his penis into her vagina and succeeded in
having carnal knowledge with the said ANALIA
EN BANC
G.R. Nos. 143468-71 January 24, 2003
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FREDDIE LIZADA @ FREDIE LIZADA, accused-
appellant.
CALLEJO, SR., J.:
This is an automatic review of the Decision1 of the
Regional Trial Court of Manila, Branch 54, finding
accused-appellant Freddie Lizada guilty beyond
reasonable doubt of four (4) counts of qualified rape and
meting on him the death penalty for each count.
I. The Charges
Accused-appellant2 was charged with four (4) counts of
qualified rape under four separate Informations. The
accusatory portion of each of the four Informations
reads:
"That sometime in August 1998 in the City of
Manila, Philippines, the said accused, with lewd
designs, did then and there willfully, unlawfully
and feloniously, by means of force, violence and
intimidation upon the person of one ANALIA
ORILLOSA y AGOO, by then and there
embracing her, kissing and touching her private
parts, thereafter removing her skirt and panty,
placing himself on top of her and trying to insert
his penis into her vagina and succeeded in
having carnal knowledge with the said ANALIA
ORILLOSA y AGOO, against her will and
consent.
Contrary to law.
xxx xxx xxx
That on or about November 5, 1998, in the City
of Manila, Philippines, the said accused, with
lewd designs, did then and there willfully,
unlawfully and feloniously, by means of force,
violence and intimidation upon the person of one
ANALIA ORILLOSA Y AGOO, by then and there
embracing her, kissing and touching her private
parts, thereafter removing her skirt and panty,
placing himself on top of her and trying to insert
ORILLOSA Y AGOO, against her will and
consent.
Contrary to law.
xxx xxx xxx
That on or about October 22, 1998, in the City of
Manila, Philippines, the said accused, with lewd
designs, did then and there willfully, unlawfully
and feloniously, by means of force, violence and
intimidation upon the person of one ANALIA
ORILLOSA Y AGOO, by then and there
embracing her, kissing and touching her private
parts, thereafter removing her skirt and panty,
placing himself on top of her and trying to insert
his penis into her vagina and succeeded in
having carnal knowledge with the said ANALIA
ORILLOSA Y AGOO, against her will and
consent.
Contrary to law.
xxx xxx xxx
That on or about September 15, 1998, in the
City of Manila, Philippines, the said accused,
with lewd designs, did then and there willfully,
unlawfully and feloniously, by means of force,
violence and intimidation upon the person of one
ANALIA ORILLOSA Y AGOO, by then and there
embracing her, kissing and touching her private
parts, thereafter removing her skirt and panty,
placing himself on top of her and trying to insert
his penis into her vagina and succeeded in
having carnal knowledge with the said ANALIA
ORILLOSA Y AGOO, against her will and
consent.
Contrary to law."3
The four (4) Informations were docketed as Criminal
Cases Nos. 99-171390, 99-171391, 99-171392 and 99-
171393, respectively.
Accused-appellant was arraigned on April 15, 1999,
assisted by counsel de parte and entered a plea of not
guilty to each of the charges.4 A joint trial then ensued.
II. Evidence of the Prosecution5
Ricardo Orillosa and his wife, Rose Orillosa, natives of
San Isidro, Bohol, had three (3) children, namely: Analia,
who was born on December 18, 1985;6 Jepsy, who was
11 years old, and Rossel, who was nine years old.
However, the couple decided to part ways and live
separately. Rose left Bohol and settled in Manila with her
young children. She worked as a waitress to make both
ends meet.
In 1994, Rose met accused-appellant. They decided to
live together as husband and wife at No. 1252 Jose
Abad Santos Street, Moriones, Tondo, Manila. In 1996,
Rose resigned from her job as a waitress. She secured a
loan, bought a truck and used it for her business.
In the meantime, Rose secured a loan anew and used
the proceeds thereof to put up a video shop in her
house. She sold Avon products from house to house to
augment her income. Whenever she was out of their
house, Rossel and Analia took turns in tending the video
shop and attending to customers.
Sometime in 1996, Analia was in her room when
accused-appellant entered. He laid on top of her,
removed her T-shirt and underwear. He then inserted his
finger in her vagina. He removed his finger and inserted
his penis in her vagina. Momentarily, she felt a sticky
substance coming out from his penis. She also felt pain
in her sex organ. Satiated, accused-appellant
dismounted but threatened to kill her if she divulged to
anyone what he did to her. Accused-appellant then
returned to his room. The incident lasted less than one
hour. Petrified by the threats on her life, Analia kept to
herself what happened to her.7
Sometime in August 1997, accused-appellant entered
again the room of Analia, placed himself on top of her
and held her legs and arms. He then inserted his finger
into her sex organ ("fininger niya ako"). Satiated,
accused-appellant left the room. During the period from
1996 to 1998, accused-appellant sexually abused
private complainant two times a week.
On November 5, 1998, at about 3:00 p.m., Analia was in
the sala of their house studying her assignments.
Accused-appellant was also in the sala. Rossel tended
the video shop while his mother was away. Analia went
into her room and lay down in bed. She did not lock the
door of the room because her brother might enter any
time. She wanted to sleep but found it difficult to do so.
Accused-appellant went to his room next to the room of
Analia. He, however, entered the room of Analia. He was
wearing a pair of short pants and was naked from waist
up. Analia did not mind accused-appellant entering her
room because she knew that her brother, Rossel was
around. However, accused-appellant sat on the side of
her bed, placed himself on top of her, held her hands
and legs and fondled her breasts. She struggled to
extricate herself. Accused-appellant removed her panty
and touched her sex organ. Accused-appellant inserted
his finger into her vagina, extricated it and then inserted
his penis into her vagina. Accused-appellant ejaculated.
Analia felt pain in her sex organ. Momentarily, Rossel
passed by the room of Analia after drinking water from
the refrigerator, and peeped through the door. He saw
accused-appellant on top of Analia. Accused-appellant
saw Rossel and dismounted. Accused-appellant berated
Rossel and ordered him to go to his room and sleep.
Rossel did. Accused-appellant then left the room. Analia
likewise left the room, went out of the house and stayed
outside for one hour. Rose arrived home at 6:00 p.m.
However, Analia did not divulge to her mother what
accused-appellant had just done to her.
On November 9, 1998, at about 3:00 p.m., Rose left the
house. Accused-appellant was in the sala of the house
watching television. Analia tended the video shop.
However, accused-appellant told Analia to go to the
sala. She refused, as nobody would tend the video shop.
This infuriated accused-appellant who threatened to slap
and kick her.
Analia ignored the invectives and threats of accused-
appellant and stayed in the video shop. When Rose
returned, a heated argument ensued between accused-
appellant and Analia. Rose sided with her paramour and
hit Analia. This prompted Analia to shout. "Ayoko na,
ayoko na." Shortly thereafter, Rose and Analia left the
house on board the motorcycle driven by her mother in
going to Don Bosco Street, Moriones, Tondo, Manila, to
retrieve some tapes which had not yet been returned.
When Rose inquired from her daughter what she meant
by her statement, "ayoko na, ayoko na," she told her
mother that accused-appellant had been touching the
sensitive parts of her body and that he had been on top
of her. Rose was shocked and incensed. The two
proceeded to Kagawad Danilo Santos to have accused-
appellant placed under arrest. On November 10, 1998,
the two proceeded to the Western Police District where
Analia gave her Affidavit-Complaint to PO1 Carmelita
Nocum in the presence of SPO2 Fe H. Avindante. She
related to the police investigator that accused-appellant
had touched her breasts and arms in August, 1998,
September 15, 1998, October 22, 1998 and on
November 5, 1998, at 3:00 p.m. Analia then submitted
herself to genitalia examination by Dr. Armie Umil, a
medico-legal officer of the NBI. The medico-legal officer
interviewed Analia, told him that she was raped in May,
1997 at 3:00 p.m. and November 5, 1998 at 3:00 p.m.8
Dr. Umil prepared and signed a report on "Living Case
No. MO-98-1265" which contained her findings during
her examination on Analia, thus:
"xxx xxx xxx
Fairly nourished, conscious, coherent,
cooperative, ambulatory subject. Breasts,
developed, hemispherical, firm. —, brown, 3.0
cms. in diameter. Nipples brown, protruding, 0.7
cms. in diameter.
No extragenital physical injuries noted.
GENITAL EXAMINATION:
 Pubic hair, fully grown, moderate. Labia majora
and minora, coaptated. Fourchette, tense.
Vetibular mucosa, pinkish. Hymen, tall, thick,
intact. Hymenal orifice measures, 1.5 cms. in
diameter. Vaginal walls, tight. Rugosities,
prominent.
CONCLUSIONS:
1). No evident sign of extragenital physical
injuries noted on the body of the subject at the
time of examination.
2). Hymen, intact and its orifice small (1.5 cms.
in diameter) as to preclude complete penetration
by an average-sized adult Filipino male organ in
full erection without producing any genital
injury."9
Subsequently, Analia told her mother that
"mabuti na lang iyong panghihipo lang ang
sinabi ko." When Rose inquired from her
daughter what she meant by her statement,
Analia revealed to her mother that accused-
appellant had sexually abused her. On
December 15, 1998, Analia executed a "Dagdag
na Salaysay ng Paghahabla" and charged
accused-appellant with rape.10
III. The Defenses and Evidence of Accused-Appellant
Accused-appellant testified in his defense. He declared
that after a month of courtship, he and Rose agreed in
1994 to live together as husband and wife. He was then
a utility worker with the Navotas Branch of the Philippine
Banking Corporation. Rose, on the other hand, was a
waitress at the Golden Bird beer house at Rizal Avenue,
Manila.
Accused-appellant denied having raped Analia. He
claimed that he loved the children of Rose as if they
were his own children. He took care of them, as in fact
he cooked and prepared their food before they arrived
home from school. At times, he ironed their school
uniforms and bathed them, except Analia who was
already big. Analia was hard-headed because she
disobeyed him whenever he ordered her to do some
errands. Because of Analia's misbehavior, accused-
appellant and Rose oftentimes quarreled. Rose even
demanded that accused-appellant leave their house.
Another irritant in his and Rose's lives were the frequent
visits of the relatives of her husband.
Sometime in 1997, accused-appellant was retrenched
from his employment and received a separation pay of
P9,000.00 which he used to put up the VHS Rental and
Karaoke from which he earned a monthly income of
P25,000.00. While living together, accused-appellant
and Rose acquired two colored television sets, two VHS
Hi-fi recorders, one VHS player, one washing machine,
one scooter motor, two VHS rewinders, one sala set,
one compact disc player and many other properties.
Accused-appellant ventured that Rose coached her
children Analia and Rossel to testify against him and
used them to fabricate charges against him because
Rose wanted to manage their business and take control
of all the properties they acquired during their coverture.
Also, Rose was so exasperated because he had no job.
IV. The Verdict
On May 29, 2000, the trial court rendered judgment
against accused-appellant finding him guilty beyond
reasonable doubt of four (4) counts of rape, defined and
penalized in the seventh paragraph, no. 1, Art. 335 of
the Revised Penal Code, and meted on him the death
penalty for each count. The dispositive portion of the
decision reads:
"From all the evidence submitted by the
prosecution, the Court concludes that the
accused is guilty beyond reasonable doubt of
the crime charged against him in these four (4)
cases, convicts him thereof, and sentences him
to DEATH PENALTY in each and every case as
provided for in the seventh paragraph, no. 1,
Article 335 of the Revised Penal Code.
SO ORDERED."11
V. Assigned Errors of the Trial Court
Accused-appellant assailed the decision of the court a
quo and averred in his brief that:
"THE TRIAL COURT GRAVELY ERRED IN
NOT MAKING A FINDING OF FACT IN ITS
DECISION AND SUCH FAILURE IS A
REVERSIBLE ERROR."12
xxx xxx xxx
"THE TRIAL COURT GRAVELY ERRED IN
CONVICTING ACCUSED-APPELLANT OF
FOUR (4) COUNTS OF RAPE DESPITE
FAILURE OF THE PROSECUTION TO PROVE
HIS GUILT BEYOND REASONABLE DOUBT.13
VI. Findings of the Court
On the first assignment of error, accused-appellant
contends that the decision of the trial court is null and
void as it failed to comply with the requirements of
Section 14, Article VIII of the 1987 Constitution and
Section 1, Rule 36 of the 1997 Rules of Civil Procedure,
as amended. He avers that the court a quo made no
findings of facts in its decision. The trial court merely
summarized the testimonies of the witnesses of the
prosecution and those of accused-appellant and his
witnesses, and forthwith set forth the decretal portion of
said decision. The trial court even failed to state in said
decision the factual and legal basis for the imposition of
the supreme penalty of death on him. The Solicitor
General, on the other hand, argues that there should be
no mechanical reliance on the constitutional provision.
Trial courts may well-nigh synthesize and simplify their
decisions considering that courts are harassed by
crowded dockets and time constraints. Even if the trial
court did not elucidate the grounds as the legal basis for
the penalties imposed, nevertheless the decision is valid.
In any event, the Solicitor General contends that despite
the infirmity of the decision, there is no need to remand
the case to the trial court for compliance with the
constitutional requirement as the Court may resolve the
case on its merits to avoid delay in the final disposition of
the case and afford accused-appellant his right to a
speedy trial.
The contention of accused-appellant is well-taken.
Article VIII, paragraph 14 of the 1987 Constitution
provides that "no decision shall be rendered by any court
without expressing therein clearly and distinctly the facts
and the law on which it is based." This requirement is
reiterated and implemented by Rule 120, Section 2 of
the 1985 Rules on Criminal Procedure, as amended,
which reads:
"SEC. 2. Form and contents of judgment. — The
judgment must be written in the official
language, personally and directly prepared by
the judge and signed by him and shall contain
clearly and distinctly a statement of the facts
proved or admitted by the accused and the law
upon which the judgment is based.
If it is of conviction, the judgment shall state (a)
the legal qualification of the offense constituted
by the acts committed by the accused, and the
aggravating or mitigating circumstances
attending the commission thereof, if there are
any; (b) the participation of the accused in the
commission of the offense, whether as principal,
accomplice, or accessory after the fact; (c) the
penalty imposed upon the accused; and (d) the
civil liability or damages caused by the wrongful
act to be recovered from the accused by the
offended party, if there is any, unless the
enforcement of the civil liability by a separate
action has been reserved or waived."14
The purpose of the provision is to inform the parties and
the person reading the decision on how it was reached
by the court after consideration of the evidence of the
parties and the relevant facts, of the opinion it has
formed on the issues, and of the applicable laws. The
parties must be assured from a reading of the decision
of the trial court that they were accorded their rights to
be heard by an impartial and responsible judge.15 More
substantial reasons for the requirement are:
"For one thing, the losing party must be given an
opportunity to analyze the decision so that, if
permitted, he may elevate what he may consider
its errors for review by a higher tribunal. For
another, the decision if well-presented and
reasoned, may convince the losing party of its
merits and persuade it to accept the verdict in
good grace instead of prolonging the litigation
with a useless appeal. A third reason is that
decisions with a full exposition of the facts and
the law on which they are based, especially
those coming from the Supreme Court, will
constitute a valuable body of case law that can
serve as useful references and even as
precedents in the resolution of future
controversies."16
The trial court is mandated to set out in its decision the
facts which had been proved and its conclusions culled
therefrom, as well as its resolution on the issues and the
factual and legal basis for its resolution.17 Trial courts
should not merely reproduce the respective testimonies
of witnesses of both parties and come out with its
decretal conclusion.
In this case, the trial court failed to comply with the
requirements under the Constitution and the Rules on
Criminal Procedure. It merely summarized the
testimonies of the witnesses of the prosecution and of
accused-appellant on direct and cross examinations and
merely made referral to the documentary evidence of the
parties then concluded that, on the basis of the evidence
of the prosecution, accused-appellant is guilty of four (4)
counts of rape and sentenced him to death, on each
count.
The trial court even failed to specifically state the facts
proven by the prosecution based on their evidence, the
issues raised by the parties and its resolution of the
factual and legal issues, as well as the legal and factual
bases for convicting accused-appellant of each of the
crimes charged. The trial court rendered judgment
against accused-appellant with the court declaration in
the decretal portion of its decision that it did so based on
the evidence of the prosecution. The trial court
swallowed hook, line and sinker the evidence of the
prosecution. It failed to explain in its decision why it
believed and gave probative weight to the evidence of
the prosecution. Reading the decision of the trial court,
one is apt to conclude that the trial court ignored the
evidence of accused-appellant. The trial court did not
even bother specifying the factual and legal bases for its
imposition of the supreme penalty of death on accused-
appellant for each count of rape. The trial court merely
cited seventh paragraph, no. 1, Article 335 of the
Revised Penal Code. The decision of the trial court is a
good example of what a decision, envisaged in the
Constitution and the Revised Rules of Criminal
Procedure, should not be.
The Court would normally remand the case to the trial
court because of the infirmity of the decision of the trial
court, for compliance with the constitutional provision.
However, to avert further delay in the disposition of the
cases, the Court decided to resolve the cases on their
merits considering that all the records as well as the
evidence adduced during the trial had been elevated to
the Court.18 The parties filed their respective briefs
articulating their respective stances on the factual and
legal issues.
In reviewing rape cases, this Court is guided by the
following principles: (1) to accuse a man of rape is easy
but to disprove it is difficult though the accused may be
innocent; (2) considering the nature of things, and only
two persons are usually involved in the crime of rape,
the testimony of the complainant should be scrutinized
with great caution; (3) the evidence for the prosecution
must stand or fall on its own merits and not be allowed to
draw strength from the weakness of the evidence of the
defense.19 By the very nature of the crime of rape,
conviction or acquittal depends almost entirely on the
credibility of the complainant's testimony because of the
fact that usually only the participants can testify as to its
occurrence. However, if the accused raises a sufficient
doubt as to any material element of the crime, and the
prosecution is unable to overcome it with its evidence,
the prosecution has failed to discharge its burden of
proving the guilt of the accused beyond cavil of doubt
and hence, the accused is entitled to an acquittal.
Anent the second assignment of error, we will resolve
the same for convenience, as follows:
Re: CRIMINAL CASES NOS. 99-171392 and
99-171393 (covering the crime of rape
committed on or about October 22, 1998 and on
or about September 15, 1998)
Accused-appellant avers that the prosecution failed to
adduce the requisite quantum of evidence that he raped
the private complainant precisely on September 15,
1998 and October 22, 1998. Moreover, the medical
findings of Dr. Armie Umil show that the hymen of the
private complainant was intact and its orifice so small as
to preclude complete penetration by an average size
adult Filipino male organ in full erection without
producing any genital injury. The physical evidence
belies private complainant's claim of having been
deflowered by accused-appellant on four different
occasions. The Office of the Solicitor General, for its
part, contends that the prosecution through the private
complainant proved the guilt of accused-appellant for the
crime charged on both counts.
The contention of accused-appellant does not persuade
the Court. The private complainant testified that since
1996, when she was only eleven years old, until 1998,
for two times a week, accused-appellant used to place
himself on top of her and despite her tenacious
resistance, touched her arms, legs and sex organ and
inserted his finger and penis into her vagina. In the
process, he ejaculated. Accused-appellant threatened to
kill her if she divulged to anyone what he did to
her.20 Although private complainant did not testify that
she was raped on September 15, 1998 and October 22,
1998, nevertheless accused-appellant may be convicted
for two counts of rape, in light of the testimony of private
complainant.
It bears stressing that under the two Informations, the
rape incidents are alleged to have been committed "on
or about September 15, 1998" and "on or about October
22, 1998." The words "on or about" envisage a period,
months or even two or four years before September 15,
1998 or October 22, 1998. The prosecution may prove
that the crime charged was committed on or about
September 15, 1998 and on or about October 22, 1998.
In People vs. Gianan,21 this Court affirmed the conviction
of accused-appellant of five (5) counts of rape, four of
which were committed in December 1992 (two counts)
and one each in March and April, 1993 and in
November, 1995 and one count of acts of lasciviousness
committed in December 1992, on a criminal complaint
for multiple rape, viz:
"That sometime in November 1995, and some
occasions prior and/or subsequent thereto, in
the Municipality of Dasmariñas, Province of
Cavite, and within the jurisdiction of this
Honorable Court, the above-named accused,
with lewd designs, taking advantage of his
superior strength over the person of his own
twelve (12) year old daughter, and by means of
force, violence and intimidation, did, then and
there, willfully, unlawfully and feloniously, have
repeated carnal knowledge of Myra M. Gianan,
against her will and consent, to her damage and
prejudice."22
On the contention of accused-appellant in said case that
his conviction for rape in December 1992 was so remote
from the date (November 1995) alleged in the
Information, so that the latter could no longer be
considered as being "as near to the actual date at which
the offense was committed" as provided under Section
11, Rule 110 of the Rules on Criminal Procedure, as
amended, this Court held:
"Accused-appellant nevertheless argues that his
conviction for rape in December 1992 is so
remote from the date (November 1995) alleged
in the information, so that the latter could no
longer be considered as being "as near to the
actual date at which the offense was committed"
as provided under Rule 110, §11.
This contention is also untenable. In People v.
Garcia, this Court upheld a conviction for ten
counts of rape based on an information which
alleged that the accused committed multiple
 rape "from November 1990 up to July 21, 1994,"
a time difference of almost four years which is
longer than that involved in the case at bar. In
any case, as earlier stated, accused-appellant's
failure to raise a timely objection based on this
ground constitutes a waiver of his right to
object."23
Moreover, when the private complainant testified on how
accused-appellant defiled her two times a week from
1996 until 1998, accused-appellant raised nary a
whimper of protest. Accused-appellant even rigorously
cross-examined the private complainant on her
testimony on direct examination. The presentation by the
prosecution, without objection on the part of accused-
appellant, of evidence of rape committed two times a
week from 1996 until 1998 (which includes September
15, 1998 and October 22, 1998) to prove the charges
lodged against him constituted a waiver by accused-
appellant of his right to object to any perceived infirmity
in, and in the amendment of, the aforesaid Informations
to conform to the evidence adduced by the prosecution.
The barefaced fact that private complainant remained a
virgin up to 1998 does not preclude her having been
repeatedly sexually abused by accused-appellant. The
private complainant being of tender age, it is possible
that the penetration of the male organ went only as deep
as her labia. Whether or not the hymen of private
complainant was still intact has no substantial bearing on
accused-appellant's commission of the crime.24 Even,
the slightest penetration of the labia by the male organ
or the mere entry of the penis into the aperture
constitutes consummated rape. It is sufficient that there
be entrance of the male organ within the labia of
the pudendum.25 In People vs. Baculi, cited in People vs.
Gabayron,26 we held that there could be a finding of rape
even if despite repeated intercourse over a period of four
years, the complainant still retained an intact hymen
without injury. In these cases, the private complainant
testified that the penis of accused-appellant gained entry
into her vagina:
"Fiscal Carisma
(continuing)
After your underwear was removed by
the accused, what happened next?
Witness:
He laid himself on top of me, sir.
Q What did he do while he was on top of
you?
A He inserted his finger (Finenger nya ako,
ipinatong nya yong ano nya)
Q Can you please describe more
specifically what is this and I quote "Pinatong
nya yong ano nya" and where did he place it?
A His organ, sir.
Q Where did he place his organ?
A In my organ, sir. (sa ari ko po.)
Q At this very juncture madam witness,
what did you feel?
A I felt pain, sir, and I also felt that there
was a sticky substance that was coming out,
sir."27 (Emphasis supplied)
We agree with accused-appellant that he is guilty only of
two counts of simple rape, instead of qualified rape. The
evidence on record shows that accused-appellant is the
common-law husband of Rose, the mother of private
complainant. The private complainant, as of October
1998, was still 13 years old, and under Article 335 as
amended by Republic Act 7659, the minority of the
private complainant, concurring with the fact that
accused-appellant is the common-law husband of the
victim's mother, is a special qualifying circumstance
warranting the imposition of the death
penalty.28 However, said circumstance was not alleged
in the Informations as required by Section 8, Rule 110 of
the Revised Rules on Criminal Procedure which was
given retroactive effect by this Court because it is
favorable to the accused.29 Hence, even if the
prosecution proved the special qualifying circumstance
of minority of private complainant and relationship, the
accused-appellant being the common-law husband of
her mother, accused-appellant is guilty only of simple
rape. Under the given law, the penalty for simple rape
is reclusion perpetua. Conformably with current
jurisprudence, accused-appellant is liable to private
complainant for civil indemnity in the amount of
P50,000.00 and moral damages in the amount of
P50,000.00 for each count of rape, or a total of
P200,000.00.
Re: Criminal Cases Nos. 99-171390 and 99-
171391 (covering the crime committed on or
about August 1998 and November 5, 1998)
Accused-appellant avers that (a) the Information
in Criminal Case No. 99-171390 is defective because
the date of the offense "on or about August 1998"
alleged therein is too indefinite, in violation of Rule 110,
Section 11 of the Revised Rules on Criminal Procedure
which reads:
"Sec. 11. Date of commission of the offense. —
It is not necessary to state in the complaint or
information the precise date the offense was
committed except when it is a material
 ingredient of the offense. The offense may be
alleged to have been committed on a date as
near as possible to the actual date of its
commission. (11a)"30
Accused-appellant further asserts that the prosecution
failed to prove that he raped private complainant in
August 1998. Hence, he argues, he should be acquitted
of said charge. The Office of the Solicitor General, for its
part, argued that the date "on or about August 1998" is
sufficiently definite. After all, the date of the commission
of the crime of rape is not an essential element of the
crime. The prosecution adduced conclusive proof that
accused-appellant raped private complainant on or
about August 1998, as gleaned from her testimony
during the trial.
The Court does not agree with accused-
appellant. It bears stressing that the precise date
of the commission of the crime of rape is not an
essential element of the crime. Failure to specify
the exact date when the rape was committed
does not render the Information defective. The
reason for this is that the gravamen of the crime
of rape is carnal knowledge of the private
complainant under any of the circumstances
enumerated under Article 335 of the Revised
Penal Code, as amended. Significantly,
accused-appellant did not even bother to file a
motion for a bill of particulars under Rule 116,
Section 9 of the Revised Rules on Criminal
Procedure before he was arraigned. Indeed,
accused-appellant was duly arraigned under the
Information and entered a plea of not guilty to
the charge without any plaint on the sufficiency
of the Information. Accused-appellant even
adduced his evidence after the prosecution had
rested its case. It was only on appeal to this
Court that accused-appellant questioned for the
first time the sufficiency of the Information filed
against him. It is now too late in the day for him
to do so. Moreover, in People vs. Salalima,31 this
Court held that:
"Failure to specify the exact dates or time when
the rapes occurred does not ipso facto make the
information defective on its face. The reason is
obvious. The precise date or time when the
victim was raped is not an element of the
offense. The gravamen of the crime is the fact of
carnal knowledge under any of the
circumstances enumerated under Article 335 of
the Revised Penal Code. As long as it is alleged
that the offense was committed at any time as
near to the actual date when the offense was
committed an information is sufficient. In
previous cases, we ruled that allegations that
rapes were committed "before and until October
15, 1994," "sometime in the year 1991 and the
days thereafter," "sometime in November 1995
and some occasions prior and/or subsequent
thereto" and "on or about and sometime in the
year 1988" constitute sufficient compliance with
Section 11, Rule 110 of the Revised Rules on
Criminal Procedure.
In this case, although the indictments did not
state with particularity the dates when the sexual
assaults took place, we believe that the
allegations therein that the acts were committed
"sometime during the month of March 1996 or
thereabout," "sometime during the month of April
1996 or thereabout," "sometime during the
month of May 1996 or thereabout" substantially
apprised appellant of the crimes he was charged
with since all the elements of rape were stated in
the informations. As such, appellant cannot
complain that he was deprived of the right to be
informed of the nature of the cases filed against
him. Accordingly, appellant's assertion that he
was deprived of the opportunity to prepare for
his defense has no leg to stand on."
The prosecution proved through the testimony of private
complainant that accused-appellant raped her two times
a week in 1998. As in Criminal Cases Nos. 99-171392
and 99-171393, accused-appellant is guilty only of
simple rape.
As to the crime of rape subject of Criminal Case No. 99-
171391, accused-appellant avers that he is not criminally
liable of rape. We agree with accused-appellant. The
collective testimony of private complainant and her
younger brother Rossel was that on November 5, 1998,
accused-appellant who was wearing a pair of short pants
but naked from waist up, entered the bedroom of private
complainant, went on top of her, held her hands,
removed her panty, mashed her breasts and touched
her sex organ. However, accused-appellant saw Rossel
peeping through the door and dismounted. He berated
Rossel for peeping and ordered him to go back to his
room and to sleep. Accused-appellant then left the room
of the private complainant. The testimony of private
complainant on direct examination reads:
"Fiscal Carisma:
Q In between 1996 and August 1997?
A Yes, sir, sometimes two (2) times a
week.
Q In November of 1998, do you recall of
any unusual experience that happened to you
again?
A Yes, sir.
Q What was this unusual experience of
yours?
A He laid himself on top of me, sir.
Q You said "he" whom are you referring to?
A Freedie Lizada Jakosalem, sir.
Q The same person you pointed to earlier?
A Yes, sir.
Q You said he placed himself on top of you
in November, 1998, what did he do while he was
on top of you?
A He's smashing my breast and he was
also touching my arms and my legs, sir.
You said that he touched your sex
organ, will you tell the court with what
part of his body, did he touch your sex
organ?
Witness:
With his hands, sir.
Q What about after November 1998 — was
this the last incident, this unusual thing that you
experienced from the hands of the accused was
this that last time, the one you narrated in
November 1998?
A Yes, sir."32

