narit, 197 SCRA 334 [1991]).
Appellant deliberately executed the act in such a way that his quarry was unaware and
helpless. This can be gleaned from his act of waiting for the victim behind the hollow-block
fence of Nicanor Saludares and shooting the victim from his right side.
Evident premeditation was indubitably proven by the evidence showing that the execution
of the criminal case was preceded by cool thought and reflection. Appellant's resolution to
carry out the criminal intent during the space of time sufficient to arrive at a clear
judgment was shown (People v. Castor, 216 SCRA 410 [1992]).

21

In view of the presence of treachery which qualified the killing as murder, the evident
premeditation should be considered only as a generic aggravating circumstance (People v.
Fabros, 214 SCRA 694 [1992]).
The information alleged three other generic aggravating circumstances: ignominy, abuse
of superior strength and taking advantage of public position. The trial court correctly ruled
out ignominy on the strength of the autopsy conducted by the doctor who failed to find
any other injuries such as bruises and contusions which may indicate that the victim was
kicked by his assailants. It also correctly held that treachery absorbed abuse of superior
strength (People v. Moral, 132 SCRA 474 [1984]).
The trial court properly appreciated taking advantage of public position as an aggravating
circumstance. Appellant, a member of the Philippine Constabulary, committed the crime
with an armalite which was issued to him when he received the mission order (People v.
Madrid, 88 Phil. 1 [1951]).
Voluntary surrender may be considered in appellant's favor but this is offset by the
aggravating circumstance of taking advantage of public position. Therefore, only the
generic aggravating circumstance of evident premeditation may be appreciated against
appellant. As such, the correct penalty would have been death in accordance with Articles
248 and 64(3) of the Revised Penal Code Were it not for the fact that such penalty is
constitutionally abhorrent. Hence, the proper penalty is reclusion perpetua.
The trial court correctly exercised its discretion in imposing moral, compensatory and
exemplary damages (People v. Rabanes, 208 SCRA 768 [1992]; People v. Quilaton, 205
SCRA 279 [1992]).
WHEREFORE, the decision appealed from is AFFIRMED.
SO ORDERED.
G.R. No. L-68699 September 22, 1986
PEOPLE
OF
THE
vs.
HERMOGENES MAGDUEO, accused-appellant.
The Solicitor General for plaintiff-appellee.
Donato T. Faylona for accused-appellant.

PHILIPPINES, plaintiff-appellee

PER CURIAM:
Before us for automatic review is the decision of the Regional Trial Court of Palawan and
Puerto Princesa City finding accused-appellant Hermogenes Magdueo guilty beyond
reasonable doubt of the crime of Murder qualified by treachery and evident premeditation
and aggravated by price or reward and by the crime being committed in contempt of/or
with insult to public authority. The court sentenced Magdueno to suffer the penalty of
DEATH with all the accessory penalties provided by law and to pay the costs; and to
indemnify the heirs of the victim, Fernando M. Dilig in the sum of P130,000.00 as actual
damages and P20,000.00 as moral damages.
The amended information charged Hermogenes Magdueno, Apolinario Sison, Teodorico
Ramirez, Alejandro Guevarra, Alfredo Guevarra, and Edgardo Casabay with having
committed the crime of murder as follows:
That on or about the 15th day of October, 1980, and for sometime prior and subsequent
thereto, in the City of Puerto Princesa, Philippines and in Aborlan, Province of Palawan and
within the jurisdiction of this Honorable Court, the said accused, conspiring and
confederating together and mutually helping one another, did then and there wilfully,

unlawfully and feloniously have in their possession, custody and control a firearm, to wit:
one (1) 9MM automatic pistol, without having secured the necessary license and/or permit
to possess the same from the proper authorities; that at the aforementioned time and
place while the said accused were in possession of the afore-described firearm, conspiring
and confederating together and mutually helping one another, with treachery and evident
premeditation, with intent to kill and while armed with said firearm, did then and there
wilfully, unlawfully and feloniously attack, assault and shoot one FERNANDO M. DILIG, City
Fiscal of Puerto Princesa City, thereby inflicting upon the latter mortal wounds which were
the direct and immediate cause of his death, to the damage and prejudice of his death,
(sic) to the damage and prejudice of his heirs in the amount of TWO HUNDRED FIFTY
THOUSAND (P250,000.00) PESOS, Philippine Currency.
CONTRARY TO LAW and committed with the aggravating circumstance of treachery,
evident premeditation that the crime was committed in consideration of a price, reward or
promise; and that the crime was committed in contempt of or with insult to public
authorities.
The facts established by the prosecution and accepted by the lower court as basis for the
decision are summarized as follows:
On October 15, 1980, a few minutes past 8:00 o'clock in the morning, as soon as the late
Fiscal Fernando M. Dilig had placed himself at the driver's seat inside his jeep parked near
his house at the corner Roxas and D. Mendoza Streets, Puerto Princesa City, all of a
sudden, two successive gunshots burst into the air, as the gunman coming from his left
side aimed and poured said shots into his body, inflicting two fatal wounds (Exhibit N) that
instantaneously caused his death, The autopsy report of Dr. Rufino P. Ynzon, Puerto
Princesa City Health Officer, described the wounds as follows:
1. Wound, gunshot, (entrance), 0.7 cm. in diameter, surrounded by contusion collar, 0.3
cm. in width almost evenly distributed around the gunshot wound, located at the lateral
aspect, neck, left, lower portion, directed medially, slightly anteriorly, and upwards
penetrating the subcutaneous tissues and muscles, involving the left lateral portion of the
esophagus, then the right lateral portion of the thyroid bone, the right common Carotid
Artery, the right jugular vein, and piercing the sterno-cleido Mastoid Muscle, then making
a wound (exit), 1.3 cm. located at the lateral aspect, neck, right, about 1 1/2 inches below
the angle of the mandible.
2. Wound, gunshot, (entrance), 0.7 cm. in diameter, surrounded by Contusion Collar, 0.3
cm. in width almost evenly distributed around the gunshot wound, located at the lumbar
region, left about 2 inches posteriorly from the Mid-axillary line directed medially, slight
anteriorly and slightly upwards penetrating the sub-cutaneous tissues and muscles, then
to the abdominal cavity and involving the upper portion of the descending colon, and the
two loops of small intestines, then piercing the right abdominal muscles, making a wound,
(exit), 1.5 cm. located at the lumbar region, right, about 1 1/2 inches anterior to the midaxillary line, right.
Three witnesses positively identified the assailant as accused Hermogenes Magdueo: (1)
Elena Adion Lim, while sitted (sic) at the gate of her fence, about 20 to 30 meters away
from the house of Fiscal Dilig, saw the gunman coming from where she heard two
successive shots when he passed by her house, bringing a short gun in his right hand and
a clutch bag while hurriedly proceeding towards Liwanag Street. On October 30, 1980, she
identified accused Magdueno as the man she saw that early morning of October 15, 1980;
(2) Ernesto Mari Y Gonzales, a security guard of the Malaria Eradication Service, this City,
while on board a tricycle, passing in front of the house of Fiscal Dilig, on his way home,

21

likewise heard the two gunshots coming from the direction of Fiscal Dilig's house,
prompting him to order the driver to stop. He described the gunman as wearing a white
polo shirt, blue pants and a hat, still holding the gun pointed at Fiscal Dilig. When the
gunman turned to his left side, Mari saw a scar on his left temple below his left eyebrow.
The man was still holding the gun in his right hand while walking in a limping manner
towards Mendoza Street. On the witness chamber, he positively identified accused
Hermogenes Magdueno as the gunman; (3) Cynthia Canto a taxi dancer, residing at Jose
Abad Santos, this City, while in front of the store of Aling Charing near the house of Fiscal
Dilig, waiting for a tricycle, saw the gunman standing by for a quite time, then went nearer
Fiscal Dilig who was then sitted (sic) on the driver's seat of his jeep and fired two
successive shots to the latter, exiting towards Mendoza Street. She could not be mistaken
that accused Hermogenes Magdueno was the gunman and when she came face to face
with him at the invitation of the police in Plaridel, Aborlan, Palawan, she readily Identified
Magdueo as the killer.
Magdueo also executed an extra-judicial confession wherein he admitted that he killed
Fiscal Dilig for a price or reward and implicated Leonardo Senas and Mauricio de Leon to
the commission of the crime. However, both Senas and de Leon were later dropped from
the amended information for lack of a prima facie case against them.
All the other accused were acquitted for insufficiency of evidence.
Gloria S. Dilig, the widow of the victim was presented as witness to prove the civil aspects
of the case. She testified on the actual damages the family incurred and the moral
damages she suffered as a result of the death of Fiscal Dilig.
The dispositive portion of the trial court's decision states:
WHEREFORE, judgment is hereby rendered finding:
1) Accused Hermogenes Magdueno guilty beyond reasonable doubt of the crime of murder
qualified by treachery and evident premeditation and aggravated by price or reward and
that the crime was committed in contempt of/or with insult of public authority, and hereby
sentences him to suffer the SUPREME PENALTY OF DEATH, with all the accessory penalties
provided for by law, and to pay the costs. He is likewise ordered to indemnify the heirs of
the late Fernando M. Dilig in the sum of P130,000.00, as actual damages and P20,000.00,
as moral damages.
2) Accused Alejandro Guevarra, Teodorico Ramirez, Jr., Edgardo Caabay, Apolinario Sison
and Alfredo Guevarra, not guilty of the crime of murder and hereby acquits them of the
charge against them. The bailbond posted for the provisional liberty of accused Alejandro
Guevarra, Teodorico Ramirez, Jr., Edgardo Caabay and Alfredo Guevarra is hereby ordered
cancelled and the immediate release of accused Apolinario Sison is likewise ordered unless
held for any other cause.
The appellant assigns the following errors allegedly committed by the lower court:
I THE COURT A QUO ERRED IN CONVICTING THE ACCUSED FOR MURDER.
II THE COURT A QUO ERRED IN ADMITTING IN EVIDENCE THE ACCUSED'S EXTRAJUDICIAL CONFESSION.
We are convinced from the records that the appellant was the assailant of the late Fiscal
Fernando Dilig. The lower court did not err as alleged.
The appellant was a stranger in the town and was not known by the three eyewitnesses
before the incident. However, he was readily and positively Identified by the three
eyewitnesses upon confrontation. They could not have mistaken the appellant's Identity
because they had a clear view of him at the time and the incident happened in broad
daylight. Any doubt of his Identity is erased by the testimony of Ernesto Mari Gonzales,

one of the eyewitnesses, to the effect that the man he saw pointing a gun to the late
Fiscal Dilig had a scar on his left temple below his left eyebrow. The appellant, as observed
by the lower court, has a scar below his left eye and above the left eye at the eyebrow in
the shape of a letter "J" and at the end of the left eye somewhat shaped like the letter "V",
perpendicular to the eyebrow.
The defense failed to show any motive on the part of these eyewitnesses to falsely accuse
the appellant as having committed the crime. The appellant's accusation that Cynthia
Canto, one of the eyewitnesses testified against him "to claim a reward" is not supported
by any evidence on record.
In the light of the positive identification of the appellant as the perpetrator of the crime,
his defense of alibi necessarily falls. His assertion that on the day of the incident, he was
at the house of Leonardo Senas in Plaridel, Aborlan, Palawan deserves no credit. The
appellant has not shown that it was impossible for him to have been at the place of the
incident at the time the crime was committed. Moreover, as the lower court observed a
bus ride from Aborlan, Palawan, would take only a little more than two hours to the city.
Treachery in the commission of the crime is clearly established by the record.
The appellant fired two successive shots at the defenseless Fiscal Dilig while the latter was
still seated in his jeep, hitting him at the neck and lumbar region. According to Dr. Rufino
P. Ynzon, who performed the autopsy, on the victim; both wounds were fatal and that
"death will definitely occur." Immediately after the shooting, the appellant fled still holding
his firearm.
The manner of the execution was such that the appellant deliberately and consciously
adopted means and ways of committing the crime and insured its execution without risk to
himself arising from any defense Fiscal Dilig might make. The two conditions necessary for
treachery to exist are present. (People v. Macariola, 120 SCRA 92; People v. Rhoda, 122
SCRA 909; People v. Mahusay, 138 SCRA 452; and People v. Radomes, 141 SCRA 548).
The fact that the appellant called out, "Fiscal" before shooting the victim does not negate
the presence of treachery in the commission of the crime. Since the appellant was a hired
killer, he wanted to insure that he was shooting the correct person. When Dilig turned his
face to find out who was calling him, the appellant fired immediately rendering no
opportunity for Dilig to defend himself.
The attendant circumstance of treachery qualifies the crime to murder. The first assigned
error is without merit.
The second assignment of error questions the trial court's finding that the extra-judicial
confession was admissible.
The lower court quoted Section 20, Article IV of the Bill of Rights and took pains to explain
why there was compliance with its mandate. The court commented on the. imbalance
present during custodial interrogations, the strange and unfamiliar surroundings where
seasoned and well-trained investigators do their work, and then rejected the appellant's
allegations that it was extracted through violence and torture. The trial court stated:
But a cursory evaluation of the evidence shows that accused Magdueno was properly
informed of his constitutional rights to remain silent and to counsel and that any
statement he might make could be used against him He was allowed to communicate with,
and was even given, a lawyer in the person of Atty. Clarito A. Demaala, Jr. of the CLAO in
this City. As certified to by Atty. Demaala, Jr., he assisted and was present when the
accused was placed under custodial investigation. Even before it started, Atty. Demaala
interviewed the accused and informed him of his constitutional rights. NBI Officer-inCharge Celso A. Castillo, affirmed this particular fact. He was allowed to converse with his

21

counsel in his cell and the statement thus obtained from him, signed and subscribed by
him as true, whether inculpatory or exculpatory, in whole and in part, shall be, as it is
hereby, considered admissible in evidence. (Morales, et al: v. Ponce Enrile, et al. L-61016;
Moncupa, Jr. v. Ponce Enrile, et al. L-61107, April 26, 1983.) It is presumed voluntary and
no contrary evidence was shown. (People v. Dorado, L-23464, 36 SCRA 452). There is
spontaneity and voluntariness in his extra-judicial confession which contains details that
cannot be furnished by the investigators on how the killing was planned, the reward to be
received and the scenario of the killing (People v. Opiniano, 22 SCRA 177). Furthermore, it
was corroborated by other evidence which recites the true sequence of events. (People v.
Pontanosal, 20 SCRA 249).
With the admission of, and conformably to what the accused Hermogenes Magdueno
alleged in, his extra-judicial confession, the court finds that accused Magdueno was hired
by a 'mysterious mastermind' with whose representative he agreed to kill Fiscal Dilig for a
fee of P80,000.00, of which he will receive a clean bill of P 30,000.00. Sometime during
the last week of September, 1980, at his residence in Divisoria, Metro Manila, he agreed to
the proposition. The representative of the mastermind,' Leonardo Senas, gave him the
advance payment of P5,000.00, with the balance of P25,000.00 to be paid after he
accomplished the mission. As to the gun he used, it was a 9mm. automatic revolver. This
confirms the finding of the NBI. ...
The records show that the CLAO lawyer, Atty. Clarito Demaala, entered his appearance as
counsel for the accused during the interrogation and was present from the start of the
investigation until it was finished.
The evidence showing that the appellant was a contract or hired killer especially contacted
in Manila to do a job in Puerto Princesa is strengthened by testimony.
Magdueo himself testified that he was formerly an inmate of Muntinglupa who was later
transferred to Sta. Lucia Sub-Colony and released in 1973. He stated that after his
release, he lived with relatives in Divisoria and worked with an aunt as sidewalk vendor.
He explained his presence in Palawan on the day of the killing by claiming that sometime
in 1979 Leonardo Senas accidentally passed by their place in Tabora and suggested that
the appellant bring assorted merchandize to Aborlan, Palawan where Senas resides. He,
therefore, left for Palawan on board the M/V Leon on September 28, 1980 (or shortly
before the killing) and visited Mauricio de Leon at Quito, Puerto Princesa, saw head-nurse
Mrs. Fernandez at Sta. Lucia, spent a night with a Mr. Obid at the Inagawan Sub-Colony
and proceeded to Aborlan, Palawan. He claims that at the time of the shooting, he was in
the house of Senas in Aborlan and learned only from the radio about the killing of Fiscal
Dilig.
One of the prosecution witnesses, Andres Factors, testified that he was formerly an inmate
in Muntinglupa since October 26, 1955 and that while serving a sentence for triple death
penalty, he met Magdueno, a leader of the Sputnik Gang, also on death row. Magdueo
was nicknamed "Mande" and served as an attendant in the prison hospital Factors stated
that Magdueo was known as a TIRADOR or killer while in prison He further testified that
while he was in Sta. Lucia Sub-Colony in 1980, he saw Magdueo on October 12 or 13 at
the gate of Palawan Apitong. The reason given by the appellant for his being there was
that he was in the business of bangus fry.
There is plenty of other testimony about the participation of the appellant and the other
accused and the defenses they presented. The trial court summarized in its decision the
testimonies of sixteen (16) prosecution witnesses and twenty-one (21) witnesses for the
defense.

We have carefully examined the records and considering the testimony of the three
eyewitnesses to the shooting, their positive and categorical Identification of the appellant
as the assailant, the corroborative evidence on the circumstances of the killing, and the
more than coincidental presence of Magdueo in Palawan when he should have been in
Manila, we see no error in the lower court's finding that the appellant committed the crime
of murder qualified by treachery and evident premeditation and aggravated by price and
reward. Magdueo, in effect, also admitted that he was a recidivist at the time of his trial.
However, recidivism was not alleged in the information and makes no difference in the
determination of the penalty in this case.
However, the aggravating circumstance of commission of a crime with insult to public
authority does not seem to be borne by the records. For this aggravating circumstance to
be considered it must not only be shown that the crime was not committed in the
presence of the public authority but also that the crime was not committed against the
public authority himself. (U.S. v. Rodriguez, 19 Phil. 150; People v. Rizal, 103 SCRA 282).
In the instant case Fiscal Dilig, the public authority involved in the crime, was the victim.
Hence, the lower court, erred in including commission of the crime with insult to public
authority as an aggravating circumstance.
Considering the presence of an aggravating circumstance and the absence of any
mitigating circumstance attending the offense, the lower court imposed the proper penalty
on the appellant. The crime in this case is a particularly heinous one. The appellant is
shown by the records as a heartless contract killer. Upon being paid for a job, he had no
compunctions about traveling all the way to Palawan from Manila, stalking and liquidating
an unwary victim whose only fault was to perform his duties faithfully.
WHEREFORE, the lower court's judgment is hereby AFFIRMED.
SO ORDERED.
[G.R. Nos. 135667-70[1]. March 1, 2001]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JESSIE VENTURA
COLLADO, accused-appellant.
DECISION
BELLOSILLO, J.:
TO TIE A CHILD of tender years spread-eagled to her bed to abuse her in the privacy of
her home is despicable enough; to encroach on her innocence unashamedly in front of her
younger brother is to descend to the deepest recesses of depravity. Thus the incorrigible
lothario transgressed all norms of decency, morality and rectitude when he molested his
nine (9)-year old victim in the presence of her six (6)-year old brother and severed all
strands of gratefulness to her parents who gave him food, shelter and livelihood for four
(4) years.
Messeah is the daughter of Jose Noli Dumaoal, a seaman. His household was composed of
his wife Julie, and their three (3) children, Reggie, Messeah and Metheor. The accused
Jessie Ventura Collado, son of Jose Nolis cousin Benjamin, was living with them since
1989. While waiting for an opportunity to become a seaman himself like his uncle Jose,
Jessie served as the family driver. Aside from driving Julie, Jessie would also drive the
school service vehicle operated by the Dumaoal spouses. Since Jose was almost always at
sea and having no househelp, their children were oftentimes left in the care of Jessie. But,
instead of taking care of them as their surrogate father, he took advantage of Messeah by
sexually molesting her at home, and worse, even in the presence of her younger brother.

21

The first of four (4) unfortunate occasions was on 27 April 1993 when Julie and her oldest
son Reggie went to Cubao. Messeah was resting in her bedroom upstairs when Jessie
suddenly barged into her room. "What are you doing here?" she demanded, knowing fully
well that he was not allowed upstairs without her parents permission. Jessie simply smiled
and said, "Wala," and added that her mother was not around to get mad at him. Then he
left only to return after three (3) to five (5) minutes with a straw rope in hand. Messeah
asked him why he was holding the rope, and Jessie told her to keep quiet and not to ask
questions or else he would hurt her. Alarmed, Messeah rushed to the window and
screamed for her brother Metheor, but Jessie reached out to cover her mouth with one
hand while he closed the window with the other. She heard Metheor call out from
downstairs, "Whats going on?" but Jessie stopped her from answering.
Hearing no response from Messeah upstairs, Metheor went up to her room and discovered
that Jessie had tied Messeahs hands to the bed and was about to tie her feet
down. Metheor asked, "What are you doing to my Ate?" Messeah screamed to her brother
to call for help from the neighbors, but Jessie threatened to hurt him if he left the
room. Jessie then moved the bed to block the way to the door. At some point, he also
punched Messeah on her right cheek. Jessie then parted her legs and tied them apart,
pulling down her garterized shorts and panties until her ankles. He tried forcing his penis
into her vagina, but when he failed in his attempt, he inserted it into her anus instead.
Messeah felt pain in her anus and something sticky "like paste" flowed out from his
penis. Her vagina ached from Jessies earlier attempt to defile her. She saw Jessie close his
eyes as though he was enjoying himself. She cried out and Metheor, unable to bear what
Jessie was doing to his sister, told the older man, "Let my Ate go," and boxed him futilely
with his baby fists. Jessie punched Metheor in the stomach and the latter was rendered
helpless by the pain. Jessie told Messeah to dress up and threatened to set them and their
house on fire if they said anything.
When Julie and Reggie arrived home in the afternoon she noticed that Messeahs cheek
was red. She asked her what was the matter, but Messeah saw Jessie listening close by
and looking at her with dagger eyes, so she simply lied and told her mother that she hurt
herself while playing. Metheor also gave their mother the same excuse. That night,
although she knew that Jessie was no longer on the second floor where she and her family
slept, she could not muster enough courage to tell her mother what happened because of
Jessies threats.[2]
Because of this incident, Messeah asked her mother to buy a lock for her bedroom door,
but her mother passed the errand on to Jessie, who, predictably did not buy the
lock. Messeah began to hate Jessie and asked her mother to find another driver without
however telling her what he did, but her mother only told her that it would be difficult to
find another one.
That was not the end of Messeahs ordeal. On 5 June 1993 Julie and Reggie went to the
Marikina public market, again leaving Messeah and Metheor alone with Jessie. Messeah
was resting on the sofa while Metheor was in the garage when Jessie grabbed Messeah
and dragged her upstairs. She screamed and Jessie tried to cover her mouth. She was
crying as Jessie told her to take off her shorts and panties, took off his shorts, pressed her
legs apart with his two (2) legs, and rubbed his penis against her thighs, until it touched
her vagina. She told him to stop because she was hurting but he did not heed her plea.The
intimate encounter went on for some ten (10) to fifteen (15) minutes. Metheor heard her
screams for help, went upstairs and saw what Jessie was doing. He told Jessie to let his
sister go, but Jessie merely ignored him. Metheor went downstairs and got a 7" to 8"-inch

breadknife which had a narrow point at the end. Metheor again told Jessie to let his sister
go, and threw the knife at Jessies back. Jessie felt the knife hit his back that left a reddish
mark, and let Messeah go. Before he left, he told the children that he would throw them
into a volcano if they told anybody about what happened.[3]
The third molestation happened on 7 July 1993. Again, only Metheor, Jessie and Messeah
were at home. Metheor was upstairs sleeping while Messeah was resting on the sofa when
Jessie suddenly entered the living room armed with a knife. Messeah called for her older
brother twice, but Reggie had already gone out. She only stopped when Jessie pointed the
knife at her and threatened to stab her if she shouted again. He then forced her to walk
backwards to the kitchen where he told her again to remove her shorts and panties. She
resisted but Jessie insisted and even tried twice to stab her if she did not comply. He used
one of his hands to remove his shorts and briefs. He forced Messeah to sit on a steel chair
and told her to spread her legs. She sat with her legs closed together but he got mad and
threatened to stab her if she did not open her legs. She reluctantly opened her legs
slightly and Jessie spread them wider with his free hand as the other hand was holding the
knife. Jessie then told Messeah to sit at the edge of the steel chair, like before. He stood
with one hand holding on to her shoulder, the other holding the knife, and stood straddling
her legs. He then inserted his penis between her thighs and used his legs to press her
thighs together (apart?). Then he rubbed his penis against her thighs for some three (3)
to five (5) minutes until it touched her vagina. She could then feel something sticky
coming out from his penis and reaching her vagina. Although her hands were free, she
could not slap, box or scratch him because she was afraid that he might stab her as he
threatened. Jessie only stopped when he heard a noise.It was Reggie entering the
gate. Jessie ordered Messeah to get dressed immediately. Although she did not want to,
Messeah stood up, got dressed, and met her brother in the living room. As she walked
away, Jessie, who had also put his clothes back on, threatened to kill her whole family and
Messeah knew that she could not get any help from her brother Reggie, who was only
thirteen (13) years old and no match for Jessie who was much older and bigger.[4]
In August 1993 Jose came home for his annual vacation, but Messeah and Metheor were
too afraid of Jessie and his threats that they did not tell their father about the ongoing
abuse by Jessie. Once Jessie even borrowed a video tape of the Vizconde Massacre and
forced Messeah and Metheor to watch it, telling them that the same thing would happen to
them if they revealed to their parents what he was doing to them.[5] Not even the arrival
in May 1993 of Julies relative, Alipio Martin, could prevent Jessie's sexual assaults as he
always waited until he was alone in the house with the children.
Jessie again took advantage of the situation on 17 October 1993 when everybody in the
Dumaoal household, except for the two (2) youngest children, were away from
home. Messeahs parents had gone shopping, while Reggie was playing computer with his
friends at a neighbors house. Julies parents, who were staying for a visit, were busy with
other things. Her mother was at the parlor having a cold wave, while her father was
talking to a neighbor at the latters house some distance away. Alipio was also out of the
house and Metheor was playing in the garage. Messeah was aware of how alone she was
and felt afraid that she might be molested again, but she could not do anything since the
door of her room still had no lock. She had wanted to go to Cubao with her parents but
Jessie had convinced them to leave her and Metheor behind since they had been invited to
go to a birthday party. By the time they returned from the party, Jose and Julie had
already left for Cubao.

21

As Messeah was changing her clothes after coming from the party, Jessie again entered
her room, told her to remove her panty, and inserted his smallest finger (kalingkingan)
into her vagina while telling her to keep silent. He then removed his pants and briefs and
went on top of her. This time, he was not able to touch her vagina with his penis because
Messeah cried and screamed and called for Metheor who again went up and told Jessie,
"Get away from my sister." Jessie stopped but threatened to throw the children to the
sharks if they told their parents what happened.[6]
That night Messeah learned from her father that he was about to board his ship again. The
next day, 18 October, she waited until Jessie left to drive the schoolbus to school. She was
crying, and it was only after some prompting that she told her mother, "Tinorotot ako ni
Jessie."[7] Julie brought her to Jose and asked her what she meant by "tinorotot."
Messeah replied, "Jessie was forcing his penis into [my] vagina." She also mentioned that
Jessie had inserted his penis into her anus, and that he had also inserted his finger into
her vagina.[8]
Jose was shocked because he had treated Jessie as if he were his own child, and that
morning, had even told Jessie to make sure his papers were in order because he might be
able to bring him along with him to sea.[9] After promising Messeah that they would talk
to Jessie, Jose and Julie brought her to school, then went home and talked to Jessie, who
denied everything. However, Jessie looked pale, and told the Dumaoal spouses to just
send him back to Paoay, Ilocos Norte. They were not able to talk to Jessie further because
it was time for him to fetch the other children from school. The Dumaoal spouses went
back to school where they found Messeah crying. When Messeah saw them, she asked
them why they did not stay with her so they could have protected her. Apparently, Jessie
had tried to bring her out of the school but was prevented from doing so by the school
guard. The Dumaoals asked the principals permission to bring her home. But before going
home, they went to church and again asked her what happened, and reminded her that no
one was supposed to tell a lie in church. Messeah insisted that she was telling the truth,
and even offered to draw Jessies penis for them. She also told them to talk to Metheor,
who had witnessed the incidents, and insisted that they confront Jessie before a
policeman.
Since they did not know what to do, the Dumaoal spouses consulted a lawyer, as well as
Jose's uncle, Anastacio Dumaoal. The latter suggested that they talk to Jessie in the
presence of Jessie's father, Benjamin Collado. Since they did not know Benjamin's exact
address in Valenzuela, Bulacan, they left a message with his employer. Benjamin came on
22 October, and in the presence of Benjamin, Anastacio, and Julie Dumaoal's father
Geronimo Martin, the Dumaoal spouses reached an agreement with Jessie whereby they
would not press charges provided that he kept away from the Dumaoal family, and not
threaten, coerce or do harm to any of them. The agreement was reduced to writing, and
after signing the document, Jessie boarded a bus for Paoay.
Because of Jessie's threats, the Dumaoals were forced to transfer residence even though
they did not have money to spend for the purpose. Before All Saint's Day, Jose went to the
province to visit his parents' grave. While in Paoay, he learned from his cousin Josephine
Collado, Jessie's aunt, that Jessie only stayed in Paoay for four (4) days after which he
returned to Manila. Jose hurriedly returned to Manila and went to their former residence
and learned from bystanders that Jessie had been seen drinking in front of the
house. When Messeah learned about this, she got angry and told her father that he should
have reported Jessie to the police since she had seen him lurking outside her school. Since

Jessie violated his undertaking, they decided to file complaints against him for one (1)
count of consummated rape and three (3) counts of acts of lasciviousness.
Jessie denied all the allegations against him and attacked instead the credibility of
Messeah and Metheor. But the trial court found accused-appellant Jessie Ventura Collado
guilty of statutory rape and sentenced him to suffer the penalty of reclusion
perpetua. Likewise, it found him guilty of three (3) counts of acts of lasciviousness and
sentenced him to suffer imprisonment of six (6) years of prision correctional in its
maximum period for each count. It also ordered him to indemnify the private complainant
in the amount of P50,000.00, and P100,000.00 for moral damages.[10]
In his appeal, the accused Jessie Ventura Collado, aside from attacking the credibility of
Messeah and Metheor, insisted that Messeah clearly testified that there was no penetration
whatsoever in her vagina. But assuming arguendo that he was found guilty of acts of
lasciviousness, the trial court erred nonetheless in imposing a penalty that did not take
into account the Indeterminate Sentence Law.
The trial court in its assailed Decision ruled that it found "Messeahs testimony of her
harrowing experience, although not absolutely consistent in all their details, to be still
credible and thus entitled to full faith and credit."[11] And we agree with the trial court in
this regard. In People v. Dado[12] the Court held that "assessing the credibility of
witnesses is an area within the almost exclusive province of a trial judge whose findings
and conclusions are normally accorded great weight and respect. In determining the
credulity of testimony, significant focus is held to lie on the deportment of, as well as the
peculiar manner in which the declaration is made by the witness in open court. Hardly can
an appellate court come close to a trial court in making, from a mere reading of the
transcript of stenographic notes, that kind of evaluation."[13]
The trial court was correct in finding accused-appellant guilty of three (3) counts of acts of
lasciviousness. We take exception however to its finding that statutory rape was
committed by him on 5 June 1993. A thorough evaluation of the records will show that
accused-appellant Jessie Ventura Collado should only be convicted for acts of
lasciviousness and not for consummated rape.
It is clear from Messeahs testimony that when Jessie carried out his lecherous intent on 5
June 1993, he did not commit rape, consummated nor attempted, despite the victims
testimony that he succeeded in touching her genitalia with his private parts Q: And what happened when he brought you to your room?
A: He told me to take off my shorts as well as my panty.
Q: Then what happened after that?
A: And while my legs were apart, he pressed them apart.
Q: Now, you said that Jessie pressed your legs apart, with what part of his body did he
press your legs apart?
A: With his two legs, sir.
Q: And after he pressed your legs apart, what did he do?
A: He rubbed his penis between my thighs.
Q: Near your private part?
A: Yes, sir, near my private part x x x x
Q: You said that kinukuskos, or he was rubbing his penis near your vagina, what happened
when he was rubbing his penis near your vagina?
A: I told him dont, because I was hurt, because he is pressing his legs on my legs.
Q: And what did he do?
A: He told me to shut up.

21

Q: And what did he do after he told you to shut up?

A: He continued what he was doing.
Q: And what was he exactly doing at that time?
A: Rubbing his penis near my vagina.
Q: How near was it to your vagina?
A: It touches my vagina (emphasis supplied)
Q: If you can calculate the time, how long did it last?
A: Maybe 10 - 15 minutes.[14]
Nowhere can we find from the foregoing any indication that accused-appellant successfully
penetrated at least the labia of the victim; neither can we glean therein any grain of intent
on his part to invade Messeahs privities. The victim only said in her testimony that Jessie
initially "pressed her legs apart with his two (2) legs, and rubbed his penis against her
thighs, until it touched her vagina." Further, Messeah might have told the accusedappellant to "stop because she was hurting" yet she did so only because "he was pressing
his legs on her legs." She did not mention having felt pain in her vagina. As narrated by
Messeah, "the intimate encounter went on for some 10-15 minutes." If accused-appellant
was penetrating her or trying to penetrate her for such a considerable period, she should
have likewise cried out in anguish for the pain in her sex organ. To compare, she cried out
in pain when accused-appellant tried forcing his penis into her vagina and anus during the
first incident.
We recall that during the first incident of 27 April 1993, accused-appellant tried forcing his
penis into her vagina, but when he failed in his first attempt, he inserted it into her anus
instead. This could have been attempted rape, or even consummated rape but the
Complaint filed was only for acts of lasciviousness. Thus, accused-appellant cannot be
convicted of attempted or consummated rape. Noteworthy is that the victim was already in
a spread-eagle position yet he was unsuccessful in his attempt to defile her. By then he
must have realized that it was difficult to penetrate his victims sex organ such that during
the second incident of 5 June 1993, he merely "rubbed his penis between her thighs"
although in the process "touched her vagina."
We recall further that during the third incident of 7 July 1993, accused-appellant "inserted
his penis between her thighs and used his legs to press her thighs together, then he
rubbed his penis against her thighs for some three (3) to five (5) minutes until it touched
her vagina and she felt something sticky coming out of his penis." As in the second
incident, there was no showing he inserted his penis into herlabias, much less tried to do
so. This recourse to a "simulated means" of achieving orgasm is another manifestation of
his realization of, or resignation to, the difficulty of penetrating his preys sex organ.
In according significance to the word "touched," it would be instructive to revisit our ruling
in People v. Campuhan[15] where we said x x x Thus, touching when applied to rape cases does not simply mean mere epidermal
contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the
external layer of the victims vagina, or the mons pubis x x x x There must be sufficient
and convincing proof that the penis indeed touched the labias or slid into the female
organ, and not merely stroked the external surface thereof for the accused to be convicted
of consummated rape x x x x
x x x Absent any showing of the slightest penetration of the female organ, i.e. touching of
either the labia of the pudendum by the penis, there can be no consummated rape; at
most, it can only be attempted rape, if not acts of lasciviousness.

In other words, "touching" of the female organ will result in consummated rape if the
penis slid into or touched either labia of the pudendum. Anything short of that will only
result in either attempted rape or acts of lasciviousness. Significantly, People v.
Campuhan did not set a demarcation line separating attempted rape from acts of
lasciviousness. The difference lies in the intent of the perpetrator deducible from his
external acts. Thus when the "touching" of the vagina by the penis is coupled with the
intent to penetrate, attempted rape is committed. Otherwise, it is merely acts of
lasciviousness.
Inasmuch as the touching of the victims organ by the penis of accused-appellant on 5 June
1993 was but a mere incident of the "rubbing against or between the victims thighs" which
in no way manifests an act preliminary to sexual intercourse, accused-appellant should
only be convicted of acts of lasciviousness instead of consummated rape.
Messeah's testimony regarding the other acts of lasciviousness committed against her
person on different instances by Jessie is also credible, more so when we consider how
Metheor's testimony corroborated the appalling tale of molestation and assault. Messeah
told the trial court how on several occasions Jessie had inserted his penis into her anus,
and also his smallest finger into her vagina, and how he straddled her legs between his
legs with his penis pressed between her thighs. The defense tried to show that it was
impossible for a man to have inserted his penis into the anus of a young girl tied spreadeagle to the bed with her garterized shorts and panties pulled down to her ankles, but the
garter would stretch to allow the victims legs to spread far apart and Jessies beastly act
would not have been a physical impossibility. Further, Messeah testified that both her anus
and vagina hurt during the first incident,[16] which could only have resulted from the
penetration.
On his part, Metheor testified as to how he heard his sister scream for his help, how he
saw her tied down on the bed like an animal, how he twice saw Jessie lie on top of his
sister, first on 27 April 1993, and again on 5 June 1993, and how Jessie pushed and
threatened him if he ever said a word about what he had seen. [17] He also told the court
how on 17 October 1993, he saw Jessie insert his smallest finger into Messeahs vagina.
[18]
Neither Messeah nor Metheor had any motive to implicate Jessie except to stop the
abuses. It should be noted that these are children forced to live in fear for a long time,
and had suffered many indignities at the hands of Jessie. In fact, in his desire to prevent
Jessie from hurting his sister, young Metheor repeatedly tried to push Jessie away from his
sister's helpless body by punching him and even attempting to stab him with a bread
knife, the only weapon he could handle.
Messeahs failure to reveal the sexual abuses to her mother does not taint her
credibility. Her silence was impelled by both fear for her life and shame for the degradation
that had befallen her. It is not uncommon for a young girl of tender age to be intimidated
into silence by the mildest threat against her life. Silence is not an odd behavior of a rape
victim.[19] In fact, the burden of keeping such a secret took its toll on her health. Jose
Noli testified that when he arrived for a vacation in August 1993, he noticed that his
children looked blank and pale, especially Messeah who looked thin, complained of
dizziness and headaches and sometimes threw up. He and his wife had brought Messeah
to several doctors, before one finally diagnosed Messeah as suffering from nervous
breakdown and psychological trauma.[20]
The rule is that affirmative testimony is far weightier than a mere denial, especially when
it comes from the mouth of a credible witness.[21] Jessie's alibi that he was driving the

21

family car on the disputed occasions cannot stand up to his positive identification as the
perpetrator of the crime by both Messeah and Metheor.
Neither can we believe Jessie's allegation that Julie only wanted him out of their house
because she favored her own relative over him. No mother in her right mind would subject
her child to the humiliation, disgrace and trauma attendant to a prosecution for rape, if
she were not motivated solely by the desire to incarcerate the person responsible for her
child's defilement.[22] Furthermore, it is highly improbable that a rape victim and her
family would publicly disclose the incident and thus sully their honor and reputation in the
community unless the charge is true.[23] In fact, if Julie only wanted Jessie out of her
house,[24] then why would the Dumaoal family file the complaints against him only on 13
April 1994, when it is clear that he had already left the household as early as 22 October
1993. Neither does this explain why the Dumaoal spouses felt compelled to change
residences in such a short period of time. As Jose Noli testified, they made the move
even before All Saints Day,[25] which shows that they left their familiar surroundings and
uprooted their family all within ten (10) days just so they could ensure Messeahs safety.
Moreover, we agree with the Solicitor General that the only reason why the Dumaoal
spouses agreed to let Jessie go home to the province instead of filing charges against him
was because they were "torn between seeking justice for their daughter and preserving
her and the familys reputation. There was also the Christian desire to forgive and give a
blood kin a new chance at life knowing the gravity of the penalty that would be meted out
to him. To interpret their actuation any other way would be most unfair to parents who are
equally suffering with what befell their only daughter."[26]
Parenthetically, it may be noted that the trial court failed to consider the provisions of
the Indeterminate Sentence Law when it imposed the penalty of "imprisonment of six (6)
years of prision correccional in its maximum period."
Under the Indeterminate Sentence Law, the imposable penalty provided by Art. 336 of The
Revised Penal Code is prision correccional the range of which is six (6) months and one (1)
day to six (6) years. With the presence of one (1) generic aggravating circumstance, i.e.,
obvious ungratefulness, the maximum shall be taken from the maximum period of the
imposable penalty, which is, four (4) years two (2) months and one (1) day to six (6)
years, while the minimum shall be taken from the penalty next lower in degree, which
is, arresto mayor the range of which is one (1) month and one (1) day to six (6) months.
WHEREFORE, the Decision of the Regional Trial Court of Pasig City, Branch 267, finding
accused-appellant JESSIE VENTURA COLLADO guilty of Statutory Rape in G.R. No. 135667
(Crim. Case No. 106257) and three (3) counts of Acts of Lasciviousness in G.R. Nos.
135668 - 70 (Crim. Cases Nos. 106258-106260) is MODIFIED as follows:
In G.R. No. 135667 (Crim. Case No. 106257), accused-appellant is found guilty of Acts of
Lasciviousness (instead of Statutory Rape) under Art. 336 of The Revised Penal Code,
aggravated by obvious ungratefulness. In G.R. Nos. 135668-70 (Crim. Cases Nos.
106258-106260), accused-appellant is likewise found guilty of three (3) counts of Acts of
Lasciviousness under the same Art. 336, also aggravated by obvious ungratefulness in
each count.
Applying the Indeterminate Sentence Law, accused-appellant JESSIE VENTURA
COLLADO is sentenced to an indeterminate prison term of four (4) months and twenty
(20) days of arresto mayormaximum as minimum, to four (4) years six (6) months and
ten (10) days of prision correccional maximum as maximum, in each count of Acts of
Lasciviousness. Accused-appellant is further directed to pay the private complainant
Messeah
M.
Dumaoal P30,000.00
as
civil
indemnity, P40,000.00
for
moral

damages, P20,000.00 for exemplary damages, in each of the four (4) counts of Acts of
Lasciviousness, and to pay the costs.

PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee,
G. R. Nos. L-51304-05
June 28, 1983
-versusMARTIN MANDOLADO
and JULIAN ORTILLANO,
Defendants-Appellants.
The judgment of conviction rendered by the Court of First Instance of Cotabato, Branch
II, Cotabato City dated June 28, 1979 sentencing the accused Martin Mandolado to the
supreme penalty of death in each case and the accused Julian Ortillano to imprisonment of
six [6] years of prision correccional as minimum to seventeen [17] years of prision mayor
as maximum, being merely an accessory, is before Us for mandatory review.
Under two [2] separate criminal informations dated January 5, 1978 filed by First Assistant
Provincial Fiscal Ismael G. Bagundang, the two accused-appellants, Martin Mandolado and
Julian Ortillano, draftees assigned with the Alpha Company, 3rd Infantry Battalion, Second
Infantry Division, Philippine Army with station at Pikit, North Cotabato, together with
Anacleto Simon and Conrado Erinada, trainees attached to the Headquarters and
Headquarters Company, 3rd Infantry Battalion, 2nd Infantry Division, Philippine Army,
stationed at the Army Detachment along Simuay Junction, Simuay, Sultan Kudarat,
Maguindanao, were accused of murder for the death of the victims, Herminigildo Tenorio
and his driver Nolasco Mendoza, with the use of their firearms in the afternoon of October
3. 1977 at Sultan Kudarat, Maguindanao, qualified with the aggravating circumstances of
treachery, evident premeditation and abuse of superior strength.cralaw
Specifically, in Criminal Case No. 561, the Information charged the accused as follows:
That on or about October 3, 1977 in the afternoon, in the Municipality of Sultan Kudarat,
Province of Maguindanao, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, with intent to kill, conspiring, confederating and helping one
another with treachery, evident premeditation and the use of superior strength all armed

21

with high powered weapons did then and there willfully, unlawfully, and feloniously, and
with the use of their guns, shoot Mr. Nolasco Mendoza hitting the latter on different parts
of his body causing his instantaneous death.
Contrary to law with the aggravating circumstances of treachery, evident premeditation,
and the use of superior strength.
Similarly, in Criminal Case No. 562, the Information reads:
That on or about October 3, 1977, in the afternoon, in the Municipality of Sultan Kudarat,
Province of Maguindanao, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, with intent to kill, conspiring, confederating and helping one
another with treachery, evident premeditation and the use of superior strength all armed
with high-powered weapons did then and there willfully, unlawfully, and feloniously, and
with the use of their guns shoot Mr. Herminigildo Fajardo Tenorio hitting the latter on the
different parts of his body causing his instantaneous death.
Contrary to law with the aggravating circumstances of treachery, evident premeditation,
and the use of superior strength.
The charges having been allegedly committed at the same place and occasion and
involving all the four [4] accused in each instance, were jointly tried per order of the trial
court dated February 28, 1978 and after completion thereof, the two herein accusedappellants were found guilty while the remaining two accused, Anacleto Simon and
Conrado Erinada, were acquitted. We quote hereunder the dispositive portion of the
decision now under review, to wit:
WHEREFORE, Martin Mandolado is found guilty beyond reasonable doubt of the crime of
murder in Criminal Case No. 562 for the killing of Herminigildo Fajardo Tenorio, and also in
Criminal Case No. 561 for the killing of Nolasco Mendoza, with the aggravating
circumstances of [1] "advantage was taken of his being a draftee in the Philippine Army,"
and [2] "abuse of confidence or obvious ungratefulness" without the presence of any
mitigating circumstances and is meted the following penalty, to wit:
In Criminal Case No. 562, for the killing of Herminigildo Tenorio, he is sentenced to suffer
the penalty of the crime in its maximum degree which is death. He shall pay the heirs of
the deceased the amount of P12,000.00 for the death of this victim, and the amount of
P20,000.00 as moral and exemplary damages.
In Criminal Case No. 561 for the killing of the driver, Nolasco Mendoza, he is similarly
sentenced to death. He is to pay the heirs of said deceased the amount of P50,000.00 for
the death of said victim, and the amount of P100,000.00 as moral and exemplary
damages.
In both Criminal Cases Nos. 561 and 562, on the grounds of reasonable doubt, Anacleto
Simon and Conrado Erinada are both found not guilty. This case against them [Anacleto
Simon and Conrado Erinada] is hereby dismissed.
In Criminal Cases Nos. 561 and 562, Julian Ortillano was found guilty as an accessory. He
fired his M-16 armalite whenever Martin Mandolado fired his machine gun and this could
be for no other purpose than to conceal or destroy the body of the crime in making it
appear the victims were fighting them or running away or that somebody else like the
MNLF, rebels, NPA or bandits committed the crime. Furthermore, in his own admission, the
purpose of their attempt to leave Mindanao for Bulacan after this incident was to hide and
wait for the time when Martin Mandolado could succeed in settling this case which is
evidence that he assisted in the escape of the principal of the crime.

He is hereby sentenced in each of both cases to serve an imprisonment term of six [6]
years of Prision Correccional as the minimum penalty, to seventeen [17] years of Prision
Mayor as the maximum penalty.
Martin Mandolado and Julian Ortillano are to pay jointly and solidarily the cost of this
litigation.
SO ORDERED.
Given in the City of Cotabato, Philippines, the 28th day of June, 1979.
[Sgd.]
ALEJANDRO
R.
LEOPANDO
District Judge
The facts are as stated in the People's Brief as follows:
In the morning of October 3, 1977, Julian Ortillano, Martin Mandolado, Conrado Erinada
and Anacleto Simon, trainees/draftees of the Armed Forces of the Philippines and assigned
to the 3rd Infantry Battalion of the Philippine Army, were passengers of a bus bound for
Midsayap, North Cotabato [p. 8, t.s.n., Feb. 21, 1979]. They alighted at the bus terminal
in Midsayap. Being all in uniform, armed and belonging to the same military outfit, they
got acquainted and decided to drink ESQ rum, at the said bus terminal [pp. 1011, supra].cralaw
While drinking, Conrado Erinada and Anacleto Simon decided to join appellants in going to
Pikit, North Cotabato, home base of appellants [p. 59, id.]. After drinking for about an
hour, appellant Mandolado got drunk and went inside the public market. Subsequently, he
returned, grabbed his .30 caliber machine gun and started firing. His companions tried to
dissuade him but he nonetheless continued firing his gun [pp. 11-12, supra]. Sensing
trouble, Conrado Erinada and Anacleto Simon ran away, hailed and boarded a passing
Ford Fiera with some passengers on board. Appellants followed and boarded also the
vehicle [pp, 13-15, supra]. The soldiers forced the driver of the Ford Fiera to bring them to
the Midsayap crossing [p. 58, t.s.n., July 24,1978].cralaw
On their way, appellant Mandolado got his knife and tried to attack the driver [pp. 6162, supra]. After appellants alighted at said crossing, the Ford Fiera sped away. Appellant
Mandolado fired his .30 caliber machine gun at the speeding vehicle [p. 51, t.s.n., Jan. 17,
1979] hitting the right side of the back of the driver's sister who was then on board said
vehicle [p. 64, t.s.n., July 24, 1978]. While waiting for a ride at the Midsayap crossing, a
privately owned jeep, driven by Herminigildo Tenorio, passed by. On board said jeep which
was bound for Cotabato City were Nolasco Mendoza and two [2] others, but the latter two
alighted at said crossing. Conrado Erinada and Anacleto Simon boarded the jeep.
Thereafter, appellants ran after the jeep, shout at Herminigildo Tenorio the driver thereof,
to stop the vehicle and subsequently, both appellants Mandolado and Ortillano boarded the
jeep [p. 34, supra]. On the way, both appellants kept firing their guns [pp. 54-55, t.s.n.,
Jan. 17, 1979] prompting Herminigildo Tenorio to remark, "Kung hindi kayo tatahimik,
ibabangga ko itong jeep." [Sworn Statement, Exh. "Q", Mandolado] which literally means,
"if you will not stop firing your guns, I will ram this jeep into something."
Upon learning that the jeep was bound for Cotabato City and not Pikit, North Cotabato,
appellant Mandolado got angry, "cocked" his gun and ordered the driver to stop [pp. 3638, supra]. While the jeep was coming to a full stop, Conrado Simon and Anacleto Erinada
immediately jumped off the jeep and ran towards their detachment camp located some
two hundred fifty meters away. Appellants also got off the jeep. Thereupon, appellant
Mandolado fired his .30 caliber machine gun at and hit the occupants of the jeep [Sworn
Statement, Exh. "Q", Mandolado]. Appellant Ortillano likewise, fired his armalite, not at
the occupants of said jeep but downwards hitting the ground. These bursts of gunfire were

21

heard by both Conrado Erinada and Anacleto Simon who were then already about fifty
meters away from the jeep while running towards their detachment camp [pp. 38 and 42,
t.s.n., Feb. 21, 1979]. Although it was then raining torrentially, Anacleto Simon recognized
the bursts of gunfire as those of a machine gun [p. 43, supra].cralaw
Appellants ran away from the scene and boarded another vehicle, alighting at Pinaring
crossing. Appellant Mandolado proceeded to a house where he left his belongings and
changed his wet uniform [p. 104, supra]. After about an hour, they rode in a "Hino"
passenger bus bound for Midsayap. On board said bus was a certain Mr. Leopoldo
Jalandoni who was seated in front of the appellants. Upon reaching a BPH building near
Nuling, Sultan Kudarat, the passengers of said bus were ordered to alight at the military
check point but appellant Mandolado did not alight [pp. 10-13, t.s.n., Oct. 5, 1975]. As the
bus was not proceeding to Pikit, North Cotabato and upon advice of Mr. Jalandoni,
appellants alighted at the Midsayap crossing and waited for a bus bound for Pikit [pp. 1920, supra].cralaw
Appellants were able to ride on a sand and gravel truck which took them to Pikit, North
Cotabato, arriving thereat at about 3:00 o'clock in the afternoon. At their camp, appellants
returned their firearms, but did not report the incident. In the evening, appellants
attended a party at the Pikit Elementary School [pp. 32-35, t.s.n., April 16, 1979]. The
following day, appellants proceeded to Davao City but stopped at Kavocan where they
stayed overnight. Arriving at Davao City, the following morning, appellants went to see a
movie and afterwards proceeded to the Office of Doa Ana, a shipping firm [p. 40, supra],
where they saw a certain Sgt. Villanueva who was then leaving for Luzon. Sgt. Villanueva
informed the appellants that they were suspects in the Tenorio and Mendoza killings.
Immediately thereafter, appellant Mandolado purchased two passenger tickets for Manila.
The other ticket was for appellant Ortillano [pp. 120-123, supra]. However, before
appellants could board the ship bound for Manila, they were apprehended by a team led
by Lt. Licas [p. 45, supra]. Appellants were brought to Pikit, North Cotabato where they
were investigated by Lts. Licas and Maburang about the aforesaid killings. The following
day, appellants were brought to the headquarters of the 2nd MP Battalion at P.C. Hill,
Cotabato City where they were again investigated. In said investigation, after appellants
were duly apprised of their constitutional rights, they executed and signed their respective
sworn statements [Exhs. "O" and "R"]. Appellant Mandolado admitted the killing of Tenorio
and Mendoza [Exh. "Q"]; whereas appellant Ortillano admitted his presence at said killings
and of his having fired his armalite downwards after appellant Mandolado fired upon and
killed the afore-named victims [Exh. "R"].cralaw
Silverio Balderosa, on October 3, 1977, at about 12:30 p.m., was on board a "Pinoy" jeep.
On his way home to Midsayap, he passed a jeep parked along the highway towards the
direction of Cotabato City and about 250 meters away from the BPH building. The parked
jeep was surrounded by several persons. Alighting from the "Pinoy" jeep, he went near the
parked jeep to see what happened. He saw the lifeless bodies of two persons, one
sprawled along the highway whom he recognized as Nolasco Mendoza and the other whom
he recognized as Mr. Tenorio slumped on the wheel of the parked jeep [pp. 13-15, t.s.n.,
July 24, 1978].cralaw
The post-mortem examination conducted by Dr. Taeb Zailon, Municipal Health Officer of
Sultan Kudarat, Maguindanao, upon the bodies of Tenorio and Mendoza on October 3,
1977, were reduced into writing and reads as follows:
POST-MORTEM EXAMINATION REPORT

Post-mortem examination was performed at the Rural Health Center, Sultan Kudarat,
Maguindanao on October 3, 1977 at around 3:30 p.m. in the presence of police officers of
Sultan Kudarat, Maguindanao and personnel of the Health Center and other persons in the
vicinity.
PERTINENT PERSONAL DATA:
Name: HERMINIGILDO TENORIO
Sex: Male
Age: 55 yrs. old
Height: 5'5'
Weight: 145 lbs.
C.S.: Married
Residence: Midsayap, N. Cotabato
Place of Death: Sultan Kudarat, Maguindanao
POST-MORTEM EXAMINATION FINDINGS
1. Avulsed cranial content at the level of forehead including eyeballs;
2. Wound-circular lacerate 3 inches in diameter T-T at lateral side of right deltoie region;
3. Wound-1 in. circular wound at the right forearm T-T 4 inches below the elbow;
4. Comminuted fracture at right leg just below the knee cap;
5. Comminuted fracture at right leg just above ankle;
6. Wound-1 in. circular non-penetrating at lateral side left arm;
7. Wound-1/2in.circularnon-penetrating at left region.
PROBABLE CAUSE OF DEATH
Hemorrhage severe secondary to multiple gunshot wounds.
Respectfully submitted:
[Sgd.]
TAEB
ZAILON,
M.D.
Municipal
Health
Officer
Sultan Kudarat, Maguindanao [Exh. "N"]
POST-MORTEM EXAMINATION REPORT
Post-mortem examination report was performed at the Rural Health Center, Sultan
Kudarat, Maguindanao on October 3, 1977 at 3:30 p.m. in the presence of police officers,
personnel of the health center and other civilians.
PERTINENT PERSONAL DATA:
Name: NOLASCO MENDOZA
Sex: Male
Age: 45 years old
Height: 5'4"
Weight: 135 lbs.
C.S.: Married
Residence: Midsayap, North Cotabato
Place of Death: Sultan Kudarat, Maguindanao
POST-MORTEM EXAMINATION FINDINGS
1. Wound -Circular, one inch wide, one inch above right eyebrow;
2. Wound-Circular, 1/2 inch wide, lateral part of left side of neck:
3. Wound-Circular, 3/4 inch wide, upper aspect of right deltoid muscle;
4. Wound-Circular, 1 1/2 inch wide, lateral aspect of right deltoid muscle; and
5. Wound-Circular, 1 1/2 inch wide, lateral aspect of right breast 3 inches below arm pit.
PROBABLE CAUSE OF DEATH
Wounds, gunshot, multiple shock, secondary hemorrhage, external-internal, extensive