On cross-examination, the private complainant testified,

Q What else if any madam witness?
thus:
A He was also touching my sex organ, sir.
"Atty. Balaba:
Q What else, if any?
Q Who was that somebody who entered
the room?
Atty. Estorco:
A My stepfather Freedie Lizada, sir.
May we take note of the same objection
your honor, the prosecution —
Q He was fully dressed at that time, during
the time, is that correct?
Court:
A Yes, sir, he was dressed then, sir.
Same ruling. Let the complainant
continue considering that she is crying
and still young. Q And he had his pants on, is that correct?

A He was wearing a short pants, sir.

Witness:

None else, sir. Q Was it a T-shirt that he had, at that time

or a polo shirt?
Fiscal Carisma:
A He was not wearing any shirt then, sir, he
was naked.
With what part of his body did he touch
your sex organ?
Q When you realized that somebody was
entering the room were you not afraid?
Atty. Estorco:
A No, sir, I was not afraid.
Your Honor, that is —
Q What happened when you realized that
Court: somebody entered the room, and the one who
entered was your stepfather, Freedie Lizada?
May answer.
A I did not mind him entering the room
Fiscal Carisma: because I know that my brother was around but
suddenly I felt that somebody was holding me.
I will re-propound the question, your
honor. Q He was holding you, where were you
when he held you?
A I was in the bed, sir, lying down.
Q You were lying down?
A Yes, sir.
Q What part of the body did the accused
Freedie Lizada touched you?
A My two arms, my legs and my breast, sir.
Q Do you mean to tell us that he was
holding your two arms and at the same time
your legs, is that what you are trying to tell us?
A He held me first in my arms and then my
legs, sir.
Q He held you first by your arms, is that
what you are trying to tell us?
Fiscal Carisma:
Already answered your honor, he held
the arms and then the legs.
Court:
Already answered.
Atty. Balaba:
Q Your honor, I am just trying to —
Court:
Proceed.
Atty. Balaba:
Q He held your arms with his two hands?
A Only with one hand, sir.
Q Which hand were you touched?
A I do not know which hand, sir.
Q Which arm of yours was held by Freedie
Lizada?
A I could not recall, sir.
Q Which side of your body was Freedie
Lizada at that time?
A I cannot recall, sir.
Q What was the position of Freedie Lizada
when he held your arms?
A He was sitting on our bed, sir.
Q Which side of your bed was Freedie
Lizada sitting on?
A I do not know, sir. I cannot recall.
Atty. Balaba:
Can we take a recess your honor?
Court:
How long will it take you to finish your
cross?
Atty. Balaba:
We will confront the witness with so
many things your honor.
Court:
Yes, that's why I am asking you how
long will it take you to finish your cross?
Atty. Balaba:
About another hour, sir.
Court:
So we will be finished by 11:15,
proceed.
Atty. Balaba:
You cannot also remember which leg
was held by Freedie Lizada?
A I cannot recall, sir.
Q When this happened, did you not shout
for help?
A I did not ask for help, I was motioning to
resist him, so that he would go out, sir. I was
struggling to free myself from him, sir.
Q And you were not able to extricate
yourself from him?
A I was not able to extricate myself, sir.
 Q You were struggling with one arm of
Lizada holding your arm, and the other hand
was holding your leg, is that what you are trying
to tell us?
A No, sir, it's not like that.
Q Could you tell us, what happened, you
did not shout for help and you were trying to
extricate yourself, what happened?
A He suddenly went out of the room, sir.
Q Now, he went —
Court:
You did not shout during that time?
A No, your honor."33
Rossel, the nine-year old brother of the private
complainant corroborated in part his sister's testimony.
He testified on direct examination, thus:
"Fiscal Carisma: (continuing)
Q Now, on November 2, 1998 do you recall
where you were at about 3:00 o'clock?
A I was outside our house, sir.
Q Where was your house again, Mr.
witness, at that time? Where was your house at
that date, time and place? At that date and time?
A 1252 Jose Abad Santos, Tondo, Manila,
sir.
Court:
Q The same address?
A. Yes, sir.
Fiscal Carisma:
Q On that date, time and place, do your
recall where your sister Anna Lea Orillosa was?
A Yes, sir.
Q Where was she?
A She was sleeping, sir.
Q Now, on that date, time and place you
said you were outside your house, did you stay
the whole afternoon outside your house?
A No, sir.
Q Where did you go next?
A Inside, sir.
Q For what purpose did you get inside your
house?
A Because I was thirsty, sir.
Q So you went to the fridge to get some
water?
A Yes, sir.
Q And what happened as you went inside
your house to get some water?
A I saw my stepfather removing the panty
of my sister and he touched her and then he laid
on top of her, sir.
Q Do you see your stepfather inside the
courtroom now?
A Yes, sir.
Q Will you point to him?
A He is the one, sir.
Court Interpreter:
Witness pointing to a male person who
when asked answers to the name
Freedie Lizada.
Fiscal Carisma:
Q This thing that your father was — that
your stepfather did to your elder sister, did you
see this before or after you went to the fridge to
get some water?
A I already got water then, sir.
Q What did you do as you saw this thing
being done by your stepfather to your elder
sister?
A I was just looking at them when he saw
me, sir.
 Q Who, you saw who? You are referring to
the accused Freedie Lizada?
A Yes, sir.
Q So, what did you do as you were seen by
your stepfather?
A He scolded me, he shouted at me, he
told me something and after that he went to the
other room and slept, sir."34
Rossel testified on cross-examination, thus:
"Q So you got thirsty, is that correct, and
went inside the house?
A Yes, sir.
Q And you took a glass of water from the
refrigerator?
A Yes, sir.
Q And it was at this time that you saw the
accused Freedie Lizada touching your sister?
A Yes, sir.
Q Where was this refrigerator located?
A In front of the room where my sister
sleeps, sir.
Q So the door of your sister's room was
open?
A Yes, sir.
Q And — okay, you said your sister was
sleeping. What was the position of your sister
when you said the accused removed her panty?
A She was lying straight, but she was
resisting, sir.
Q Were you noticed by your sister at that
time?
A No, sir.
Q And your sister did not call for help at
that time?
A No, sir.
Q And all this time you saw the accused
doing this, from the refrigerator where you were
taking a glass of water?
A Yes, sir.
Q Did you not say something to the
accused?
A No, sir, I was just looking.
Q So your sister was lying down when the
accused removed her panty, is that what you are
trying to tell us?
A Yes, sir.
Q And where was the — and the accused
saw you when he was removing the panty of
your sister?
A Not yet, sir, but after a while he looked at
the refrigerator because he might be thirsty.
Q So — you said the accused was touching
your sister. What part of her body was touched
by the accused?
A Here, sir.
Court Interpreter:
Witness pointing at the lower portion of
the body.
Atty. Balaba:
Q You saw with what hand was the
accused touching your sister?
A Yes, sir.
Q What hand was he touching your sister?
A This hand, sir.
Court Interpreter:
Witness raising his right hand.
Atty. Balaba:
Q And which part of your sister's body was
the accused touching with his right hand? Your
sister's body was the accused touching with his
right hand?
A Her right leg, sir.
Q How about his left hand, what was the Q She was struggling — was the accused
accused doing with his left hand? able to remove the panty?

A Removing her panty, sir. A Yes, sir.

Q Removing her? Q And all the time you were there looking
with the glass of water in your hand?
A Panty, sir.
A Yes, sir."35
Q Which hand of your sister was being
removed with the left hand of the accused? In light of the evidence of the prosecution, there was no
introduction of the penis of accused-appellant into the
Court: aperture or within the pudendum of the vagina of private
complainant. Hence, accused-appellant is not criminally
liable for consummated rape.36
Which?

The issue that now comes to fore is whether or not

Atty. Balaba:
accused-appellant is guilty of consummated acts of
lasciviousness defined in Article 336 of the Revised
Which hand, which hand? Penal Code or attempted rape under Article 335 of the
said Code, as amended in relation to the last paragraph
Fiscal Carisma: of Article 6 of the Revised Penal Code. In light of the
evidence on record, we believe that accused-appellant is
The question is vague, your honor. guilty of attempted rape and not of acts of
lasciviousness.
Atty. Balaba:
Article 336 of the Revised Penal Code reads:
Because he said that removing the hand
— "Art. 336. Acts of Lasciviousness. — Any person
who shall commit any act of lasciviousness upon
Fiscal Carisma: other persons of either sex, under any of the
circumstances mentioned in the preceding
article, shall be punished by prision
He said removing the panty.
correccional."37

Atty. Balaba:
For an accused to be convicted of acts of
lasciviousness, the prosecution is burdened to prove the
Is that panty? I'm sorry. confluence of the following essential elements:

Q So, the accused was touching with his "1. That the offender commits any act of
right hand the left thigh of your sister — lasciviousness or lewdness.