21

Respectfully submitted:
[Sgd.]
TAEB
A.
ZAILON,
M.D.
Municipal
Health
Officer
Sultan Kudarat, Maguindanao [Exh. "P"]
Acting upon the letter-request of the commanding officer, Lt. Rodolfo Villanueva, a ballistic
test was conducted by Sgt. Leon Platoon of the P.C. Crime Laboratory at Cotabato City, on
the firearms issued to appellant Mandolado, Anacleto Simon and Conrado Erinada. In said
test, bullets were fired from said guns and the empty shells, called test specimen [T05-1
to T-05-3], together with the empty shells recovered from the scene of the crime called
specimen evidence, and the 10 links of cal. 30 machine gun, were forwarded to Camp
Crame for Ballistic Examination [pp. 20-24, t.s.n., October 6, 1978]. Sgt. Platoon marked
the 8 shells of .30 caliber recovered from the scene of the crime as HT-1 to HT-8 and the
armalite shells as CM-9 to CM-13.
In the ballistic examination conducted by Reynaldo Pasatiempo of the Camp Crame
Criminal Laboratory, it was found that the caliber .30 shells recovered from the scene of
the crime [Exh. "HT-1" to "HT-8 "] reveal identical impressions as the test specimens of
five empty shells ["T-05-1" to "T-05-3"] fired from appellant Mandolado's machine gun.
Whereas the armalite shells recovered from the scene of the crime reveal non-identical
impressions with the shells fired from the armalites of Conrado Simon and Anacleto
Erinada. He then concluded that the .30 caliber shells recovered from the scene of the
crime were fired from the same machine gun issued to appellant Mandolado [pp. 60-62,
t.s.n., October 6, 1978].cralaw
Appellants submit only one assigned error and that is, that the trial court erred in
convicting appellants Martin Mandolado and Julian Ortillano beyond reasonable doubt as
principal and accessory, respectively, of the crimes charged on the strength of the
prosecution's evidence totally disregarding the evidence of the defense. Appellants
contend that their guilt was not proven beyond reasonable doubt inasmuch as the
circumstantial evidence of the prosecution merely proved the fact of the deaths of Tenorio
and Mendoza and not as to the actual perpetrators of the crime; that the evidence of the
prosecution being weak on its own, the only link of the appellant Mandolado to the killings
is his extra-judicial sworn confession, Exhibit "Q", which he stoutly repudiates for being
unlawfully taken under force and duress and in the failure of the investigator to apprise
him of his constitutional right to remain silent and to be assisted by counsel.cralaw
It is contended by the defense that although the ballistic expert and the firearm examiner
testified that they conducted ballistic and firearm examinations, respectively, and that
their finding was that the caliber .30 empty shells were fired from the machine gun issued
to Martin Mandolado, the prosecution failed to prove that the "evidence specimen" [Exh.
"HT-1" to Exh. "HT-8"] were the empty shells recovered from the scene of the crime, the
prosecution not having presented any witness who recovered these empty shells. It was
not shown that these empty shells were recovered from the scene of the crime nor that
the slugs of these empty shells caused the gunshot wounds which resulted in the death of
the victims, Hence, the only link of appellant Martin Mandolado with the empty caliber .30
shells was the fact that these shells were fired from his machine gun, yet the records
disclose that Mandolado accidentally fired his machine gun at the Mintranco Terminal in
Midsayap, North Cotabato, which is not the scene of the crime, when he threatened the
person who tried to steal his bag.cralaw
Appellant Mandolado's claim that he was not previously apprised of his constitutional
rights before he executed his extra-judicial confession, Exh. "Q ", deserves scant

consideration. His claim is clearly belied by the opening statements appearing in his sworn
statement, which reads, thus:
Preliminaries: Dft. Martin Mandolado please be informed that you are now under
investigation by this unit in connection with the shooting incident that happened at
National Highway particularly near the vicinity of the BPH Office at Sultan Kudarat,
Maguindanao on or about 031300H October 1977. Before I ask you any questions, you
must understand your legal rights, to wit: You have the right to remain silent. Anything
you say may be used for or against you as evidence. You have the right to the services of
a lawyer of your own choice. If you cannot afford a lawyer and you want one, a lawyer will
be appointed for you before I ask you any questions.
Question: Are these all clearly understood by you?
Answer: Yes, sir.
2. Q Do you wish now to proceed with this investigation even in the absence of a lawyer of
your own choice?
A Yes sir.
3. Q Are you willing to give your statement without being forced, coerced, intimidated or
promised of any reward whatsoever?
A Yes sir.
4. Q Now that you are about to testify under oath, do you swear to tell the truth?
A Yes sir.
WAIVER
I have been advised of my legal right to remain silent; that anything I say maybe used as
evidence against me, and that I have the right to a lawyer to be present with me while I
am being questioned.
I understand these rights and I am willing to make a statement and answer to questions. I
do not want the assistance of a counsel and I understand and know what I am doing. No
promises or threats have been made to me and no force or pressure of any kind have
been used against me.
[Sgd.]
MARTIN
A.
MANDOLADO
Dft
07A-2853
PA
[Affiant]
And with respect to the accused-appellant Julian Ortillano, the same preliminary questions
were made to him before his investigation and he answered similarly as his co-accused
Mandolado which is shown in Exhibit "R" and said Ortillano likewise executed the same
waiver as that of his co-accused, which is marked Exhibit "R-A".
The contention of both appellants that they signed their sworn statements (Exhibits "Q"
and "R"] because they were maltreated and forced, cannot be believed, not only for failure
on their part to present any evidence of compulsion, duress or violence but also because
they even failed to identify their investigators who allegedly inflicted maltreatment to
them, much less complained to the officials who administered the oaths to their sworn
statements of such maltreatment, if any. Moreover, the sworn statements themselves
contain significant and important details which the affiants alone could have furnished,
thereby clearly revealing the voluntariness of said statements and rendering the same
admissible as evidence. [People vs. Rosales, 108 SCRA 339; People vs. Regular, 108 SCRA
23, 39; People vs. Tintero, 111 SCRA 714; People vs. Estero, 91 SCRA 93,99].cralaw
The conviction of appellant Mandolado for double murder appears to be based not only on
his extra-judicial confession [Exhibit "Q"] but also upon the following circumstances which
proved that he did shot and kill the victims, Tenorio and Mendoza, beyond reasonable

21

doubt. And these are listed in the People's Brief, to wit: "(1) he repeatedly fired his .30
caliber machine gun while intoxicated at the bus terminal in Midsayap [pp. 11-12, t.s.n.,
February 21, 1979]; (2) that he fired at the Ford Fierra which took them in the Midsayap
junction [p. 51, supra] hitting one of its passengers [p. 64, t.s.n., July 24, 1978]; (3) that
Anacleto Simon while running away from the jeep driven by the deceased, heard a burst of
machine gun fire coming from the direction of the jeep [p. 42, t.s.n., February 21, 1979];
(4) the result of the Ballistic examination showing that the shells recovered from the scene
of the crime were fired from the gun issued to appellant Mandolado [pp. 60-62, t.s.n.,
October 16, 1978]; (5) the attempted flight of both appellants from justice [pp. 120-123,
t.s.n., April 16, 1979] and which act clearly indicates guilt for the "wicked tread where no
man pursueth but the righteous are as bold as the lion," and lastly (6) appellant's own
admission before the lower court that he killed Tenorio and Mendoza although he claims
the same to be accidental (p[. 7-8, t.s.n., October 6, 1978]."
The killing of the two victims in the case at bar is correctly qualified as murder, there being
present the qualifying circumstance of treachery which is alleged in the informations.
There is treachery when the offender commits any of the crimes against the person,
employing means, methods or forms in the execution thereof which tend directly and
specially to insure its execution, without risk to himself arising from the defense which the
offended party might
make. [Art. 14, paragraph 16, Revised Penal Code]. The
prosecution evidence is quite clear and explicit that when appellants alighted from the
jeep, the accused Mandolado immediately fired his .30 caliber machine gun at the
occupants of the jeep, the victims Nolasco Mendoza and Herminigildo Tenorio, and both of
them died instantaneously on the spot, and from this sudden means or manner of attack,
it can reasonably be concluded that it tended directly to insure its execution without risk to
the appellant-assailant and also deprive the victims of any chance or opportunity to defend
themselves. We also rule that the particular means or manner employed by the appellantassailant was consciously or deliberately sought and not a mere accidental circumstance
resorted to on the spur of the moment on the basis of the evidence that the appellant had
previously and repeatedly fired his .30 caliber machine gun at the bus terminal in
Midsayap and had also fired the machine gun at the Ford Fiera which took them to
Midsayap junction and that appellants waited for sometime riding on board the jeep driven
by Tenorio before they ordered the jeep to stop, alight therefrom and then shoot the
occupants therein.cralaw
While the Informations allege as aggravating circumstances that of evident premeditation
and the use of superior strength, aside from treachery, We cannot agree with the finding
of the trial court that the aggravating circumstances of (1) advantage was taken of his
being a Draftee in the Philippine Army, and (2) abuse of confidence or obvious
ungratefulness were present in the commission of the crime.
While it may be true that a soldier in the Armed Forces of the Philippines is deemed as one
who holds public position [U.S. vs. Gimenea, 24 Phil. 464, where a constabulary soldier
was held to be a public officer], there is no persuasive showing that herein appellants
being draftees of the Army, in full military uniform and carrying their high-powered
firearms, facilitated the commission of the crimes they were charged. It may be conceded
that as draftees, the accused could easily hitch hike with private vehicles, as in the case of
the deceased Tenorio's owner-type jeep, but there is no evidence that when they stopped
the jeep the accused already intended to shoot the occupants of the vehicle. As it was held
in People Pantoja, 25 SCRA 468, 471, which We reiterate that "There is nothing to show
that the appellant took advantage of his being a sergeant in the Philippine Army in order

to commit the crimes. The mere fact that he was in fatigue uniform and had an army rifle
at the time is not sufficient to establish that he misused his public position in the
commission of the crimes."
There is also merit in appellants' contention that there could be no abuse of confidence as
the evidence on record showed the lack of confidence by the victims to the appellants,
that this confidence was abused, and that the abuse of the confidence facilitated the
commission of the crimes. In order that abuse of confidence be deemed as aggravating, it
is necessary that "there exists a relation of trust and confidence between the accused and
one against whom the crime was committed and the accused made use of such a
relationship to commit the crime." [People vs. Comendador, 100 SCRA 155, 172]. It is also
essential that the confidence between the parties must be immediate and personal such as
would give that accused some advantage or make it easier for him to commit the crime;
that such confidence was a means of facilitating the commission of the crime, the culprit
taking advantage of the offended party's belief that the former would not abuse said
confidence [People vs. Hanasan, 29 SCRA 534]. In the instant case, there is absolutely no
showing of any personal or immediate relationship upon which confidence might rest
between the victims and the assailants who had just met each other then. Consequently,
no confidence and abuse thereof could have facilitated the crimes.cralaw
Similarly, there could have been no obvious ungratefulness in the commission of the crime
for the simple reason that the requisite trust of the victims upon the accused prior to the
criminal act and the breach thereof as contemplated under Article 14, par. 4 of the Revised
Penal Code are manifestly lacking or non-existent. In all likelihood, the accused Army men
in their uniforms and holding their high-powered firearms cowed the victims into boarding
their jeep for a ride at machine gun point which certainly is no source of gratefulness or
appreciation.cralaw
The finding of the trial court that: "There is no doubt about Martin Mandolado's state of
intoxication. He was so drunk that even his three [3] companions armed with M-16
armalite feared him. The same thing was true with the MPs," should credit said accused
with the mitigating circumstance of drunkenness but which the trial court decision failed to
appreciate in his favor. Accordingly, the penalty to be imposed upon the accused-appellant
Mandolado shall be reduced in the computation thereof.cralaw
With respect to the accused-appellant Julian Ortillano who was found guilty as an
accessory in Criminal Cases No. 561 and No. 562 for having fired his M-16 armalite
whenever Martin Mandolado fired his machine gun and, according to the court, this could
be for no other purpose than to conceal or destroy the body of the crime and making it
appear that the victims were fighting them or running away or that somebody else like the
MNLF, rebels, NPA or bandits committed the crime, and for assisting in the escape of the
principal [Martin Mandolado] of the crime and sentenced in each of both cases to serve
imprisonment for a term of six [6] years of prision correccional as minimum to seventeen
[17] years of prision mayor as maximum, We find and hold that the accused-appellant
Julian Ortillano should be convicted, not as an accessory, but as an accomplice.cralaw
An accomplice cooperates in the execution of the offense by previous or simultaneous
acts, provided he has no direct participation in its execution or does not force or induce
others to commit it, or his cooperation is not indispensable to its accomplishment [Art. 18,
Revised Penal Code].cralaw
To hold him liable, upon the other hand, as an accomplice, it must be shown that he had
knowledge of the criminal intention of the principal, which may be demonstrated by
previous or simultaneous acts which contributes to the commission of the offense as aid

21

thereto whether physical or moral [People vs. Silvestre, et al., 56 Phil, 353, 356]. As aptly
stated in People vs. Tamayo [44 Phil. 38, 49]: 'It is an essential condition to the existence
of complicity, not only that there should be a relation between the acts done by the
principal and those attributed to the person charged as accomplice, but it is further
necessary that the latter, with knowledge of the criminal intent, should cooperate with the
intention of supplying material or moral aid in the execution of the crime in an efficacious
way. (People vs. Custodia, 47 SCRA 289,303 [19721]).cralaw
In the case at bar, Ortillano, by his acts, showed knowledge of the criminal design of
Mandolado. He was present when Mandolado tried to attack the driver of the Ford Fierra
with a knife and fired at the vehicle hitting a female passenger [p. 4, Decision]. When
Mandolado got angry and "cocked" his gun and ordered Tenorio to stop the jeep, their two
other companions, Simon and Erinada, immediately jumped off the jeep and ran away, but
Ortillano stayed. In a display of unity with Mandolado, Ortillano fired his armalite while
they were riding in the jeep of the victim [p. 5, Decision]. And Ortillano's act of firing his
gun towards the ground manifested his concurrence with the criminal intent. In other
words, Ortillano's simultaneous acts supplied, if not material, moral aid in the execution of
the crime in an efficacious way. Ortillano's presence served to encourage Mandolado, the
principal, or to increase the odds against the victims (U.S. vs. Guevara, 2 Phil. 528
[1903]; People vs. Silvestre and Atienza, 56 Phil. 353 [1931]).cralaw
In convicting the accused Ortillano as an accomplice, We, however, appreciate the
mitigating circumstance of drunkenness in his favor, the same as We did to his co-accused
Martin Mandolado, the principal defendant.cralaw
In resume, the crime committed by the accused-appellant Martin Mandolado is murder,
qualified by treachery. There being no aggravating circumstance but having found and
appreciated drunkenness which is not habitual as a mitigating circumstance, the penalty
prescribed under Article 248 of the Revised Penal Code which is reclusion temporal in its
maximum period to death shall be imposed in its minimum period. Applying the
Indeterminate Sentence Law, the accused shall be sentenced to imprisonment of ten [10]
years and one [1] day of prision mayor as minimum to seventeen [17] years, four [4]
months and one [1] day of reclusion temporal as maximum in each case.cralaw
As to the accused-appellant Julian Ortillano, convicted as an accomplice to the crime of
murder, and appreciating in his favor the mitigating circumstance of drunkenness which is
not habitual, the penalty to be imposed upon him shall be one degree lower than that
imposed for murder [Article 52, Revised Penal Code], which will be in the minimum period.
Applying the Indeterminate Sentence Law, the accused Ortillano shall be sentenced to
imprisonment of four [4] years, two [2] months of prision correccional as minimum to ten
[10] years and one [1] day of prision mayor as maximum in each case.cralaw
With respect to damages, for the death of Herminigildo Tenorio, the award of P12,000.00
as compensatory damages and P 20,000.00 for moral damages is hereby affirmed. For
the death of Nolasco Mendoza, We reduce the award of P50,000.00 as compensatory
damages to P12,000.00. We also reduce the award of P100,000.00 as moral damages to
P20,000.00. The liability of the appellants for the above damages which shall be paid to
the heirs of the victims shall be in solidum [Article 110, par. 1, Revised Penal Code].cralaw
WHEREFORE, in view of all the foregoing, the judgment of the trial court is hereby
modified. The accused-appellant Martin Mandolado is hereby found guilty beyond
reasonable doubt of the crime of murder in Criminal Case No. 561 for the killing of Nolasco
Mendoza and in Criminal Case No. 562, for the killing of Herminigildo Tenorio. There being
no aggravating circumstance but having found and appreciated drunkenness which is not

habitual as a mitigating circumstance, said accused is hereby sentenced to suffer

imprisonment of ten [10] years and one [1] day of prision mayor as minimum to
seventeen [17] years, four [4] months and one [1] day of reclusion temporal as maximum
in each of the two cases.cralaw
The accused-appellant Julian Ortillano is hereby found guilty beyond reasonable doubt as
accomplice in the crime of murder in Criminal Case No. 561 for the killing of Nolasco
Mendoza and in Criminal Case No. 562 for the killing of Herminigildo Tenorio. Similarly,
there being no aggravating circumstance but having found and appreciated the mitigating
circumstance of drunkenness which is not habitual in his favor, said accused is hereby
sentenced to suffer imprisonment of four [4] years, two [2] months of prision correccional
as minimum to ten [10] years and one [1] day of prision mayor as maximum in each
case.cralaw
In Criminal Case No. 561 for the killing of Nolasco Mendoza, We sentence both accused to
pay the heirs of the victim P12,000.00 as compensatory damages and P20,000.00 as
moral damages. The liability of the accused shall be in solidum.cralaw
In Criminal Case No. 562 for the killing of Herminigildo Tenorio, We sentence both accused
to pay the heirs of the victim P12,000.00 as compensatory damages and P20,000.00 for
moral damages. The liability of the accused shall also be in solidum.cralaw
Costs against the appellants. Judgment modified.cralaw
SO ORDERED.
[G.R. No. 124319. May 13, 1998]
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee, vs. GARI
DESCARGAR, defendant-appellant.

BIBAT

DECISION
PURISIMA, J.:
Appeal interposed by accused Gari Bibat y Descargar from the judgment rendered by
Branch IV of the Regional Trial Court of Manila, finding him guilty of the crime of Murder in
Criminal Case No. 93-123648.
Filed on July 23, 1993 by Assistant Prosecutor Alfeo T. Siccuon, the Information
indicting accused for Murder, alleges:
That on or about October 14, 1992, in the City of Manila, Philippines, the said
accused, conspiring and confederating with others whose true names, identities and
present whereabouts are still unknown and helping one another did then and there
willfully, unlawfully and feloniously, with intent to kill and with treachery and evident
premeditation, attack, assault and use personal violence upon the person of one LLOYD
DEL ROSARIO Y CABRERA, by then and there stabbing him with bladed weapon hitting him

21

on the chest and abdomen, thereby inflicting upon the latter mortal stab wounds, which
are necessarily fatal and which where the direct and immediate cause of his death
thereafter.
Contrary to law.
With the accused entering a negative plea upon arraignment thereunder, with
assistance of the counsel de oficio, Atty. Alejandro G. Yrreborre, Jr., trial ensued with the
prosecution presenting Nona Avila Cinco, P03 Julian Bustamante, Florencio Castro and
Rogelio Robles, as its witnesses.

Thereafter, the accused fled, the victim shouted for help. Upon hearing the shouts of
the victim, the accused returned and stabbed the victim again in the middle part of
the chest. She (witness) then left the scene of the crime after the accused ran away.
She reported the matter to the authorities only on July 20, 1993 because she
was afraid.[2]
xxx

As synthesized by the trial court of origin :

Florencio Castro testified among others that he saw the accused together with
four others inside the Gloria Memorial Homes along G. Tuason St. on October 14,
1992. One of them used the phone inside said place to call somebody. The rest
stayed beside the one calling. He saw one of them open a notebook where a stainless
knife was inserted. He heard the one using the phone, asking kung
nasaan. Thereafter, the group went out and left towards the direction of Balic-Balic.

From the record and evidence presented, it appears that the accused Gari Bibat
stabbed to death one Lloyd del Rosario on October 12, 1992 at around 1:30 p.m.
along G. Tuazon cor. Ma. Cristina Sts., Sampaloc, Manila. The victim was on his way
to school waiting for a ride when he was stabbed. Thereafter the suspect fled while
the victim was brought to the United Doctors Medical Center (UDMC) where he was
pronounced dead on arrival.

Rogelio Robles, testified among others that the accused Gari Bibat had been
going to his place at 424 Berdad St., Sampaloc, Manila, for a long time already
because their Samahang Ilocano (SI) president, Tonton Montero, is his (witness)
neighbor. Before the incident occurred, Tonton Montero told him (witness) about a
rumble in school whereby somebody died. The group of the accused was planning to
take revenge against the victim, Lloyd del Rosario (see TSN, pp. 7-8, 6/30/94), thus:

Aside from accused, Marte Soriano, Lino Asuncion III, and Rogelio Robles (who was
recalled to the stand by the defense), testified for the defense.

The incident was witnessed by Nona Avila Cinco, a laundry woman, who testified that
on October 14, 1992, while she was at Funeraria Gloria waiting for her bettor, she
saw a person about one meter away talking to the accused. Said person told the
accused O pare, anduon na. Puntahan mo na. Siguruhin mo lang na itumba mo na. to
which the accused answered: Oo ba. Ganito ba, ganito ba? (as the witness was
speaking, she was demonstrating with her arms.) [1]
After hearing the accused, she (witness) left towards Honrades Street to see another
bettor. She first went inside a house and after a while, she went outside where she
saw the accused along Honrades Street, entering an alley. She walked along with the
accused. She and the accused were even able to look at each other.
While the victim was going out of a gate, the accused hurried towards the
victim and took a pointed object from a notebook, then stabbed the victim in
the left chest twice.
She was only about 4 to 5 meters away from the scene of the crime.

PROS. EUGENIO:
Q - Now, do you know personally what this group of Gari Bibat and his companions
plan to do regarding that trouble related to you by your neighbor, Tonton
Montero?
A -What I know, the person against whom they will take revenge is living from a far
place. I did not know that he is from our place.
Q -Did they ever mention, during that meeting the name of the person whom they will
take revenge?
A -In the beginning, no, sir, but later they told me.
Q -What was the name, if they did mention to you the name?
A -The one who was killed, Lloyd, sir.

21

Q -The same Lloyd del Rosario, the victim in this case?

A -Yes, sir, Lloyd del Rosario.
He further testified that he (witness) only knows Lloyd del Rosario by the face
because the latter is from his place. He only knew what had happened to Lloyd after
that fateful incident because 6 or 7 of the members of the group arrived, all with a
tusok and they even kept two (2) guns in his (witness) house. Gari Bibat was one of
the 6 or 7 people he saw on that day, with a tres-cantos or veinte nueve tucked in his
(Bibats) waistline. (see pp. 11-12, TSN, 6/30/94). He further narrated that he
actually saw the killing of the victim, (see pp. 22-24, Ibid). that even before the day
Lloyd died, they (accused and companions) already hid some guns and tusok in his
house. (see pp. 20, TSN, Ibid.)

On cross examination, he testified that he neither saw the two prosecution witnesses
before nor did he know of any grudge which said witnesses have against him; and
that he does not know of any reason why they would testify against him and identify
him as one of the killers of Lloyd del Rosario.
Marte Soriano, testified among others that he was at the house of Gari Bibat at Reten
St., Sampaloc, Manila, attending the birthday (party) of Garis mother on October 14,
1992; that Gari Bibat was reviewing his studies at that time in preparation for an oral
examination. After taking lunch, he, together with Gari, went to school (Arellano
University) at around 12:00 noon. There, he reviewed his lessons in preparation for
his exams while Gari Bibat had a group study with his classmates until 2:00 P.M.
when Gari went inside the classroom. He knew that Gari Bibat had an exam that day
at 2:00 P.M. because he (witness) is also studying at Arellano University. The next
time he saw the accused was two (2) days after October 14, 1992.

xxx xxx xxx

Accused Gari Bibat testified among others that on October 14, 1992, he was staying
in his house at 629 Reten St., Sampaloc, Manila; at that time it was his mothers
birthday; that he was reviewing his lessons from 7:00 oclock to 10:00 oclock in the
morning in preparation for his final oral exams on October 14, 1992; that Marte
Soriano, a friend of his and a neighbor were in his house; that after lunch, they (he
and Marte Soriano) left for school at 12:35 noon; that they did not pass by Funeraria
Gloria; that he and his friend were able to reach the school; that he had a review of
with his classmates up to 1:45 oclock in the afternoon, afterwhich they proceeded to
their room for the final exams; that their examination lasted from 7:30 to 4:30 oclock
in the afternoon; that he passed the subject with a grade of 2.25; that he does not
know Nona Cinco but only later in the precinct; that he saw Rogelio Robles who was
also detained at the Manila City Jail; that when he asked why Rogelio Robles testified
against him, Robles told him that it was merely concocted because the complainant is
Robles neighbor whom he cannot refuse; that he does not know Tonton Montero; that
he did frequent Verdad St., near Rogelio Robles house, neither did he go there on
October 14, 1992 between 1:00 and 2:00 oclock in the afternoon; that he is not a
member of Samahang Ilocano fraternity but the United Ilocandia fraternity, a school
fraternity; that he could not remember of his fraternity being involved in any school
rumble as the same is a very peaceful group which promotes brotherhood; that they
did not have a quarrel with the victim who is already dead because the latter is not
studying at Arellano University; that with respect to the death of Lloyd del Rosario,
the same is an added charge (ipinatong) to him and that he was just implicated
therein; that he knows nothing about it.

Lino Asuncion III, testified among others: that he is a classmate of Gari Bibat at
Arellano University; that their common subject on MWF is Math 2, English 2,
Computer 2; that they had a last/final oral examination in Computer 2 on October 14,
1992; that he saw Gari Bibat in school on that day at about 1:00 P.M.; that he and
Gari Bibat took the said last final oral exam; that they both left the room at the same
time at 4:30 P.M.
Rogelio Robles - (was recalled to the stand to testify contrary to what he had
previously stated in court). He testified inter alia that he did not really see what
transpired on October 14, 1992 at 1:30 oclock in 6the (sic) afternoon; that he only
assisted the parents of the victim because they come from the same place; that the
father of the victim handed to him the handwritten statement which he (witness)
based his previous testimony; that he did not actually see the killing.
On December 27, 1995, the court a quo handed down its decision in question;
disposing, thus:
Wherefore, with all the foregoing, the Court finds the accused GARI BIBAT Y
Descargar, guilty beyond reasonable doubt of the crime of MURDER and hereby
sentences him to suffer the penalty of reclusion perpetua; to indemnify the heirs of
the victim in the amount of P49,786.14 as actual damages; and to pay P50,000.00 as
and for moral damages, with costs.
SO ORDERED.
Appellant places reliance on the assignment of errors, that:

21

I
THE TRIAL COURT ERRED IN GIVING FULL FAITH AND CREDENCE TO THE
TESTIMONIES OF THE ALLEGED EYEWITNESSES NONA AVILA CINCO AND ROGELIO
ROBLES.
II
THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE VERSION OF ACCUSEDAPPELLANT THAT HE WAS NOT AT THE SCENE OF THE CRIME WHEN THE SAME
HAPPENED.

It was thus natural for Nona Cinco to just have stayed at the sidelines. She is a
woman who could not have prevented the armed appellant from stabbing the victim,
anyway. The suddenness of the happening and Nona Cincos fear for her own life must
have prevented her from shouting for help.[6]
Delay in divulging the name of the perpetrator of the crime, if sufficiently reasoned
out, does not impair the credibility of a witness and his testimony nor destroy its probative
value. It has become judicial notice that fear of reprisal is a valid cause for the momentary
silence of the prosecution witness.[7]
In the case at bench, witness Nona Avila Cinco gave an eyewitness account of the
killing complained of in a categorical and straightforward manner.

III
THE TRIAL COURT ERRED IN APPRECIATING THE AGGRAVATING CIRCUMSTANCE OF
EVIDENT PREMEDITATION.
FIRST ISSUE:
CREDIBILITY OF PROSECUTION WITNESSES
The Court discerns no basis for disturbing the finding and conclusion arrived at below
on the credibility of the prosecution witnesses.
In the matter of credibility of witnesses, we reiterate the familiar and well-entrenched
rule that the factual findings of the trial court should be respected. The judge a quo
was in a better position to pass judgment on the credibility of witnesses, having
personally heard them when they testified and observed their deportment and
manner of testifying. It is doctrinally settled that the evaluation of the testimony of
the witnesses by the trial court is received on appeal with the highest respect,
because it had the opportunity to observe the witnesses on the stand and detect if
they were telling the truth.This assessment is binding upon the appellate court in the
absence of a clear showing that it was reached arbitrarily or that the trial court had
plainly overlooked certain facts of substance or value that if considered might affect
the result of the case.[3]
As well explained by the Solicitor General, Persons do not necessarily react uniformly
to a given situation, for what is natural to one may be strange to another.[4] Verily, there is
no standard form of human behavioral response when one is confronted with a strange
and startling experience.[5]

Appellant belittles the fact that Nona Cinco remembers the stabbing incident to the
minutest details. According to him, this is alright if the crime just happened, or after the
happening of the crime, the witness FORTHWITH reported the matter to the proper
authorities. Unfortunately, the witness reported the said incident after NINE (9) LONG
MONTHS.
It does not appear that it was impossible for Nona Cinco to have a detailed
recollection of the stabbing sued upon. Even before the incident, she already saw the
accused with some companions inside Funeraria Gloria and overheard the plan to kill
someone. At that time, she was only about one (1) meter from the accused and his
companions. And when she proceeded to Honrades Street, she and the accused walked
along with and even looked at each other.
At the time when the stabbing in question was taking place, Nona Cinco was only four
to five meters away. The possibility of her recalling even the minutest details cannot
therefore be ruled out.
Appellant faults Nona Cinco for reporting the stabbing incident to the police
authorities only after nine (9) months, and for her apparent indifference during the
incident, doing nothing even while witnessing a cruel and gruesome crime.
Appellant also theorizes that Nona Cinco was lying when she testified that she was
taking bets for a PBA game on October 14,1992, a Wednesday. Claiming that PBA games
are held only on Tuesdays, Thursdays and Saturdays; appellant concludes that She lies on
a simple or minor thing, all the more, she can lie on a bigger scale.
On the other hand, the Solicitor General pointed out that: There are 100 combinations
which bettors can try their luck on the so-called PBA game ending and, therefore, 100

21

corresponding bets should be collected for maximum profit. It was not farfetched,
therefore, for Nona Cinco to collect bets a day or two before the actual PBA games which
would decide the winning bet.
Besides, the lie alluded pertains to an insignificant matter which does not affect the
material details of the stabbing incident, and the unequivocal eyewitness account of the
killing of the victim, Lloyd del Rosario. The maxim or rule falsus in unos, falsus in
omnibus does not lay down a categorical test of credibility. It is not a positive rule of law of
universal application. It should not be applied to portions of the testimony corroborated by
other evidence particularly where the false portions could be innocent mistakes. Moreover,
the rule is not mandatory but merely sanctions a disregard of the testimony of the witness
if the circumstances so warrant. To completely disregard all the testimony of a witness on
this ground, his testimony must have been false as to a material point, and the witness
must have a conscious and deliberate intention to falsify a material point. [8]

Furthermore, positive identification, where categorical and consistent and without any
showing of ill motive on the part of the eyewitness testifying on the matter, prevails over
alibi and denial which, if not substantiated by clear and convincing evidence, are negative
and self-serving evidence undeserving of weight in law.[12]
In the instant case, prosecution witness Nona Cinco positively identified appellant as
the culprit. Another prosecution witness, Rogelio Robles, testified to the actual killing of
the victim by appellant. Although the latter recanted, the lower court correctly held that
the later retraction made by Rogelio Robles does not by itself render his previous
testimony false or perjured because the same testimony appears to be credible and
worthy of belief.[13] Then too, affidavits of recantation are considered as exceedingly
unreliable because they can be easily secured from poor and ignorant witnesses usually for
monetary consideration and most likely to be repudiated afterwards. [14]
THIRD ISSUE:

SECOND ISSUE:
THE PRESENCE OR ABSENCE OF EVIDENT PREMEDITATION
THE DEFENSE OF ALIBI
The accused relies on the defense of alibi, an inherently weak defense. [9] In a long line
of cases, this court has held that alibi is generally considered a weak defense because of
the facility with which it can be fabricated. Thus, courts have always looked upon it with
suspicion. Well-settled is the rule that for alibi to prevail, it must be established by
positive, clear and satisfactory proof that it was physically impossible for the accused to
have been at the scene of the crime at the time of its commission, and not merely that he
was somewhere else.[10]
Appellant failed to convince the court that it was physically impossible for him to be at
the scene of the crime at G. Tuazon cor. Ma. Cristina Sts. He claimed that during the
stabbing incident at around 1:30 p.m., he was reviewing for an oral examination in his
subject of Computer 2 at the Arellano University. But as the trial court noted, the situs of
the crime was not far from Arellano University such that granting arguendo that the
accused was initially at the Arellano University, he could have easily sneaked back to the
scene of the crime considering that the two places are just near each other.[11]
To buttress his theory that he was actually reviewing for his final oral examination in
Computer 2 at the very time the crime occurred, he alleged that he received a grade of
2.25 in said subject. But aside from his testimony and that of Lino Asuncion, no other
evidence was presented to substantiate this submission. Appellant should have, at
least, exhibited his class card or grading sheet to show that he did really take an
examination in that subject.

Appellant argues that the trial court erroneously appreciated evident premeditation
against him. Assuming for the sake of argument that he is the felon, the crime he
committed is not MURDER but HOMICIDE,[15] he maintains.
Appellant correctly states the rule that the circumstance which would qualify the
killing to murder must be proved as convincingly as the crime itself.[16]
Here, we are of the irresistible conclusion that the attendance of evident
premeditation to qualify the killing complained of to murder is borne out by the evidence.
There is evident premeditation when the following requisites are met:
1. The time when the offender determined (conceived) to commit the
crime;
2. An act manifestly indicating that the culprit has clung to his
determination; and
3. A sufficient lapse of time between the determination and execution
to allow him to reflect upon the consequences of his act. [17]

21

The essence of premeditation is that the execution of the criminal act is preceded by
cool thought and reflection upon the resolution to carry out the criminal intent during the
space of time sufficient to arrive at a calm judgment. [18]

hide guns and tusok in his house. But the reason for the apparent indifference of Robles
could be gleaned from the following revelation :
ATTY. CALIMAG:

The appellant, in his brief, implies that the first requisite of evident premeditation was
not sufficiently proven, contending, that:
xxx the aggravating circumstance of evident premeditation was appreciated by the
trial court based solely on the testimony of witness Rogelio Robles. The said witness
testified that accused-appellant and several others often met in his (Rogelio Robles)
house. In one of their meetings, accused-appellant and his companions hid some
guns and tusok in the said witness house. Other than these testimonies, the trial
court proffered no other rationale to justify the application of evident premeditation.
[19]

At first glance, it may seem that the first requisite of evident premeditation, [i.e. the
time when the offender determined (conceived) to commit the crime], was appreciated by
the lower court solely on the basis of the testimony of Rogelio Robles.
Appellant theorizes that the testimony of Robles is not believable; ratiocinating, thus :
xxx such testimonies which were retracted by Rogelio Robles cannot by any yardstick
be considered credible in itself. It simply defy human experience. For evidence to be
believed, it is basic that it must not only proceed from the mouth of a credible
witness, but it must be CREDIBLE IN ITSELF. (Emphasis supplied; Layug v.
Sandiganbayan and People of the Phil., supra; Tuason v. C.A., supra; Lee Eng Hong v.
C.A., 241 SCRA 392) If it were true that accused-appellant and several others
planned the subject killing, they would not be crazy enough to have openly discussed
the same in the presence of another person (TSN, June 30, 1994, p. 9). They would
be very discreet about it because even the most unlearned or unschooled person
would know that killing is against the law of man and of God. If indeed they have
planned it, they did it in complete secrecy. More, there is no explanation why of all
places, accused-appellant and his group met at Rogelio Robles house. The latter is
only the neighbor of the alleged president of the formers organization. Worse,
accused-appellant and his group hid some guns (Ibid., p. 11) and tusoks (Ibid., p.
22), in Rogelio Robles house. Any person who is in his right frame of mind would not
allow anybody to use his house as an armory so to speak or for any illegal purposes.
Appellant faults Rogelio Robles for his utter lack of concern knowing fully well that the
appellant and his companions were planning to kill someone and even allowed them to

Q - And when they left your house and took the tusok and left the guns, you know very
well from Tonton Montero that they are going to kill somebody, am I right?
A - In school. I did not know that the one they will kill is from my place.
Q - Now, my question you know that they are going to kill somebody, what did you do,
if any as a concerned citizen?
A - What if they turn their ire on me.
COURT:
Aside from that English translation, you put on record the Tagalog answer of the
witness: a Eh, kung ako naman ang pagbalingan.
ATTY. CALIMAG
Q - Now, Mr. Witness, why it took you so long to come out and testify, if you really
know the truth about this matter?
A - Because the parents of the victim were still mad or angry, what would happen to
me if I tell them early, what if they said that I am a part of it.
Q - Why, what do you think about yourself, are you not a part of it, Mr.
Witness? Because you failed to report this matter immediately to the police
officer?
A - I kept it to myself for fear that my brother and sisters might be involved, what will
happen to me.
Fully aware that the appellant and his companions were armed with guns and tusok,
it was but natural for Robles to just observe the protagonists and not get involved. Fear for
his own life and that of his family may have overcome whatever humanitarian inclination
he had as a concerned citizen.

21

Besides, even without the testimony of Rogelio Robles, the presence of the first
requisite of evident premeditation appears to have been thoroughly and sufficiently
established. The determination or conception of the plan to kill the victim could be
deduced from the outward circumstances that happened on the fateful day of October 14,
1992. Records show that at 11:30 in the morning of October 14, 1992, prosecution
witness Nona Cinco saw the accused with some companions at Funeraria Gloria. She
personally heard the plan to kill someone.Another prosecution witness, Florencio Castro,
who works at the Funeraria Gloria also saw the group of Gari Bibat in the said place. At
around 1:30 in the afternoon, Nona Cinco saw the appellant for the second time. She saw
the appellant hurry towards the victim, take a pointed thing from a notebook and with the
use of such weapon, stabbed the victim on the chest.These overt acts clearly evinced that
the appellant clung to his resolution to kill the victim.
From the time Nona Cinco heard the plan to kill someone at 11:30 up to the killing
incident at 1:30 in the afternoon of the same day, there was a sufficient lapse of time for
appellant to reflect on the consequences of his dastardly act.
As held in the case of People v. Dumdum [20] the killing of the deceased was
aggravated by evident premeditation, because the accused conceived of the assault at
least one hourbefore its perpetration. In the case under examination, two hours had
elapsed from the time appellant clung to his determination to kill the victim up to the
actual perpetration of the crime.
WHEREFORE, the Decision appealed from is hereby AFFIRMED. Costs against
accused-appellant.

NARVASA, C.J.:
In the Regional Trial Court of Cebu City, 1 five men, namely: Crisologo Empacis, Romualdo
Langomez, Zacarias Solis, Carlito Antiga, and Bebe Antiga, were indicated for the crime of
robbery with homicide under Article 294 (1), in relation to Article 296, of the Revised Penal
Code. 2 The indictment reads as follows:
That on the 16th day of September, 1986 at 9:00 o'clock in the evening,
more or less, in Barangay Kanguha, Municipality of dumanjug, Province of
Debu . . . (said) accused, all armed with carbines and bladed weapons,
conspiring, confederating and mutually helping one another, with evident
premeditation and intent to kill, treacherously attack, assault and use
personal violence upon FIDEL SAROMINES by stabbing him on different
parts of his body and as a result of which FIDEL SAROMINES died; that on
the occassion of the said killing, in pursuance of their conspiracy, . . . (the)
accused did then and there wilfully, unlawfully and feloniously, and by
means of violence, with intent to gain and against the will of FIDEL
SAROMINES, TAKE, STEAL AND CARRY AWAY the sum of TWELVE
THOUSAND (P12,000.00) PESOS, Philippine Currency, belonging to the
latter.
That the crime was committed by a band, all the accused being armed
with carbines and bladed weapons (Article 296, RPC).
IN VIOLATION of and contrary to ARTICLE 294 paragraph 1 of the Revised
Penal Code.

SO ORDERED.
G.R. No. 95756 May 14, 1993

All the accused, except Romualdo Langomez, were thereafter taken into custody.
Langomez disappeared, and was never apprehended and brought to trial. 3 In due course,
the other accused were arrainged and tried.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CRISOLOGO EMPACIS, accused-appellant.

Sometime in December, 1987, during the trial, Carlito Antiga died from a gunshot wound. 4

The Solicitor General for plaintiff-appellee.

The trial eventuated in a verdict of conviction against Crisologo Empacis, and of acquittal
as regards Zacarias Solis and Bebe Antiga. The Trial Court's judgment, dated October 24,
1989, made the following final disposition: 5

Antonio A. Almirante, Jr. for accused-appellant.

WHEREFORE, the Court finds the accused Crisologo Empacis guilty of
robbery with homicide as defined and penalized under Article 294 (1) of
the Revised Penal Code, and considering the attendance of the four generic
aggravating circumstances of dwelling, nighttime, craft or fraud and

21

superior strength, not offset by any mitigating or extenuating

circumstance, hereby sentences the said accused Crisologo Empacis to the
supreme penalty of death. In view of the fact, however, that the death
penalty has been abolished by Section 19(1), Article III of the 1987
Constitution, 6 the accused Crisologo Empacis is hereby sentenced
to reclusion perpetua, to suffer the accessory penalties prescribed by law
and to pay the heirs of Fidel Saromines the amount of THIRTY THOUSAND
PESOS (P30,000.00) by way of death indemnity, without subsidiary
imprisonment in case of insolvency in view of the principal penalty. He
shall also pay the costs of these proceedings.

After they finished eating, Romualdo told Fidel to sell him cigarettes. As Fidel was handing
over the cigarettes, Romualdo announced a "hold-up" and commanded Fidel to give up his
money. As it happened, Fidel then had P12,000.00 in his house, wrapped in cellophane.
This he started to give to Romualdo but as the latter was taking hold of the packet, Fidel
suddenly decided to fight to keep his money. A struggle followed in the course of which
Romualdo stabbed Fidel about three times. Crisologo joined in and with his own knife also
stabbed Fidel. At this time, gunshots were heard outside of the house; and a neighbor of
the Saromineses, Balbino Bulak, recognized one of those doing the shooting as certain
Carlito Antiga. 8 A voice was heard from below saying, "Stab him!" 9 to which Langomez
replied, "I already stabbed (him)." 10

The accused Crisologo Empacis is hereby immediately ordered arrested

and held in the custody of the law pending appeal or review of this
decision, should the accused wish to appeal from or take up on review this
decision.

From his little sister's room, Fidel's thirteen-year odl son, Peter, saw his father fighting for
his life with Romualdo and Crisologo Empacis. Heeding his father's cry, "Peter, help me!"
(Suportahe ko, Peter!), Peter took hold of a "pinuti" (a long bolo), and rushed to his
father's defense. He struck out at Crisologo and inflicted two wounds on him, one at the
right shoulder, and the other, in the neck. Romualdo and Crisologo jumped out of the
house and fled, with the sound of Peter's defiant shout trailing them, "Come back, if you
are brave!"

The other two accused Zacarias or Caring Solis and Bebe Antiga are
hereby acquitted of the charges against them, their guilt not having been
proved beyond a reasonable doubt.
Let a bench warrant issue against the fifth accused in this case, Romualdo
a.k.a. Maldo Langomez so that he can be brought to court to be dealt with
accordingly.
The Trial Court accorded superior credit to the evidence of the prosecution in so far as it
established Empacis' direct participation in the felony charged, to wit: the testimony of the
widow of victim, Camila Saromines; of their son, Peter Saromines; and of a neighbor,
Balbino Bulak, which the Court found to be corroborated inter alia by the Post
Mortem Report dated September 17, 1986 of the Rural Health Physician at Dumanjug,
Cebu (Dr. Octavio Ortiz), and even by the testimony of accused Crisologo Empacis
himself. 7

Peter then turned to his wounded father, but found him already dead from his injuries.
The post-mortemexamination conducted by Dr. Octavio Ortiz, Rural Health Physician,
disclosed four (4) stab wounds on the deceased, all in the upper back. Two of these, which
penetraded the lungs and heart, were
fatal. 11

Following is the story narrated to the Trail Court by the Government witnesses.

Crisologo Empacis repaired to the clinic of Dr. Eustaquio Deiparine at the poblacion of
Sibonga, Cebu, for treatment of the wounds inflicted on him by Peter, arriving there
between 10 and 11 o'clock that same night. The doctor found Crisologo's wounds
described by him as a "(hacking) wound on the right side of the neck and the right
shoulder" "so serious" as to require further treatment, even after they had been
sutured. Dr. Deiparine asked Crisologo how he had come by these wounds. Crisologo said
that at around 6 to 7 o'clock that evening, near the Papan Market, he was assaulted
without warning by a young man, who injured him with a bolo.

At about 9 o'clock on the night of September 16, 1986, as Fidel Saromines and his wife,
Camila, were about to close to their small store, located in their house at Kanguha,
Dumanjug, Cebu, two men came and asked to buy some sardines and rice. They were
Romualdo (or Maldo) Langomez and Crisologo Empacis. Camila served them and they
proceeded to make a meal of the rice and sardines.

Police officers came to Dr. Deiparine's clinic the following morning, looking for a man might
have been treated for wounds from a bladed weapon. They were directed to the public
market where they came upon Crisologo, taking breakfast. They arrested him and brought
him to the Dumanjug INP Station. There, Crisologo was interrogated by the Station
Commander, P/Pfc. Rogelio Abrea, and gave a sworn statement.

21

Crisologo was later brought to Municipal Judge Gerardo Gestopa, before whom he took
oath on his affidavit. Before admnistering the oath, the Judge had a law graduate, one
Victor Esguerra, called to assist Crisologo and verify if he had voluntarily executed his
sworn statement.
The three (3) accused all took the witness stand in their defense, 12 and gave stories
different from that of the prosecution witnesses.
Empacis confirmed the facts established by the prosecution witnesses, up to a point. He
admitted that he and Romualdo Langomez had indeed gone to the store of Fidel
Saromines on the night in question, and had there partaken of a meal of sardines and rice.
He also acknowledged that after taking their supper, Romualdo Langomez had gone
upstairs to buy some cigarettes from Fidel, and it was there the moments later, he saw
Romualdo and Fidel grappling with each other. He denies having joined Romualdo in
attacking Fidel. He claims that when he saw Romualdo pull out a knife, he tried to stop
Romualdo from using the knife on his adversary; that nonetheless, Romualdo succeeded in
stabbing Fidel twice; that a teen-age boy came with a bolo and lashed out at Romualdo
but the latter was not hit because he pulled him to one side, and instead it was he
(Empacis) who was struck at the right side of the neck; that he then ran away towards his
barrio and from there he was brought by his neighbors to the clinic of Dr. Deiparine; that
he was arrested by the police the following morning; that while being investigated at the
municipal hall of Dumanjug, he told the investigator he wished to avail of the assistance of
counsel but his request went unheeded; and that while being interrogated, some
policemen were inflicting pain on him by squeezing his injured back in order to force him
to admit his participation in the robbery-homicide at Kanguha, Dumanjug. 13
The other two accused, Zacarias Solis and Bebe Antiga, denied any participation whatever
in the crime. They were both absolved by the Trial Court, which agreed with them that the
prosecution had indeed failed to clearly and positively and their complicity in the offense. 14
The Court a quo rejected (quite correctly, it may be said) the sworn statement purpotedly
execute by Empacis on September 17, 1986, offered by the prosecution, condemning it
was "null and void, . . . offensive to Art. III, Section 20, of the New Constitution and the
teachings of the Supreme Court
. . . ." 15 It ruled however that the other proofs of the prosecution overwhelmingly
demonstrated Crisologo Empacis' guilt of the crime charged, and accordingly entered a
judgment of conviction against him. It ruled that Empacis had committed the offense in
conspiracy with Romualdo Langomez (who was then and to this day remains at large);
that both of them knew Fidel to be in possession of a sizable amount of money at the
time, and their concerted acts proved their agreement to rob Fidel and if necessary, kill
him. It also ruled that the crime was attended by several aggravating circumstances, i. e.,

having been perpetrated (a) "in the dwelling of the offended party . . . (the latter not
having) given provocation," 16 (b) "in the nighttime;" 17 (c) with employment of "craft of
fraud;" 18 and (d) with advantage being taken of superior strength. 19
From this judgment Empacis has appealed to this Court. His basic thesis is that the
evidence of the prosecution does not actually prove his guilt of the felony of which he is
accused beyond reasonable doubt.
A painstaking review of the record fails to reveal to this Court any error on the part of the
Trial Court of sufficient gravity to justify reversal or modification of its verdict. This Court is
unable to perceive any reason to doubt the veracity of the testimony of the victim's widow
and son respecting the identity of Romualdo Langomez and Crisologo Empacis as the
persons who attacked and killed Fidel Saromines in their effort to make off with the latter's
money amounting to P12,000.00, and the acts individually done by Romualdo and
Crisologo in pursuance of their common nefarious objective. Indeed, the narrative of the
widow and son is, as already pointed out, confirmed for the most part by the testimony of
Crisologo Empacis himself. The latter's attempt to exculpate himself, by portraying himself
as a frustrated protector of Fidel Saromines, cannot be taken at face value, as against the
more credible declarations of the victims widow and son, specially considering that
Crisologo's credit as a witness has been gravely enfeebled by his having obviously lied to
the physician treating him, as regards the cause of his
injuries. 20
The Court has been cited to no plausible cause for Fidel's widow and son to testify falsely
against Crisologo if it be true, as the latter insinuates, that either they had not seen the
actual killing or, having witnessed it, had seen Crisologo actually try to stop Romualdo
from stabbing Fidel. No reason exists, therefore, to disbelieve them. 21The fact that the
victim's son, Peter, had to correct his statement on direct examination that Romualdo
Langomez stabbed his father five (5) times, declaring, on cross-examination, that in truth
Romualdo stabbed his father only about three times while Crisologo Empacis stabbed the
victim once which the appellant seeks to make capital is not sufficient warrant to
reject and discard Peter's evidence. The discrepacy is at best a minor one, not all
destructive of Peter's credibility as an unrehearsed witness. This Court agrees that the Trial
Court has correctly assessed the credit that should be accorded to the evidence of the
prosecution witnesses.
This Court also agrees that conspiracy is adequately proven by the evidence. Langomez
and Crisologo Empacis came to Fidel's store late at night, acting as bona fide customers.
Immediately after finishing their supper, they demanded the delivery to them of Fidel's
money, of which they evidently had prior knowledge, Crisologo lending silent support to
his companion's order for Fidel to turn over the money to them; they helped each other

21

wrest the money away from Fidel and subdue him by deadly knife thrusts; Romualdo
stabbing Fidel thrice, Crisologo, once; they had obviously arranged for shots to be fired
from outside Fidel's store as a means of frightening Fidel to submit to their command; and
they fled from the scene, together. They acted in concert, helping and cooperating with
one another (and others) by simultaneous acts, evidently in pursuit of a common
objective. 22

appear that they purposely employed excessive force, force out of proportion to the means
of defense available to the person attacked. 33 In this case, the evidence shows that
Empacis helped his co-accused by also stabbing the victim; he and his companion took
advantage of their combined strength and their bladed weapons to overcome their
unarmed victim and assure the success of their felonious design to make off with his
money.

The aggravating circumstance of craft or fraud 23 was properly appreciated against

Empacis. He and Romualdo pretended to be bona fide customers of the victim's store and
on his pretext gained entry into the latter's store and later, into another part of his
dwelling. This Court has held stratagems and ruses of this sort to constitute the
aggravating circumstance of fraud or craft, e.g: where the accused

That the crime was "committed in the dwelling of the offended party, . . . the latter . . .
not (having) given provacation," was also correctly appreciated as an aggravating
circumstance. 34

a) pretended to be constabulary soldiers and by that ploy gained entry into

the residence of their prey whom they thereafter robbed and killed; 24
b) pretended to be needful of medical treatment, and through this artifice,
entered the house of the victim whom they thereupon robbed and killed; 25
c) pretended to be wayfarers who had lost their way and by this means
gained entry into a house, in which they then perpetrated the crime of
robbery with homicide; 26

This Court thus sees no cause to deviate from the established axiom that the factual
findings of the Trial Court are accorded the highest respect on appeal, if not indeed
regarded as conclusive, absent any persuasive showing that material facts have been
overlooked or ignored which might otherwise dictate a different verdict. 35
The Court a quo sentenced a Crisologo Empacis to pay the heirs of Fidel Saromines in the
amount of Thirty Thousand Pesos (P30,000.00) "by way of death indemnity." Pursuant to
prevailing case law, 36 this indemnity must be increased to Fifty Thousand Pesos
(P50,000.00). On the other hand, despite the evidence given by Fidel Saromines' widow
establishing the forcible taking from her husband of the amount of P12,000.00 by
Crisologo and Romualdo, 37 the Trial Court somehow omitted to require the return of said
stolen money, as required by law. 38

d) pretended to be customer wanting to buy a bottle of wine; 27

e) pretended to be co-passengers of the victim in a public utility vehicle; 28
f) posed as customers wishing to buy cigarettes; and as being thristy,
asking for drink of water. 29
The Court also agrees that nighttime was properly appreciated as an aggravating
circumstance against the accused. To be sure, nighttime is not per se aggravating. 30 It
must be shown that nocturnity was deliberately and purposely sought to facilitate, or that
it actually facilitated, the commission of the crime. 31 In the case at bar, the lateness of the
hour no doubt precluded the presence of other customers who could have deterred the
felons, or come to the aid of the victim. All things considered, there is adequate showing
that nocturnity was deliberately sought by the robbers and did in reality facilitate the
perpetration of the felony.
For the aggravating circumstance of superior strength to be deemed present in a case, it
does not suffice to prove superiority in number on the part of the malefactors; 32 it must

WHEREFORE, with the modification that the indemnity for death payable to the heirs of
Saromines is increased to P50.000.00 and restitution of the amount of P12,000.00 shall be
made by the accused, jointly and severally, the Decision of the Trial Court subject of this
appeal is hereby AFFIRMED.
IT IS SO ORDERED.

G.R. No. 94534 July 2, 1992

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

21

vs.
RODRIGO BIGCAS y AMUNCIO and QUILIANO BUTRON y PEROCHO, accusedappellants.

REGALADO, J.:
Finding accused-appellants Rodrigo Bigcas and Quiliano Butron guilty beyond reasonable
doubt of killing one Ambrocio Palapar, the Regional Trial Court of Bohol, Branch IV in
Tagbilaran City 1 imposed on them the penalty of "reclusion perpetua or life imprisonment"
and to solidarily pay the heirs of the victim "legal indemnity" of P30,000.00, actual
damages in the amount of P11,150.00, loss of earnings of P20,000.00 and the costs. 2
In an information dated October 13, 1988, appellants Butron and Bigcas were charged
with murder allegedly committed as follows:
That on or about the 25th day of July, 1988 at barangay Poblacion,
municipality of Pilar, province of Bohol, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating together and mutually helping with (sic) each other, with
intent to kill, abuse of superior strength, and with treachery, by suddenly
attacking the victim without giving him the opportunity to defend himself
and without justifiable cause, did then and there wilfully, unlawfully, and
feloniously attack, assault and stab one Ambrocio Palapar y Macarayan
with the use of a sharp-pointed bolo and a piece of wood thereby inflicting
upon the vital parts of the body of the victim mortal wounds or injuries
which resulted directly to the immediate death of the victim Ambrocio
Palapar y Macarayan, to the damage and prejudice of the heirs of the said
victim.
Acts committed contrary to the provisions of Article 248 of the Revised
Penal Code with the aggravating circumstance of nighttime being
purposely sought for (sic) or taken advantage of by the accused to
facilitate the commission of the crime. 3
Appellants pleaded not guilty when arraigned and, thereafter, trial on the merits ensued
wherein, predictably, the prosecution and the defense presented different versions of the
circumstances which gave rise to the alleged killing.