Fiscal Carisma: 2. That it is done under any of the following

The right thigh.
Atty. Balaba:
Q Rather the right thigh of your sister and
with his left hand removing the panty, is that
what you are telling to tell us?
A Yes, sir.
Q And your sister all the time was trying to
— was struggling to get free, is that not correct?
A Yes, sir, she was resisting. (witness
demonstrating)
circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived
of reason or otherwise unconscious; or
c. When the offended party is under 12
years of age."38
"Lewd" is defined as obscene, lustful, indecent,
lecherous. It signifies that form of immorality which has
relation to moral impurity; or that which is carried on a
wanton manner.39
The last paragraph of Article 6 of the Revised Penal
Code reads:
"There is an attempt when the offender
commences the commission of a felony directly
by overt acts, and does not perform all the acts
of execution which should produce the felony by
reason of some cause or accident other than his
own spontaneous desistance."
The essential elements of an attempted felony are as
follows:
"1. The offender commences the commission of
the felony directly by overt acts;
2. He does not perform all the acts of execution
which should produce the felony;
3. The offender's act be not stopped by his own
spontaneous desistance;
4. The non-performance of all acts of
execution was due to cause or accident other
than his spontaneous desistance."40
The first requisite of an attempted felony consists of two
elements, namely:
"(1) That there be external acts;
(2) Such external acts have direct connection
with the crime intended to be committed."41
An overt or external act is defined as some physical
activity or deed, indicating the intention to commit a
particular crime, more than a mere planning or
preparation, which if carried out to its complete
termination following its natural course, without being
frustrated by external obstacles nor by the spontaneous
desistance of the perpetrator, will logically and
necessarily ripen into a concrete offense.42 The raison
d'etre for the law requiring a direct overt act is that, in a
majority of cases, the conduct of the accused consisting
merely of acts of preparation has never ceased to be
equivocal; and this is necessarily so, irrespective of his
declared intent. It is that quality of being equivocal that
must be lacking before the act becomes one which may
be said to be a commencement of the commission of the
crime, or an overt act or before any fragment of the
crime itself has been committed, and this is so for the
reason that so long as the equivocal quality remains, no
one can say with certainty what the intent of the accused
is.43 It is necessary that the overt act should have been
the ultimate step towards the consummation of the
design. It is sufficient if it was the "first or some
subsequent step in a direct movement towards the
commission of the offense after the preparations are
made."44 The act done need not constitute the last
proximate one for completion. It is necessary, however,
that the attempt must have a causal relation to the
intended crime.45 In the words of Viada, the overt acts
must have an immediate and necessary relation to the
offense.46
Acts constitutive of an attempt to commit a felony should
be distinguished from preparatory acts which consist of
devising means or measures necessary for
accomplishment of a desired object or end.47 One
perpetrating preparatory acts is not guilty of an attempt
to commit a felony. However, if the preparatory acts
constitute a consummated felony under the law, the
malefactor is guilty of such consummated offense.48 The
Supreme Court of Spain, in its decision of March 21,
1892, declared that for overt acts to constitute an
attempted offense, it is necessary that their objective be
known and established or such that acts be of such
nature that they themselves should obviously disclose
the criminal objective necessarily intended, said
objective and finality to serve as ground for designation
of the offense.49
There is persuasive authority that in offenses not
consummated as the material damage is wanting, the
nature of the action intended (accion fin) cannot exactly
be ascertained but the same must be inferred from the
nature of the acts executed (accion medio).50 Hence, it is
necessary that the acts of the accused must be such
that, by their nature, by the facts to which they are
related, by circumstances of the persons performing the
same, and b the things connected therewith, that they
are aimed at the consummation of the offense. This
Court emphasized in People vs. Lamahang51 that:
"The relation existing between the facts
submitted for appreciation and the offense which
said facts are supposed to produce must be
direct; the intention must be ascertained from
the facts and therefore it is necessary, in order
to avoid regrettable instances of injustice, that
the mind be able to cause a particular injury."52
If the malefactor does not perform all the acts of
execution by reason of his spontaneous desistance, he
is not guilty of an attempted felony.53 The law does not
punish him for his attempt to commit a felony.54 The
rationale of the law, as explained by Viada:
"La Ley, en efecto, no hiere sino a pesar suyo; prefiere
impedir el crimen que castigarlo. Si el autor de la
tentativa, despues de haber comenzado a ejecutar el
delito por actos exteriores, se detiene, por un
sentimiento libre y espontaneo, en el borde del abismo,
salvo esta. Es un llamamiento al remordimiento, a la
conciencia, una gracia un perdon que concede la Ley al
arrepentimiento voluntario."55
As aptly elaborated on by Wharton:
"First, the character of an attempt is lost when its
execution is voluntarily abandoned. There is no
 conceivable overt act to which the abandoned
purpose could be attached. Secondly, the policy
of the law requires that the offender, so long as
he is capable of arresting an evil plan, should be
encouraged to do so, by saving him harmless in
case of such retreat before it is possible for any
evil consequences to ensue. Neither society, nor
any private person, has been injured by his act.
There is no damage, therefore, to redress. To
punish him after retreat and abandonment would
be to destroy the motive for retreat and
abandonment."56
It must be borne in mind, however, that the spontaneous
desistance of a malefactor exempts him from criminal
liability for the intended crime but it does not exempt him
from the crime committed by him before his
desistance.57
In light of the facts established by the prosecution, we
believe that accused-appellant intended to have carnal
knowledge of private complainant. The overt acts of
accused-appellant proven by the prosecution were not
mere preparatory acts. By the series of his overt acts,
accused-appellant had commenced the execution of
rape which, if not for his spontaneous desistance, will
ripen into the crime of rape. Although accused-appellant
desisted from performing all the acts of execution
however his desistance was not spontaneous as he was
impelled to do so only because of the sudden and
unexpected arrival of Rossel. Hence, accused-appellant
is guilty only of attempted rape.58 In a case of similar
factual backdrop as this case, we held:
"Applying the foregoing jurisprudence and taking
into account Article 6 of the Revised Penal
Code, the appellant can only be convicted of
attempted rape. He commenced the commission
of rape by removing his clothes, undressing and
kissing his victim and lying on top of her.
However, he failed to perform all the acts of
execution which should produce the crime of
rape by reason of a cause other than his own
spontaneous desistance, i.e., by the timely
arrival of the victim's brother. Thus, his penis
merely touched Mary Joy's private organ.
Accordingly, as the crime committed by the
appellant is attempted rape, the penalty to be
imposed on him should be an indeterminate
prison term of six (6) years of prision
correccional as minimum to twelve (12) years
of prision mayor as maximum."
The penalty for attempted rape is prision mayor which is
two degrees lower than reclusion perpetua.59 Accused-
appellant should be meted an indeterminate penalty the
minimum of which should be taken from prision
correccional which has a range of from six months and
one day to six years and the maximum of which shall be
taken from the medium period of prision mayor which
has a range of from eight years and one day to ten
years, without any modifying circumstance. Accused-
appellant is also liable to private complainant for moral
damages in the amount of P25,000.00.
IN LIGHT OF ALL THE FOREGOING, the Decision of
the Regional Trial Court of Manila, Branch 54, is SET
ASIDE. Another judgment is hereby rendered as follows:
1. In Criminal Case No. 99-171390, accused-appellant is
hereby found guilty beyond reasonable doubt of simple
rape under Article 335 of the Revised Penal Code as
amended and is hereby meted the penalty of reclusion
perpetua. Accused-appellant is also hereby ordered to
pay private complainant Analia Orillosa the amounts of
P50,000.00 by way of civil indemnity and P50,000.00 by
way of moral damages;
2. In Criminal Case No. 99-171391, accused-appellant is
hereby found guilty of attempted rape under Article 335
of the Revised Penal Code as amended in relation to
Article 6 of the said Code and is hereby meted an
indeterminate penalty of from six years of prision
correccional in its maximum period, as minimum to ten
years of prision mayor in its medium period, as
maximum. Accused-appellant is hereby ordered to pay
private complainant Analia Orillosa the amount of
P25,000.00 by way of moral damages; and,
3. In Criminal Cases Nos. 99-171392 and 99-171393,
accused-appellant is hereby found guilty beyond
reasonable doubt of two counts of simple rape, defined
in Article 335 of the Revised Penal Code as amended
and is hereby meted the penalty of reclusion
perpetua for each count. Accused-appellant is hereby
ordered to pay to private complainant Analia Orillosa the
amount of P50,000.00 by way of civil indemnity and the
amount of P50,000.00 by way of moral damages for
each count, or a total amount of P200,000.00.
SO ORDERED.
Davide, Jr., C .J ., Puno, Vitug, Mendoza, Panganiban,
Quisumbing, Ynares-Santiago, Gutierrez, Carpio,
Austria-Martinez, Corona, Carpio-Morales, and Azcuna,
JJ ., concur.
Bellosillo, J ., on leave.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 188551 February 27, 2013
EDMUNDO ESCAMILLA y JUGO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
SERENO, J.:
This is a Petition for Review on Certiorari 1 dated 20
August 2009. It seeks a review of the 10 June 2009
Resolution2 of the Court of Appeals (CA) in CA-G.R. CR.
No. 30456, which denied the Motion for
Reconsideration3 of the 10 November 2008 CA
Decision4 affirming the conviction of Edmundo Escamilla
(petitioner) for frustrated homicide.
BACKGROUND
The facts of this case, culled from the records, are as
follows:
Petitioner has a house with a sari-sari store along
Arellano Street, Manila.5 The victim, Virgilio Mendol
(Mendol), is a tricycle driver whose route traverses the
road where petitioner's store is located.6
Around 2:00 a.m. of 01 August 1999, a brawl ensued at
the comer of Estrada and Arellano Streets,
Manila.7 Mendol was about to ride his tricycle at this
intersection while facing Arellano Street.8 Petitioner, who
was standing in front of his store, 30 meters away from
Mendol,9 shot the latter four times, hitting him once in
the upper right portion of his chest.10 The victim was
brought to Ospital ng Makati for treatment11 and survived
because of timely medical attention.12
The Assistant City Prosecutor of Manila filed an
Information13 dated 01 December 1999 charging
petitioner with frustrated homicide. The Information
reads:
That on or about August 1, 1999, in the City of Manila,
Philippines, the said accused, with intent to kill, did then
and there wilfully, unlawfully and feloniously attack,
assault and use personal violence upon the person of
one Virgilio Mendol, by then and there shooting the latter
with a .9mm Tekarev pistol with Serial No. 40283 hitting
him on the upper right portion of his chest, thereby
inflicting upon him gunshot wound which is necessarily
fatal and mortal, thus performing all the acts of execution
which should have produced the crime of Homicide as a
consequence, but nevertheless did not produce it by
reason of causes, independent of his will, that is, by the
timely and able medical assistance rendered to said
Virgilio Mendol which prevented his death.
CONTRARY TO LAW.
Upon arraignment, petitioner pleaded not guilty.14 During
trial, the prosecution presented the testimonies of
Mendol, Joseph Velasco (Velasco) and Iluminado
Garcelazo (Garcelazo), who all positively identified him
as the shooter of Mendol.15 The doctor who attended to
the victim also testified.16 The documentary evidence
presented included a sketch of the crime scene, the
Medical Certificate issued by the physician, and receipts
of the medical expenses of Mendol when the latter was
treated for the gunshot wound.17 In the course of the
presentation of the prosecution witnesses, the defense
requested an ocular inspection of the crime scene, a
request that was granted by the court.18 On the other
hand, the defense witnesses are petitioner himself, his
wife, Velasco and Barangay Tanod George Asumbrado
(Asumbrado).19 The defense offered the results of the
paraffin test of petitioner and the transcript of
stenographic notes taken during the court’s ocular
inspection of the crime scene.20
The Regional Trial Court (RTC) held that the positive
testimonies of eyewitnesses deserve far more weight
and credence than the defense of alibi.21 Thus, it found
petitioner guilty of frustrated homicide.22 The dispositive
portion reads:
WHEREFORE, the Court finds the accused Edmund
Escamilla Y Jugo GUILTY beyond reasonable doubt of
the crime of Frustrated Homicide under Articles 249 and
50 [sic] of the Revised Penal Code, and hereby
sentences the accused to suffer an indeterminate
sentence of six (6) months and one (1) day of prision
correccional as minimum, to eight (8) years and one (1)
day of prision mayor as maximum. Accused is hereby
ordered to indemnify complainant Virgilio Mendol the
sum of ₱34,305.16 for actual damages, ₱30,000.00 for
moral damages.
SO ORDERED.23
Petitioner filed a Notice of Appeal dated 14 July
2006.24 In the brief that the CA required him to file,25 he
questioned the credibility of the prosecution witnesses
over that of the defense.26 On the other hand, the
Appellee’s Brief27 posited that the prosecution witnesses
were credible, because there were no serious
discrepancies in their testimonies.28 Petitioner, in his
Reply brief,29 said that the prosecution witnesses did not
actually see him fire the gun.30 Furthermore, his paraffin
test yielded a negative result.31
The CA, ruling against petitioner, held that the issue of
the credibility of witnesses is within the domain of the
trial court, which is in a better position to observe their
demeanor.32 Thus, the CA upheld the RTC’s
appreciation of the credibility of the prosecution
witnesses in the present case.33 Also, the CA ruled that
the victim’s positive and unequivocal identification of
petitioner totally destroyed his defense of alibi. Hence, it
found no reason to disbelieve Mendol’s testimony.34 In
addition, it said that a paraffin test is not a conclusive
proof that a person has not fired a gun and is
inconsequential when there is a positive identification of
petitioner.35
A Motion for Reconsideration36 dated 08 December 2008
was filed by petitioner, who asserted that the defense
was able to discredit the testimony of the victim.37
In its 10 June 2009 Resolution,38 the CA denied
petitioner’s Motion for Reconsideration for being without
merit, because the matters discussed therein had
already been resolved in its 10 November 2008
Decision.39
Hence, this Petition40 assailing the application to this
case of the rule that the positive identification of the
accused has more weight than the defense of
alibi.41 This Court resolved to require the prosecution to
comment on the Petition.42 In his Comment43 dated 15
December 2009, the victim said that his positive
identification of petitioner was a direct evidence that the
latter was the author of the crime.44 Furthermore, what
petitioner raised was allegedly a question of fact, which
is proscribed by a Rule 45 petition.45 Thus, the victim
alleged, there being no new or substantial matter or
question of law raised, the Petition should be denied.46
We then obliged petitioner to file a reply. 47 In his Reply
dated 01 March 2010,48 he assigned as an error the
application by the CA of the rule that the positive
identification of the accused has more weight than the
defense of alibi.49 He posits that the lower court
manifestly overlooked relevant facts not disputed by the
parties, but if properly considered would justify a
different conclusion.50 This Court, he said, should then
admit an exception to the general rule that the findings of
fact of the CA are binding upon the Supreme Court.51
ISSUES
The questions before us are as follows:
I. Whether the prosecution established petitioner’s guilt
beyond reasonable doubt.52
II. Whether a defense of alibi, when corroborated by a
disinterested party, overcomes the positive identification
by three witnesses.53
COURT’S RULING
We deny the Petition.
I. The prosecution proved petitioner’s guilt beyond
reasonable doubt.
A. Petitioner was positively identified by three
witnesses.
Petitioner argues that there was reasonable doubt as to
the identity of the shooter.54 He is wrong. As correctly
held by the RTC and affirmed by the CA, the identity of
the assailant was proved with moral certainty by the
prosecution, which presented three witnesses – the
victim Mendol, Velasco, and Garcelazo – who all
positively identified him as the shooter.55 We have held
that a categorical and consistently positive identification
of the accused, without any showing of ill motive on the
part of the eyewitnesses, prevails over denial.56 All the
three witnesses were unswerving in their testimonies
pointing to him as the shooter. None of them had any
ulterior motive to testify against him.
Mendol said that he was about to ride his tricycle at the
corner of Arellano and Estrada Streets, when petitioner,
who was in front of the former’s store, shot him.57 The
first shot hit its target, but petitioner continued to fire at
the victim three more times, and the latter then started to
run away.58
Velasco, who was also at the corner of Estrada and
Arellano Streets, heard the first shot, looked around,
then saw petitioner firing at Mendol three more times.59
Lastly, Garcelazo testified that while he was buying
bread from a bakery at that same street corner, he heard
three shots before he turned his head and saw petitioner
pointing a gun at the direction of the victim, who was
bloodied in the right chest.60 Garcelazo was just an
arm’s length away from him.61
The three witnesses had a front view of the face of
petitioner, because they were all facing Arellano Street
from its intersection with Estrada Street, which was
the locus criminis.62 Although the crime happened in the
wee hours of the morning, there was a street lamp five
meters from where petitioner was standing when he shot
the victim, thus allowing a clear view of the assailant’s
face.63 They all knew petitioner, because they either
bought from or passed by his store.64
B. The intent to kill was shown by the continuous
firing at the victim even after he was hit.
Petitioner claims that the prosecution was unable to
prove his intent to kill.65 He is mistaken. The intent to kill,
as an essential element of homicide at whatever stage,
may be before or simultaneous with the infliction of
injuries.66 The evidence to prove intent to kill may consist
of, inter alia, the means used; the nature, location and
number of wounds sustained by the victim; and the
conduct of the malefactors before, at the time of, or
immediately after the killing of the victim.67
Petitioner’s intent to kill was simultaneous with the
infliction of injuries. Using a gun,68 he shot the victim in
the chest. 69 Despite a bloodied right upper torso, the
latter still managed to run towards his house to ask for
help. 70 Nonetheless, petitioner continued to shoot at him
three more times,71 albeit unsuccessfully.72 While
running, the victim saw his nephew in front of the house
and asked for help.73 The victim was immediately
brought to the hospital on board an owner-type
jeep.74 The attending physician, finding that the bullet
had no point of exit, did not attempt to extract it; its
extraction would just have caused further damage.75 The
doctor further said that the victim would have died if the
latter were not brought immediately to the hospital.76 All
these facts belie the absence of petitioner’s intent to kill
the victim.
II. Denial and alibi were not proven.
In order for alibi to prosper, petitioner must establish by
clear and convincing evidence that, first, he was in
another place at the time of the offense; and, second, it
was physically impossible for him to be at the scene of
the crime. 77 The appreciation of the defense of alibi is
pegged against this standard and nothing else.
Petitioner, as found by both the RTC and CA, failed to
prove the presence of these two requisite conditions.
Hence, he was wrong in asserting that alibi, when
corroborated by other witnesses, succeeds as a defense
over positive identification.78
A. Petitioner was unable to establish that he was at
home at the time of the offense.
The alibi of petitioner was that he was at home asleep
with his wife when Mendol was shot.79 To support his
claim, petitioner presented the testimonies of his wife
and Asumbrado.80
1. The wife of petitioner did not know if he was at home
when the shooting happened.
The wife of petitioner testified that both of them went to
sleep at 9:00 p.m. and were awakened at 3:00 a.m. by
the banging on their door.81 However, she also said that
she did not know if petitioner stayed inside their house,
or if he went somewhere else during the entire time she
was asleep.82 Her testimony does not show that he was
indeed at home when the crime happened. At the most,
it only establishes that he was at home before and after
the shooting. Her lack of knowledge regarding his
whereabouts between 1:00 a.m. and 3:00 a.m. belies the
credibility of his alibi. Even so, the testimonies of
relatives deserve scant consideration, especially when
there is positive identification83 by three witnesses.
2. Asumbrano did not see the entire face of the shooter.
Petitioner is questioning why neither the RTC nor the CA
took into account the testimony of Asumbrado,
the Barangay Tanod on duty that night.84 Both courts
were correct in not giving weight to his testimony.
Asumbrado said that he was there when the victim was
shot, not by appellant, but by a big man who was in his
twenties.85 This assertion was based only on a back
view of the man who fired the gun 12 meters away from
Asumbrado.86 The latter never saw the shooter’s entire
face.87 Neither did the witness see the victim when the
latter was hit.88 Asumbrado also affirmed that he was
hiding when the riot took place. 89 These declarations
question his competence to unequivocally state that
indeed it was not petitioner who fired at Mendol.
B. Petitioner's home was just in front of the street where
the shooting occurred.
Physical impossibility refers to the distance between the
place where the accused was when the crime transpired
and the place where it was committed, as well as the
facility of access between the two places. 90 Petitioner
failed to prove the physical impossibility of his being at
the scene of the crime at the time in question.
Both the prosecution and the defense witnesses referred
to the front of appellant's house or store whenever they
testified on the location of the shooter. Petitioner was in
front of his house when he shot the victim, according to
Velasco's testimony.91 Meanwhile the statement of
Asumbrado that the gate of the store of the petitioner
was closed when the shooting happened92 can only
mean that the latter's house and store were both located
in front of the scene of the crime.1âwphi1
Petitioner proffers the alibi that he was at home, instead
of showing the impossibility of his authorship of the
crime. His alibi actually bolsters the prosecution's claim
that he was the shooter, because it placed him just a few
steps away from the scene of the crime. The charge is
further bolstered by the testimony of his wife, who could
not say with certainty that he was at home at 2:00a.m.-
the approximate time when the victim was shot.
Based on the foregoing, it cannot be said that the lower
courts overlooked any fact that could have justified a
different conclusion. Hence, the CA was correct in
affirming the R TC 's Decision that petitioner, beyond
reasonable doubt, was the assailant.
WHEREFORE, in view of the foregoing, the Petition is
DENIED. The 10 June 2009 Resolution93 and 10
November 2008 Decision94 of the Court of Appeals in
CA-G.R. CR. No. 30456 are hereby AFFIRMED in toto.
SO ORDERED
 Republic of the Philippines
SUPREME COURT
Baguio City
THIRD DIVISION
G.R. No. 167766 April 7, 2010
ENGR. CARLITO PENTECOSTES, JR., Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
Assailed before Us is the Decision1 of the Court of
Appeals (CA), dated February 18, 2005, in CA-G.R. CR.
No. 27458, which affirmed with modification the
Decision2 of the Regional Trial Court (RTC) of Aparri,
Cagayan, Branch 6, in Criminal Case No. VI-984, finding
petitioner Engr. Carlito Pentecostes, Jr. guilty of the
crime of less serious physical injuries instead of
attempted murder, and the Resolution3 dated April 19,
2005, denying the motion for reconsideration.
The antecedents are as follows:
On September 2, 1998, Rudy Baclig was drinking with
his brother-in-law. After consuming ½ bottle of gin, he
left and went to the house of a certain Siababa to buy
coffee and sugar. He was accompanied by his four-
year-old son. On their way there, a gray automobile