The version of the prosecution revolved basically around the testimonies of the two
eyewitnesses, Rosito Doydoy and Jesus Calape, with corroborative and supplementary
testimonies on other aspects furnished by Pfc. Ponciano Butron of the Integrated National
Police Station at Pilar, Bohol and Dr. Lourdes Atop-Tan, municipal health officer of the same
town.
Rosito Doydoy testified that after attending the last prayers for his uncle which ended at
8:30 in the evening of July 25, 1988, he went home with his son, Rodel, to his house
some two kilometers away. On the way and at a distance of about twelve meters, Doydoy
saw three persons involved in a commotion. It was not so dark then as the moon was
shining brightly. From behind tall cogon grass, he saw appellant Butron strike Ambrocio
Palapar two times with a piece of wood on the latter's back. In his attempt to flee from his
aggressor, Palapar passed beside witness Doydoy who was then trying to hide himself and
his son behind the bushes. Palapar was chased by appellant Bigcas who, upon catching up
with the former stabbed him twice with a bolo at the back. The chase continued until
Bigcas was able to stab the victim again at the back of the latter's right knee. The victim
fell on the ground, after which he uttered, "Long, stop because I will die of these wounds."
Butron shouted at him saying, "I will kill you, Boyax." He then approached Palapar and hit
him twice with a piece of wood on the right jaw. Bigcas, on his part, stabbed the supine
victim several times. Thereafter, both appellants left the victim, with Butron telling Bigcas.
"You own the killing and these two bolos and I will be with you anywhere." 4
Jesus Calape, testified on essentially the same facts. He declared that he left his house at
9:00 o'clock that same night to go to the house of his "kumpadre Imo," whose real name
is Maximo Tiro, to borrow the latter's carabao as he wanted to haul posts for his house. He
purposely went there that night because Tiro is usually out of his house during daytime.
While on his way, he saw the victim Palapar being attacked by the two appellants. Butron
hit Palapar twice with a piece of wood at his back. Bigcas told the victim to fight but the
latter refused. Palapar pleaded for his life but appellant Bigcas instead stabbed him twice,
also at the back. Due to his fear after seeing Bigcas stab the victim, Calape ran home and
told his wife what he witnessed. The next morning, he heard that the victim died. 5
The defense, as expected, presented a version based principally on the testimonies of the
two appellants, Butron and Bigcas, which are hereunder summarized.
It is claimed that on July 28, 1988, at around 2:30 in the afternoon, Rodrigo Bigcas was at
the store of a certain Efren Butron at Buyong, Pilar. At about 6:30 P.M., Quiliano Butron
arrived at the same store. A few minutes later, Ambrocio Palapar, who was apparently
already intoxicated, arrived and drank 'tuba' with the group of Bigcas and Butron. Palapar
requested for more drinks but Quiliano Butron refused as he had no more money. Palapar
got angry and called Butron stingy. He challenged Butron to fight but the latter

21

remonstrated with him. Palapar then placed his hand on Butron's shoulders and told him
not to worry. He thereafter held the waist of Butron, grabbed the knife that was hanging
from the latter's waist and challenged everybody to fight. Someone reported the incident
to the police and, later on, Pfc. Ponciano Butron responded together with another
policeman. Pfc. Butron took the knife from Palapar and ordered the latter to go home, but
he required Bigcas and Butron to stay a while and let Palapar leave ahead. Around fifteen
minutes after Palapar had left, Bigcas and Butron left together with some other persons.
Butron walked ahead as he was bringing something for his family. 6
Later, on their way, Bigcas and a certain Anasco met appellant Butron running and already
wounded. Out of fear, Anasco ran away. Bigcas brought Butron to surrender to the police
at the municipal building of Pilar, Bohol. Butron reported to the police that he was waylaid
by Palapar on his way home. Bigcas later accompanied Butron to the Simeon Toribio
Hospital in Carmen, Bohol where Butron was confined. 7 Butron complemented the
foregoing testimony by narrating that, on his way home, he saw Palapar standing in the
middle of the road. He greeted Palapar by his nickname "Boyax" but received no answer.
As he was passing by Palapar, the latter suddenly stabbed him with a bolo, hitting his
stomach. He backtracked but the victim followed him and gave him three stab thrusts
which he parried. He was able to take hold of the victim's hand holding the bolo and
wrestled the same from him. Butron then repeatedly stabbed Palapar until the latter fell.
When he went to the police, he also surrendered the bolo used in the alleged killing.
Butron was brought by Bigcas and the police to the hospital where he was treated and
confined for four days. 8
After trial, the trial court rendered the assailed judgment. Not satisfied therewith, Butron
and Bigcas interposed the present appeal wherein they filed separate briefs through their
respective counsel.
Appellant Butron, for his part, argues that the court a quo erred (1) in failing to duly
consider the material evidence presented by the prosecution and the defense; (2) in
disregarding the evidence of self-defense which evidence constituted his defense; and (3)
in finding him guilty of the crime of murder. 9
Appellant Bigcas, on the other hand, contends that the trial court erred (1) in failing to
give full credence to the declaration of appellant Quiliano Butron, against his penal
interest, that he alone killed the victim, Ambrocio Palapar; (2) in convicting appellant
Rodrigo Bigcas of murder despite the failure of the prosecution to establish the presence of
any of the qualifying circumstances; and (3) in appreciating the aggravating circumstance
of nocturnity. 10

The separate assignments of errors raised by both appellants are congruent in material
points, hence the same shall be jointly discussed in conjunction with each other.
A careful evaluation of the records of the case shows that appellants were correctly found
guilty by the court below for the death of Ambrosio Palapar and we see no reason for
departing from the factual findings of the trial court which resulted in its verdict of guilt.
We have perforce to state once again that this Court, in a long line of cases, has
consistently held that the findings of fact of a trial judge who has seen the witness testify
and who has observed his demeanor and conduct while on the witness stand are not
disturbed on appeal, unless certain facts of substance and value have been overlooked
which, if considered, may affect the outcome of the case. 11 We do not perceive any of
such exceptive instances of oversight in the findings of fact of the lower court in this case.
As found by said court and reflected by the transcripts of their testimonies, the witnesses
for the prosecution not only testified in a straightforward manner but the substance of
their testimonies inspire credence and are confirmed by the physical evidence. If there be
some inconsistencies in their declarations, the same refer only to minor matters which do
not at all affect their credibility. As we ruled in People vs. Mangalino, 12 minor
inconsistencies in the testimonies of the witnesses are but natural and even enhance their
credibility, as these discrepancies indicate that the responses given were honest and
unrehearsed. This is especially true in the case at bar where said witnesses had no motive
whatsoever to prevaricate and enmesh appellants in a fabricated charge.
Appellant Butron interposed self-defense in order to disclaim criminal liability. He, however,
disregarded the rule that self-defense must he established by clear and convincing
evidence. 13 Where an accused claims self-defense, the burden of proof is shifted to him.
He must rely on the strength of his own evidence and not on the weakness of the
prosecution. 14 This is both a logical and inevitable consequence dictated by the fact that,
having admitted the killing, he has to justify the taking of the victim's life by the requisites
and standards of the law for such absolution.
It is elementary that for self-defense to prosper the accused must prove that there was
unlawful aggression by the victim, that he employed reasonable means to prevent or repel
such aggression, and that there was lack of sufficient provocation on his part. 15 Just as
fundamental is the overriding necessity to prove unlawful aggression on the part of the
victim, absent which there is no call to expound upon any consideration of self-defense in
a case where a life has been taken.
Now, even granting arguendo some degree of truth to appellant Butron's allegations that
he was not armed when he left the store and that it was the victim who had the

21

opportunity to secure a weapon, 16 the same does not necessarily relieve him of liability.
Appellant Butron himself admitted that he was able to wrench the alleged weapon away
from Palapar. Thereafter, the victim fled, signifying thereby his intention not to fight and,
from that moment, any supposed unlawful aggression had already ceased. But, instead of
letting the victim go, as the prosecution witnesses testified and this is not seriously
contested by the defense, appellants pursued Palapar, immobilized him and stabbed him to
death.

5. Stab wound on the anterior abdominal region 1 inch below the umbilicus
2 inches diameter, 1/2 inch deep, anterior edge round, posterior edge
sharp, non-penetrating.

The theory of self-defense is based on the necessity on the part of the person attacked to
prevent or repel the unlawful aggression. When said danger or risk ceased to exist,
appellants had no justification in law or in fact to attack the erstwhile aggressor. Thus, as
early as the case of People vs. Alviar, 17 we held that when the accused, who had been
attacked by the deceased, succeeded in snatching the bolo away from the latter, and the
deceased already manifested a refusal to fight, the accused was definitely not justified in
killing him. As more recently reiterated, the claim of self-defense is not credible where the
accused narrated that he had succeeded in disarming the victim of the piece of wood
(allegedly, a bolo in the case at bar) which the latter was carrying, hence the act of the
accused in thereafter stabbing the victim with frequency, frenzy and force can no longer
be considered as reasonably necessary. 18

8. Lacerated wound on the left arm, 4 inches diameter, 1 inch deep.

Moreover, the results of the autopsy conducted by Dr. Lourdes Atop-Tan on the victim
showed that the latter sustained more or less thirteen wounds, as follows:
1. Stab wound on the anterior chest wall, 2 inches below the right nipple,
2 inches diameter, 4 inches deep, sharp edge posteriorly, round edge
anteriorly penetrating the anterior chest wall, penetrating the heart.
2. Stab wound on the anterior chest wall 3 inches above the right nipple, 2
inches diameter, 3 1/2 inches deep, sharp edge posteriorly, round edge
anteriorly penetrating the anterior chest wall, penetrating the heart.
3. Stab wound on the anterior abdomen at the epigastric region 2 inches
diameter, 3 inches deep, posterior edge sharp, anterior edge round
penetrating the anterior abdomen, perforating the stomach.
4. Stab wound on the right lumbar region, 2 inches diameter, 3 inches
deep, anterior edge round, posterior edge sharp, penetrating the right
kidney.

6. Stab wound on then right forearm 4 inches diameter, 1/2 inch deep.
7. Stab wound on the right arm 4 inches diameter, 1/2 inch deep.

9. Lacerated wound on the left forearm 4 inches diameter, posteriorly.

10. Stab wound on the left palm, 2 inches diameter, 1 inch deep, round
edge anteriorly, sharp edge posteriorly.
11. Stab wound on the left lumbar region, 3 inches diameter, 1 inch
anterior edge round, posterior edge sharp and non-penetrating.
12. Stab wound on the posterior chest wall 3 inches diameter, 1/2 inch
deep, 2 inches below the left scapula.
13. Stab wound on the right foot, 2 inches diameter, 1/2 inch deep.
14. Hematoma and fracture of bone on the neck posterior 3 inches
diameter reddish bluish. 19
Appellant Butron claims that he himself was wounded while he was wresting the knife
away from the victim. His own doctor, however, testified that his wounds in the stomach
and on his neck were merely superficial and admit of the possibility of having been selfinflicted. 20 As the trial court observed, it is incredible that the victim who was supposedly
wielding a bolo could only inflict two small skin-deep wounds on the allegedly defenseless
Butron.
The foregoing incontrovertible physical evidence, and a comparison of the wounds
sustained by appellant Butron and those inflicted, on the victim, clearly and undoubtedly
belie appellant's pretension of self-defense. For, to be consistent with existing
jurisprudence, the nature and number of wounds inflicted by an assailant are constantly
and unremittingly considered important indicia which disprove a plea of self-defense. 21 It
is an affront on credulity to yield acceptance to appellant's incredible theory that he had to

21

inflict such number of lethal wounds while acting in legitimate self-defense against an
ironically defenseless person.
Appellants further contend that the act of eyewitnesses Doydoy and Calape of immediately
going home after having seen such a horrible crime is contrary to the natural and logical
course of things. We do not agree. InPeople vs. Caringal, 22 we stressed that the natural
reluctance of any, if not most, witnesses to volunteer information to the police authorities
in a criminal investigation is a matter of judicial notice. Such reticence is not uncommon,
especially when the same arises out of fear or apprehensions of reprisal from the
perpetrators of the crime being investigated. Also, the fact that a witness may have given
his account of the incident only at the trial below and not sooner neither necessarily
impairs his credibility nor discredits his testimony. Witness Doydoy's hesitancy, to inform
his wife of the incident was further justifiedly explained by the fact that his wife and
appellant Bigcas' wife are sisters.
The trial court's holding that treachery cannot be appreciated as a qualifying circumstance
against appellants is correct, since there is no evidence that in the commission of the
crime they deliberately adopted means, methods or forms considered in law as
treacherous. Its acceptance of nocturnity as an aggravating circumstance, however, is
erroneous. Even the prosecution witnesses testified that, during the incident, the moon
was shining brightly. The light was bright enough to see what was going on and to
recognize the assailants. Moreover, nocturnity neither facilitated the commission of the
crime nor was it purposely sought by appellants in order to afford impunity. It, therefore,
does not qualify as an aggravating circumstance under either the subjective or objective
tests laid down by this Court for it to be considered as such. 23
We are likewise not convinced that the crime was committed by appellants with abuse or
by taking advantage of superior strength. Regrettably, we can neither determine nor
deduce from the prosecution's sketchy evidence thereon what transpired before the
"commotion" involving the victims and appellants. The two eyewitnesses, Doydoy and
Calape testified only on the fight when it was already in progress but not as to the
actuations of the parties proximately and immediately before the altercation. On the other
hand, following the version of the defense which was partly confirmed by Pfc. Ponciano
Butron, the victim was ordered by said policeman to leave the store of Efren Butron ahead
of the others, with appellants directed to stay behind for about fifteen minutes, so that the
parties would not encounter each other again shortly after the incident at said store.
It cannot, therefore, be said that when the fight took place more than fifteen minutes
later, because the victim instead of going straight home obviously waited for appellants to
catch up with him, appellants could have anticipated such an unexpected contingency and
had accordingly conceived of taking advantage of their combined strength and weapons.

For this qualifying circumstance to be considered, it is not sufficient that there be

superiority in number or strength; it is necessary that the accused must have cooperated
and intended to use or secure advantage from such superior strength. 24 As we also
emphasized in People vs. Cabiling, 25 abuse of superior strength may be considered not
only when there is an inequality of force between the victim and the aggressor but there
must be a situation of superiority of strength notoriously selected or taken advantage of
by him in the commission of the crime. We find that the prosecution has fallen short of
proof that appellants bad specifically contrived or deliberately intended and prepared to
take advantage of superior strength in a projected assault against the victim. This
requisite cannot be drawn from mere assumptions or conjectures, for qualifying
circumstances must be proved as conclusively as the crime itself. 26
Appellant Bigcas' disclaimer of liability, on the other hand, is likewise unavailing. There
were two eyewitnesses to the incident who testified that appellants Bigcas and Butron did
act in a concerted manner in bringing about the death of victim Palapar. This indicates the
existence of conspiracy between them, although such concurrence of wills arose and was
adopted by appellants just momentarily before attacking the victim.
Conspiracy already exists the moment two or more persons come to an agreement
concerning the commission of a felony and decide to commit it, 27 unlike the qualifying
circumstances of treachery and taking advantage of superior strength which require at
least some prior deliberation and adoption of a specific mode of commission. To establish
conspiracy, prior agreement between both accused to kill the victim is not essential for the
same may be inferred from their own acts showing a joint purpose or design, which was
illustrated in this case, by the concerted acts of appellants. 28
All told, it is our considered view that appellants have committed only the felony of
homicide, since treachery was not proved and abuse of superior strength cannot be
considered against them. Neither is the aggravating circumstance of nocturnity attendant
in this case. On the contrary, what has been completely overlooked is the fact that
appellant Butron and, resolving the doubt in his favor, appellant Bigcas are, as we hereby
find them to be, entitled to the mitigating circumstance of voluntary surrender which was
established by their testimonies 29and substantiated by Pfc. Ponciano Butron. 30
WHEREFORE, the judgment appealed from is MODIFIED, with accused-appellants being
hereby DECLARED guilty of homicide, with due extenuation by voluntary surrender, and
each of them is hereby SENTENCED to serve an indeterminate sentence of ten (10) years
of prision mayor, as minimum, to fourteen (14) years and eight (8) months of reclusion
temporal, maximum. The death indemnity is hereby increased to P50,000.00 in
accordance with current case law. 31 In all other respects, the judgment of the court a
quo is AFFIRMED.

21

SO ORDERED.

[G.R. No. 140756. April 4, 2003]

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
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 Victor 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, 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

21

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.

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 abovenamed 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.

[7]

Contrary to law.[11]

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

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

21

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
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
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 cross-examine Rodolfo, the former failed to continue with and terminate his crossexamination 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-in-chief 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 cross-examination but Rosemarie Manio, the widow of the victim

21

did. The prosecution presented her as witness.Her testimony was terminated. The court
ordered the continuation of the trial for the cross-examination 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 cross-examination 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 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 cross-examine
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 cross-examine 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 hold-up, 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

21

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 midsection 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.
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, 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

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 14 th 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

21

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]

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

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. 501502).
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 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 byreclusion perpetua to death.
The Proper Penalty
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
withreclusion 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

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

21

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 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.

21

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.
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]

21

In sum then, treachery is a generic aggravating circumstance in robbery with

homicide when the victim of homicide is killed by treachery.

but it is not alleged in the information, treachery cannot aggravate the penalty for the
crime.

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:

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.

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 dealevosia, 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

Civil Liability of Juan and Victor

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 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:

21

Age of the victim = 38 years old

Life expectancy = 2/3 x (80 age of the victim at the time of death)

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.

= 2/3 x (80-38)
Costs de oficio.
= 2/3 x 42
SO ORDERED.
= 28 years
Gross Annual Income = gross monthly income x 12 months
= P8,065.00 x 12
[G.R. No. 132470. April 27, 2000]
= P96,780.00
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FERNANDO SULTAN y
LATO, accused-appellant.

Living Expenses = 50% of Gross Annual Income

DECISION

= P96,780.00 x 0.5
BELLOSILLO, J.:

= P48,390.00
Lost Earning Capacity = Life expectancy x [Gross Annual IncomeLiving expenses]
= 28 x [P96,780.00 P48,390.00]
= 28 x P48,390.00
= P1,354,920.00
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

FERNANDO SULTAN y LATO appeals from the Decision of the trial court finding him guilty
of the special complex crime of robbery with rape, sentencing him to reclusion
perpetua and ordering him to return to his victim one (1) wrist watch, one (1) ring, one
(1) pair of earrings, and one (1) necklace valued at P1,600.00, P850.00, P500.00,
and P2,100.00, respectively, and cash of P130.00; otherwise, to pay P5,180.00 if
restitution be no longer feasible. He was further ordered to pay P50,000.00 for moral
damages.[1] Newmiso
The evidence for the prosecution was based principally on the testimony of complaining
witness Juditha M. Bautista. According to her, on 2 June 1997 at 9:00 oclock in the
evening she was on her way home from a visit to her cousin Cristina Mansilongan in
Novaliches, Quezon City; when she passed the dark alley in her cousin's compound she
was accosted by someone, later identified as accused-appellant Fernando L. Sultan, who
pointed a sharp instrument at her neck and announcing it was a "hold-up." He grabbed her
and brought her to a house along the alley which turned out to be his. Once inside the
house, he made her sit down. He offered her a drink; she refused it. Then he started
divesting her of her watch, ring, earrings, and necklace the values of which are now
reflected in the Decision of the court a quo, and her cash of P130.00. After taking her

21

valuables, he started kissing her on the lips and cheeks. As if to discourage him from
making further sexual advances, she told him that she was married with two (2) children
but accused-appellant was not dissuaded from pursuing his intentions. While pointing an
ice pick at her he ordered her to undress. She acceded for fear that he would kill her as
she was under constant threat. After she had completely undressed, accused-appellant
ordered her to lie down on the floor. He then kissed her again from head down. Still she
could not resist him because of fear. He went on top of her, held her two (2) hands on the
level of her head, spread her thighs and inserted his penis into her vagina. The coital
encounter lasted for ten (10) to fifteen (15) minutes. [2]
After satisfying his lust, he ordered her to put on her bra and panty, tied her hands and
went out of the room to smoke. After ten (10) to fifteen (15) minutes, he came back,
untied her, and once again with threat and intimidation sexually abused her. Thereafter, he
tied her hands to a protruding piece of wood in the room and held her in his arms. She
cried. He told her that he loved her and that he would answer for what he had done to her.
They talked until noon the following day without sleeping. [3]
In her effort to release herself from his clutches she "agreed" to elope with him. Perhaps
convinced that she was going to run away with him, he allowed her to go home at noon to
get her things. She was then staying with her cousin Nita del Rosario, at No. 9 Sta.
Eleuteria Street, Gulod, Novaliches, Quezon City. He even accompanied her to the highway
to get a ride home.[4] Acctmis
When Juditha arrived home she saw her sister Antonette in the house. She was not
actually residing there but went there only that day. Juditha lost no time in narrating her
harrowing experience to her sister. Immediately Antonette called her brother SPO1
Fernando M. Bautista who resides in Bulacan. [5] SPO1 Bautista arrived at around 3:00 or
4:00 oclock in the afternoon and was told about what happened. [6] He then advised Juditha
to go back to the house of accused-appellant for the "planned elopement" so that he and
his two (2) companions[7]could stage an arrest.[8]
On their way to the house of accused-appellant, Juditha rode in a passenger jeep with her
sister Antonette and cousin Nita while her brother and his two (2) companions followed
them on board an XLT Van. Juditha alighted near the house of accused-appellant while her
companions waited for her and accused-appellant along the highway. When she arrived at
accused-appellants place, he was already waiting for her outside the store nearby. They
went inside his house and came out twenty (20) minutes later. They boarded a passenger
bus while SPO1 Bautista and his companions trailed them. When the bus reached the
corner of Forest Hill Subdivision, Gulod, Novaliches, it slowed down because of the traffic
thus making it easier for SPO1 Bautista and his companions to board the bus. Upon seeing
her brother and his companions, Juditha motioned to them. They immediately approached

accused-appellant and boxed him before they could arrest him. The other passengers of
the bus joined in hitting accused-appellant. This caused a commotion in the bus. Some
policemen who were in the barangay hall across the street saw the disturbance. They
boarded the bus to find out what happened. Then they assisted in facilitating the arrest of
accused-appellant and brought him to the barangay hall. He was later on transferred to
the police headquarters for further interrogation.
At the police station the authorities investigated Juditha who readily identified accusedappellant as her robber and rapist. The police then requested for physical examination to
find signs of sexual abuse. Medico-Legal Inspector Dr. Dennis G. Bellin found no external
signs of violence although there was a deep fresh laceration at 5 oclock position in
Judithas hymen. He also discovered other lacerations, deep healed, at 3, 7 and 9 oclock
positions. Dr. Bellin also observed that Judithas external vaginal orifice offered moderate
resistance to his examining index finger and virgin-sized vaginal speculum. She was no
longer a virgin when the alleged rape transpired.[9]
On 5 June 1997 an Information [10] for the special complex crime of robbery with rape was
filed against accused-appellant Fernando Sultan y Lato, docketed as Crim. Case No. Q-9771353. But accused-appellant brushed aside the charge and claimed that it was simply a
sexual congress of consenting adults.
Finding the complaining witness version more credible, the trial court, on 5 June 1998,
found accused-appellant guilty as charged and sentenced him to reclusion perpetua. He
was ordered to return to Juditha Bautista one (1) wrist watch valued at P1,600.00, one (1)
ring worth P850.00, one (1) pair of earrings worth P500.00, one (1) necklace
worth P2,100.00 and cash in the amount of P130.00, or the payment of P5,180.00 if
return was not possible. Accused-appellant was further directed to pay his
victim P50,000.00 for moral damages.[11] Misact
In this appeal, accused-appellant submits that there is no convincing proof that he is guilty
of the crime charged.
As to the robbery, he contends that the testimony of complainant that she was robbed of
her personal valuables should not be given weight and credence as (a) no evidence was
presented in court to prove her claim and that (b) if he had really robbed her, why did she
not ask him for restitution of her valuables after the alleged threat had ceased, i.e., when
there was already an agreement between them to elope?
These arguments fail to persuade us. The testimony of complainant as to the taking of her
cash and valuables is evidence enough to sustain a conviction for robbery considering that
we find no fault in the pronouncement of the trial court that her testimony is credible. The

21

persuasive value of the declaration of credibility is bolstered by our own scrutiny of the
testimony of complainant showing her answers to the incisive questions propounded to her
to be firm and straightforward.
While there may have been no effort on the part of complainant to retrieve her personal
belongings from accused-appellant even after all threats had ceased, her failure to do so
does not under the circumstances necessarily dispute the commission of robbery. Article
293 of the Revised Penal Code provides that "[a]ny person who, with intent to gain, shall
take any personal property belonging to another, by means of violence against or
intimidation of person, or using force upon anything, shall be guilty of robbery." When
accused-appellant divested complaining witness of her personal belongings he committed
the crime of robbery. All the elements necessary for its execution and accomplishment
were present, i.e., (a) personal property belonging to another, (b) unlawful taking, (c)
intent to gain, and (d) violence or intimidation. It is therefore immaterial that she failed to
ask for the return of her personal things. Moreover, her actuation could only be fairly
interpreted to mean that she did not want accused-appellant to be suspicious of her
moves.
As for the charge of rape, accused-appellant maintains that the requisite force or
intimidation was not proved by the prosecution beyond reasonable doubt; that there was
some form of consent to the sexual intercourse as complainant did not put up tenacious
resistance despite lack of threat on her life during the alleged rape; and, that complainant
on cross-examination was not certain whether accused-appellant was armed at the
commencement of the rape. Sdjad
We likewise find these contentions of accused-appellant unconvincing. The prosecution for
rape in the instant case is based solely on the testimony of complaining witness. Thus, the
basic issue that must be addressed is her credibility. Doctrinally, the trial courts
assessment of the credibility of witnesses is accorded the highest respect and weight by
the appellate courts. It is normally sustained unless material facts and circumstances have
been overlooked, misunderstood or misapplied.[12] There is no such showing in this case.
Accused-appellant might not have employed force in committing the rape but he definitely
used intimidation which was sufficient to make complainant submit herself to him against
her will for fear of life and personal safety. Accused-appellant grabbed her and dragged
her to his house. He was armed with an ice pick and threatened to kill her with it if she did
not follow his wishes. She was naturally intimidated and her intimidation started from that
moment on, and subsisted in her mind when the rape was started until its consummation.
Intimidation is subjective so it must be viewed in the light of the victims perception and
judgment at the time of the commission of the crime, and not by any hard and fast rule. It
is enough that it produces fear, as in the present case, fear that if the complainant does

not yield to the bestial demands of accused-appellant something would happen to her at
that moment or even thereafter. Thus, it is irrelevant that she was not certain when crossexamined that accused-appellant was armed with an ice pick when the rape commenced;
it was enough that he was holding something that looked like an ice pick which
engendered fear in her. With fear instilled in her mind, it is understandable that she did
not offer any resistance since any attempt to do so would only be futile. Such failure on
her part should not be taken to mean consent so as to make her a willing participant in the
sexual confrontation.
The Information charges accused-appellant with the special complex crime of robbery with
rape. The record shows that the prosecution has established that he committed both
robbery and rape with the intent to take personal property of another preceding the rape.
Under Art. 294, par. (1), of the Revised Penal Code, "x x x [a]ny person guilty of robbery
with the use of violence against or intimidation of persons shall suffer: 1. The penalty of
reclusion perpetua to death, x x x when the robbery shall have been accompanied by rape
x x x x" Complaining witness Juditha Bautista was raped twice on the occasion of the
robbery. In this regard, this Court had declared in some cases that the additional rapes
committed on the same occasion of robbery would not increase the penalty.[13] There were
also cases, however, where this Court ruled that the multiplicity of rapes committed could
be appreciated as an aggravating circumstance.[14]Finally, in the recent case of People v.
Regala,[15] the Court held that the additional rapes committed should not be appreciated as
an aggravating circumstance despite a resultant "anomalous situation" wherein robbery
with rape would be on the same level as robbery with multiple rapes in terms of gravity.
[16]
The Court realized that there was no law providing for the additional rape/s or
homicide/s for that matter to be considered as aggravating circumstance. It further
observed that the enumeration of aggravating circumstances under Art. 14 of the Revised
Penal Code is exclusive, unlike in Art. 13 of the same Code which enumerates the
mitigating circumstances where analogous circumstances may be considered, hence, the
remedy lies with the legislature. Consequently, unless and until a law is passed providing
that the additional rape/s or homicide/s may be considered aggravating, the Court must
construe the penal law in favor of the offender as no person may be brought within its
terms if he is not clearly made so by the statute. Under this view, the additional rape
committed by accused-appellant is not considered an aggravating circumstance. Applying
Art. 63, par. (2), of the Revised Penal Code which provides that "(i)n all cases in which the
law prescribes a penalty composed of two indivisible penalties, the following rules shall be
observed in the application thereof x x x x 2. (w)hen there are neither mitigating nor
aggravating circumstances in the commission of the deed, the lesser penalty shall be
applied," the lower penalty of reclusion perpetua should be imposed on accusedappellant. Sppedsc

21

As to the award of damages to the complaining witness, an additional amount

of P50,000.00 may be given as damages ex delicto in line with recent jurisprudence.[17]
WHEREFORE, the Decision of the court a quo finding accused-appellant FERNANDO
SULTAN Y LATO GUILTY of the special complex crime of robbery with rape and sentencing
him toreclusion perpetua, to pay Juditha M. Bautista P50,000.00 for moral
damages, P5,180.00 for actual damages representing the value of the personal properties
plus the cash amount ofP130.00 taken from her is AFFIRMED with the MODIFICATION that
the amount of P50,000.00 be added as civil indemnity in conformity with prevailing
jurisprudence. Costs against accused-appellant.
SO ORDERED.