coming from the opposite direction passed by them.
After a while, he noticed that the vehicle was moving
backward towards them. When the car was about two
arms’ length from where they were, it stopped and he
heard the driver of the vehicle call him by his
nickname Parrod. Rudy came closer, but after taking
one step, the driver, which he identified as the petitioner,
opened the door and while still in the car drew a gun and
shot him once, hitting him just below the left armpit.
Rudy immediately ran at the back of the car, while
petitioner sped away. After petitioner left, Rudy and his
son headed to the seashore. Rudy later went back to the
place where he was shot and shouted for help.4
The people who assisted him initially brought him to the
Municipal Hall of Gonzaga, Cagayan, where he was
interrogated by a policeman who asked him to identify
his assailant. He informed the policeman that petitioner
was the one who shot him. After he was interrogated, he
was later brought to the Don Alfonso Ponce Memorial
Hospital at Gonzaga, Cagayan. The following day, he
was discharged from the hospital.5
On June 1, 1999, an Information6 was filed by the
Provincial Prosecutor of Aparri, Cagayan, charging the
petitioner of frustrated murder, the pertinent portion of
which reads:
That on or about September 2, 1998, in the [M]unicipality
of Gonzaga, [P]rovince of Cagayan, and within the
jurisdiction of this Honorable Court, the above-named
accused, armed with a gun, with intent to kill, with
evident premeditation and with treachery, did then and
there willfully, unlawfully and feloniously assault, attack
and shoot one Rudy Baclig, inflicting upon the latter
gunshot injuries.
That the accused had performed all the acts of execution
which would have produce[d] the crime of Murder as a
consequence, but which, nevertheless, did not produce it
by reason of causes independent of his own will.
That the same was aggravated by the use of an
unlicensed firearm.
CONTRARY TO LAW.
Duly arraigned, petitioner pleaded Not Guilty to the crime
as charged.7
During the trial, it was established that at the time the
incident occurred, petitioner was employed by the
National Irrigation Administration (NIA) as Irrigation
Superintendent assigned at the Baua River Irrigation
System (BRIS). Petitioner vehemently denied any
involvement in the incident, alleging that he was in
Quezon City at the time the crime was being committed.
He contended that he was following-up the funding for
one of the projects of NIA in Gonzaga, Cagayan. He
insisted that he reported at the NIA Central Office on
September 1, 1998 and stayed in Manila until the
afternoon of September 4, 1998. To buttress his
allegations, the petitioner presented a Certificate of
Appearance8 issued by Engr. Orlando C. Hondrade,
then NIA Deputy Administrator, who testified thru a
deposition that he indeed signed the document. Engr.
Hondrade testified that he specifically remembered that
petitioner personally appeared before him on the 1st and
4th days of September for a duration of 10 to 15
minutes. Petitioner also submitted his daily time record
to prove that he was not at their office in Cagayan from
the afternoon of August 31, 1998, claiming that he
traveled to Quezon City pursuant to a travel authority
issued by his superior.9
On February 27, 2003, after presentation of the parties’
respective evidence, the RTC rendered a
Decision10 finding petitioner guilty of the crime of
attempted murder. The decretal portion of the Decision
reads:
WHEREFORE, the Court finds accused Engr. Carlito
Pentecostes, Jr. guilty beyond reasonable doubt as
principal of the crime of Attempted Murder and
sentences him the penalty of four (4) years, two (2)
months and one (1) day of prision correccional, as
minimum, to eight (8) years of prision mayor, as
maximum. Further, the accused is ordered to pay private
complainant Rudy Baclig the amount of Two Thousand
Pesos (₱2,000.00).
SO ORDERED.11
The RTC concluded that Rudy positively identified the
petitioner as the one who shot him − there was sufficient
lighting for Rudy to identify the perpetrator and he knew
petitioner ever since he attained the age of reason. As to
petitioner’s defense of alibi, the RTC ratiocinated that
when petitioner personally appeared before Engr.
Hondrade on September 1, 1998, it would not be
impossible for him to immediately return to Gonzaga,
Cagayan that afternoon and commit the crime in the
evening of September 2, 1998.12
Petitioner then sought recourse before the CA, arguing
that the RTC committed serious errors in finding that he
was guilty of attempted murder and that the RTC failed
to consider the testimonies of his witnesses and the
documentary evidence presented in his favor.13
On February 18, 2005, the CA rendered a Decision
affirming with modification the decision of the RTC, the
dispositive portion of which reads:
WHEREFORE, the Decision of the Regional Trial Court
dated 27 February 2003 is AFFIRMED with
MODIFICATION that accused-appellant Pentecostes is
only found GUILTY OF LESS SERIOUS PHYSICAL
INJURIES and is hereby sentenced to suffer
imprisonment of six (6) months of arresto mayor, there
being one aggravating and no mitigating circumstance to
offset it.
SO ORDERED.14
In convicting the petitioner to a lesser offence, the CA
opined that it was not established that petitioner
intended to kill Rudy when he shot him. Petitioner’s act
of shooting Rudy once was not followed by any other
assault or any act which would ensure his death.
Considering that petitioner was driving a car, he could
have chased Rudy if he really intended to kill the latter,
or run him over since Rudy went to the rear of the car.
Petitioner’s desistance displayed his nonchalance to
cause the death of Rudy. Moreover, Rudy only sustained
a gunshot wound on the arm, which required only 10
days of medical attendance.15
Not satisfied, petitioner filed a Motion for
Reconsideration,16 but was denied in a Resolution dated
April 9, 2005.
Hence, this petition which raises the following issues:
The honorable Court of Appeals, with due respect,
committed a grave abuse of discretion when it gives
credence to the statement of the private
complainant presuming that the petitioner-appellant is
the assailant allegedly due to his voice and his alleged
ownership of the vehicle, and considering that the
private complainant was then intoxicated, and the crime
was committed at nighttime, such conclusion is entirely
grounded on speculations, surmises and conjectures.
The honorable fourteenth division committed grave
abuse of discretion when it failed to give weight, discuss
and consider the arguments and defenses made the
petitioner-appellant in our brief, vis-à-vis the
manifestation and motion of the solicitor general.
The honorable fourteenth division committed an error
when it relied heavily on an unfounded, baseless and
alleged motive of petitioner, being a crusader of illegal
drugs in their own town, to be the basis that he is the
assailant.17
Petitioner questions the conclusion of the CA when it
found him guilty of the crime of less serious physical
injuries. He argues that Rudy failed to positively identify
him as the assailant, since Rudy never admitted that he
was able to identify the petitioner through his physical
appearance, but only through his voice, despite the fact
that it was the first time Rudy heard petitioner’s voice
when he allegedly shot him. Petitioner also insists that
when the incident occurred, Rudy’s vision was impaired
as he just drank half a bottle of gin and the place was
not properly lit. Rudy also failed to identify the type of
gun used during the shooting. Moreover, the prosecution
failed to establish that the car used by the perpetrator
was owned by the petitioner.
Further, petitioner maintains that it was impossible for
him to have shot the victim on the night of September 2,
1998, since he was not in the Province of Cagayan
Valley from September 1, 1998 to September 4, 1998.
The petition is bereft merit.
In sum, petitioner submits before this Court two issues
for resolution. First, whether or not the prosecution
established beyond reasonable doubt that petitioner was
the one who shot the victim; Second, whether or not
petitioner’s defense of alibi would prosper.
As regards the first issue, this Court finds that the
prosecution established beyond reasonable doubt that
petitioner was the one who shot Rudy that fateful night of
September 2, 1998. Both the RTC and the CA found that
petitioner indeed shot Rudy. In arriving at this
conclusion, the RTC ratiocinated in this wise:
Private complainant Rudy Baclig averred that he
personally knew the accused since he was of the age of
reason. Rudy knew accused Engr. Carlito Pentecostes
Jr. to be working with the NIA at Sta. Cruz, Gonzaga,
Cagayan. Both private complainant Rudy Baclig and
accused Engr. Carlito Pentecostes Jr. were residents of
Gonzaga, Cagayan, although they reside in different
barangays. Rudy was residing at Brgy. Batangan, while
the accused was living two-and-a-half kilometers away
at Brgy. Flourishing. Rudy Baclig categorically stated
that when the car of the accused passed by him, it
slowly stopped then moved backward and when the car
was at a distance of about two arms’ length, which was
about three (3) meters, the accused called Rudy’s
nickname Parrod. Hearing his nickname, Rudy went
towards the car, but he was only able to take one step,
accused Engr. Carlito Pentecostes Jr. opened the door
of the car and shot Rudy once and afterwards the
accused hurriedly sped away. Asked how he was able to
identify Engr. Carlito Pentecostes Jr. to be the person
who shot him when it was night time, Rudy said that he
was able to identify the accused through the lights of the
car and on cross-examination he said that aside from the
lights of the car, there were also lights coming from a
store nearby the place of the incident. The Court
believes that with these kinds of lights, Rudy Baclig was
able to identify the accused, considering the distance
between the assailant and the victim was only three (3)
meters.
x x x x.
Rudy Baclig was not telling a lie when he declared that
he was shot at about two arms’ length only because the
doctor who treated him, Dr. Mila M. Marantan, declared
that Rudy Baclig suffered a gunshot wound, the entry
was with powder burns which is an evidence that Rudy
Baclig was shot at a close range.
The defense harped on the fact that the private
complainant smelled liquor. The complainant at first
denied having taken liquor, but he admitted he took one-
half bottle of gin before he went to buy coffee and sugar.
On cross-examination, the complainant admitted also
that every afternoon, he drank liquor. He admitted that
he could still walk naturally a distance of about one
kilometer. He also said that his vision might be affected.
This testimony of Rudy Baclig cannot be considered as
evidence that he was not able to identify the accused.
He was categorical in stating that he was able to identify
the accused. The doctor who treated Rudy of his injury
declared the patient smelled liquor, but she could not tell
how much liquor the patient took, however, the patient
could answer all her questions.
x x x x.
There are other evidences that tend to show that Rudy
Baclig was able to identify the assailant. Immediately
after he was shot, Rudy told a police investigator, a
certain Torres and Dr. Mila Marantan that it was Engr.
Carlito Pentecostes, Jr. who shot him.18
This conclusion was concurred into by the CA, which
categorically stated in its decision that "[t]he prosecution
was able to present a witness, in the person of Baclig,
who categorically identified petitioner as his assailant
and whose testimony was characterized by
frankness."19 Contrary to petitioner’s contention, Rudy
saw him and positively identified him as his shooter, viz:
Q: When you heard the driver of the car calling
you by your nickname Parrod, what was your
reaction?
A: I went near because I thought he was telling
me something.
Q: And what made you decide to go near the
driver of the vehicle?
A: Because he called me by my name, Sir.
Q: When the driver of the car called you by your
[nickname], were you able to recognize the
driver of the car who called you?
A: Yes, Sir.
Q: And who was that person who called you by
your name Parrod?
A: It was Engr. Pentecostes, Sir.
Q: The same person you identified a while ago?
A: Yes, Sir.20
Corollarilly, petitioner already raised these arguments in
his motion for reconsideration of the decision of the court
a quo, which the CA addressed point by point in the
assailed resolution denying the motion. We quote with
approval the following discussion of the CA:
On the first allegation, accused-appellant wrongly read
the decision. The Court upheld the trial court’s finding
that it was indeed accused-appellant who attacked the
private complainant, not because the latter heard
accused-appellant’s voice but that he was able to see
him through the lights of the car when he opened the
window and the door. x x x
xxxx
Clearly, it was not merely hearing the assailant’s voice,
but that he was able to see him, that private-complainant
was able to identify the accused-appellant. It was
admittedly a fact that private complainant had a drink but
it does not mean that he was intoxicated, especially
since he admitted that he drinks everyday. Thus, his
body’s tolerance to alcohol is probably heightened.
There was also no proof that his vision had been
affected by the alcohol intake, and that he would have
mistaken someone else for the accused.
Again, positive declaration is given more weight than the
denial of the accused-appellant. In addition, the same
findings were previously reached by the trial court which
had the opportunity to observe first-hand the demeanor
of the witnesses, and assess their credibility.
Regarding the Solicitor General’s recommendation, the
Court is not bound to follow it although in some cases,
we are persuaded by the same. However, in this case, it
was not able to persuade Us as it only adopted the same
arguments advanced by accused- appellant’s counsel.
Some of these arguments include the failure to present
any document or evidence showing that the car used
was owned by the accused-appellant. The ownership of
the car, however, is immaterial in the light of the positive
identification of the accused. In addition, the statement
of the prosecution’s witnesses that the car was often
used by accused-appellant’s father does not remove the
possibility that he may also use it.
On the third allegation of error, again, accused-appellant
has misread the decision and exaggerated by accusing
us of relying heavily on the existence of a probable
motive on the part of accused-appellant to commit the
act complained of. This is clear in the decision that the
same was meant to assess whether there was a
probable motive for the private complainant to lie.21
It is clear that the arguments advanced by the petitioner
in the case at bar, questioning the conclusion of the RTC
and the CA that petitioner shot the victim, are trivial. The
fact remains that Rudy has been shot with a gun and he
positively identified his shooter as the petitioner.
Petitioner faulted the RTC and the CA for giving
credence to the testimony of Rudy. However, it is to be
noted that even the lone declaration of a sole eyewitness
is sufficient to convict if that testimony is found to be
credible. Credibility of witnesses is to be weighed and
should not be based on numbers. The matter of
assigning values to declaration on the witness stand is
best and most competently performed by the trial judge
who had the unmatched opportunity to observe the
witnesses and to assess their credibility by
various indicia available but not reflected on the record.22
This Court has meticulously scrutinized the transcripts of
stenographic notes of this case and finds that the RTC,
as well as the CA, committed no error in giving credence
to the evidence of the prosecution. The Court has long
adhered to the rule that findings of the trial court on the
credibility of witnesses and their testimonies are
accorded great respect unless it overlooked substantial
facts and circumstances, which if considered, would
materially affect the result of the case. This deference to
the trial court’s appreciation of the facts and of the
credibility of witnesses is consistent with the principle
that when the testimony of a witness meets the test of
credibility, that alone is sufficient to convict the
accused.23 This is especially true when the factual
findings of the trial court are affirmed by the appellate
court.24
As regards petitioner’s defense of alibi, well settled is the
rule that alibi is an inherently weak defense which
cannot prevail over the positive identification of the
accused by the victim.25 Moreover, in order for the
defense of alibi to prosper, it is not enough to prove that
the petitioner was somewhere else when the offense
was committed, but it must likewise be demonstrated
that he was so far away that it was not possible for him
to have been physically present at the place of the crime
or its immediate vicinity at the time of its
commission.26 In the case at bar, it was established that
petitioner personally appeared before Engr. Hondrade
only on September 1 and 4, 1998. His whereabouts for
the two days in between the said dates are unaccounted
for. There was no showing that he could not have gone
back to Cagayan, committed the crime, and went back to
Quezon City during those two days. Petitioner’s defense
of denial and alibi cannot prevail as against the positive,
straightforward and consistent testimony of Rudy that it
was petitioner who shot him on the night of September
2, 1998.
As to the crime committed by petitioner, this Court also
concurs with the conclusion of the CA that petitioner is
guilty of the crime of less serious physical injuries, not
attempted murder.
The principal and essential element of attempted or
frustrated murder is the intent on the part of the assailant
to take the life of the person attacked. Such intent must
be proved in a clear and evident manner to exclude
every possible doubt as to the homicidal intent of the
aggressor.27 In the present case, intent to kill the victim
could not be inferred from the surrounding
circumstances. Petitioner only shot the victim once and
did not hit any vital part of the latter’s body. If he
intended to kill him, petitioner could have shot the victim
multiple times or even ran him over with the car.
Favorably to petitioner, the inference that intent to kill
existed should not be drawn in the absence of
circumstances sufficient to prove this fact beyond
reasonable doubt.28 When such intent is lacking but
wounds are inflicted upon the victim, the crime is not
attempted murder but physical injuries only. Since the
Medico-Legal Certificate29 issued by the doctor who
attended Rudy stated that the wound would only require
ten (10) days of medical attendance, and he was, in fact,
discharged the following day, the crime committed is
less serious physical injuries only. The less serious
physical injury suffered by Rudy is defined under Article
265 of the Revised Penal Code, which provides that
"(A)ny person who inflicts upon another physical injuries
not described as serious physical injuries but which shall
incapacitate the offended party for labor for ten (10) days
or more, or shall require medical attendance for the
same period, shall be guilty of less serious physical
injuries and shall suffer the penalty of arresto
mayor."1avvphi1
As to the aggravating circumstance of treachery, this
Court finds that the CA erroneously concluded that
treachery attended the commission of the crime. To
establish treachery, the following must be proven: (1) the
employment of such means of execution as would give
the person attacked no opportunity for self-defense or
retaliation; and (2) the deliberate and conscious adoption
of the means of execution.30 The circumstances
attending the commission of the crime negate the
existence of treachery in its execution. Although
petitioner deliberately assaulted Rudy and there was
suddenness in his attack, he did not logically plan to
assault the latter when he chanced upon him while he
was driving. In treachery, the perpetrator intentionally
and purposely employs ways and means to commit the
crime. There was no evidence, however, to show that
petitioner employed such means of execution that would
ensure the commission of the crime without harm to his
person. Thus, treachery did not attend the commission
of the crime.
There being no aggravating and no mitigating
circumstance, the penalty for the crime of less serious
physical injuries should be taken from the medium
period of arresto mayor, which is from two (2) months
and one (1) day to four (4) months. The Indeterminate
Sentence Law finds no application in the case at bar,
since it does not apply to those whose maximum term of
imprisonment is less than one year.31
As regards the awards for damages, moral damages
may be recovered in criminal offenses resulting in
physical injuries, but there must be a factual basis for the
award.32 We have studied the records and find no factual
basis for the award of moral damages.
WHEREFORE, the petition is DENIED. The Decision of
the Court of Appeals, dated February 18, 2005, and the
Resolution dated April 19, 2005 in CA-G.R. CR No.
27458, are AFFIRMED with MODIFICATION. Petitioner
Engr. Carlito Pentecostes, Jr. is sentenced to suffer the
straight penalty of three (3) months of arresto mayor.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 181701 January 18, 2012
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
EDUARDO DOLLENDO AND NESTOR
MEDICE, Accused,
NESTOR MEDICE, Appellant.
DECISION
PEREZ, J.:
Before this Court is an appeal from the Decision1 dated
28 November 2006 of the Court of Appeals, finding
appellant Nestor Medice guilty beyond reasonable doubt
of the crime of Murder.
The Facts
On 18 May 2001, appellant and Eduardo Dollendo
(Dollendo) were accused of the crime of MURDER in
Criminal Case No. C-2971 before the Regional Trial
Court, Branch 19, Catarman, Northern Samar. 2
On arraignment, only appellant entered a plea of not
guilty.3 His co-accused Dollendo, although earlier
arrested, escaped from the Provincial Jail at Dancalan,
Bobon, Northern Samar.4 As Dollendo remained at-large
prior to his arraignment, trial proceeded only with respect
to appellant.
The prosecution presented the testimonies of the
following: Mylene Ruiz,5 wife of victim Garry Ruiz (Ruiz);
two (2) eyewitnesses to the crime, namely, Deolito
Romines (Romines)6 and Joseph del Valle (del
Valle);7 and Dr. Norma E. Dato,8 who examined the body
of Ruiz.
Mylene Ruiz testified that on 10 February 2001,
appellant and Dollendo went to her house looking for her
husband Ruiz. She asked the accused why so since the
latter was out peddling fish. The accused told her that
they had a problem with him, which she would later find
out when they meet.9
Soon after, on 13 February 2001 at around 2:30 in the
afternoon, Ruiz was killed at the house of Romines
at Barangay West, San Jose, Northern Samar.
Eyewitnesses Romines and del Valle rendered a
straightforward account of the incident in the following
manner:
On that fateful afternoon, Del Valle, together with one
Erles Anquillo and victim Ruiz were playing cards in the
sala of Romines’ house. Meanwhile, Romines was
getting their pulutan ready.10 He was in the kitchen,
which was about less than two (2) meters away from the
sala,11 with an unobstructed view of the sala.12 The
drinking session had not yet begun when appellant
arrived. He did nothing and left immediately upon seeing
them.13
After two (2) minutes, appellant returned with his
brother-in-law Dollendo.14 Ruiz did not notice them enter
the house because his back was turned against the
door.15 Appellant pulled out a bolo (dipang), handed it
over to Dollendo saying, "Uh! [Y]ou take care of it," after
which, he stepped back.16 Dollendo, in turn, immediately
stabbed Ruiz on the left chest.17
Del Valle ran to seek police assistance18 while Romines
was left behind. Romines recounted that after the first
blow, three (3) successive stab blows were further suffer the penalty of reclusion perpetua and to indemnify
delivered hitting Ruiz in his chest near the heart and in the heirs of the victim ₱50,000.00 and another
his arm.19 Thereafter, appellant and Dollendo fled ₱50,000.00 as moral damages and to pay the costs.29
towards the direction of P. Tingzon.20 Ruiz died on his
way to the hospital.21 Appellant filed a Notice of Appeal30 dated 16 May 2003
with the trial court. After the submission of their
Dr. Norma E. Dato, Municipal Health Officer, San Jose, respective briefs, this Court ordered the transfer of the
Northern Samar, identified in court her Autopsy records of the case to the Court of Appeals, for
Report,22 showing that the death of the victim was appropriate action and disposition, in order to allow an
caused by "shock secondary internal hemorrhage intermediate review of the case.31
caused by st[a]b wounds," which injured the heart, left
lung, and blood vessels. The four stab wounds were On 28 November 2006, the Court of Appeals
described as follows: promulgated its decision32 in CA-G.R. CR HC No. 00243
denying the appeal. Thus:
St[a]b wound - - 1.2 located 2.9 cm
No. 1 Length cm above the left nipple WHEREFORE, the appeal is DENIED and
- Width - .8 the Decision dated 30 April 2003 of the Regional Trial
cm Court, Branch 19, Catarman, Northern Samar, finding
NESTOR MEDICE guilty beyond reasonable doubt of
St[a]b wound - - 1.2 located about 4 cm. the crime of Murder, and imposing on him the penalty
No. 2 Length cm st[a]b wound No. 1 along of the anterior
reclusion axillary and
perpetua line to indemnify the heirs of the
- Width - .8 victim Fifty Thousand Pesos (P50,000.00), and another
cm Fifty Thousand Pesos (P50,000.00) as moral damages
St[a]b wound - - 2.5 located on the left arm, and to pay the
midportions. costs,
This is a is AFFIRMED subject to the
No. 3 Length cm modification
through and through wound. that he shall indemnify the victim in the
- Width - .6 amount of Thirty Thousand Pesos (P30,000.00) as
cm exemplary damages.33