[G.R. Nos. 124303-05. February 10, 1998]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALEJANDRO ATOP @
ALI, accused-appellant.
DECISION
PANGANIBAN, J.:
The trial court sentenced the appellant to death, holding that his common-law
relationship with the victims grandmother aggravated the penalty. We hold, however, that
Sec. 11 of RA 7659 prescribes the capital penalty in rape, only 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 common-law
spouse of the parent of the victim, and not by reason of any other kinship. On the other
hand, relationship as an alternative aggravating circumstance under Art. 15 of the Revised
Penal Code encompasses only the spouse, ascendant, descendant, legitimate, natural or
adopted brother or sister, and relative by affinity in the same degrees. Outside these
enumerations and consistent with the doctrine that criminal laws must be liberally
construed in favor of the accused, no other relationship, kinship or association between
the offender and the victim may aggravate the imposable penalty for the crime
committed. The fact, then, that the offended party is the granddaughter or descendant of
appellants live-in partner cannot justify the imposition of death upon the rapist.
The Case
This is a combined appeal from, and an automatic review of, the Joint Decision of the
Regional Trial Court, Branch 12, of Ormoc City, finding Appellant Alejandro Atop, alias Ali,
guilty beyond reasonable doubt of three (3) counts of rape and sentencing him to two (2)
terms of reclusion perpetua for the first two counts, and to death for the third.
On April 21, 1995, Provincial Prosecutor I Rosario D. Beleta filed four separate
informations[1] against accused-appellant charging him with rape on three separate
occasions -- on October 9, 1992, sometime in 1993 and on December 26, 1994 -- as well

as with attempted rape on December 31, 1994. The informations charging rape, except for
the date of commission and the age of the victim, similarly allege the following:
That on or about the 9th day of October, 1992, at Sitio Tambunan, Brgy. Sta. Rosa,
Municipality of Matag-ob, Province of Leyte, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, by means of force and intimidation, did then
and there wilfully [sic], unlawfully and feloniously have carnal knowledge of the herein
offended party REGINA GUAFIN, 11 years old, the accused is the live-in partner of her
grandmother with whom she is living with [sic], against her will and without her consent,
with the use of a knife, mashed her breast, embraced, kissed and inserted his penis over
the victims genital organ to accomplish his lewd design, to her damage and prejudice.
During his arraignment, appellant, assisted by Counsel de Oficio Wenceslao Vanilla of
the Public Attorneys Office, pleaded not guilty.[2] Thereafter, the cases were tried jointly. In
his Decision,[3] the trial judge[4] disposed of the cases as follows:
1. In Criminal Case No. 4627-0 finding the accused Alejandro Atop GUILTY beyond
reasonable doubt of RAPE defined and penalized under Article 335 of the Revised Penal
Code.Appreciating the aggravating circumstances of relationship and nighttime with no
mitigating circumstance to offset any of the two, this court imposes upon the said
ALEJANDRO ATOP the sentence of RECLUSION PERPETUA and to indemnify Regina Guafin
the sum of THIRTY THOUSAND PESOS (P30,000.00) and to pay the costs.
2. In Criminal Case No. 4628-0 finding the accused Alejandro Atop GUILTY beyond
reasonable doubt of RAPE defined and penalized under Article 335 of the Revised Penal
Code.Appreciating the aggravating circumstances of relationship and nighttime with no
mitigating circumstance to offset any of the two, this court imposes upon the said
ALEJANDRO ATOP the sentence of RECLUSION PERPETUA and to indemnify Regina Guafin
the sum of THIRTY THOUSAND PESOS (P30,000.00) and to pay the costs.
3. In Criminal Case No. 4630-0 finding the accused Alejandro Atop NOT GUILTY for
insufficiency of evidence.
4. In Criminal Case No. 4629-0 finding the accused ALEJANDRO ATOP guilty beyond
reasonable doubt of RAPE defined under Article 335 of the Revised Penal Code, as
amended by Republic Act 7659. Appreciating the aggravating circumstances of relationship
and nighttime with no mitigating circumstance to offset any of the two, this court imposes
upon the said ALEJANDRO ATOP, also known as Ali, the sentence of DEATH. Further, the
same Alejandro Atop is directed to indemnify Regina Guafin the sum of THIRTY THOUSAND
PESOS (P30,000.00) as moral damages and to pay the costs.
By reason of the imposition of two reclusion perpetua and of the death penalties the jail
warden is directed to immediately commit the person of Alejandro Atop to the National
Penitentiary at Muntinlupa, Metro Manila while awaiting the review by the Supreme Court
of this decision.[5]
The Facts
Version of the Prosecution
The prosecutions evidence is narrated by the trial court [6] as follows:
Private complainant Regina Guafin, told the court that she is a granddaughter of Trinidad
Mejos and that the accused Alejandro Atop is the common law husband of said Trinidad
Atop [sic].Her mother is a daughter of said Trinidad Atop [sic] and lives in Pangasinan. She
is an illegitimate child and she does not even know her father. Since her early childhood
she stayed with her grandmother Trinidad Atop [sic] and the accused at Barangay Santa
Rosa, Matag-ob, Leyte. Sometime in 1991 when she was already 10 years of age the

21

accused started having lustful desire on her. The accused then inserted his finger into her
vagina. She told her grandmother about this but her grandmother did not believe her. She
was then told by her grandmother, Trinidad Mejos, that what her grandfather did to her
was just a manifestation of fatherly concern. She continued staying with her grandmother
and her common law husband Alejandro Atop, the herein accused.
On October 9, 1992, she was called by the accused Alejandro Atop to do something for
him. When she approached him the accused rushed towards her, removed her panty and
inserted his male organ into her vagina. She was not able to do anything to resist him
because the accused gagged her mouth and was carrying a knife with him. She was then
12 years old when the first rape was committed to her and at that time her grandmother
was then attending a delivery since her grandmother was a hilot. When her grandmother
returned home she told her what the accused did to her but her grandmother, again,
refused to believe her. She also remember [sic] of another incident wherein she was raped
again by the accused Alejandro Atop. It was in the year 1993 but she could not recall the
month when it was committed. Only she and the accused were then at their house at
Barangay Santa Rosa, Matag-ob, Leyte as her grandmother was at San Vicente attending
to a delivery. Again, she told her grandmother about the heinous acts that the accused did
to her but her Lola refused to believe her.
On December 26, 1994, the accused again raped her. She could not ask for help because
her mouth was gagged by the accused. Aside from gagging her, the accused also carried a
knife which he placed at his side.
On December 31, 1994, while she together with her Aunt Gloria Montealto and her two (2)
nieces Rubilen and Jubilen Atop were about to go to sleep, she noticed that the accused
was looking for her. Upon seeing her the accused rushed towards her and was about to lay
on top of her. She kicked him. After that, the accused caressed and touched his nieces but
his nieces also kicked him. Thereafter, the accused stopped molesting her and his nieces
and went to sleep instead. In the following morning, January 1, 1995, she went to the
barrio to go to school.She then forgot that there were no classes. She was not able to get
a ride towards the school, so she went directly to the house of her grandfather Zacarias
Geva. While she was at the house of her Lolo Geva, the accused arrived and immediately
entered the house of her grandfather. The accused was met by Rubilen Atop who was
about to box him but they immediately went out of the house and the accused followed
them. The accused wanted to bring her back to their house but she refused. So, the
accused pulled her. The accused kept on holding her until they reached the waiting shed
were the accused smashed her to the concrete wall.
She reported the incidents of rape that happened in 1992, 1993 and 1994 only in January
1995. It took her so long to report the said incidents because she was afraid. The accused
threatened to kill her should she tell anybody about the incidents. She was accompanied
by her Aunts Fe Decio and Rosenda Andales in reporting the said incidents to the
police. Her statement was taken by the police at the police headquarters. Thereafter, she
filed a complaint with the Municipal Trial Judge of Matag-ob, Leyte. x x x In her sworn
statement which was also marked as Exhibit 1 for the defense, she only stated therein
that what was inserted into her vagina on July 1991 was only the finger of the
accused. Out of fear, she deliberately concealed from the investigator what actually had
happened to her because at that time, because the accused was not yet apprehended and
she was afraid that the accused would kill her.Then she filed complaints with the Office of
the Provincial Prosecutor and requested the fiscal to make a re-investigation in these

cases. She told the Fiscal the truth of what was done to her by the accused because at
that time the accused was already arrested. x x x
xxxxxxxxx
Another prosecution witness Fe Decio, an aunt of the private offended party Regina Guafin,
testified that she knows the accused Alejandro Atop, the latter being her stepfather. She
pointed in court the said accused. She testified also that when her niece Regina Guafin
went to her residence at Himarco, Palompon, Leyte on January 2, 1995, she noticed that
Regina Guafin had abrasions on her body and was then crying. She asked her the reason
why she cried and Regina told her that on January 1, 1995 the accused again tried to rape
her but did not succeed because she fought back and was able to resist. The abrasions in
her body was the result of the maltreatments made by the accused who forcibly pulled her
back to their house. Further, Regina told her that the said accused Alejandro Atop had
raped her 3 to 4 times. She was told by Regina when the said incidents happened but she
forgot the actual dates that the latter told to her. She accompanied Regina to the police
authorities of Matag-ob, Leyte and reported the said incidents. During the time that Regina
was investigated by the police authorities, the accused had also fled. Thereafter, she
submitted Regina for a medical examination at the Ormoc District Hospital. Then, Regina
Guafin filed a complaint at the MCTC of Matag-ob, Leyte.
On cross examination, she testified that they offer no objection with the relationship of the
accused to her mother. In fact during the time that the accused and her mother were
living together, they were in good terms with the accused. She denied the fact of sending
her mother to Manila for the purpose of separating her from the accused Alejandro Atop
because it was only the decision of her mother to have a vacation in Manila. She testified
also that the age of her mother is more than 50 years old. [7]
The third prosecution witness, Dr. Judith V. Lomocso who was a resident gynecologist
at the Ormoc District Hospital, testified that she examined Regina Guafin. Her findings
were reduced in writing, as follows:
External Findings:
1. Incised wound with scab formation (L) middle finger.
2. Tenderness (L) breast.
OB-Gyne Findings:
External genetalia [sic] - grossly normal
- negative pubic hair
Vaginal canal - admits 2 fingers with ease
hymen - healed laceration
uterus - small
LMP - December 4, 1994[8]
Version of the Defense
Appellant
denied
the
accusations
of
Guafin
and
imputed
ill
motive upon her aunts, who were the daughters of his live-in partner.[9] The trial court
summed up his testimony this wise:
Accused Alejandro Atop [then 37 years old] testified that he and Trinidad Mejos had been
living together as husband and wife for about 10 years already. When they started living
together, Trinidad Mejos was already a widow with eight (8) children of her previous
marriage. When he started to live with Trinidad Mejos the latters children became mad at
him because their mother was already old and he was still young. He personally knew
Regina Guafin, the latter being their adopted child. Regina Guafin was still 2 years old
when he and his wife took care of her. That Regina Guafin continuously resided at Sta.

21

Rosa, Matag-ob, Leyte. The other persons who also lived with them aside from Regina
Guafin, were the three sons of Trinidad and his two (2) nieces whom he took from Butuan
City and sent them to school. He denied committing rape against Regina Guafin on
October 9, 1992, in the year 1993 and on December 26, 1994.On December 31, 1994,
while he was at his house, Regina went to the barrio proper to go to school. In the
afternoon of the same date, he went to fetch Regina Guafin because at that time classes
were not regular yet. At that time, the companions of Regina were Jovelyn and Rubilyn. He
also denied committing an offense against Regina Guafin on December 31, 1994. He
testified also that he did not evade arrest by going out of Matag-ob, Leyte because during
that time he was working in Hideco as a laborer. The reason why Regina Guafin filed a
case against him because the said private complainant was coached by her aunt who
wanted him and his wife Trinidad to be separated.
On cross examination, he testified also that he was told by his cousin Nicolas Valencia that
her [sic] wife Trinidad was prevented by her children from visiting him in jail upon her
arrival from Manila.[10]
Ruling of the Trial Court
The court a quo evaluated the testimony of the offended party in this manner:
x x x this court observed both the complainant and the accused when both were on the
witness stand. The tears that spontaneously flowed from the private complainants eyes
and the sobs that punctuated complainants testimony when asked about her experience
with the accused eloquently conveyed the hurt, the pain, and the anguish the private
complainant has suffered and lived with during all the years. When she told the court that
she was raped by the accused she said it all with candor. The mixed expression of sadness
and anger shown in the private complainants face during her testimony convinced this
court that she was telling the truth. This court then found nothing in the evidence which
would indicate in any way that the said Regina Guafin was motivated in narrating to the
court her ordeal other than her quest for justice. The defenses claim that Regina was
coached by her aunts to fabricate her rape story in order to force their mother Trinidad
Mejos to separate from the accused is nothing but a mere speculation [upon] which this
court found no probative value. This court then gives the testimony of the private offended
party full faith and credit.[11]
The trial court also ruled that the circumstances of nighttime and relationship
aggravated all the three incidents of rape, but that there was no sufficient evidence
proving attempted rape on December 31, 1994. Considering that the last rape occurred
after the effectivity of RA 7659, the death penalty law, the court meted out the capital
punishment to accused-appellant.
Issues
In his appeal[12] before us, appellant assigns the following errors: [13]
I. The trial court erred in appreciating the circumstances of nighttime and relationship as
aggravating the penalty imposable for the rape allegedly committed on October 9, 1992, in
1993 and on December 26, 1994.
II. The trial court erred in finding accused guilty beyond reasonable doubt of the crimes
charged.
The Courts Ruling
The appeal is partly meritorious. We find that the alleged aggravating circumstances
were not duly proved.
First Issue: Nighttime and Relationship

The time-settled rule is that nocturnity, as an aggravating circumstance, must have been
deliberately sought by the offender to facilitate the crime or prevent its discovery or evade
his capture or facilitate his escape.[14] The culprit must have purposely taken advantage of
the cover of night as an indispensable factor to attain his criminal purpose. [15]
We find merit in Appellant Atops contention, to which the solicitor general agrees,
that the prosecution failed to prove that nighttime was deliberately sought by appellant to
facilitate his dastardly acts. In fact, the prosecution failed to show that appellant
consummated his carnal designs at night, except only for the December 26, 1994 incident
which the victim said occurred at 11:00 p.m. [16] Much less is there any evidence
substantiating the trial courts conclusion that appellant intentionally sought the darkness
to advance his criminal exploits.
Neither can we appreciate relationship as an aggravating circumstance. The scope of
relationship as defined by law encompasses (1) the spouse, (2) an ascendant, (3) a
descendant, (4) a legitimate, natural or adopted brother or sister, or (5) a relative by
affinity in the same degree.[17] Relationship by affinity refers to a relation by virtue of a
legal bond such as marriage.Relatives by affinity therefore are those commonly referred to
as in-laws, or stepfather, stepmother, stepchild and the like; in contrast to relatives by
consanguinity or blood relatives encompassed under the second, third and fourth
enumeration above. The law cannot be stretched to include persons attached by commonlaw relations. Here, there is no blood relationship or legal bond that links the appellant to
his victim. Thus, the modifying circumstance of relationship cannot be considered against
him.
Neither is the following provision of Sec. 11, RA 7659 applicable:
Sec. 11. Article 335 of the [Revised Penal] Code is hereby amended to read as follows:
xxx
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 common law spouse of the parent of the victim.
xxxxxxxxx
Undisputed is the fact that appellant is not the common law spouse of the parent of
the victim. He is the common law husband of the girls grandmother. Needless to state,
neither is appellant the victims parent, ascendant, step-parent, guardian, relative by
consanguinity or affinity within the third civil degree. Hence, he is not encompassed in any
of the relationships expressly enumerated in the aforecited provision.
It is a basic rule of statutory construction that penal statutes are to be liberally
construed in favor of the accused. [18] Courts must not bring cases within the provision of a
law which are not clearly embraced by it. No act can be pronounced criminal which is not
clearly made so by statute; so, too, no person who is not clearly within the terms of a
statute can be brought within them. [19] Any reasonable doubt must be resolved in favor of
the accused.[20]
Second Issue: Sufficiency of Prosecution Evidence
However, we do not agree with the claim of appellant that the prosecution evidence
was not sufficient to prove his guilt. In the main, appellant relies on the disparity between,
on the one hand, the allegations of Regina in her sworn statement [21] executed before
MCTC Judge Aquilino A. Inopiquez Jr. of Matag-ob, Leyte which merely prove acts of
lasciviousness; and, on the other, her testimony in court showing three counts of rape.

21

Such disparity, which at first glance may raise some doubts on the truthfulness of
complainants statements, was cogently and satisfactorily explained by her thus:
Q x x x why did you state in your affidavit that only the finger that [sic] was inserted
into your vagina?
A Because during the time of the investigation, I did not tell what was really true
because he was not yet apprehended, sir.
Q So, you deliberately conceal[ed] from the investigator what actually happened out of
fear?
A Yes, your Honor.
CONTINUE
PROSECUTOR
Q And when you appeared before the Office of the Provl. Fiscal, were you investigated?
A Yes, maam.
Q And did you tell the Fiscal the truth of what had this accused done to you?
A Yes, maam.
Q And what was that statement you have given to the Fiscal?
A I told the Fiscal the truth because the accused was already arrested.
Q And what was the truth?
A The truth that it was his penis that was inserted to my vagina.
Q How many times did the accused inserted [sic] his penis into your vagina?
A Many times maam but I can remember only three (3) to four (4) times.
Q And the first time that [sic] was on October 9, 1992?
A Yes, maam.
Q When was the second time he inserted his penis into your vagina?
A In the year 1993.
Q And the third time?
A On December 26, 1994. [22]
From the testimony of Regina, the crimes evidently committed by appellant on the
aforestated dates were consummated rapes, not merely acts of lasciviousness. Initially,
she hesitated to completely divulge her ravishment by appellant because of his threats to
kill her should she tell anybody of his assaults. [23] With his arrest and detention, she
mustered the courage to finally and completely reveal her embarrassing story.
No simple barrio lass would so candidly admit before the public that a man who had
lived as common-law husband to her grandmother had inserted his penis in her vagina for
so many times in the past. It is unthinkable that complainant, a young lady of fifteen
years, would allow her private parts to be examined and would withstand the rigors of a
public trial -- along with the shame, humiliation and dishonor of exposing her own
mortifying defilement -- if she was not in fact ravished. A careful examination of her
testimony does not reveal any hint of prevarication. Rather, her straightforward and
unequivocal statements, during both her direct and her cross-examinations, show indelible
badges of truth. As the trial judge keenly observed, The tears that spontaneously flowed
from the private complainants eyes and the sobs that punctuated [her] testimony when
asked about her experience with the accused eloquently conveyed the hurt, the pain, and
the anguish the private complainant has suffered and lived with during all the years. When
she told the court that she was raped by the accused, she said it all with candor. The
mixed expression of sadness and anger shown in the private complainants face during her
testimony convinced this court that she was telling the truth. [24] We find it apt to say once

again that when a woman, especially a minor, says that she has been raped, she says in
effect all that is necessary to show that the crime was committed. [25]
Appellants contention that private complainant was merely induced by her aunts who
had objected to his relationship with their mother, Trinidad Mejos, is a trite defense that is
completely undeserving of credit. It is unnatural and unbelievable for Reginas aunts to
concoct a story of rape of their own very young niece, that would bring shame and scandal
not only to her but to the entire family, especially to their mother. There could have been
so many ways to alienate appellant from their mother, so many crimes to impute to him
without
dragging
the
familys
honor
into
it. The
preposterousness of appellants assertion becomes more obvious in light of the fact that
this case was instituted only after ten (10) years of his illegitimate union with Reginas
grandmother. If Reginas aunts truly wanted them to discontinue such relationship, the long
wait is inexplicable.
Consequently, in the face of private complainants positive and unequivocal testimony,
appellants plain denial of the accusations against him cannot prevail. [26] It is well-settled
that denial, if unsubstantiated by clear and convincing evidence, is a negative self-serving
assertion which deserves no weight in law.[27] The recognized rule is that testimonies of
rape victims who are young and immature are each worthy of full credence. [28]
Time and again, we have also held that when the question deals with the credibility of
witnesses and their testimonies, the trial courts observations and conclusions deserve
great respect and are often accorded finality, unless there appears in the record some fact
or circumstance of weight which the lower court may have overlooked, misunderstood or
misappreciated and which, if properly considered, would alter the results of the case.
[29]
The trial judge has the valuable edge of observing the witness deportment and manner
of testifying, her furtive glance, blush of conscious shame, hesitation, flippant or sneering
tone, calmness, sigh, or the scant or full realization of an oath [30] -- all of which are useful
aids for an accurate determination of a witness honesty and sincerity. After a thorough
review of all the evidence on record, the Court finds no reason to reverse the trial courts
findings on the guilt of appellant.
Penalties Imposable
For the rape incidents on October 9, 1992 and sometime in 1993, the court a
quo correctly imposed the penalty of reclusion perpetua for each of the two criminal
acts. The third rape incident, however, occurred after the effectivity of RA 7659, the law
which imposed the death penalty on certain heinous crimes. Under this amendatory law,
the penalty for rape committed with the use of a deadly weapon is reclusion perpetua to
death.[31] This provision is applicable in the instant case, since private complainant was
threatened with a knife when appellant consummated his beastly acts on her.[32]
In cases where the penalty prescribed is composed of two indivisible penalties and
there is neither an aggravating nor a mitigating circumstance in the commission of the
felony, the lesser penalty should be applied. [33] Since there was no modifying circumstance
even in the third rape, the penalty therefor should be reclusion perpetua, not the graver
penalty of death as imposed by the court a quo. As earlier explained, the attendant
relationships enumerated under Sec. 11 of RA 7659 do not apply either.
Consistent with prevailing jurisprudence, [34] we increase the civil indemnity imposed
upon appellant by the trial court to P50,000 for each count of rape. The Court notes that,
for appellants third conviction, the trial court ordered him to indemnify the victim in the
amount of P30,000 as moral damages. Civil indemnity under Art. 100[35] of the Revised
Penal Code is separate and distinct from moral damages under Arts. 2217 and 2219 of the

21

Civil Code.[36] Conformably, Appellant Atop should indemnify Regina Guafin in the total
amount of P150,000 for the three counts of rape -- separately from payment of moral
damages which we find justified under the circumstances. The moral sufferings of private
complainant were obvious during the court proceedings where, as observed by the trial
judge and also noted in the transcripts, she spontaneously cried and sobbed, and showed
a mixed expression of sadness, pain and anger.
WHEREFORE,
the
Decision
appealed
from
is
hereby AFFIRMED, with
the MODIFICATION that Appellant Alejandro Atop shall not suffer the penalty of death but
shall SERVE three (3) terms of reclusion perpetua, one for each of the three (3) counts of
rape for which he was found GUILTY by the trial court, and is ordered to PAY Regina Guafin
indemnity in the amount ofP150,000 plus moral damages of P50,000.
SO ORDERED.

G.R. No. L-16639 March 22, 1921

THE UNITED STATES, Plaintiff-Appellee, vs. BASILIO REGUERA ( alias Teniente Asir)
and ALEJANDRO ASUATEGUI ( alias Teniente NANDO), Defendants-Appellants. 1
Locsin and Ampig for appellants.
Acting Attorney-General Feria for appellee.
VILLAMOR, J.:
The appellant in this case were found guilty of robbery with double homicide and
sentenced by the Court of First Instance of the Province of Iloilo each to cadena perpetua,
to pay jointly and severally to the heirs of the deceased Josefa Pasaporte the sum of
P1,000, to return to Porfirio Guangco, also jointly and severally, the sum of P200 and the
jewels robbed or their value of P2,083.50, with the accessories provided by law, and the
payment of the costs.chanroblesvirtualawlibrary chanrobles virtual law library
The facts proved in the case are the following: At about 5 p.m. of the 22d day of July,
1919, the accused Basilio Reguera ( alias Teniente Asir), and Alejandro Asuategui
( AliasTeniente Nando), the first armed with a dagger and the second also with a dagger
and a bolo, assaulted the house of Josefa Pasaporte, situated in Calle Pilar, poblacion of
the Municipality of Pototan, Province of Iloilo, and upon gaining entrance, closed the doors,
and blandishing the weapons they carried, tied the inmates, the aged Josefa Pasaporte
and the young people Natalia Peronce (15 years old), her deaf brother Sixto and two
children, grandchildren of the first person mentioned, who were Esteban and Corazon
Guangco, the latter being 5 years old; and while they were thus tied and the accused
Alejandro Asuategui guarded them, the other accused Basilio Reguera, threatening the old
woman with death, asked her to give up P200 and as she answered that she had no

money, he opened wardrobes, several tampipis and two boxes, Exhibits C and B of the
prosecution, and took possession of the jewels they found, such as rings, bracelets,
chains, etc. gathering and placing them in the smaller box, which he wrapped with the
underwear which he wore upon entering the house and which he took off and changed
with acundiman, that is, a red cloth. At dusk they lighted the lights, a small one in a bottle
prepared ad hoc and another bigger light in a lamp used by them as a lamp for outing. At
about 6 o'clock Porfirio Guangco, son-in-law of the old woman Pasaporte, arrived, having
been absent from the house with his wife Sofia Perenas, daughter of said Pasaporte,
Porfirio called his mother-in-law, but instead of her one of the culprits looked out of the
window and asked him for money threatening to kill all in the house if his order should be
refused. At first he asked P1,000, and as Porfirio answered that he did not have that sum
he reduced it to P500, and as Porfirio neither agreed to it, he reduced it to P200, and then
Porfirio answered that he would go and look for it. As soon as possible he returned with
the P200, wrapped it in a handkerchief, and delivered it to the accused Asir, throwing it to
the window. After receiving the money, Reguera told the occupants to light the way as
they were going down, warning them that they would kill the old woman and the children
should they hear shots. They went down on their way in the following order: In front was
the old woman Pasaporte, held by the shoulder by Basilio Reguera ( alias Asir), with one
hand tied and the other loose and holding the child Corazon; then followed Sixto, the deaf,
who carried the lamp already referred to, with one hand tied to that of Natalia Peronce
who carried in her arms the child Esteban; behind them came the other accused Alejandro
Asuategui ( alias Nando) with a drawn dagger in his right hand and the bolo in the left; on
the rear about two arms' length away was Porfirio Guangco accompanied by Donato
Parcon who also carried another lamp. They had hardly gone some distance from the
house when they heard shots coming from the west thereof and then Asir, who was in
front, holding the old woman by the shoulder stabbed her in the abdomen and then the
child Corazon in the right collar bone, the wound passing into the breast. And Nando, who
was on the rear, also stabbed the child in the left part of the region of the groin. The
culprits then took flight. The old woman Josefa Pasaporte and the child Corazon Guangco
died on the same night that the event occurred as a result of the
wounds.chanroblesvirtualawlibrary chanrobles virtual law library
Upon examining the corpses of the deceased on the same night, Doctor Arancillo found
that Josefa Pasaporte had a cut of 1 to 2 centimeters wide in the epigastric region,
caused by a cutting and pointed instrument, and necessarily mortal; and that the child
Corazon received four wounds, the first a cut of 2 centimeters long by centimeter
wide and 18 centimeters deep in the right shoulder blade; the second which is a
continuation of the preceding, of 2 centimeters long and centimeter wide on the interior
edge of the joint of the scapular and the collar bones, both wounds having been caused
with a single blow of a cutting instrument, the first being the pint of the entrance and the
second the outlet; the third in the right hip, being an almost round wound 8 centimeters
deep, caused by a firearm, and the fourth in the left inguinal region, 10 centimeters deep,

21

caused by a pointed and cutting instrument. The first, second, and third wounds, were
necessarily mortal, but the first two given with a single blow were more deadly than the
third.chanroblesvirtualawlibrary chanrobles virtual law library
Counsel for the accused in this instance, in assigning the errors committed by the trial
court, allege: (1) That the lower court erred in finding the accused guilty as principals in
the crime in question; and (2) that the accused are entitled to the benefit of a reasonable
doubt.chanroblesvirtualawlibrary chanrobles virtual law library
The perpetration of the robbery with double homicide, which is prosecuted in this cause, is
an indisputable fact. The only question raised in the brief for the defense is whether the
accused and appellants were sufficiently identified.chanroblesvirtualawlibrary chanrobles
virtual law library
A careful examination of the declarations of the prosecuting witnesses, Natalia Peronse,
Adriano Pasaporte, Cirilo Lapatin, and Porfirio Guangco, shows beyond all reasonable
doubt: (1) That the accused Basilio Reguera ( alias Asir), upon going up the house of
Josefa Pasaporte, went to the kitchen and took the servant Sixto to the sala where Josefa
Pasaporte and her two grandchildren Corazon Guangco and Esteban Guangco were; that
he opened the wardrobes and trunks, upset the contents and took the jewels from the
jewel boxes; that he demanded P200 of Porfirio Guanco from the window of the house;
that he ordered Porfirio Guangco to light the lower part of the house where they had to
pass with their victims; that upon going down he took off his hemp cloth and put on a red
one and held the right shoulder of Josefa Pasaporte with his left hand, while with his right
hand he held a dagger over her breast; that, upon hearing the first shot at about 20 steps
from the house, he stabbed said Josefa Pasaporte and then the child Corazon Guangco,
whom the former carried in her arms; and (2) that the other accused Alejandro Asuategui,
upon going up the house, stationed himself at the upper part of the stairs, closed the door
after the servant Natalia Peronse had ascended the stairs; took the latter to the sala
where Josefa Pasaporte with her two grandchildren Corazon and Esteban and the servant
Sixto were, and there he tied the three adults with only one rope and carried them to the
open door of the room to the left which led to the room to the right where he guarded
them, while his companion opened the trunks and wardrobes, upset their contents and
took the jewels; that upon going down he received from his companion the sinamay cloth,
which the latter had taken off, and he put it around his neck, and then placed himself
behind the servants Natalia Peronse and Sixto who were tied, while he held his drawn bolo
in his right hand which rested upon the right shoulder at about the height of his head and
held a dagger in the left hand; and that upon hearing the first shot at 20 steps from the
house he fled, after first stabbing the girl Corazon Guangco in the left inguinal
region.chanroblesvirtualawlibrary chanrobles virtual law library