St[a]b wound - - 1 cm located 4 cm. below st[a]b wound to

Appealed No. 3. Court,
this This iswe
a required the parties to
No. 4 Length - .6 through & through woundsimultaneously file their respective supplemental
- Width cm briefs.34 Both manifested that they will no longer file
supplemental pleadings.35
She further testified that stab wound nos. 1 and 2
caused the death of Ruiz.23 Our Ruling

As the lone witness for the defense, appellant denied the
charge against him and claimed that he never saw
Dollendo on the date of the incident. He further alleged
that he was then in the house of spouses Dafia Pusio
and Dondon Morino, also in Barangay West, from 12:00
noon to 3:00 o’clock in the afternoon.24 He learned of the
death of Ruiz only on 2 March 2001 when he was
apprehended by the policemen.25
We affirm the appellant’s conviction.
To be convicted of murder, the following must concur:
(1) a person was killed; (2) the accused killed him; (3)
the killing was attended by any of the qualifying
circumstances enumerated in Article 248 of the Revised
Penal Code; and (4) the killing does not constitute
parricide or infanticide.36

On cross-examination, the following facts were elicited
from the appellant: that Dollendo is his brother-in-law;
that he had known victim Ruiz, and prosecution
witnesses Romines and del Valle for a long time;26 that
Dafia’s house, where he allegedly stayed to watch
betamax from 12:00 noon to 3:00 o’clock in the
afternoon of 13 February 2001 and Romines’ house,
where Ruiz was killed, are only forty (40) meters apart -
one is, in fact, just across the other.27
On 30 April 2003, the trial court convicted the
appellant.28 The dispositive portion of the decision reads:
From the foregoing, the Court finds NESTOR MEDIC[E]
guilty beyond reasonable doubt as principal by induction
of the crime of Murder and hereby sentences him to
Treachery qualified the killing to murder
The law provides that an offender acts with treachery
when he "commits any of the crimes against a 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."37 There
is, thus, treachery when the attack against an unarmed
victim is so sudden that he had clearly no inkling of what
the assailant was about to do.38
It is clear in the records that the circumstance of
treachery is attendant in this case. The aggressors
ensured that the victim had no opportunity to resist or
defend himself through the sudden and unexpected
attack. As testified to by Romines:
Q Did the victim notice the two accused when
they entered your house for the second time?
A No, sir, because they came from his left side.
Q How long thereafter after both accused
entered your house when the first stabbing blow
was delivered by Edgardo Dollendo to the
victim?
A It did not take long before the stabbing.
[Q] Do you mean to say that it was sudden when
Edgardo Dollendo stabbed the victim?
A Yes, sir.39
Del Valle was likewise positive that Ruiz was not aware
that he was about to be attacked.
Q When the accused Eduardo Dollendo
delivered the first blow to the victim did the
victim notice that he was to be attacked by the
accused Eduardo?
A No, sir, he was beside [Ruiz].40
As to whether the circumstance of treachery can qualify
the killing to murder, the fact being that it was not
expressly stated as such in the information, this Court
has long clarified that "qualifying circumstances need not
be preceded by descriptive words such as ‘qualifying’ or
‘qualified by’ to properly qualify an offense."41
Evident premeditation was not established
as an aggravating circumstance
The aggravating circumstance of evident premeditation
may only be considered if the following are established:
(1) the time when the offender determined to commit the
crime; (2) an act manifestly indicating that the accused
clung to his determination; and (3) a sufficient lapse of
time between determination and execution to allow
himself time to reflect upon the consequences of his
act.42
None of the requisites, however, is present in this case.
First, the testimony of Mylene Ruiz that appellant and
Dollendo looked for her husband Ruiz on 10 February
2011 and that they told her that they have a problem to
settle, is insufficient to conclude that the assailants have
then decided to commit the crime. Second, evidence is
wanting to show when the offenders actually resolved to
kill the victim. Even assuming that they clung to their
determination to commit the crime after it was
ascertained that Ruiz was in the house of Romines, the
lapse of two (2) minutes or so from the time appellant
checked on the whereabouts of Ruiz to the time Ruiz
was attacked is not sufficient to afford them time to
reflect on the consequences of their actions,43 the
essence of premeditation being "that the execution of
the act was preceded by cool thought and reflection
upon the resolution to carry out the criminal intent during
a space of time sufficient to arrive at a calm judgment."44
There was conspiracy to commit murder;
Appellant is, therefore, liable
notwithstanding
the evidence showing that it was only
Dollendo
who stabbed the victim
The prosecution clearly established that it was only
Dollendo who stabbed Ruiz. That appellant did not
actually stab the victim does not, however, release him
from criminal liability.
Article 8 of the Revised Penal Code provides that "[a]
conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and
decide to commit it." The "evidence of a chain of
circumstances,"45 to wit: that appellant went inside the
house of Romines to ascertain that the victim was there;
that he fetched Dollendo to bring him to Ruiz; that he
gave the dipang to Dollendo to commit the crime; and
that they both fled after the stabbing, taken collectively,
shows a community of criminal design to kill the victim.
Evidently, there was conspiracy in the commission of the
crime.1avvphil Thus:
To be a conspirator, one need not participate in every
detail of the execution; he need not even take part in
every act xxx. Each conspirator may be assigned
separate and different tasks which may appear unrelated
to one another but, in fact, constitute a whole collective
effort to achieve their common criminal objective. Once
conspiracy is shown, the act of one is the act of all the
conspirators. The precise extent or modality of
participation of each of them becomes secondary, since
all the conspirators are principals.46
Defense of alibi cannot prosper;
There was failure to establish physical
impossibility
to be at the locus criminis;
Witnesses positively identified the assailants
It has been held time and again that alibi may prosper
only when the accused establishes that not only was he
somewhere else when the crime was committed but that
it was physically impossible for him to have been at
the locus criminis at that time.47
In the instant case, appellant admitted that the house of
his friend where he said he was at the time of the
commission of the crime is only forty (40) meters away
from the locus criminis.48 Hence, it was not physically
impossible for him to be at Romines’ place during the
killing incident.
Furthermore, positive identification destroys the defense
of alibi, more so when such is credible and
categorical,49 as it is in this case. Positive identification
by witnesses, absent any ill motive on their part, likewise
prevails over the defense of denial.50
All considered, we are convinced that the guilt of
appellant has been sufficiently established with moral
certainty.
Reclusion perpetua is the imposable penalty
Under Article 248 of the Revised Penal Code, the
penalty for murder is reclusion perpetua to death. The
proper imposable penalty on the appellant is reclusion
perpetua inasmuch as neither aggravating nor mitigating
circumstances attended the commission of the crime.51
Appellant is liable for civil indemnity,
moral damages, temperate damages
exemplary damages and 6% interest
per annum on all damages
until fully paid
The damages awarded by the Court of Appeals in the
amount of Fifty Thousand Pesos (₱50,000.00) as civil
indemnity, Fifty Thousand Pesos (₱50,000.00) as moral
damages, and Thirty Thousand Pesos (₱30,000.00) as
exemplary damages52 are in order.
We note, however, that both the Regional Trial Court
and the Court of Appeals did not award damages to
cover the unreceipted funeral expenses incurred by the
surviving spouse. While actual damages are not
recoverable absent any receipt or supporting document
pertaining to the expenses, temperate damages may be
awarded in its stead.53 This is in accordance with Article
2224 of the Civil Code, which provides that temperate
damages may be recovered "when the court finds that
some pecuniary loss has been suffered but its amount
cannot, from the nature of the case, be proved with
certainty."54 Undeniably, the heirs of Ruiz suffered
pecuniary loss representing funeral and burial expenses,
although the exact amount is not proved.55 Accordingly,
the heirs of Ruiz shall be entitled to temperate damages
in the amount of ₱25,000.00.56
Finally, consistent with recent jurisprudence on
damages,57 interest on all damages at the rate of six
percent (6%) per annum from the finality of judgment
until fully paid is likewise hereby imposed.
WHEREFORE, the Decision dated 28 November 2006
of the Court of Appeals in CA-G.R. CR HC No.
00243 DENYING the appeal of appellant Nestor Medice
is AFFIRMED with MODIFICATION.
Appellant is hereby found GUILTY beyond reasonable
doubt of the crime of Murder and is sentenced to suffer
the penalty of reclusion perpetua. He is further ordered
to pay the heirs of Gary G. Ruiz the sum of Fifty
Thousand Pesos (₱50,000.00) as civil indemnity, Fifty
Thousand Pesos (₱50,000.00) as moral damages,
Twenty-Five Thousand Pesos (₱25,000.00) as
temperate damages, Thirty Thousand Pesos
(₱30,000.00) as exemplary damages, and interest on all
damages at the rate of six percent (6%) per annum from
the finality of judgment until fully paid.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 186472 July 5, 2010
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
ANTONIO SIONGCO y DELA CRUZ, ERIBERTO
ENRIQUEZ y GEMSON, GEORGE HAYCO y
CULLERA, and ALLAN BONSOL y PAZ, Accused,
ANTONIO SIONGCO y DELA CRUZ and ALLAN
BONSOL y PAZ, Appellants.
DECISION
NACHURA, J.:
Before the Court for review is the September 20, 2007
Decision1 of the Court of Appeals (CA), affirming the
guilty verdict rendered by the Regional Trial Court
(RTC), Branch 166, Pasig City,2 promulgated on
November 6, 2000, against appellants Antonio Siongco
(Siongco) and Allan Bonsol (Bonsol), with modification
on the penalty imposed and the amount of damages to
be paid to their victim, Nikko Satimbre (Nikko).3 This
review is made, pursuant to the pertinent provisions of
Sections 3 and 10 of Rule 122 and Section 13 of Rule
124 of the Revised Rules of Criminal Procedure, as
amended by A.M. No. 00-5-03-SC.
The factual findings of both courts show that between
6:00 and 7:00 p.m. of December 27, 1998, 11-year-old
Nikko, a resident of Balanga, Bataan, was induced by
Siongco to board a bus bound for Pilar, Bataan, together
with the latter’s friends, Marion Boton (Boton) and
Eriberto Enriquez (Enriquez). Nikko was told that the two
would accompany him in getting the "Gameboy" that
Siongco promised. Siongco was no stranger to Nikko as
he used to be a security guard at Footlockers shoe store
where Nikko’s mother, Elvira Satimbre (Elvira), works as
a cashier. After a short stop in Pilar, Bataan, the three
proceeded to Mariveles, Bataan, where they met with
George Hayco (Hayco). The boy was then brought to
Dinalupihan, Bataan, where he was kept for the night. 4
Meanwhile, Elvira arrived home at 7:00 p.m. and found
that her son was not there. She searched for him in the
places he frequented, but to no avail. As her continued
search for the child proved futile, she reported him
missing to the nearest police detachment.5
The following day, December 28, 1998, Enriquez and
Siongco took Nikko to Bicutan, Taguig, Metro
Manila.6 On December 29, 1998, Elvira received a
phone call from a man, later identified as appellant
Siongco, who claimed to have custody of Nikko and
asked for ₱400,000.00 in exchange for his liberty. Elvira
haggled with her son’s captor until the latter agreed to
reduce the ransom money to ₱300,000.00. Elvira was
also able to talk to her son who was only able to utter
"Hello Ma" as Siongco immediately grabbed the phone
from him. Siongco warned Elvira to refrain from reporting
the matter to the police. He also threatened that Nikko
would be killed if she fails to give the ransom money at
6:00 p.m. of the next day at Genesis Bus Station in
Pasay City.7 That night, Elvira telephoned the Office of
the Chief of Police of Balanga, Bataan and reported that
Nikko was kidnapped.8
On December 30, 1998, Enriquez and Siongco moved
Nikko to Pateros and cautioned him not to tell anybody
that he was kidnapped. They stayed at the house of
Heracleo San Jose (Heracleo), a relative of Enriquez.
They again called Elvira who failed to keep her
appointment with them in Pasay City. She explained that
she was still gathering funds for the ransom money. The
captors reiterated their threats and, at midnight, they
called and instructed her to proceed to Avenida with
whatever available money she had, subject to a
subsequent agreement as to the balance. Elvira refused
and insisted that she preferred to give the amount in
full.9
In the morning of December 31, 1998, Siongco called
Elvira several times with the same threats and demands.
Elvira agreed to meet them that afternoon at the Genesis
Bus Station in Pasay City. Nikko was allowed to speak
with his mother and he assured her that he was not
being maltreated. After the call, Enriquez informed Nikko
that his mother wanted a "kaliwaan" (face to face
exchange) deal. Soon thereafter, Enriquez and Siongco
left to meet Elvira, while Nikko stayed behind.10
On the same day, Police Senior Inspector Rodolfo
Azurin, Jr. (Police Senior Inspector Azurin, Jr.) was on
duty at Crimes Operation Division of the Philippine Anti-
Organized Crime Task Force (PAOCTF) office in Camp
Crame, Quezon City. At 11:00 a.m., Elvira arrived and
requested for assistance for the recovery of her
kidnapped son. The PAOCTF team then instructed her
to bring to the pay-off site a brown envelope with a letter
asking for extension of payment. After briefing, Azurin
and other police operatives proceeded to Genesis Bus
Station in Pasay City. While waiting for Elvira, they
noticed two (2) male persons, later identified as Enriquez
and Siongco, restlessly moving around the place. At
around 2:30 p.m., Elvira arrived carrying the brown
envelope. As instructed by the kidnappers, she
positioned herself near a tree and tied a white kerchief
around her neck. Shortly thereafter, Enriquez
approached Elvira and took the brown envelope from
her. As he was walking away, the PAOCTF team
arrested him. Thereafter, they followed Siongco, who
hurriedly hailed a taxicab and sped away. Siongco was
arrested at the residence of Heracleo in Pateros where
Nikko was also rescued. Thereafter, Siongco and
Enriquez were brought to Camp Crame.11
The investigations of Nikko and the two detainees,
coupled with the follow-up operations of the PAOCTF,
led to the arrest of appellant Bonsol, and the other
cohorts, Hayco and Boton.12
On January 4, 1999, an Information13 was filed in court,
charging herein appellants Siongco and Bonsol, together
with Enriquez, Hayco, Boton, and a John Doe, with
KIDNAPPING and SERIOUS ILLEGAL DETENTION
under Article 267 of the Revised Penal Code.
Arraigned on February 24, 1999, the five accused
pleaded not guilty to the offense charged.14 Trial then
ensued; in the course of which, the prosecution
presented in evidence the oral testimonies of its
witnesses: 1) the victim himself, 11-year-old Nikko; 2) his
mother, Elvira; 3) Heracleo, relative of accused
Enriquez; 4) Police Senior Inspector Azurin, Jr. of the
PAOCTF; and 5) Police Superintendent Paul Tucay, the
one who arrested Bonsol, Hayco and Boton.15
With the exception of Boton, all of the accused took the
witness stand. Hayco and Bonsol denied knowledge of
and participation in the crime. Siongco testified that, on
December 27, 1998, he saw Nikko at a "peryahan" in
Balanga, Bataan but he did not mind the boy as he was
busy conversing with Enriquez about their business of
selling toys. He went to Manila and stayed at the house
of Heracleo on December 28 and 29, 1998 to collect
installment payments from customers. On December 31,
1998, he went to his brother’s house in San Juan, Metro
Manila and when he came back to Pateros on the same
day, he was arrested by PAOCTF agents.
Enriquez declared that Nikko voluntarily went with them.
He affirmed that he travelled with Nikko and Siongco to
Manila. They stayed in Bicutan and then moved to
Pateros. He alleged that they called Nikko’s mother
because the boy kept asking for a "Gameboy." He went
to the Genesis Bus Station to meet Nikko’s mother, who,
according to Siongco, would have something tied around
her neck.16
The RTC rejected the denials and alibis raised by the
accused and held that they conspired and mutually
helped one another in kidnapping and illegally detaining
Nikko by taking him through a circuitous journey from
Balanga, Bataan to Manila where ransom demands for
his liberty were made.
In a decision dated November 6, 2000, the RTC
convicted Siongco, Bonsol, Enriquez and Hayco of the
offense charged in the Information and meted upon them
the extreme penalty of death. Boton was ACQUITTED
on the ground of reasonable doubt. The pertinent portion
of the RTC decision reads:
WHEREFORE, the Court finds accused Antonio Siongco
y Dela Cruz, Eriberto Enriquez y Gemson, George
Hayco y Cullera and Allan Bonsol y Paz GUILTY beyond
reasonable doubt of the crime of Kidnapping and
Serious Illegal Detention for the purpose of extorting
ransom, as defined and penalized under Article 267 of
the Revised Penal Code, as amended by Section 8 of
R.A. 7659, and are hereby sentenced to suffer the
Supreme penalty of Death and indemnify the victim,
Nikko Satimbre, and his mother, Elvira Satimbre, each,
in the amount of ₱50,000.00, as moral damages, plus
the costs of suit.
On the ground of reasonable doubt, the Court finds
accused Marion Boton y Cereza NOT GUILTY of the
crime charged in the Information.
SO ORDERED.17
From the RTC, the case went directly to this Court for
automatic review.18 The parties were then required to
file, as they did file, their respective appellants’19 and
appellee’s20 briefs. Consistent with this Court’s ruling in
People v. Mateo,21 the case was transferred to the
CA22 for intermediate review and disposition.
Upon review, the CA concurred with the factual findings
and conclusions of the trial court and affirmed the
judgment of conviction but modified the penalty imposed
to reclusion perpetua. The CA increased the amount of
moral damages to ₱100,000.00 and awarded
₱100,000.00 as exemplary damages, to be paid jointly
and solidarily by the accused to their victim, Nikko. The
fallo of the CA Decision states:
WHEREFORE, the Judgment dated November 6, 2000
of the RTC Branch 166, Pasig City, in Criminal Case No.
115317-H, is AFFIRMED with the MODIFICATION that
accused-appellants are sentenced to suffer the penalty
of reclusion perpetua without eligibility for parole and
ordered to jointly and solidarily pay private complainant
Nikko Satimbre the amounts of ₱100,000.00 as moral
damages and ₱100,000.00 as exemplary damages.
SO ORDERED.23
Only herein appellants Siongco and Bonsol were able to
perfect an appeal24 of the CA Decision. Consequently, in
its September 29, 2008 Resolution,25 the CA declared
the conviction of accused Enriquez and Hayco as final
and executory, and a Partial Entry of Judgment was
made against them.26 In a Resolution dated April 13,
2009,27 this Court accepted the appeal interposed by
Siongco and Bonsol.
We deny the appeal.
Article 267 of the Revised Penal Code, as amended by
Republic Act (R.A.) No. 7659, defines and penalizes
kidnapping and serious illegal detention as follows:
Art. 267. Kidnapping and serious illegal detention. - Any
private individual who shall kidnap or detain another, or
in any other manner deprive him of his liberty, shall
suffer the penalty of reclusion perpetua to death:
1. If the kidnapping or detention shall have
lasted more than three days.
2. If it shall have been committed simulating
public authority.
3. If any serious physical injuries shall have
been inflicted upon the person kidnapped or
detained, or if threats to kill him shall have been
made.
4. If the person kidnapped or detained shall be a
minor, except when the accused is any of the
parents, female, or a public officer.
The penalty shall be death where the kidnapping or
detention was committed for the purpose of extorting
ransom from the victim or any other person, even if none
of the circumstances above-mentioned were present in
the commission of the offense.
When the victim is killed or dies as a consequence of the
detention or is raped, or is subjected to torture or
dehumanizing acts, the maximum penalty shall be
imposed.
In the recent People of the Philippines v. Christopher
Bringas y Garcia, Bryan Bringas y Garcia, John Robert
Navarro y Cruz, Erickson Pajarillo y Baser (deceased),
and Eden Sy Chung,28 we reiterated the following
elements that must be established by the prosecution to
obtain a conviction for kidnapping, viz.: (a) the offender
is a private individual; (b) he kidnaps or detains another,
or in any manner deprives the latter of his liberty; (c) the
act of detention or kidnapping must be illegal; and (d) in
the commission of the offense, any of the following
circumstances is present: (1) the kidnapping or detention
lasts for more than three days; (2) it is committed by
simulating public authority; (3) any serious physical
injuries are inflicted upon the person kidnapped or
detained, or threats to kill him are made; or (4) the
person kidnapped or detained, is a minor, a female, or a
public officer. If the victim is a minor, or is kidnapped or
detained for the purpose of extorting ransom, the
duration of detention becomes immaterial.
The essence of kidnapping is the actual deprivation of
the victim’s liberty, coupled with indubitable proof of the
intent of the accused to effect such deprivation. 29
As correctly held by the RTC and the CA, the
prosecution indubitably proved beyond reasonable doubt
that the elements of kidnapping and serious illegal
detention obtain in the case at bar. Accused-appellants
are private individuals who, together with their cohorts,
took 11-year-old Nikko out of his hometown in Balanga,
Bataan on December 27, 1998. They brought him to
Manila on December 28, 1998, where demands for a
₱400,000.00 ransom were made to his mother.
Appellants contend that the essential element of
detention or deprivation of liberty was absent because
Nikko voluntarily went with them and that he was free to
move around and play with other children. We disagree.
The deprivation required by Article 267 of the Revised
Penal Code means not only the imprisonment of a
person, but also the deprivation of his liberty in whatever
form and for whatever length of time. It includes a
situation where the victim cannot go out of the place of
confinement or detention or is restricted or impeded in
his liberty to move.30 In this case, although Nikko was
free to move around, he was at all times under the
alternate watch of appellants and their cohorts. He was
in their physical custody and complete control as he was
kept in places strange and unfamiliar to him. While he
was allowed to play in the houses where he was kept,
the fact remains that he was under the control of his
captors who left him there, as he could not leave the
house until they shall have returned for him. Because of
his tender age and the fact that he did not know the way
back home, he was then and there deprived of his
liberty.1avvphi1
As to the contention of appellant Siongco that there was
no force or intimidation involved in the taking, this Court
held in People of the Philippines v. Ernesto Cruz, Jr. y
Concepcion and Reynaldo Agustin y Ramos31 that the
fact that the victim voluntarily went with the accused did
not remove the element of deprivation of liberty, because
the victim went with the accused on a false inducement,
without which the victim would not have done so. In the
present case, when Nikko boarded the bus bound for
Pilar, Bataan, he was under the impression that Bonsol
and Enriquez were to be trusted as he was assured by
Siongco that the two would accompany him to get his
much desired "Gameboy." Without such assurance,
Nikko would not have boarded the said vehicle. In
kidnapping, the victim need not be taken by the accused
forcibly or against his will. What is controlling is the act of
the accused in detaining the victim against his or her will
after the offender is able to take the victim in his custody.
In short, the carrying away of the victim in the crime of
kidnapping and serious illegal detention can either be
made forcibly or, as in the instant case,
fraudulently.32ten.lihpwal
Equally significant is the fact that, in kidnapping, the
victim’s lack of consent is also a fundamental
element.33 The general rule is that the prosecution is
burdened to prove lack of consent on the part of the
victim. However, where the victim is a minor, lack of
consent is presumed. In this case, Nikko was only 11
years old when he was kidnapped; thus incapable of
giving consent, and incompetent to assent to his seizure
and illegal detention. The consent of the boy could place
appellants in no better position than if the act had been
done against his will. A kidnapper should not be
rewarded with an acquittal simply because he is
ingenious enough to conceal his true motive from his
victim until he is able to transport the latter to another
place.34
The identical factual findings of both the trial and
appellate courts likewise show that the actuations and
roles played by appellants Siongco and Bonsol
undoubtedly demonstrate that they conspired with Hayco
and Enriquez in kidnapping and illegally detaining Nikko.
Being sufficiently supported by evidence on record, we
find no reason to disturb the same.
Siongco was the one who promised Nikko a "Gameboy."
He told the boy to go with Bonsol and Enriquez and get
the toy in Pilar, Bataan. On December 28, 1998, he
arrived in Dinalupihan, Bataan to fetch Nikko. From
there, he, Enriquez and Nikko left for Bicutan, Taguig,
Metro Manila in a bus. The following day, Siongco,
Nikko, Enriquez, and the latter’s friend went to the
marketplace and called Nikko’s mother. Siongco
demanded from her payment of ₱400,000.00 as a
condition for the boy’s release. Siongco repeatedly
telephoned Elvira with the same demand and threats
over the next couple of days. On December 31, 1998, he
instructed Enriquez to meet Elvira at the Genesis Bus
Station to get the ransom money.
It is immaterial whether appellant Bonsol acted as a
principal or as an accomplice because the conspiracy
and his participation therein have been established. In
conspiracy, the act of one is the act of all and the
conspirators shall be held equally liable for the
crime.35 On the pretext of getting Nikko’s much desired
"Gameboy," Bonsol and Enriquez were able to
conveniently whisk Nikko out of Balanga and bring him
to Pilar, then to Mariveles, and eventually to
Dinalupihan, where Siongco fetched him. Thus, Enriquez
and Siongco’s plan of bringing Nikko to Metro Manila, a
terrain unfamiliar to the boy and where the two could
enjoy anonymity to carry out their ultimate goal of
extorting ransom money from Nikko’s mother, was
accomplished. As shown by the evidence, without the
participation of appellant Bonsol, the commission of the
offense would not have come to fruition.
Finally, appellants bewail that they were deprived of their
right to an independent and competent counsel when the
RTC appointed Atty. Michael Moralde (Atty. Moralde) as
their counsel de oficio during the pre-trial conference,
direct examination and cross-examination of the
prosecution’s principal witness, Nikko. This was so,
despite Atty. Moralde’s manifestation during Nikko’s
cross-examination that the defense of his actual client,
accused Boton, conflicts with that of the other accused.36
A scrutiny of the records shows that Atty. Moralde was
appointed as appellants’ counsel de oficio in six (6)
hearings, because their regular counsel de oficio, Atty.
Antoniano from the Public Attorney’s Office P AO), was
inexplicably absent. There is no denial of the right to
counsel where a counsel de oficio is appointed during
the absence of the accused's counsel de parte, or in this
case the regular counsel de oficio, pursuant to the
court's desire to finish the case as early as practicable
under the continuous trial system.37 The choice of
counsel by the accused in a criminal prosecution is not a
plenary one. If the chosen counsel deliberately makes
himself scarce, the court is not precluded from
appointing a de oficio counsel, which it considers
competent and independent, to enable the trial to
proceed until the counsel of choice enters his
appearance. Otherwise, the pace of a criminal
prosecution will be entirely dictated by the accused, to
the detriment of the eventual resolution of the case. 38
The fact that Boton’s defense conflicts with that of
appellants is immaterial because, as borne out by
records, Atty. Moralde expressly declared that the
questions he propounded to Nikko were only for his
client Boton. Thereafter, Atty. Antoniano was furnished
with copies of the transcript of stenographic notes of the
proceedings she missed and was given ample
opportunity to conduct her own cross-examination during
the subsequent hearings. Eventually, she adopted the
cross-examination conducted by the other defense
counsels.391avvphi1
The CA correctly modified the penalty imposed by the
RTC to reclusion perpetua without eligibility for parole.
The penalty for kidnapping for the purpose of extorting
ransom from the victim or any other person under Article
267 of the Revised Penal Code40 is death. However,
R.A. No. 934641 has banned the imposition of death
penalty and reduced all death sentences to reclusion
perpetua without eligibility for parole.42 In line with
prevailing jurisprudence,43 an award of ₱50,000.00 as
civil indemnity is proper. The award of ₱100,000.00
moral damages is increased to ₱200,000.00 considering
the minority of Nikko.44 As the crime was attended by a
demand for ransom, and by way of example or
correction, Nikko is entitled to ₱100,000.00 exemplary
damages as correctly awarded by the CA.45
WHEREFORE, the September 20, 2007 Decision..of the
Court of Appeals in CA-G.R. CR-H.C. No. 00774, finding
appellants Antonio Siongco y dela Cruz and Allan
Bonsol y Paz guilty beyond reasonable doubt of
KIDNAPPING and SERIOUS ILLEGAL DETENTION,
is AFFIRMED with the MODIFICATION that a
₱50,000.00 civil indemnity is awarded and the amount of
moral damages is increased to ₱200, 000.00.
Costs against appellants.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 181635 November 15, 2010
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
NONOY EBET, Appellant.
DECISION
PERALTA, J.:
Before this Court is the appeal from the Decision1 of the
Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00257,
dated July 31, 2007, which sustained the judgment2 of
the Regional Trial Court (RTC) in Criminal Case No. 86-
97 dated October 12, 1999, finding appellant Nonoy
Ebet guilty beyond reasonable doubt of the crime of
Robbery with Homicide.
The facts, as shown in the records, are the following:
On February 3, 1997, around 7:30 p.m., three (3) men
entered the house of the spouses Gabriel Parcasio and
Evelyn Parcasio. Of the three men, Evelyn recognized
one of them to be appellant Ebet, having been a
constant visitor of her husband. Upon entering, one of
the unidentified men poked a gun at Evelyn, while
another unidentified man wielding a knife, held Evelyn's
daughter, Joan. At that moment, Evelyn saw appellant
holding a knife and standing at the door of the house.
The men asked Evelyn where her husband was hiding
and compelled her to lead them to the house's
underground. After the two unidentified men reached the
underground, Evelyn heard her husband shout for her
and her daughters to run, which the latter did.
Thereafter, a gunshot was heard, as well as a
commotion underground. Joan, after hearing the
gunshot, returned to the house fearing that her mother
was shot. It was then that the men accosted her and
asked for her money. With no money to give, the men
took her bag worth One Hundred Thirty Pesos
(₱130.00), a wrist watch worth One Hundred Twenty-
Five Pesos (₱125.00) and Thirty Pesos (₱30.00) cash,
the total of which is Two Hundred Eighty-Five Pesos
(₱285.00). When the men left the premises, Evelyn went
back to their house and saw her husband bleeding to
death due to multiple stab wounds. The husband
eventually died due to the said stab wounds.
Thus, an Information3 dated July 10, 1997 was filed,
charging appellant with the crime of Robbery with
Homicide, which reads:
That on or about February 3, 1997, in the Municipality of
Kidapawan, Province of Cotabato, Philippines, the said
accused, in company with JOHN DOE and PETER DOE,
whose identities are still unknown and at large, armed
with handgun and knife, conspiring, confederating and
mutually helping one another, with intent to gain by
means of violence and intimidation, did then and there,
willfully and forcibly get, rob and carry away, one (1)
wrist watch worth ONE HUNDRED TWENTY-FIVE
PESOS (₱125.00); one (1) school bag worth ONE
HUNDRED THIRTY PESOS (₱130.00); and cash
amounting to THIRTY PESOS (₱30.00), with the total
amount of TWO HUNDRED EIGHTY-FIVE PESOS
(₱285.00), Philippine Currency, owned by JOAN
PARCASIO, to the damage and prejudice of JOAN
PARCASIO.
That on the same occasion, above-named accused with
intent to kill, willfully, unlawfully and feloniously attack,
assault, stab, shot and use physical violence to the
person of GABRIEL PARCASIO, JR., thus inflicting upon
the latter multiple stab wounds in the different parts of
his body, which caused his death thereafter.
CONTRARY TO LAW.
When arraigned4 on September 17, 1997, appellant,
assisted by counsel, pleaded not guilty to the crime
charged against him.
Consequently, the trial on the merits ensued.
The prosecution presented the testimonies of Evelyn
Parcasio and Joan Parcasio, testifying as to the facts
narrated earlier.
For his defense, appellant presented his own testimony,
as well as those of Virgilio Balili, Fernando Saud and
Feliciano Jordan. Based on their testimonies, the
following transpired:
On February 3, 1997, appellant was in the house of Agri
Saud, which was 200 meters away from the house of
Gabriel and Evelyn Parcasio. Appellant was in the said
house from 5:00 p.m. until 9:00 p.m. He was there
butchering a pig, together with Agri Saud, Efren Leon,
Willy Estigoy and Feliciano Jordan. Appellant claimed
that he never left the house or the group from the time
he arrived at Agri Saud's house until they dispersed later
in the evening.
The trial court found appellant guilty beyond reasonable
doubt of the crime of Robbery with Homicide. The
dispositive portion of the Decision reads:
WHEREFORE, prescinding from the foregoing facts and
considerations, the Court finds accused Nonoy Ebet
guilty beyond reasonable doubt as principal by direct
participation of the crime of Robbery with Homicide,
hereby sentenced him to suffer the penalty of Reclusion
Perpetua. He is hereby ordered to indemnify the heirs of
Gabriel Parcasio the sum of ₱50,000.00.
With costs de officio.
IT IS SO ORDERED.5
A Notice of Appeal6 was filed and this Court accepted
the appeal. However, in a Resolution7 dated September
15, 2004, this Court transferred the case to the CA, in
conformity with People of the Philippines v. Efren Mateo
y Garcia,8 modifying the pertinent provisions of the
Revised Rules on Criminal Procedure, more particularly
Sections 3 and 10 of Rule 122, Section 13 of Rule 124,
Section 3 of Rule 125 and any other rule insofar as they
provide for direct appeals from the RTCs to this Court in
cases where the penalty imposed is death, reclusion
perpetua or life imprisonment, as well as the resolution
of this Court’s en banc, dated September 19, 1995, in
Internal Rules of the Supreme Court in cases similarly
involving the death penalty, pursuant to the Court's
power to promulgate rules of procedure in all courts
under Section 5, Article VIII of the Constitution, and
allowing an intermediate review by the Court of Appeals
before such cases are elevated to this Court.
On July 31, 2007, the CA affirmed with modification the
decision of the trial court. The dispositive portion of the
Decision reads:
WHEREFORE, the assailed Decision is AFFIRMED with
MODIFICATION that appellant shall pay ₱50,000.00 as
civil indemnity, ₱50,000.00 as moral damages,
₱25,000.00 as temperate damages and to return the
wrist watch, school bag and ₱30.00 in cash or pay its
reasonable value in the total amount of P285.00 in case
restitution is not feasible, to the heirs of the victim.
SO ORDERED.9
Hence, the present appeal.
In his Brief,10 appellant assigned the following errors:
I
THE TRIAL COURT ERRED IN GIVING FULL
CREDENCE TO THE TESTIMONIES OF THE
PROSECUTION WITNESS.
II.
THE TRIAL COURT ERRED IN NOT GIVING ANY
PROBATIVE VALUE TO THE DFENSE OF ALIBI BY
THE ACCUSED.
According to appellant, the prosecution witnesses failed
to positively identify him. He also argues that the trial
court, in rejecting the defense of alibi, simply adopted
the general principle of alibi as a defense, being
inherently weak, but failed to point out any
inconsistencies and falsities to his testimony, as well as
those of the other witnesses for the defense.
On the other hand, the Office of the Solicitor General
(OSG) in its Brief,11 argued the following:
I The intent to commit robbery must precede the taking of
THE TRIAL COURT CORRECTLY GAVE FULL
CREDENCE TO THE PROSECUTION
EVIDENCE.
II
IN THE LIGHT OF THE POSITIVE AND
UNERRING IDENTIFICATION OF APPELLANT
BY THE PROSECUTION WITNESS, THE
TRIAL COURT CORRECTLY REJECTED HIS
DEFENSE OF DENIAL AND ALIBI.
The OSG insists that the prosecution witnesses
positively and categorically recognized and identified
appellant as one of the perpetrators; thus, the trial court
correctly appreciated the evidence presented by the
prosecution. It further posits that appellant's defense of
denial and alibi was correctly rejected by the trial court,
because those defenses cannot prevail over the positive
identification of appellant.
With both arguments from the parties under
consideration, this Court finds the appeal unmeritorious.
In People v. De Jesus,12 this Court had the occasion to
meticulously expound on the nature of the crime of
Robbery with Homicide, thus:
Article 294, paragraph 1 of the Revised Penal Code
provides:
Art. 294. Robbery with violence against or intimidation of
persons – Penalties. - Any person guilty of robbery with
the use of violence against or any person shall suffer:
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.
For the accused to be convicted of the said crime, the
prosecution is burdened to prove the confluence of the
following elements:
(1) the taking of personal property is committed
with violence or intimidation against persons;
(2) the property taken belongs to another;
(3) the taking is animo lucrandi; and
(4) by reason of the robbery or on the occasion
thereof, homicide is committed.
In robbery with homicide, the original criminal design of
the malefactor is to commit robbery, with homicide
perpetrated on the occasion or by reason of the robbery.
human life. The homicide may take place before, during
or after the robbery. It is only the result obtained, without
reference or distinction as to the circumstances, causes
or modes or persons intervening in the commission of
the crime that has to be taken into consideration. There
is no such felony of robbery with homicide through
reckless imprudence or simple negligence. The
constitutive elements of the crime, namely, robbery and
homicide, must be consummated.
It is immaterial that the death would supervene by mere
accident; or that the victim of homicide is other than the
victim of robbery, or that two or more persons are killed
or that aside from the homicide, rape, intentional
mutilation, or usurpation of authority, is committed by
reason or on the occasion of the crime. Likewise
immaterial is the fact that the victim of homicide is one of
the robbers; the felony would still be robbery with
homicide. Once a homicide is committed by or on the
occasion of the robbery, the felony committed is robbery
with homicide. All the felonies committed by reason of or
on the occasion of the robbery are integrated into one
and indivisible felony of robbery with homicide. The word
"homicide" is used in its generic sense. Homicide, thus,
includes murder, parricide, and infanticide.
Intent to rob is an internal act but may be inferred from
proof of violent unlawful taking of personal property.
When the fact of asportation has been established
beyond reasonable doubt, conviction of the accused is
justified even if the property subject of the robbery is not
presented in court. After all, the property stolen may
have been abandoned or thrown away and destroyed by
the robber or recovered by the owner. The prosecution is
not burdened to prove the actual value of the property
stolen or amount stolen from the victim. Whether the
robber knew the actual amount in the possession of the
victim is of no moment because the motive for robbery
can exist regardless of the exact amount or value
involved.
When homicide is committed by reason or on the
occasion of robbery, all those who took part as principals
in the robbery would also be held liable as principals of
the single and indivisible felony of robbery with homicide
although they did not actually take part in the killing,
unless it clearly appears that they endeavored to prevent
the same.
If a robber tries to prevent the commission of homicide
after the commission of the robbery, he is guilty only of
robbery and not of robbery with homicide. All those who
conspire to commit robbery with homicide are guilty as Q Now, in that evening of February 3, 1997, was
principals of such crime, although not all profited and there any unusual incident that happened in
gained from the robbery. One who joins a criminal your house?
conspiracy adopts the criminal designs of his co-
conspirators and can no longer repudiate the conspiracy A At more or less 7:30, three (3) persons
once it has materialized. entered our house. The two (2) of them I do not
know, only one (1) I know.
Homicide is said to have been committed by reason or
on the occasion of robbery if, for instance, it was Q Who is that one (1) you know?
committed to (a) facilitate the robbery or the escape of
the culprit; (b) to preserve the possession by the culprit
A Yes, sir.
of the loot; (c) to prevent discovery of the commission of
the robbery; or, (d) to eliminate witnesses in the
commission of the crime. As long as there is a nexus Q Can you go down and pinpoint him?
between the robbery and the homicide, the latter crime
may be committed in a place other than the situs of the A Witness taps the shoulder of a person
robbery.13 who, when asked his name, he answered that
he is Nonoy Ebet.
The trial court, in finding appellant guilty beyond
reasonable doubt of the crime of robbery with homicide, Q How do you know him to be Nonoy Ebet?
gave credence to the testimonies of the prosecution
witnesses. As it explained: A He is always in our house. He is always eating
with my husband in our house.
The court finds the testimonies of Evelyn and Joan
Parcasio as truthworthy, honest and straightforward. It is Q You said these three (3) entered your house?
significant to note that the prosecution's testimonies
have not been assailed. No motive was advanced by the A Yes, sir.
defense why the witnesses will falsely testify and
implicate the herein accused in the commission of such
Q What happened after that?
a heinous crime. Thus, it has been ruled by the Supreme
Court "that when there is no evidence indicating that the
principal witness for the prosecution was moved by A Upon entering the house, he poked a gun on
improper motive, the presumption is that he was not so me and one of them pointed a knife to my
moved, and his testimony is entitled to full faith and daughter Joan.
credit. Denial, like alibi is inherently a weak defense and
cannot prevail over the positive and credible testimony of Q What about this Nonoy Ebet?
the prosecution witness that the accused committed the
crime. (People vs. Belibet, 194 SCRA 588). A Nonoy Ebet was standing in front of the
door of my house holding the knife. 15
Moreover, circumstantial evidence have been duly
established in the case at bar which is in conformity with Testimony of Joan Parcasio:
the rules of court. That accused Nonoy Ebet in the
company [of] two (2) unidentified persons entered the Q Now, on that evening at around 7:00 o'clock of
house of Gabriel Parcasio, once inside took [the] February 3, 1997, can you recall whether there
personal properties of Joan, daughter of Gabriel, and was an unusual incident that happened?
thereafter the accused took turns in stabbing Gabriel
Parcasio to death.14
A Yes, sir.
Appellant's main contention is that the trial court was
wrong in giving credence to the testimonies of the Q Can you recall what was that unusual incident
prosecution's witnesses. According to him, he was not that happened?
positively identified by the said witnesses. However, this
Court finds otherwise. A We were robbed and my father was killed.