The Honorable Antonio Villareal, the judge who tried the case in the first instance,
analyzing the circumstances under which said prosecuting witnesses observed the culprits,
in order to determine whether they were such as to enable them to perfectly recognize
and retain in their memory the physiognomies and general appearance of these persons,
to such extent that in indicating the accused during the trial two months afterwards, they
could not be mistaken as to the fact that they were the same rascals whom they saw two
months before says the following in the decision appealed from:
The witness Natalia Peronse saw the accused very near her in plain daylight, at 5 p.m.,
until night came, and by the light of the lamp for outing purposes which they lighted in the
house. Natalia Peronse is young and appears to posses a perfect eyesight. She was
therefore in the best of condition, with respect to time and light, in order to observe well
the physiognomies of the accused and retain them in her memory. The constant threats of
death under which that witness was placed from the moment the rascals ascended the
house until they escaped must have produced a profound impression upon her. On this
point we read the following from Moore on Facts, Vol., II, page 891: " "An impression may
be so exciting emotionally as almost to leave a scar upon the cerebral tissues" says
Professor James. So where a man and his wife were dragged from their bed in the
nighttime and cruelly tortured by robbers partly masked, and they heard the voices of
their torturers, observed their figures, their movements, their eyes, the color of their hair,
and their relative size and manner, "every peculiarity of each of them," said the court,
"must have been literally burned into the memory" of their victims and enable the latter to
identify them subsequently with confidence." Furthermore Natalia Peronse identified the
accused the next day when they were arrested, in this manner making the impression
upon her memory of their physiognomy more
profound.chanroblesvirtualawlibrary chanrobles virtual law library
Adriano Pasaporte has known the accused for more than six years; he has frequently been
with them and has played monte with them on various occasions, so that the details of
their person must be familiar to him and it would be sufficient for him to see them by the
light of a lamp used for outing purposes, to recognize them. The same work already cited
says on page 1365 the following as to this point: "The combination and arrangement of
the human feature and lineaments are ordinarily so unique in each particular person, and
the peculiarities of individual expression, tone of voice, gesture, and carriage, so marked
and striking, that to a familiar acquaintance or fried there can be very little chance of
mistaking personal identity. Familiar intercourse produces that kind of knowledge which
acts instantaneously, by an immediate and single process of recognition. We do not, at
every meeting with an acquaintance, begin to compare features, and reason on the
question of identify, but we recognize the whole object as a living unity. . . ."chanrobles
virtual law library

21

The identification of the accused by Cirilo Lapitan and Porfirio Guangco, although not made
under the same circumstances as that by Natalia Peronse and Adriano Pasaporte, are
sufficient to establish their guilt, there being no credible evidence to the effect that they
were in another place.
We have carefully examined the evidence before us and are convinced that the findings of
the trial judge are in accordance with the merits of the cause. The prosecuting witnesses
were submitted to a long and detailed examination both by the fiscal and counsel for the
defense as well as by the trial judge, and in their declarations we find nothing which would
justify any alteration in the conclusions of fact contained in the judgment appealed
from.chanroblesvirtualawlibrary chanrobles virtual law library
Counsel for the accused presented the witness Epifanio Lucasi, attempting to show that
the accused were not the evildoers who assaulted the house in question but others,
because said witness saw them and did not recognize them, although he knew the accused
for a long time and would recognize them although they might be in a somewhat dark
place. Nevertheless this witness, who positively states that he closely observed the faces
of the rascals, did not observe whether they had hats on or not, a circumstance which puts
much doubt upon the veracity of his testimony. After giving the description of the rascal
who went by the side of the deceased Josefa Pasaporte, which coincides with that given by
the prosecuting witnesses, he says that man is not the accused Basilio Reguera ( aliasAsir)
for, according to him, Asir is taller by one finger than that person whom he saw that night
(p. 134, s.n.). The testimony of this witness does not deserve greater credit than those of
the witnesses for the prosecution, who unanimously affirm that the man whom the witness
Lucasi refers is the same accused Basilio Reguera
( alias Asir).chanroblesvirtualawlibrary chanrobles virtual law library
The accused Alejandro Asuategui declared that the witness Peronse stated, when the
accused were arrested the next day and presented to her by Lieutenant Castaeda of the
Constabulary, that they were not the culprits. But this uncorroborated declaration of the
accused Asuategui cannot prevail over that of the witness Peronse, who repeatedly and
positively declared at the trial that the accused are the same rascals who robbed the
house of Josefa Pasaporte on the afternoon in question. This is corroborated by the
testimony of Lieutenant Castaeda, when he says that he ordered the arrest of the two
accused the same night of the occurrence, because, according to the information he
received, the culprits where the persons known as Asir and Nando, the same persons
accused in this case. Said witness Peronse, nothing certain distinctive features of the
accused, said to the court in the beginning of her declaration:

The person who killed my grandmother Josefa is that man, Asir, who then had a mustache
(indicating the accused Basilio Reguera), and the person who tied us is that man who has
smallpox (indicating the accused Alejandro Asuategui) (p. 17, s. n.).
This shows that the witness knew the accused perfectly well from the afternoon in
question and this knowledged enabled her to recognize them when they were arrested the
next day after the event. Josefa Perenas also corroborates her when the former says that
Peronse told her that morning that those persons presented to her are those who
assaulted the house of Josefa Pasaporte (p. 72,
s.n.).chanroblesvirtualawlibrary chanrobles virtual law library
The defense impeached the credibility of the prosecuting witnesses Pasaporte and Lapatin,
alleging that the first had, nine months before the event, certain personal disputes with
the accused Asuategui. It should be noted nevertheless that Adriano Pasaporte denied that
such incident with the accused Reguera had happened, and there is no reasonable motive
to doubt her veracity; but supposing that such incident did happen, yet, we believe that it
is not enough to inspire this witness with a desire of vengeance, above all because she
testified not only against Reguera but also against the other accused Asuategui, with
whom no motive of resentment is alleged. The same thing may be said to the witness
Cirilo Lapatin. The later denies having known Asuategui before the even and he could not
therefore have and any resentment against him. This witness was presented to identify
the accused, and he testified against the accused Asuategui and also against his coaccused
Reguera, with whom, according to the theory of the defense, he could not have any
personal resentment.chanroblesvirtualawlibrary chanrobles virtual law library
The defense calls our attention in its brief to the discrepancy which is noted between the
declarations of the witnesses Peronse, Lapatin, and Pasaporte with respect to the language
or dialect which Reguera used in demanding money of Porfirio Guangco. Peronse, in
stating that Reguera spoke in Spanish to Porfirio Guangco, does not positively state that
he spoke only in that language, and his testimony does not exclude the possibility that
part of the conversation between Reguera and Porfirio Guangco might have been carried
on in Visaya. Lapatin says that the conservation was partly in Visayan and partly in
Spanish. And Pasaporte in declaring that Reguera spoke partly in Spanish and partly in
Visayan, far from contradicting any of the two preceding witnesses, corroborates their
statements.chanroblesvirtualawlibrary chanrobles virtual law library
The accused presented as a principal defense an alibi, attempting to prove by means of
their witnesses Pedro Sorianoso and Geronimo Atadero that on the day in question from 5
o'clock in the afternoon, at which time the attack was taking place, until 7 o'clock in the
morning of the next day, they, with other companions, the said Pedro Sorianoso, Geronimo
Atadero ( alias Nomo), Fabian Torcuato, Arellano Solinap, one Cayetano, Federico Cordura,

21

Basilio Misa, and Jacinto Pesadilla ( alias Pitao), were playing monte in the house of the
person last named situated in Guinacas, a barrio of the municipality of Pototan, about 3
kilometers from the poblacion of this municipality, where the crime
occurred.chanroblesvirtualawlibrary chanrobles virtual law library
Although there is no evidence which directly contradicts the testimony of the witnesses
with respect to the alibi, this defense alone does not outweigh the direct, positive, and
conclusive testimony of the prosecuting witnesses as to the identification of the accused,
as being the same persons who assaulted the house of Josefa Pasaporte, robbed her of the
jewels and on the occasion of the robbery killed her and her granddaugther Corazon
Guangco. But the record contains evidence which divests the defense of alibi presented by
the accused of all value. Geronimo Atadero and Pedro Sorianoso, witnesses for the defense
on this point, who testified that the accused were at the house of Jacinto Pesadilla with
Federico Cordura and other playing monte from 5 p.m. of the day in question until 7 a.m.
of the following day, were contradicted in rebuttal by Pesadilla and Cordura themselves,
witnesses for the prosecution, who, corroborating themselves mutually, assure the court
that the accused arrived at the gambling place, the house of Pesadilla, when the night was
already well advanced, about 10 p.m. more or less of the same day, that is, two hours
more or less after the attack which, according to the witnesses for the prosecution, ended
at about 8 p.m. The trial judge believed these two witnesses for the prosecution, and was
so convinced that the witnesses for the defense did not state the truth that, upon the
termination of the trial, he ordered the prosecuting attorney to investigate the witnesses
for the defense who testified as to the alibi, for the purpose of prosecuting them for
perjury.chanroblesvirtualawlibrary chanrobles virtual law library
Finally, the attorneys for the accused contend that it is hard to believe that the latter
should have committed the offense imputed to them: (1) Because of the extraordinary
house and manner of the occurrence of the attack; (2) Because if the accused had been
the authors of the robbery instead of going to a gambling house after the event, they
would have escaped in order to conceal their crime; and (3) because as they enjoyed a
good reputation. To the first the answer should be that similar cases of robbery in the
outlying portions of a poblacion occur with unfortunate frequency in this country, a fact
which indicates that there is nothing unbelievable in the present case. The accused
entered the assaulted house peacefully, and once inside drew their weapons, maltreated
the inmates and closed the door, succeeding in this manner in excluding all help on the
part of the neighbors. To the second contention it suffices to answer that the fact that the
accused went to the house of Pesadilla to gamble after the commission of the offense, far
from being unbelievable, is the most natural thing they could have done under the
circumstance, for, by going to gamble as usual where they were known gamblers, they
attempted to drive from them the suspicion that they might have been the authors o the
attack. The third contention of the defense is refuted by the evidence for the prosecution

which shows, without any doubt, that the accused are the authors of the crime. Besides, it
appears by the declaration of the witnesses for the defense, Atadero and Sorianoso, that
the accused are well-known gamblers, and the history of crime furnishes many case of
crimes against property and against persons committed as a result of
gambling.chanroblesvirtualawlibrary chanrobles virtual law library
In view of what has been said there is therefor no doubt that the accused are the authors
of the robbery committed in the house of Josefa Pasaporte and of the killing of the latter
and of her granddaugther Corazon Guangco committed on the occasion of the robbery, the
accused therefore being guilty of the complex crime of robbery with double homicide, in
accordance with the doctrine established by this court in the case of U.S. vs. Tiongco (37
Phil., 951).chanroblesvirtualawlibrary chanrobles virtual law library
The facts proved at the trial beyond all reasonable doubt constitute the complex crime of
robbery with double homicide defined and penalized in article 503, case No. 1 of the Penal
Code. In the commission of the crime there should be considered as aggravating
circumstance of the robbery that of the accused having entered the dwelling house of the
deceased Josefa Pasaporte and, as to the killing of the latter, the disregard of her age and
sec and as to that of the child Corazon, 5 years of age, that of alevosia, as the crime was
committed when the old woman had her hand tied and with the other carried the child,
and because the latter was a child of tender age. (U.S. vs. Baul, 39 Phil., 846; decision of
the supreme court of Spain, dated March 1, 1881.)chanrobles virtual law library
The trial court correctly found the presence of said aggravating circumstances, and after
compensating them with the special mitigating circumstance provided for in article 11 of
the Penal Code,. as amended by Act No. 2142, imposed upon the accused the penalty in
its medium degree, in accordance with rule 2 of article 80 of the Penal Code, that
is,cadena perpetua.chanroblesvirtualawlibrary chanrobles virtual law library
The Attorney-General argues in his brief that the mitigating circumstance (art. 11 of the
Penal Code) of lack of instruction cannot be considered, as a general rule, in crimes
against property, and much less in this case, in which the accused are barrio lieutenants,
and therefore, the penalty which should be imposed upon them should be the maximum,
which in this case is death, prescribed in article 503 of the Penal Code, instead of cadena
perpetua which the judgment appealed from imposes upon
them.chanroblesvirtualawlibrary chanrobles virtual law library
In the case of U.S. vs. Maqui (27 Phil., 97), this court established the following doctrine:
It is true that this court has quite uniformly held that convicts of the crimes of theft and
robbery are not entitled to the benefits of the provisions of article 11 of the Penal Code

21

prior to its amendment by Act No. 2142, this on the theory that under the provisions of
the article prior to its amendment the ground upon which the courts were authorized in
their discretion to mitigate the penalties prescribed by the code was "the circumstance of
the offender being a native, mestizo, or Chinese." As to crime of this nature we declined to
hold that the mere fact that one is a native of the Philippine Islands, a mestizo or a
Chinese would justify a claim that upon conviction of crimes such as theft or robbery he
should be treated more leniently than the members of any other race or people, no sound
presumption arising from the mere racial affiliation of the convict that he was less able to
appreciate the criminal character of such offenses or to resist the temptation to commit
them than are they.chanroblesvirtualawlibrary chanrobles virtual law library
Under the provisions of the article as amended by Act No. 2142, the ground upon which
the courts are authorized to mitigate the prescribed penalties is not the racial affiliation of
the convict, but "the degree of instruction and education of the offender;' and while mere
ignorance or lack of education will not always be sufficient to justify the mitigation of the
prescribed penalties for crimes such as theft and robbery, there can be no doubt that
cases may and will arise wherein under all the circumstances attending' the commission of
these offenses the exercise of a sound discretion will justify a more lenient treatment of an
ignorant and semicivilized offender, than that which should be accorded one who has had
the advantage of such a degree of instruction and education as would justify the court in
believing that he was capable of fully and properly understanding and appreciating the
criminal character of the offense committed by him.chanroblesvirtualawlibrary chanrobles
virtual law library
We conclude, therefore, that under the provisions of article 11 as amended by Act No.
2142, the courts may and should, even in cases of theft and robbery, take into
consideration the lack of instruction and education of the offender where it appears that,
under all the circumstances attending the commission of the offense, he should not be
held to the strict degree of responsibility prescribed in the code for the ordinary offender.
The doctrine announced in this decision was followed in the following cases: U.S. vs. Tan
Corteso (32 Phil., 104); U.S. vs. Landasan (35 Phil., 359); and U.S. vs. Maido (36 Phil.,
847).chanroblesvirtualawlibrary chanrobles virtual law library
In the case of U.S. vs. Solana (33 Phil., 582), this same court, applying the benefits of
article 11 of the Penal Code, said:

Having in mind their manifest ignorance and lack of instruction, and having in mind also
the fact that they do not appear to have taken a leading part in the organization of the
band or the commission of the crime and seem rather to have been the ignorant tools of
the leaders of the band, the penalty as to them should be reduced to life imprisonment
( cadena perpetua) under the provisions of article 11 of the Penal Code as amended.
And in the case of U.S. vs. Antonio (31 Phil., 205), this court said:
On account of deficient instruction and lack of education on the defendant's part, the
special circumstance established by article 11 of the Code, as amended by Act No. 2142,
must be applied in his favor; but even holding the concurrence of this special circumstance
to offset one or several of the aggravating circumstances mentioned, from the nature of
the penalty fixed in said article 503, No. 1, of the Penal Code, the final and extreme
penalty fixed by the law must still be imposed upon the offender in view of the large
number of aggravating circumstances, the greater portion of which are interrelated and
lack other mitigating circumstances of offset them. (Penal Code, art. 80, Rule 4.)
According to the actual state of the decisions of this court, it results: (1) That the special
mitigating circumstance of article 11 of the Penal Code, as amended by Act No. 2142, that
is, the lack of instruction and education of the convict, may be and should be considered,
as a general rule, even in cases of robbery and theft, when it appears that, under all the
circumstances which surrounded the commission of the crime, the strict degree of
responsibility which the Penal Code imposes upon common convicts should not be exacted
of them; and (2) that said special mitigating circumstance may be compensated with one
or some aggravating circumstances in order to reduce the penalty prescribed by law, but it
will not prevent the imposition upon the convict of the penalty in its maximum degree
when one of more aggravating circumstances concur which are not susceptible of
compensation because of the lack of other mitigating
circumstances.chanroblesvirtualawlibrary chanrobles virtual law library
We agree with the Attorney-General in that in the present case the mitigating
circumstance of lack of instruction and education should not be considered because the
accused were barrio lieutenant, a position which implies that they are cognizant of their
duties with respect to the protection of persons and
properties.chanroblesvirtualawlibrary chanrobles virtual law library
In the case of U.S. vs. Fortaleza (12 Phil., 472), this court, among other things, said:
Taking into consideration, the fact that under the municipal system which was superseded
by the system provided in this Act, municipal councilors and their lieutenants placed in
charge of particular barrios were always recognized asagentes de la autoridad and clothed

21

with the necessary authority for the maintenance of order and the protection of life and
property; we think that the Commission, in providing for the assignment of one or more
councilors in charge of each barrio or part of barrio, so that each barrio shall be under the
direction of one or more councilors, must be taken to have entrusted to these councilors
and their lieutenants a duty of maintaining order within their respective barrios,
substantially similar to that which was imposed upon municipal councilors under the
Spanish law existing at the time of the promulgation of the Act No. 82, and thus to have
conferred upon, or confirmed to them the functions of agentes de la autoridad (agents of
authority) within their respective barrios, with the necessary authority incident thereto for
the maintenance of order and the protection of life and property.
That the robbery in question took place out of the jurisdiction of the barrios of which the
accused are lieutenants, does not divest them of the knowledge that they acted in
violation of their duties, for which reason they cannot be considered as lacking in
education and instruction within the meaning of article 11 of the Penal Code, as amended
by Act No. 2142. But even considering in favor of the accused the presence of said special
mitigating circumstance of article 11, equitatively weighing the moral importance of said
special mitigating circumstance and the aggravating circumstances of the commission of
the robbery in the dwelling place of the deceased Josefa Pasaporte, and of the homicide
upon her in disregard of her age and sec, and of the alevosia present in the homicide
committed against the child Corazon Guangco, we do not believe that the first of said
circumstances should have such force as to completely destroy the effects of all the
others; so that, compensating it with one or two of the aggravating circumstances
mentioned, in view of the penalty imposed in No. 1, of article 503, of the Penal Code, it is
proper in any event to imposed upon said accused the maximum penalty fixed by law, in
view of the number of aggravating circumstances, one of which, that of alevosia, is no
longer susceptible of being compensated because of the absence of other mitigating
circumstances. (U.S. vs. Antonio,supra.)chanrobles virtual law library
Notwithstanding this conclusion arrived at by the court, the sentence of death cannot be
executed with respect to the accused Alejandro Asuategui, in view of the fact that upon
the reconsideration of the case by the court in banc, it was not possible to secure, with
respect to said accused, the unanimity of votes of all the justice present, a condition which
Act no. 2726 requires for the imposition of the death
penalty.chanroblesvirtualawlibrary chanrobles virtual law library
By virtue of all that has been said, in accordance with section 2 of said Act No. 2726, the
penalty immediately inferior to that of death according to graduated scale No. 1 of article
91 of the Penal Code, that is, cadena perpetua, should be imposed upon the accused
Alejandro Asuategui, the judgment appealed from being thus affirmed as to him; and the
same is reversed as to the other accused Basilio Reguera ( alias Asir), upon whom the

maximum penalty prescribed by article 503, case No. 1, of the Penal Code that is, death,
is imposed, which shall be executed at the time and date which the trial judge may fix in
accordance with the provisions of Act No. 1577. So ordered.

[G.R. No. 13352728. December 13, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JEANETTE (GINETTE)
YANSON-DUMANCAS, POL. COL. NICOLAS TORRES, POL. INSP. ADONIS
ABETO, POL. OFFICER MARIO LAMIS Y FERNANDEZ, DOMINADOR
GEROCHE Y MAHUSAY, JAIME GARGALLANO, ROLANDO R. FERNANDEZ,
EDWIN DIVINAGRACIA, TEODY DELGADO, CESAR PECHA, CHARLES
DUMANCAS (Acquitted), POL. OFFICER JOSE PAHAYUPAN (Acquitted),
VICENTE CANUDAY, JR. (Acquitted), accused.
JEANETTE (GINETTE) YANSON-DUMANCAS, POL. COL. NICOLAS TORRES, POL.
INSP. ADONIS ABETO, POL. OFFICER MARIO LAMIS Y FERNANDEZ, DOMINADOR
GEROCHE Y MAHUSAY, JAIME GARGALLANO, ROLANDO R. FERNANDEZ, EDWIN
DIVINAGRACIA, TEODY DELGADO, CESAR PECHA, accused-appellants.
DECISION
MELO, J.:
Accused-appellants were charged with Kidnapping for Ransom with Murder under two
Informations which pertinently read:
CRIMINAL CASE NO. 94-15562

The undersigned hereby accuses JEANETTE YANSON-DUMANCAS, CHARLES DUMANCAS,

(BOTH AS PRINCIPALS BY INDUCTION), POLICE COL. NICOLAS M. TORRES (AS PRINCIPAL
BY INDUCTION AND BY DIRECT AND/OR INDISPENSABLE COOPERATION), POLICE
INSPECTOR ADONIS C. ABETO, POLICE OFFICERS MARIO LAMIS Y FERNANDEZ, JOSE
PAHAYUPAN, VICENTE CANUDAY, JR. DOMINADOR GEROCHE Y MAHUSAY, JAIME
GARGALLANO, ROLANDO R. FERNANDEZ, EDWIN DIVINAGRACIA, TEODY DELGADO, ALL
AS PRINCIPALS BY PARTICIPATION, CESAR PECHA, and EDGAR HILADO, BOTH AS
ACCESSORIES, of the crime of KIDNAPPING FOR RANSOM WITH MURDER, committed as
follows:
That during the period beginning in the late morning of August 6, 1992 and ending the
late evening of the following day in Sitio Pedrosa, Barangay Alijes, Bacolod City, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating and concurring in a common criminal intent and execution thereof with one
another, save for the accessories, for the purpose of extracting or extorting the sum
of P353,000.00, did, then and there willfully, unlawfully, and feloniously, to wit:
Acting upon the inducement of spouses Jeanette Yanson-Dumancas and Charles
Dumancas, under the direction cooperation and undue influence, exerted by P/Col. Nicolas
M. Torres, taking advantage of his position as the Station Commander of the Philippine
National Police, Bacolod City Station, with the direct participation and cooperation of Police
Inspector Adonis C. Abeto, other police officers Vicente Canuday, Jr., Jose Pahayupan,
Mario Lamis, civilian (police) agents Rolando R. Fernandez, Edwin Divinagracia, Teody
Delgado, Jaime Gargallano, also taking advantage of their respective positions, and
Dominador Geroche, concurring and affirming in the said criminal design, with the use of
motor vehicle abduct, kidnap and detain one RUFINO GARGAR, JR. and shortly thereafter

21

at around 11 oclock in the evening of August 7, 1993 (1992), failing in their aforesaid
common purpose to extort money and in furtherance of said conspiracy, with evident
premeditation and treachery nocturnity and the use of motor vehicle, did then and there
shot and kill the said victim, while being handcuffed and blindfolded; that accused Cesar
Pecha and Edgar Hilado, with knowledge that said Gargar was victim of violence, did then
and there secretly bury the corpse in a makeshift shallow grave or the purpose of
concealing the crime of murder in order to prevent its discovery for a fee of P500.00 each;
aforesaid act or acts has caused damage and prejudice to the heirs of said victim, to wit:
P50,000.00 as indemnity for death;
50,000.00 actual damages;
300,000.00 compensatory damages (lost income);
100,000.00 moral damages;
50,000.00 exemplary damages.
CONTRARY TO LAW.
(pp. 1-3, Record Vol. I)
CRIMINAL CASE NO. 94-15563

The undersigned hereby accused JEANETTE YANSON-DUMANCAS, CHARLES DUMANCAS

(BOTH AS PRINCIPALS BY INDUCTION), POLICE COL. NICOLAS M. TORRES (AS PRINCIPAL
BY INDUCTION AND BY DIRECTION AND/OR INDISPENSABLE COOPERATION), POLICE
INSPECTOR ADONIS C. ABETO, POLICE OFFICERS MARIO LAMIS Y FERNANDEZ, JOSE
PAHAYUPAN, VICENTE CANUDAY, JR., DOMINADOR GEROCHE Y MAHUSAY, JAIME
GARGALLANO, ROLANDO B. FERNANDEZ, EDWIN DIVINAGRACIA, TEODY DELGADO, ALL
AS PRINCIPALS BY PARTICIPATION, CESAR PECHA and EDGAR HILADO, BOTH AS
ACCESSORIES, of the crime of KIDNAPPING FOR RANSOM WITH MURDER, committed as
follows:
That during the period beginning in the late morning of August 6, 1992 and ending the
late evening of the following day in Sitio Pedrosa, Barangay Alijes, Bacolod City, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating and concurring in a common criminal intent and execution thereof with one
another, save for the accessories, for the purpose of extracting or extorting the sum
of P353,000.00, did, then and there willfully, unlawfully, and feloniously, to wit:
Acting upon the inducement of spouse Jeanette Yanson-Dumancas and Charles Dumancas,
under the direction, cooperation and undue influence, exerted by P/Col. Nicolas M. Torres,
taking advantage of his position as the Station Commander of the Philippine National
Police, Bacolod City Station, with the direct participation and cooperation of Police
Inspector Adonis C. Abeto, other police officers Vicente Canuday, Jr., Jose Pahayupan,
Mario Lamis, civilian (police) agents Rolando R. Fernandez, Edwin Divinagracia, Teody
Delgado, Jaime Gargallano, also taking advantage of their respective positions, and
Dominador Geroche, concurring and affirming in the said criminal design, with the use of
motor vehicle abduct, kidnap and detain one DANILO LUMANGYAO and shortly thereafter
at around 11 oclock in the evening of August 7, 1993 (1992), failing in their aforesaid
common purpose to extort money and in furtherance of said conspiracy, with evident
premeditation and treachery nocturnity and the use of motor vehicle, did then and there
shot and kill the said victim, while being handcuffed and blindfolded, that accused CESAR
PECHA and EDGAR HILADO, with knowledge that said Lumangyao was victim of violence,
did then and there secretly bury the corpse in a makeshift shallow grave for the purpose of
concealing the crime of murder in order to prevent its discovery for a fee of P500.00 each;
aforesaid act or acts has caused damage and prejudice to the heirs of said victim, to wit:

P50,000.00 as indemnity for death;

50,000.00 actual damages;
300,000.00 compensatory damages (lost income);
100,000.00 moral damages;
P50,000.00 exemplary damages.
CONTRARY TO LAW.
(pp. 1-3, Record Vol. I-

A)

All thirteen accused (excluding Edgar Hilado, who was then still at large) entered
pleas of NOT GUILTY upon arraignment conducted on February 14, 1994 (per Certificates
of Arraignment, Record Vol. I-A, pp. 372-384). After a joint trial (excluding accused Edgar
Hilado, who upon arraignment on April 11, 1994, pleaded NOT GUILTY [Record, Vol. II, p.
866], was tried separately), judgment was rendered acquitting Charles Dumancas, Police
Officers Jose Pahayupan and Vicente Canuday, Jr., but convicting the rest of the accused
for the crime charged, to wit:
Wherefore, finding the first nine (9) Accused herein
1. JEANNETTE (GINNETTE) YANSON DUMANCAS
2. POL. COL. NICOLAS TORRES
3. POL. INSP. ADONIS ABETO
4. POL. OFFICER MARIO LAMIS Y FERNANDEZ
5. DOMINADOR GEROCHE Y MAHUSAY
6. JAIME GARGALLANO
7. ROLANDO R. FERNANDEZ
8. EDWIN DIVINAGRACIA
9. TEODY DELGADO and
10.CESAR PECHA
GUILTY BEYOND REASONABLE DOUBT AS PRINCIPALS and CESAR PECHA as accessory in
the two (2) informations filed in these cases, JUDGMENT is hereby rendered against them,
as follows:
1. In CRIMINAL CASE NO. 94-15562, each of the Accused charged as principal is hereby
sentenced to suffer the penalty of RECLUSION PERPETUA, with all the accessories of the
law; to indemnify, jointly and severally, the Heirs of Rufino Gargar Jr. in the amount
of P50,000.00 as indemnity for death; P25,000.00 as actual damages; P300,000.00 for
compensatory damages (lost income); P100,000.00 in moral damages and P50,000.00 as
exemplary damages; and to pay the cost. Accused CESAR PECHA who is charged as an
accessory is hereby sentenced to suffer the penalty of imprisonment of two (2) years four
(4) months and one (1) day of Prision Correccional as minimum to eight years and one
day of Prision Mayor as maximum and to pay one-tenth of the cost;
2. In CRIMINAL CASE NO. 94-15563, each of the Accused charged as principal is hereby
sentenced to suffer the penalty of Reclusion Perpetua, with all the accessories of the law,
indemnify jointly and severally, the Heirs of DANILO LUMANGYAO in the amount
of P50,000.00 as indemnity for death; P25,000.00 as actual damages; P100,000.00 as
compensatory damages (lost income); P100,000.00 as moral damages; P50,000.00 as
exemplary damages; and to pay the cost. Accused CESAR PECHA who is charged as an
accessory is hereby sentenced to suffer the penalty of imprisonment of two (2) years four
(4) months and one (1) day of prision correccional as minimum to eight (8) years and one
(1) day of Prision Mayor as maximum and to pay one-tenth of the cost.