The following are the testimonies of the witnesses for the Q What is the name of your father?
prosecution which clearly show that the appellant was
categorically identified as one of the men who took part A Gabriel Parcasio, Jr.
in the perpetration of the crime:
Q You said you were held up, how many
Testimony of Evelyn Parcasio: persons robbed you?
A Three (3) persons.
Q Were you able to identify them?
A Only one perpetrator I know.
Q You said you were able to identify one of the
perpetrators, if this one which you were able to
identify is inside this courtroom, please point at
him?
A Witness tapped the shoulder of a person
with a stripe polo shirt and who, when asked
his name, answered Nonoy Ebet.
Q This Nonoy Ebet is one of those who
robbed you and likewise killed your father?
A Yes, sir.
Q What was the weapon used in killing your
father?
A Hunting knife. 16
According to appellant, the testimony of Joan
Parcasio during the trial was contrary to her
earlier statement with the police authorities of
Kidapawan City, Cotabato. The police
blotter17 contains the following:
Entry/Date/Time
15-02/03-97/2000H
-JOAN PARCASIO, 18 years old, student
resident of Barangay Upper Manongol,
Kidapawan, Cotabato reported this station and
requested to put on record, that they were
allegedly and forcibly entered by three
unidentified men while the one is wearing mask
and declared hold-up. His father GABRIEL
PARCASIO, 44 years old, a farmer attempted to
resist, but the assailant shot him once, by an
undetermined type of hand-gun and stabbed him
for several times, hitting the different parts of his
body. The neighbor of the victim, wife and child,
brought him to Kidapawan Medical Specialist,
but he was expired upon arrival at the said
hospital. Money carting them away by the
perpetrators amounting to ₱30.00 Philippine
currency and one wrist watch amounting to
₱1,000.00. Incident happened at about 7:00
p.m., February 3, 1997. Case referred to
investigation section for proper disposition.
Appellant points out that the above contents of
the police blotter are corroborated by the
testimony of his own witness, Virgilio Balili, who
narrated that right after the commission of the
crime, he was approached by Evelyn, Jean and
Joan Parcasio. When Balili asked if they knew
the identities of the perpetrators, Evelyn, Jean
and Joan answered in the negative, thus:
Q When Evelyn, Jean and Joan Parcasio
approached you, what did you do?
A I asked them if they were able to identify the
perpetrators.
Q And what did they tell you?
A They answered me that they did not know the
assailant.18
xxxx
Q You said on the way you had a conversation
with Evelyn, Jean and Joan Parcasio, please tell
us what the content of your conversation? What
was the subject matter of your conversation?
A I asked them to tell the truth so that we could
help them.
Q So what was the answer?
A They answered, "What could we do because
we were not able to identify those people?"19
The above argument of appellant deserves scant
consideration. The incomplete entry in the police blotter
must not overcome the positive and categorical
identification of appellant as one of the perpetrators. As
correctly pointed out by the OSG:
The entry in the police blotter was incomplete. In fact, as
stated therein, the case was referred to the investigation
section for proper disposition. It must be noted that Item
No. 2 was entered at 2000 hours or 8 in the evening or
about thirty (30) minutes after the incident. The culprits,
including the appellant, were still on the loose. This
explains the reason why Joan, still distraught over the
sudden and unexpected death of her father, hesitated to
divulge the identity of appellant as one of the
perpetrators of the gory killing of her father.20
In People v. Sabadao,21 the appellants therein faulted
two (2) prosecution witnesses for, either giving
incomplete statements or not giving any statement to the
police authorities. However, this Court was not
persuaded and ruled that:
x x x It is a matter of judicial experience that an affidavit,
being taken ex parte, is almost always incomplete and
often inaccurate. To be sure, a sworn statement
taken ex parte is generally considered to be inferior to a
testimony given in open court as the latter is subject to
the test of cross examination.22
Notwithstanding the entry in the police blotter, Evelyn
and Joan Parcasio, on the day after the crime was
committed, executed their respective sworn statements,
positively identifying the appellant as one of the culprits.
Thus:
Evelyn Parcasio's Sworn Statement:
02. Q – Why are you here in the Office of the
Investigation Section?
A – To file a formal complaint against the
persons who robbed us and killed my husband.
03. Q – What is the name of your husband who
was killed by the robbers?
A – Gabriel Parcasio Jr., sir.
04. Q – When and where did this incident
happen?
A. - It happened on February 3, 1997 at about
7:00 o'clock in the evening inside our residence
at Brgy. Upper Manongol, Kidapawan, Cotabato.
05. Q – You mentioned that you were held-up?
How many are they?
A – They were three (3) of them.
06. Q – Can you recognize or identify them?
A – I could only identify one of them in the
person of alias NONOY EBET.
xxxx
16. Q – You mentioned that you could only
identify one of the perpetrators as one alias
Nonoy Ebet. How come that you were able to
identify him?
A - Because he is always at our house
conversing with my husband and sometimes eat
with us.23
Joan Parcasio's sworn statement:
02. Q – Why are you here in the Office of the
Investigation Section?
A – To give my voluntary statement in
connection to the complaint of my mother Evelyn
Parcasio to persons of alias NONOY EBET and
his two other companions which I could not
identify.
03. Q – What is the complaint of your mother
against these persons?
A – For robbing us and killing my father Gabriel
Parcasio, Jr.
xxxx
19. Q – You mentioned in your statement that
you were able to identify one of the perpetrators
as one NONOY EBET. How were you able to
identify him?
A – Because while one of his companions was
holding me at the point of a knife, I saw Alias
Nonoy Ebet standing in front of our door.
20. Q – How far was he from you?
A – More or less one meter.
21. Q – Was there light at the house during that
time?
A – Yes, sir.
22. Q – Do you know the person of Alias Nonoy
Ebet?
A – Yes, sir. He used to go to the house and talk
with my father and sometimes we served coffee
to him as merienda.24
Clearly, it is only the incomplete police blotter that
appears to be inconsistent. However, the said
inconsistency has been cured by the sworn statements
and the testimonies given in open court. With that in
perspective, this Court, therefore, has no reason to
dispute the trial court's appreciation of the credibility of
the prosecution witnesses' testimonies. Deeply
entrenched in our jurisprudence is the rule that the
assessment of the credibility of witnesses is a domain
best left to the trial court judge, because of his unique
opportunity to observe their deportment and demeanor
on the witness stand; a vantage point denied appellate
courts - and when his findings have been affirmed by the
Court of Appeals, these are generally binding and
conclusive upon this Court.25
Appellant further reasons out that, if it were indeed him
who was seen standing near or in front of the Parcasio
family's door, that fact alone cannot be the basis to
consider him as one of the perpetrators of the crime.
However, the said argument is inconsequential.1avvphi1
When a homicide takes place by reason of or on the SO ORDERED.
occasion of the robbery, all those who took part shall be
guilty of the special complex crime of robbery with
homicide whether they actually participated in the killing,
unless there is proof that there was an endeavor to
prevent the killing.26 The records are bereft of any
evidence to prove, or even remotely suggest, that
appellant attempted to prevent the killing. Therefore, the
basic principle in conspiracy that the "act of one is the
act of all," applies in this case. To be a conspirator, one
need not participate in every detail of the execution; he
need not even take part in every act or need not even
know the exact part to be performed by the others in the
execution of the conspiracy. Each conspirator may be
assigned separate and different tasks which may appear EN BANC
unrelated to one another but, in fact, constitute a whole
collective effort to achieve their common criminal G.R. No. 140405 March 4, 2004
objective.27 Once conspiracy is shown, the act of one is
the act of all the conspirators. The precise extent or PEOPLE OF THE PHILIPPINES, plaintiff,
modality of participation of each of them becomes vs.
secondary,28 since all the conspirators are principals. To MAJOR EMILIO COMILING, GIL SALAGUBANG
exempt himself from criminal liability, a conspirator must (acquitted), MARIO CLOTARIO (acquitted),
have performed an overt act to dissociate or detach GERALDO GALINGAN, EDDIE CALDERON (at large),
himself from the conspiracy to commit the felony and BALOT CABOTAJE (at large) and RICKY MENDOZA
prevent the commission thereof.29 (at large), accused.

As to the failure of the trial court in finding merit to the MAJOR EMILIO COMILING and GERALDO
defense of denial and alibi presented by appellant, this GALINGAN, appellants.
Court is in complete agreement.