21

Accused CHARLES DUMANCAS, Police Officers JOSE PAHAYUPAN and VICENTE CANUDAY
JR. are hereby Acquitted of the crime charged for failure of the prosecution to prove their
guilt beyond reasonable doubt, with cost de officio.
SO ORDERED.
(pp. 272-273, Rollo.)
All ten accused filed their respective notices of appeal, and are now before us on
review. After going through the voluminous record of the case, the Court adopts the
following summary of facts by the court a quo, to wit:
February 20, 1992
Jeanette Yanson Dumancas was swindled in a fake gold bar transaction losing P352,000 to
Danilo Lumangyao and his cohort.
10:30 A.M. August 5, 1992 present in the house of Rolando Fernandez were:
a) Dominador Geroche
b) Rolando Fernandez
c) Jaime Gargallano
d) Edwin Divinagracia
e) Teody Delgado
f) Mario Lamis and
g) Moises Grandeza
On this occasion Mario Lamis brought out the plan to abduct Danilo Lumangyao and Rufino
Gargar, Jr. because they swindled the Dumancas family.
4:30 P.M. August 5, 1992
The group of:
a) Dominador Geroche
b) Mario Lamis
c) Rolando Fernandez
d) Jaime Gargallano
e) Edwin Divinagracia
f) Teody Delgado
g) Moises Grandeza
went to the office of Col. Nicolas Torres at PNP Headquarters where they met the
colonel who told them that if you find these two people (referring to Lumangyao and
Gargar) to bring and hide them at Dragon Lodge Motel.
8:30 A.M., August 6, 1992
State witness Moises Grandeza went to the house of Helen Tortocion to invite Danilo
Lumangyao and Rufino Gargar Jr. to Tinolahan Eatery at Shopping Center Terminal but
found only Gargar Jr. as Lumangyao went to the house of a certain Bardot at BBB Avenue,
this City.
Moises Grandeza together with Gargar Jr. proceeded to the house of Bardot where they
found Lumangyao and thereafter the three of them went to Tinolahan Eatery.
9:00 10:00 A.M. August 6, 1992
The three arrived at Tinulahan Eatery. Waiting for them were:
a) Dominador Geroche
b) Jaime Gargallano
c) Edwin Divinagracia
d) Rolando Fernandez
e) Teody Delgado; and
f) Mario Lamis

Then a) Fernandez b) Geroche and c) Lamis entered Tinulahan and handcuffed Lumangyao
and Gargar.
Waiting in the red Toyota Land Cruiser (Plate No. 689) were:
a) Gargallano
b) Divinagracia; and
c) Delgado
10:30 A.M. August 6, 1992
Lumangyao and Gargar were brought to the Office of Jeanette at Ceres Compound on
board red toyota land cruiser by:
a) Moises Grandeza
b) Gargallano
c) Lamis
d) Geroche
e) Divinagracia
f) Delgado, and
g) Fernandez
It was there that a) Divinagracia and b) Fernandez manhandled Lumangyao and
Gargar. Jeanette then investigated the two victims on the whereabouts of the
money that they swindled from her and the two answered that it was already
spent.
It was then that Jeanette ordered Doming (Geroche) to take care of the two (Lumangyao
and Gargar).
3:00 P.M. August 6, 1992
From Ceres Compound and while the group, together with the two victims, were already at
Dragon Lodge Motel, thereafter,
a) Abeto
b) Pahayupan, and
c) Canuday
arrived and investigated the two victims regarding the whereabouts of the gold bar
and the two replied that it was with Helen Tortocion.
4:00 P.M. August 6, 1992
a) Moises Grandeza
b) Fernandez, and
c) Geroche
went to the office of Col. Torres to inform him that Lumangyao and Gargar were already
captured. So Col. Torres ordered them to keep the two victims so that nobody would see
them. After receiving this instructions they went back to Dragon Lodge. Meanwhile,
Geroche again interrogated the victims on where the money was if there was still any let
and Geroche received the same negative reply.
Past 6:00 p.m. August 6, 1992
The group, with the two captives transferred to DHacienda Motel.
9:00 P.M. August 6, 1992
At DHacienda Motel, Jeanette and Charles Dumancas, together with Rose Ines
arrived. Jeanette and Rose Ines investigated the victims where they kept the money that
they swindled and the two gave the same reply that it was already gone. Jeanette then
reiterated her order to Geroche to take care of the two.
9:30 P.M. August 6, 1992
The group transferred to Moonlight Inn Motel.

21

3:00 A.M. August 7, 1992

The group transferred again to Casamel Lodge Motel.
10:00 A.M. August 7, 1992
The group returned to DHacienda Motel and it was there that the plan was pursued to
liquidate the two victims at 12:00 midnight.
The persons who conceived of this plan were:
a) Geroche, and
b) Fernandez
4:30 P.M. August 7, 1992
1) Canuday
2) Abeto
3) Dudero
4) Lesaca, and
5) Arollado
searched the residence of Helen Tortocion for the gold dust and simulated gold bar per
search warrant 014-92 (Exh. D) but the search was fruitless.
7:30 P.M. August 7, 1992
The group, including the victims, partook of supper which was charged to Roy Yanson.
Then a) Abeto
b) Canuday, and
c) Pahayupan
entered the room and asked Fernandez what they are going to do with the two victims to
which Fernandez, replied that he will be responsible for the two.
11:00 P.M. August 7, 1992
a) Geroche
b) Lamis
c) Fernandez, and
d) Moises Grandeza
rode on the red Toyota Land Cruiser to conduct Geroche to his house. The victims were
left behind.
From his house Geroche took an armalite rifle and the group then went back to DHacienda
Motel.
12:00 P.M. August 7, 1992
a) Fernandez, and
b) Lamis
blindfolded and handcuffed Lumangyao and Gargar (Exh. A and A-1) and
have them board a vehicle, with
a) Gargallano the driver
b) Geroche sitting in front, and with
c) Moises Grandeza also seated inside.
From DHacienda Motel, the group rode on the red toyota land cruiser. They proceeded to
Hda. Pedrosa in Brgy. Alijis. When they arrived there the two victims were ordered to
alight and sit by the side of the road. Geroche then asked Moises Grandeza to hold the
hands of Lumangyao and then Gargar behind their backs. After that
a) Gargallano was the first to shoot. He shot Gargar at the back of his head (Exh. K) using
a baby armalite. Then
b) Geroche followed suit by shooting Lumangyao with a .45 cal. Pistol at his right lower
jaw (Exh. L).

Thereafter, the two dead bodies were loaded on board the land cruiser and brought to
Hda. Siason where Pecha and Hilado buried them in the shallow grave they dug.
August 8, 1992
In Sitio Cabalagnan were recovered
a) Three (3) empty shells of armalite rifle and one .45 cal. Empty shell (Exh. G, G-2)
In Hda. Siason were recovered
a) the dead bodies of Rufino Gargar, Jr. and Danilo Lumangyao
b) Both of the two victims hands were handcuffed (Exh. A and A-1).
August 9, 1992
The same group again went to see Col. Torres in his office and reported the extermination
of the two and Col. Torres promptly gave the instruction that you who are here inside,
nobody knows what you have done but you have to hide because the NBI are after you.
August 10, 1992
a) Lamis
b) Geroche
c) Fernandez
d) Divinagracia
e) Gargallano
f) Delgado, and
g) Moises Grandeza
went back to the office of Col. Torres and this time he told the group to hide because the
NBI are now investigating.
4:00 P.M. August 12, 1992
The same group that liquidated Lumangyao and Gargar again went back to the office of
Col. Torres where they were asked by Col. Torres to escort him to Ceres Compound
because he would like to borrow money from Ricardo Yanson as Col. Torres said that he
has huge debts to pay. Col. Torres was able on this occasion, to meet Ricardo Yanson.
On this same day,
a) Moises Grandeza
b) Lamis, and
c) Geroche
were picked up in a land cruiser by the driver of the Yansons to go to the house of
Fernandez where Geroche will give the money to the group. Each member of the group,
after the check, which was drawn by Yanson, was encashed were given the amount
of P1,700.00 each.
August 13, 1992
Nenita Bello went to the office of Col. Torres to plead for his help in regard to the death of
her relatives Lumangyao and Gargar but was promptly turned down by Colonel Torres with
the curt remark that her case was very difficult because it involves the military and some
big times.
The Sangguniang Panlungsod of Bacolod City also passed, on this day, Resolution No. 328,
series of 1992 urging the National Bureau of Investigation (NBI) to conduct an
investigation on the death of salvage victims Danilo Lumangyao and Rufino Gargar, Jr. as
soon as possible (Exh. I).
September 24, 1992
The bodies of Rufino Gargar Jr. and Danilo Lumangyao were exhumed at Brgy. Buenavista
Cemetery, Balintawak, Escalante, Negros Occidental and autopsies were conducted (Exhs.
M and N) by Dr. Ricardo Jaboneta, Medico Legal Officer of the NBI.

21

a) Found on the body of Rufino Gargar, Jr. (per examination report, Exh. M) among others,
were ligature marks, wrist joint, right side (Exh. M-2, and
b) Gunshot wound (Exh. M-1)
As to Danilo Lumangyao, the exhumation report (Exh. N disclose
a) Ligature marks, right wrist (Exh. N-2) and among others, and
b) Gunshot wound (Exh. N-1)
After the National Bureau of Investigation, Bacolod Office, conducted its investigation, the
State Prosecutors of the Department of Justice took over and the result were the filing of
these two criminal cases of Kidnapping with Murder against the above-named accused.
(pp. 73-85,
Decision; pp. 202-214, Rollo.)
After a thorough review of the factual findings of the trial court vis--vis the evidence
on record, we find ourselves unable to agree with the conclusions arrived at by the trial
court convicting all 10 accused-appellants; rather, we concur in the suggestion of the
Solicitor General, that accused-appellants Jeanette Yanson-Dumancas and Police Inspector
Adonis Abeto should be acquitted. Too, by reason of his supervening death, accusedappellant Police Col. Nicolas Torres is acquitted. The judgment of conviction of the rest of
the accused-appellants is to be affirmed.
A. Jeanette (Ginette) Yanson-Dumancas
On the case of accused-appellant Jeanette Yanson-Dumancas (Jeanette, for short),
the information charged her of the crime of kidnapping for ransom with murder as
principal by induction together with her husband, Charles, who was found by the trial court
not guilty of the crime.
Article 17, Revised Penal Code, provides:
Art. 17. Principals. The following are considered principals:
1. Those who take a direct part in the execution of the act;
2. Those who directly force or induce others to commit it.
3. Those who cooperate in the commission of the offense by another act without which it
would not have been accomplished.
What the Court now has to examine is whether or not sufficient evidence was
adduced by the prosecution to prove beyond reasonable doubt that Jeanette indeed
performed any of the following acts: (a) directly forcing the killers to commit the crime, or
(b) directly inducing them to commit the crime.
There are 2 ways of directly forcing another to commit a crime, namely: (i) by
using irresistible force, or (ii) by causing uncontrollable fear. Upon review of the testimony
of all the witnesses of the prosecution, we find nothing to conclude that Jeanette used
irresistible force or caused uncontrollable fear upon the other accused-appellants. From
the factual findings of the trial court, it is patent that the plan to abduct and liquidate the
victims was hatched on August 5, 1992 (10:30 A.M.) without Jeanettes involvement or
participation whatsoever (p. 202, Rollo). The record is entirely bereft of any evidence to
show that Jeanette directly forced the participants of the said meeting to come up with
such plan, by either using irresistible force or causing uncontrollable fear. The only basis
relied upon by the trial court in arriving at its conclusion that Jeanette is guilty of the
crime as principal by inducement, is the supposed commands or order given by her to
accused-appellant Dominador Geroche on two occasions (one inside the Ceres
Compound: p. 205, Rollo, and the other in DHacienda Motel: p. 207, Rollo). By no stretch
of the imagination may these so-called commands, standing alone, be considered as
constituting irresistible force or causing uncontrollable fear.

Likewise, there are 2 ways of directly inducing another to commit a crime, namely: (i)
by giving a price, or offering reward or promise, and (ii) by using words of command. The
Court finds no evidence, as did the trial court, to show that Jeanette offered any price,
reward, or promise to the rest of accused-appellants should they abduct and later kill the
victims in this case. If at all, the prosecution witness mentioned the name of Ricardo
Yanson as having lent money to accused-appellant Col. Torres to be used for paying the
latters debts or obligations. But definitely, no money ever came from Jeanette herself.The
trial courts surmise that the money delivered by Ricardo Yanson to the group was with the
knowledge and approval of Jeanette in completely baseless.
The only matter left for consideration is whether the order supposedly given by
Jeanette to accused-appellant Geroche to take care of the two constitutes words of
command which may be considered sufficient basis to convict Jeanette as principal by
inducement.
In order that a person may be convicted as principal by inducement, the following
must be present: (1) the inducement be made with the intention of procuring the
commission of the crime, and (2) such inducement be the determining cause of the
commission by the material executor (U.S. vs. Indanan, 24 Phil. 203 [1913]). To
constitute inducement, there must exist on the part of the inducer the most
positiveresolution and the most persistent effort to secure the commission of the crime,
together with the presentation to the person induced of the very strongest kind of
temptation to commit the crime.
By the foregoing standards, the remark of Jeanette to take care of the two does not
constitute the command required by law to justify a finding that she is guilty as a principal
by inducement. As we held in U.S. vs. Indanan, supra, a chance word spoken without
reflection, a wrong appreciation of a situation, an ironical phrase, a thoughtless act, may
give birth to a thought of, or even a resolution to crime in the mind of one for some
independent reason predisposed thereto without the one who spoke the word or
performed the act having any expectation that his suggestion would be followed or any
real intention that it produce the result. In such case, while the expression was imprudent
and the results of it grave in the extreme, he (the one who spoke the word or performed
the act) would not be guilty of the crime committed (p. 219).
Furthermore, the utterance which was supposedly the act of inducement, should
precede the commission of the crime itself (People vs. Castillo, July 26, [1966]). In the
case at bar, the abduction, which is an essential element of the crime charged (kidnapping
for ransom with murder) has already taken place when Jeanette allegedly told accusedappellant Geroche to take care of the two. Said utterance could, therefore, not have been
the inducement to commit the crime charged in this case.
Most importantly, it was duly proven by no less than the prosecution witness himself,
Moises Grandeza, that the intention of Jeanette was but to allow the law to its course,
when in his cross-examination, the following transpired:
ATTY. PARREO:
Q. And according to your testimony this morning, Jeanette Dumancas said, what more
can we do that swindling transpired four months ago, definitely that money could
nowhere be around. Would you confirm that you testified that this morning before
this Court? Is that correct?
A. Yes, sir.
Q. Mr. Witness, this is very important. Please make a vivid recall. When Danilo
Lumangyao made that answer that the money was not around and Jeanette

21

Dumancas said whats the use, the money is now nowhere to be found as four
months have already transpired, did not Jeanette Dumancas tell Doming: Doming,
bring these two to the PC or police and I will call Atty. Geocadin so that proper
cases could be filed against them? Kindly make a recall on that.
A. Yes, sir.
(pp. 54-55, tsn Feb. 14, 1994)
Thus, even the veracity of the allegation that Jeanette uttered the words: take care of
the two is put to some reasonable doubt by the prosecution witness himself. The remark,
if made at all, cannot by any stretch of the imagination, be basis for the conviction of
Jeanette.
People vs. Manambit (271 SCRA 344 [1997]) finds apt application, to wit:
In criminal law, the quantum of evidence for conviction is that which produces moral
certainty in an unprejudiced mind that the accused is guilty beyond reasonable
doubt. But, if the evidence is susceptible of two interpretations, one consistent
with the innocence of the accused and the other consistent with his guilt, the
accused must be acquitted.
(p. 385)
B. Police Inspector Adonis Abeto
With respect to accused-appellant Abeto, we quote with approval the observations of
the Solicitor General as follows:
Police Inspector Adonis C. Abetos appeal is meritorious. Be it remembered that Abetos
only participation was to serve the search warrant on Helen Tortocions residence and the
subsequent interrogation of the two victims at the Hacienda Motel. He was never part of
the conspiracy to abduct and liquidate the two victims. He is similarly situated as that of
Canuday and Pahayupan.
The trial court, in acquitting Canuday and Pahayupan had this to say:
The evidence against Officer CANUDAY, JR. shows that in the afternoon of August 6, 1992,
together with Officers ABETO and PAHAYUPAN, they went to Dragon Lodge Motel to
investigate LUMANGYAO and GARGAR, JR. as to the whereabouts of the gold (fake) bar
used in swindling JEANETTE. The two captives answered that it is with HELEN
TORTOCION. A subsequent search of Tortocions house led by Officer ABETO yielded no
fake gold bar. Meanwhile, in the evening of August 7, 1992, Officers ABETO, CANUDAY, JR.,
and PAHAYUPAN showed up at DHacienda Motel to inquire from FERNANDEZ what he is
going to do with the two.
Like Officer Pahayupan, his being in the company of Officers Abeto, on the two occasions
can not give rise, to without proof of previous agreement, a conspiracy. Thus, being
present at the scene of the crime is not by itself sufficient to establish conspiracy, as
already averted to previously. So does mere companionship.
(p. 1720-1721, Rollo.)
After due consideration of accused-appellant Abetos constitutional right to the
presumption of innocence, coupled with the presumption of regularity in the performance
of his official functions having simply followed the order of his superior officers, much is
left to be desired before the Court can sustain the trial courts conviction of accusedappellant Abeto. The two presumptions negate the inadequate proof adduced against
accused-appellant Abeto, who must perforce be acquitted, in much the same manner that
accused Canuday, Jr. and Pahayupan, who being similarly situated, were cleared and
absolved.
C. Police Col. Nicolas M. Torres

As for accused-appellant Col. Torres, who passed away during the pendency of this
appeal, the following rule laid down by this Court in People vs. Bayotas (236 SCRA 239
[1994]) applies:
1. Death of the accused pending appeal of his conviction extinguishes his criminal liability
as well as the civil liability based solely thereon. As opined by Justice Regalado, in this
regard, the death of the accused prior to final judgment terminates his criminal liability
and only the civil liability directly arising from and based solely on the offense committed,
i.e., civil liability ex delicto in senso strictiore.
2. Corollarily, the claim for civil liability survives notwithstanding the death of accused, if
the same may also be predicated on a source of obligation other than delict. Article 1157
of the Civil Code enumerates these other sources of obligation from which the civil liability
may arise as a result of the same act or omission:
a) Law
b) Contracts
c) Quasi-contracts
d) xxx xxx xxx
e) Quasi-delicts
3. Where the civil liability survives, as explained in Number 2 above, an action for recovery
therefor may be pursued but only by way of filing a separate civil action and subject to
Section 1, Rule 111 of the 1985 Rules on Criminal Procedure as amended. This separate
civil action may be enforced either against the executor/administrator of the estate of the
accused, depending on the source of obligation upon which the same is based as explained
above.
4. Finally, the private offended party need not fear a forfeiture of his right to file a
separate civil action by prescription, in cases where during the prosecution of the criminal
action and prior to its extinction, the private-offended party instituted together therewith
the civil action. In such case, the statute of limitations on the civil liability is deemed
interrupted during the pendency of the criminal case, conformably with provisions of
Article 1155 of the Civil Code, that should thereby avoid any apprehension on possible
privation of right by prescription.
(pp. 255-256)
With the application of the above set of rules to accused-appellant Torres, we hold
that his death extinguished his criminal liability and the civil liability solely based
thereon. Accordingly, the appeal of accused-appellant Torres is forthwith dismissed, such
dismissal having the force and effect of an acquittal.
D. Pol. Officer Mario Lamis y Fernandez, Dominador Geroche y Mahusay, Jaime
Gargallano, Rolando R. Fernandez, Edwin Divinagracia, Teody Delgado, and
Cesar Pecha
Now, in regard to the other accused-appellants, after a careful review of the evidence,
we find the same sufficient to affirm their conviction.
These accused-appellants assail the credence given by the trial court to the
eyewitness account of Moises Grandeza. Even after a thorough perusal of their main
appellants brief (pp. 327-498, Rollo), plus the separate briefs of accused-appellants
Geroche (pp. 1453-1627) and Pecha (pp. 828-1009, Rollo), we find no cogent reason to
depart from the well settled rule that when it comes to the issue of credibility of witnesses,
the factual findings of the trial court is generally accorded great weight. In People vs.
Taedo (266 SCRA 34 [1997]) the Court had occasion to reiterate the ruling that findings of
fact of the trial court pertaining to the credibility of witnesses command great respect

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since it had the opportunity to observe their demeanor while they testified in court. The
briefs of accused-appellants Lamis, et al. are replete with generalities and legal principles
relating to the issue, but are utterly wanting in relevant particulars which may be the basis
to rule that indeed, the trial court erred in lending full credence to the testimony of
witness Grandeza on the matter. As held in People vs. Ramirez 266 SCRA 335 [1997]),
unless the trial judge plainly overlooked certain facts of substance and value which, if
considered, might affect the result of the case, his assessment on credibility must be
respected.
In an attempt to buttress the contention that witness Grandezas testimony should not
have been given credence by the court a quo, accused-appellants referred to supposed
inconsistencies between Grandezas sworn statements before investigators vis--vis his
testimony in court (pp. 349-359, Rollo; and 1465-1468, Rollo). The Court, however, is not
impressed. This will not be the first occasion for us to hold that discrepancies between the
statements of the affiant in his affidavit and those made by him on the witness stand do
not necessarily discredit him since ex-parte affidavits are generally incomplete affidavits
are generally subordinated in importance to open court declarations (People vs. Padao,
267 SCRA 64 [1997]). A contradiction between a witness affidavit and his testimony in
open court may almost be explained by the fact that, being taken ex parte, an affidavit is
often incomplete and inaccurate, sometimes from partial suggestions, and sometimes from
the want of suggestions and inquiries (Sumalpong vs. Court of Appeals, 268 SCRA 764
[1997]). Grandezas perceived failure to mention anything in his 3 affidavits pertaining to
the supposed meetings where the criminal plot was hatched, does not necessarily render
his testimony in court unworthy of credit.
In his brief, accused-appellant Geroche cites Grandezas failure to identify one of their
co-accused, Charles Dumancas, in open court, and the variance on the alleged instructions
given by Jeanette, and the failure by Grandeza to mention the supposed meetings in his
previous affidavits, as grounds to totally disregard Grandezas entire testimony for being
unworthy of credence (pp. 1461-1469, Rollo). Indirectly, accused-appellant Geroche wants
this Court to apply the maxim falsus in uno, falsus in omnibus. In this regard, we held
in People vs. Pacis (130 SCRA 540 [1984]):
The maxim of falsus in uno falsus in omnibus, however, is not a positive rule of
law. Neither is it an inflexible one of universal application. If a part of a witness testimony
is found true, it cannot be disregarded entirely. The testimony of a witness may be
believed in part and disbelieved in part.
(p. 546)
Also in People vs. Li Bun Juan (17 SCRA 934 [1966]) we ruled:
. . . In this connection it must be borne in mind that the principle falsus in uno falsus in
omnibus is not an absolute one, and that it is perfectly reasonable to believe the testimony
of a witness with respect to some facts and disbelieve it with respect to other facts. In
People vs. Keller, 46 O.G. No. 7, pp. 3222-3223, the following was quoted with approval by
the Court of Appeals from 1 Moore on Facts, p. 23:
18. Testimony may be partly credited and partly rejected. Trier of facts are not bound to
believe all that any witness has said; they may accept some portions of his testimony and
reject other portions, according to what seems to them, upon other facts and
circumstances to be the truth . . . Even when witnesses are found to have deliberately
falsified in some material particulars, the jury are not required to reject the whole of their
uncorroborated testimony, but may credit such portions as they deem worthy of belief.
(p. 945)

The grounds relied upon by accused-appellant Geroche do not, therefore, constitute

cogent reasons to discredit the testimony of eyewitness Grandeza in its entirety.
As regards accused-appellant Geroches defense of alibi, it is settled that alibi cannot
prevail over positive identification (People vs. Garma, 271 SCRA 517 [1997]). Being easy
to fabricate and difficult to disprove, alibi cannot prevail over and is worthless in the face
of the positive identification of the accused-appellant (People vs. Datun, 272 SCRA 380
[1997]). Besides, the record is bereft of strong and convincing evidence that accusedappellant could not have been at the scene of the crime because the certification proffered
in support thereof stated that he was in Mt. Calandog only after the commission of the
crime. And, as aptly stated by the Solicitor General in the Peoples brief, the trial court
expressed puzzlement why this supposed fact was not mentioned in his July 3, 1993
affidavit . . . The first impulse of an innocent man when accused of a wrongdoing is to
express his innocence at the first opportune time. The People can only conclude that
Geroches defense of alibi is but an afterthought (p. 1723, Rollo).
As to accused-appellant Cesar Pechas case, the Court finds it difficult to believe that
he had no knowledge that the 2 victims he was burying were victims of violence. The
deceased were surely bloodied from their gunshot wounds and were in fact still handcuffed
when exhumed from their shallow grave. It becomes almost impossible for accusedappellant Pecha not to at least, entertain doubts as to the absence of foul play in this
case. He is thus guilty as an accessory to the crime committed under Paragraph 2, Article
19, of the Revised Penal Code, to wit:
ART. 19. Accessories. Accessories are those who, having knowledge of the commission of
the crime, and without having participated therein, either as principals or accomplices,
take part subsequent to its commission in any of the following manners:
1. By profiting themselves or assisting the offender to profit by the effects of the crime;
2. By concealing or destroying the body of the crime or the effects or instruments thereof,
in order to prevent its discovery;
3. By harboring, concealing, or assisting in the escape of the principal of the crime,
provided the accessory acts with abuse of his public functions or whenever the author of
the crime is guilty of treason, parricide, murder, or an attempt to take the life of the Chief
Executive, or is known to habitually guilty of some other crime.
All told, there are only reasons to affirm, and none to reverse, the trial courts
conviction of accused-appellants Pol. Officer Mario Lamis y Fernandez, Dominador Geroche
y Mahusay, Jaime Gargallano, Rolando R. Fernandez, Edwin Divinagracia, and Teody
Delgado as principals by direct participation of the crime of kidnapping for ransom with
murder, and that of Cesar Pecha as accessory thereto.
Under Article 267 of the Revised Penal Code, when the crime of kidnapping is
committed for the purpose of extorting ransom from the victims, the penalty is
death. However, since the crime was committed before the re-imposition of the death
penalty, only reclusion perpetua is imposable upon all the accused-appellant found guilty
of the crime as principals. Accused-appellant Pechas penalty, as accessory is 2 degrees
lower, which is prision mayor. Applying the indeterminate sentence law, the penalty to be
imposed is 6 months and 1 day (the minimum of prision correccional), as minimum, up to
8 years (within the minimum period of prision mayor), as the maximum.
On the civil liabilities, accused-appellants who are herein convicted of the crime as
principals are held solidarily liable for the amount of P50,000.00 to the heirs of each of the
victims, as indemnity for their death. The amount of P50,000.00, each, by way moral
damages and P25,000.00, each, as exemplary damages are already deemed

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sufficient. Accused-appellant Cesar Pecha is held liable for one-tenth of the above
amounts. The appealed judgment is silent as to any justification for the other damages
awarded and can therefore not be sustained on appeal.
WHEREFORE, accused-appellants JEANETTE YANSON-DUMANCAS and ADONIS
ABETO are hereby ACQUITTED and forthwith ordered released from detention unless there
may be reason for their further detention on other criminal cases. The case and appeal of
NICOLAS TORRES is DISMISSED by reason of his death. The convictions of all the other
accused-appellants for each case filed are AFFIRMED except for the modification that
accused-appellant CESAR PECHA is sentenced for each case to an indeterminate prison
term of six (6) months and one (1) day of prision correccional, as minimum up to eight (8)
years of prision mayor, as maximum. Joint and several civil liability for the accusedappellants found guilty as principals, is reduced to P50,000.00 for each case, as indemnity
for the death of each victim, P50,000.00 for each case, by way moral damages,

and P25,000.00 for each case, by way of exemplary damages. The civil liability of accusedappellant Cesar Pecha is maintained at one-tenth of the above amount.
No special pronouncement is made as to costs.
SO ORDERED.

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