Appellant claims that he was butchering a pig at the

house of Agri Saud located at Barangay Perez,
Kidapawan City from 5:00 p.m. until 9:00 p.m. of
February 3, 1997. The said alibi has been supported by
the testimonies of two witnesses. However, appellant
failed to prove that it was impossible for him to be
physically present at the place where the crime had
taken place and when the crime was being committed.
For alibi to prosper, it must strictly meet the
requirements of time and place. It is not enough to prove
that the accused was somewhere else when the crime
was committed, but it must also be demonstrated that it
was physically impossible for him to have been at the
crime scene at the time the crime was committed.30
This Court has always upheld that alibi and denial are
inherently weak defenses and must be brushed aside
when the prosecution has sufficiently
and positively ascertained the identity of the accused.
And it is only axiomatic that positive testimony prevails
over negative testimony.31
WHEREFORE, the appeal is hereby DENIED and the
Decision dated July 31, 2007 of the Court of Appeals, in
CA-G.R. CR-H.C. No. 00257, which sustained with
modification, the judgment of the Regional Trial Court
finding appellant Nonoy Ebet guilty beyond reasonable
doubt of the crime of Robbery with Homicide, is
hereby AFFIRMED.
DECISION
CORONA, J.:
This is an automatic review of the decision1 dated
September 1, 1999 of the Regional Trial Court, Branch
51, Tayug, Pangasinan, convicting Maj. Emilio Comiling,
Geraldo Galingan alias "Bong" and Ricky Mendoza alias
"Leo" of the crime of robbery with homicide and
sentencing them to suffer the extreme penalty of death.
The three accused were charged under an information
which alleged:
The undersigned hereby accuses MAJOR
EMILIO COMILING, GIL SALAGUBANG, BONG
CLOTARIO, GERALDO GALINGAN, EDDIE
CALDERON, BALOT CABOTAJE and RICKY
MENDOZA @ Leo of the crime of ROBBERY
WITH HOMICIDE and PHYSICAL INJURIES,
committed as follows:
That on or about the 2nd day of
September, 1995, in the evening, inside
the Masterline Grocery located at
 Bonifacio Street corner Quezon Blvd.,
municipality of Tayug, province of
Pangasinan, Philippines and within the
jurisdiction of this Honorable Court, the
above-named accused including certain
JOE, REY and PAUL, whose family
names have not yet been known, armed
with firearms and handgrenade, aboard
an owner-type stainless jeep and
motorized tricycle, with intent to gain
and with the use of violence against or
intimidations upon persons, conspiring,
confederating and helping one another,
did then and there wilfully, unlawfully
and feloniously enter the Masterline
Grocery pretending to be customers and
once inside, poked their guns and
intimidated the owner of said grocery,
MR. INCIONG CO, and his worker to
open the drawers of the tables of said
grocery and when opened, took and
carried away EIGHTY ONE
THOUSAND PESOS (P81,000.00) and
three (3) pieces of Chinese gold
necklace worth TWENTY SIX
THOUSAND PESOS (P26,000.00), and
afterwhich the above-named accused
on their way out to escape with their
loot, shot and hit a responding Tayug
Policeman, PO3 ERWIL V. PASTOR,
mortally wounding him on his face that
subsequently led to his untimely death,
and when said accused were cornered
by other responding policemen, ran and
passed to an adjacent store (Good
Taste Bakery) and used it as their exit
and while there also shot, hit and
mortally wounded MRS. CONCHING
CO, the owner of said bakery causing
her injuries, the accused having thus
performed the acts of execution which
would have produced the crime of
Homicide as a consequence, but
nevertheless did not produce it by
reason of causes independent of the will
of the accused, and that is due to the
timely and able medical assistance
rendered to the said MRS. CONCHING
CO, to her damage and prejudice and
also to the heirs of PO3 ERWIL V.
PASTOR.
CONTRARY to Article 294, par. 1 of the Revised
Penal Code.2
Accused Eddie Calderon and Balot Cabotaje have
remained at large to this day. The remaining accused
(Comiling, Galingan, Mendoza, Salagubang and
Clotario) pleaded not guilty during their arraignment.
Trial on the merits ensued thereafter.
On March 28, 1997, Mendoza escaped from detention
and was thus tried in absentia.
The records show that at sundown on September 2,
1995, Ysiong Chua, the owner of Masterline Grocery
and his helper Mario were about to close the store when
someone knocked on the door to buy some cigarettes.
Masterline was located at the corner of Quezon Blvd.
and Bonifacio St. in Tayug, Pangasinan.
As soon as Mario opened the door, three masked,
armed men suddenly barged into the store and
announced a hold-up. One of the robbers shoved Ysiong
into the recesses of the grocery where he threatened to
kill him if he did not give them his earnings. Ysiong
retorted that he only had a small amount, which remark
apparently irked the robber who then hit Ysiong's thumb
with the butt of his gun. A simultaneous kick made the
grocer fall down in pain.
As Ysiong lay prostrate on the floor, he saw the two
other intruders, and a little later the robber who hit him,
ransacking the drawers of his desk. Fortunately, he was
able to quickly recover from the blows; whereupon he
darted to the adjacent Good Taste Bakery and out to the
Tayug Police Station farther west along Quezon Blvd. to
report the incident.
SPO1 Rolando Torio, PO3 Erwil Pastor and SPO4
Emilio Nagui of the Tayug Police Station rushed to the
crime scene where SPO1 Torio chanced upon Sonny
Rimas, a barangay councilman, and his friend Jessie
Batalla at the grocery entrance. He asked them if they
knew what was going on inside the store but the two did
not answer. While SPO1 Torio was standing outside the
store's door, he heard three gunshots coming from
inside the store, all directed towards Bonifacio Street.
PO3 Pastor was then on the street while Nagui was
some 50 meters away. PO3 Pastor ran and hid behind a
concrete marker, then moved westward as if to return to
the police headquarters. Unfortunately, in his attempt to
flee, PO3 Pastor was shot in the face. He was rushed to
the Eastern Pangasinan District Hospital. On September
6, 1995, PO3 Pastor died from the injury he suffered.
Meanwhile, Ysiong discovered that he lost three gold
necklaces worth P26,000 and cash amounting to
P81,000.
On September 26, 1995, bothered by her conscience,
prosecution witness Naty Panimbaan decided to reveal
to police authorities what she knew about the case.
During the trial, she testified that she was present in all
the four meetings in which the plan to rob the Masterline
Grocery was hatched.
The first meeting was on June 30, 1995 at the Zariza Inn
in Tayug, Pangasinan. Among those present were
Comiling, Galingan, Salagubang, Calderon, Clotario and
Mendoza, along with two other persons known only as
Paul and Rey. Another meeting was held by the group in
July 1995 in the house of a certain Lani Galingan also in
Tayug, Pangasinan. There were two other meetings in
August 1995. Finally, on September 2, 1995, the group
met at Lani's house where they received their final
instructions and the firearms they were to use from
Comiling and Galingan. The entire group headed for
Masterline Grocery at around 4:00 p.m. except for Naty
who stayed behind in Lani's house.
At around 8:00 p.m., she met the group in the house of a
person named Joe. Galingan blamed a companion for
shooting the policeman. The group planned to escape to
Manila. She and Lani were given $50 by Galingan for
their fare to Manila. Upon arrival there on September 3,
1995, they, together with Galingan, proceeded to
Comiling's house in Parañaque. They discussed where
she and Lani should stay as Comiling did not want them
around. Comiling decided that the two of them should
stay in Makati. It was while she was hiding in Makati that
she was able to reflect on the events that transpired,
gathering enough courage to confess the robbery to the
police authorities.3
On the other hand, all the accused denied culpability for
the felony. Each of them claimed to be somewhere else
at the time the crime happened on September 2, 1995.
The witnesses for the defense also tried to impugn the
credibility of the lead witness for the prosecution, Naty
Panimbaan.
On September 1, 1999, the trial court rendered its
decision, the dispositive portion of which read:
WHEREFORE, the prosecution having failed to
establish their alleged guilt beyond moral
certainty, a judgment of ACQUITTAL is hereby
rendered in favor of the accused Gil Salagubang
and Mario Clotario alias "Bong," and their
respective bail bonds are hereby ordered
released.
However, on the basis of the evidence the
prosecution has adduced, which in the Court's
perception satisfies the requisite proof beyond
reasonable doubt as mandated by Section 2,
Rule 133 of the Rules of Court, the Court hereby
renders a judgment, as to the accused MAJ.
EMILIO COMILING of Block 18, Lot 3, Camella
Classic Phase II, Bicutan, Parañaque, Metro
Manila, GERALDO GALINGAN alias "Bong" of
Iris, Brgy. "B," Tayug, Pangasinan and RICKY
MENDOZA, said to be a resident of Parañaque,
Metro Manila, as per records of the BJMP
district jail, Balugnao, Pangasinan, finding them
GUILTY of the special complex crime of
ROBBERY WITH HOMICIDE, defined and
penalized under paragraph 1, Article 294 of the
Revised Penal Code as amended, and pursuant
to paragraph 1, Article 63, same Code, hereby
sentences them to each suffer the penalty of
DEATH, and in solidum to restitute, when
possible, to private complainant Ysiong Chua his
lost valuables, otherwise to make reparation
therefor and pay to him their value of
P26,000.00, plus the cash amount aggregating
P81,000.00, and the heirs of PO3 Erwil Pastor,
P50,000.00 for his death, and P100,000.00 for
consequential damages as naturally must have
arisen therefrom; and, to pay the costs.
SO ORDERED.4
Appellants Comiling and Galingan filed separate appeal
briefs.
Appellant Comiling, who was a major in the Philippine
Army, assails his conviction by asserting that the killing
of PO3 Erwil Pastor happened after the robbery took
place, hence the "homicide" could not have been a
necessary means of committing the robbery. Neither
could it be said that the robbery produced another
offense.
The argument is specious. As correctly stressed by the
Solicitor General, robbery with homicide is a "special
complex crime." It is enough that in order to sustain a
conviction for this crime, the killing, which is designated
as "homicide," has a direct relation to the robbery,
regardless of whether the latter takes place before or
after the killing. For as long as the killing occurs during
or because of the heist, even if the killing is merely
accidental, robbery with homicide is committed.
Comiling also questions the credibility of the prosecution
witnesses, particularly Naty Panimbaan, who was
supposedly a polluted source since she was one of the
conspirators. The reasoning is out of line. This Court is
not a trier of facts. All we have to discern from the
records to believe the trial court's findings is a
reasonable basis for its method of examining the
credibility of witnesses and its assessment thereof. We
do not second-guess the court a quo for as long as it
does not gravely abuse such power.
In the case at bar, there is nothing to suggest that the
trial court was whimsical or capricious in the
performance of its tasks. Thus we have no recourse but
to uphold its findings on the credibility of Naty
Panimbaan and of the other prosecution witnesses. In
any event, as correctly stated by the Solicitor General,
Naty Panimbaan was examined three times not only
under the close scrutiny of two defense counsels but
also, in some instances, under the abrasive tirades of
the trial judge who called her a "whore." Yet, despite the
trial court's apparent misgivings about her character, it
still gave full credence to her testimony:
None of their dark attributes dissuades the Court
from giving credence to their respective
narratives, however. The Court agrees that
Panimbaan knew too much, for her open-court
 testimony was abundantly detailed, generally
consistent, straightforward and credible.
xxx xxx xxx
The Court believes Panimbaan's testimony that
finally, at around 4:00 o'clock in the afternoon of
September 2, 1995 the accused Comiling,
Galingan, Calderon, Clotario and Mendoza,
together with Rimas, Paul, Rey and Jose left
Lani's place, while she stayed behind.
The Court believes Panimbaan's testimony that
all throughout the four meetings conducted
before September 2, the accused Comiling and
Galingan presided, gave instructions and
provided firearms and explosives.5
We find no compelling reason to disturb the factual
findings and conclusions of the trial court. Indeed,
prosecution witness Naty Panimbaan proved credible
during the trial. She never wavered in her testimony on
the details of the crime:
ATTY. CALPITO:
Q Since when was Geraldo
Galingan your boyfriend, if you can still
remember?
A Since September 1994, sir.
Q You mentioned a while ago that
they are going to talk (sic) their plan to
rob the Masterline Grocery, who are
these people whom you refer as they?
A Maj. Comiling, Gil Salagubang,
Eddie Calderon, certain Paul, Leo, Rey
and Eddy, Bong Clotario and Sonny
Rimas.
ATTY. CALPITO:
Q How about your boyfriend Geraldo
Galingan?
Would he or would he not participate?
A He was there, sir. He was one.
Q And so Madam Witness, when
you were there at Zariza Village Inn,
who were the persons whom you saw
there, if any?
A We were inside the hotel. When
we arrived I saw the group of Maj.
Comiling.
Q You refer to a group of Maj.
Comiling, will you be kind enough to
enumerate their names?
A Maj. Emilio Comiling, Bong
Galingan, Eddie Calderon, Gil
Salagubang, Sonny Rimas, Bong
Clotario, Rey and Paul.
Q Madam Witness, when you said
that you saw this group when you
arrived there, what did you do upon
arrival there?
COURT:
When you said you whom you were (sic)
referring to? He or a bigger number?
ATTY. CALPITO:
Q What did you do? Specifically you,
sir.
A I sat beside them.
Q Will you tell the Honorable Court
your distance from the members of the
group when you sat beside them?
COURT:
That will be very difficult to answer,
counsel. Since this was a group you will
have to measure the distance from one
person to another and up to the last
member of the group. Why don't you
refer to the group as a whole? And
probably establish who was nearest to
her.
ATTY. CALPITO:
Q Madam Witness, when you said
you went and sat beside the group, will
you then describe the physical
arrangement of the group when you
went and sat beside them?
A I was beside Bong Galingan and
the group was in a circle formation.
Q And so what transpired when you
were there within the group, Madam
Witness?
A Since I was beside them I
overheard their conversation.
Q And what was the conversation all
about, Madam Witness?
A That they are going to stage a
hold-up at the Masterline Grocery, sir.
Q What was the result of that
conversation?
A The others left.
Q Who specifically left?
A Eddie Calderon, Sonny Rimas.
Q Who else, if any?
A Bong Clotario.
Q And do you know the reason why
these three persons left?
A Yes, sir.
Q Please tell the reasons to the
Court?
A They observed the Masterline
Grocery if there are policemen or people
around and when they came back they
said it is not possible.
COURT:
Q How did you come to the
conclusion that the three persons left in
order to observe because you told that
you stayed behind?
WITNESS:
A We were all there, sir, when Maj.
Comiling ordered that they must go to
the Masterline Grocery.
COURT:
Q For what purpose, if any?
A To stage a hold-up.
Q You mean Galingan and Comiling
ordered them to go and hold-up
Masterline at that time when they were
about to leave?
A Bong Galingan and Maj. Comiling
ordered these men because they were
the brains of that hold-up.
Q And whom did they order?
A Their men, sir.
Q Who?
A Clotario, Calderon and Rimas.
Q I am referring to the three whom
(sic) according to you left. Were they
ordered by Galingan and Comiling to
leave?
A Yes, sir.
Q Do you know what for?
A Yes, sir.
Q What?
A They will observe the Masterline
grocery.
ATTY. CALPITO:
Q Madam Witness, you said that
when the three persons you just named
came back and said it is not yet
possible, what was the consensus of the
group, if any?
A They drank again.
COURT:
That was the consensus.
ATTY. CALPITO:
Q Madam Witness, you mentioned
that the three left to haze (sic) the
Masterline grocery and when they came
back they said it is not yet possible. With
respect to that plan what was the
consensus or decision of the group
then?
ATTY. STA. MARIA:
Objection, your Honor. Already
answered.
COURT:
The objection is sustained not on that
ground but on the ground that there is
still no premise. You are referring to a
consensus when there was still no
evidence that a consensus was being
set up. Lay the basis.
ATTY. CALPITO:
A Because I was always with them
whenever they talk with each other.
Q You said that you were always
with them whenever they plan. Are you
telling the Honorable Court that it was
not only once that they planned, Madam
Witness?

Q Madam Witness, when the three A Yes, sir. They planned several
persons arrived or came back and they times.
said that it was not yet possible was
there any reply from the group that was COURT:
left?
Q What did they plan?
A None, sir.
A They kept on planning about the
Q How about a decision or a hold-up but it was not continued.
consensus from the group was there
any Madam Witness after they learned
ATTY. CALPITO:
that it is not yet possible?
Q How many times did this group
ATTY. DANCEL:
plan in your presence?

Objection, your Honor. Leading.

A Many times, sir.

COURT:
Q Could you please give your
estimate?
Sustain (sic).
A Four times.
Q What happened after the three
allegedly reported back?
Q If you said that they planned for
four times when was the second time?
A When the three reported that it
was not yet possible to stage such plan
A July, but I cannot remember the
because there were many policemen,
date.
Maj. Comiling decided to forego.
COURT:
COURT:
Q What year?
Q To forego what?
A 1995, sir.
A Not to stage the hold-up yet
because there were many policemen.
ATTY. CALPITO:
ATTY. CALPITO:
Q Where was this that the group
planned sometime in July 1995?
Q So what happened next Madam
Witness after Comiling said that?
A At the house of Lani Galingan at
Iris, Tayug, Pangasinan.
A We just tarried along but they kept
on planning.
Q And who were present at that
second meeting at the place of Lani
Q You said that they kept on
Galingan?
planning how did you know that they
kept on planning after that meeting in
June 1995? A Sonny Rimas, Eddie Calderon,
Bong Clotario, Eddie Tangkad, Rey,
Paul, Leo, Gil Salagubang, Maj. ATTY. CALPITO:
Comiling and Bong Galingan.
Q If you said that the plan did not
Q You just mentioned several materialize at that second meeting when
persons whom you claimed to be was the third meeting then, if you know?
present at that second meeting at the
house of Lani Galingan. Why do you A August, sir. I cannot remember the
know that they were the persons who date.
were there, Madam Witness?
COURT:
A Because I was fetched by Bong
Galingan and I overheard their plan to Q What year?
stage a hold-up at the Masterline.
A 1995.
Q In short you are saying that you
were there?
ATTY. CALPITO:
A Yes, sir. I was there.
Q Will it be first week, second week
or third week or 4th week? I am referring
Q And did the plan materialize at
to the third meeting.
that time, Madam Witness?
A First week, sir.
A No, sir.
Q And where was this meeting held?
Q And what was the reason, Madam
Witness, if you know?
A At the house of Lani Galingan, sir.
A Yes, sir.
Q And who were the persons who
were present at that time, Madam
Q What was the reason? Witness?

A Because there were many people

A The group of Maj. Comiling, sir.
at the Masterline grocery.
ATTY. CALPITO:
Q And how did the group came (sic)
to know that there were a lot of people
at the Masterline grocery? Q Please enumerate them.

ATTY. STA. MARIA: A Bong Galingan, Maj. Comiling,

Sonny Rimas, Gil Salagubang, Eddie
Calderon, Leo, Paul and Rey.
Incompetent, your Honor.
Q And what was the result of this
COURT:
third meeting?

If you know.
A It did not materialize yet.

WITNESS:
COURT:

A Because that was being told after

Q What did not materialize the
Comiling and Bong Galingan ordered meeting or what?
somebody.
A The meeting was held but the
COURT:
schedule of the hold-up did not
materialize.
Q And who said that?
ATTY. CALPITO:
A Eddie Calderon and Bong
Clotario.
Q And when was the fourth meeting,
Madam Witness?
A In the house of Lani Galingan.
Q When?
A I cannot remember the date.
Q How about the month?
A Last week of August, sir.
COURT:
Q What year?
A 1995, sir.
ATTY. CALPITO:
Q And how do you know that this 4th
meeting was held on the last week of
August 1995 at the house of Lani
Galingan?
A Because I was in the house of
Lani Galingan, sir.
ATTY. CALPITO:
Q Why? Do you usually reside there
or not?
A Bong Galingan made me resign at
J-5 restaurant.
Q When was that?
A August 21, sir.
COURT:
Q How far was this J-5 from Lani
Galingan's place?
A Not too far.
Q In other words in response to the
last question propounded by the private
prosecutor you were not actually
residing at Lani Galingan's place?
A I was residing there at the time
because Bong Galingan made me
resign.
Q You resigned from your job and
your boyfriend lodged you at Lani
Galingan's place. Is that what you are
saying?
A Yes, sir.
Q Were you such a resident at Lani
Galingan's place throughout the four
alleged meetings that you testified on?
A Yes, sir.
Q From the first meeting to the
fourth you were already residing or
lodging at Lani Galingan's place?
A No, sir.
Q So when did you start residing at
Lani's place?
A August 21, 1995.
COURT:
Q What makes you remember that?
A Because that is when Bong
Galingan lodged me.
xxx xxx xxx
Q Madam Witness, you enumerated
some names of persons whom you
claimed to be present in the last week of
August 21, 1995 at Lani Galingan's
residence. Why do you know that these
were the persons who were there at the
time for the 4th meeting?
A Because we usually went
together.
Q So that Madam Witness during
that particular time of the 4th meeting
where were you?
A I was at the house of Lani
Galingan.
ATTY. CALPITO:
Q And what happened at that time
Madam Witness?
A They were talking about the
supposed hold-up at the Masterline.
Q And what else transpired, if any? I
am referring to that 4th meeting?
A They were talking about the
subject matter Masterline grocery.
Q What about the Masterline
grocery?
A Their staging of a hold-up.
Q And what was the result of that
4th meeting?
A It did not yet materialize.
Q You mentioned a while ago that
there were four meetings. You just
mentioned now that in that 4th meeting
it resulted into the plan not pushing
through. Was there any other meeting,
Madam Witness?
ATTY. STA. MARIA:
Objection, your Honor.
COURT:
Sustain (sic).
ATTY. CALPITO:
Q That was in the last week of
August 25, 1995. So what happened
after that?
A The staging of the hold-up pushed
through.
Q If you said that the plan of the
hold-up of the Masterline grocery
pushed through when was that Madam
Witness?
A September 2, 1995, sir.
COURT:
Q What time?
A At 4:00 they were still at the
house. Maybe that was at 6:00.
Q You mentioned 4:00 and 6:00,
what was that?
A In the afternoon, sir.
ATTY. CALPITO:
Q You said that at around 4:00 in
the afternoon of September 2, 1995 they
were still there. Whom are you referring
to as the persons still there?
A Bong Galingan, Maj. Comiling,
Sonny Rimas, Eddie Calderon, Bong
Clotario, Joe, Gil Salagubang.
Q And what were these people
doing there? By the way Madam
Witness, where is this place that you are
referring to?
A Lani Galingan's place.
Q What were these people doing
there at 4:00 in the afternoon?
A They were just there waiting for
the persons being sent by Maj.
Comiling.
COURT:
Q You have mentioned of four
alleged meetings and you even
enumerated names. Could you tell the
Court if there was anybody who
presided?
A Bong Galingan and Comiling.
Q How did you know that?
A I have known that and he said that
all the orders of Bong are being
followed.
Q The orders of who?
A Bong, sir.
COURT:
Q I am asking you who presided, if
any?
A Bong Galingan and Maj. Comiling.
Q How did you know that?
A Because all the orders of Maj.
Comiling and Bong Galingan are being
followed by their men.
ATTY. CALPITO: A I heard the gun fire at 6:30.

Q And what time did these people Q So are you saying that it was
leave Lani Galingan's place? almost 2-1/2 hours?

A 4:00 o'clock. A Yes, sir.

Q Where did they go? ATTY. CALPITO:

A They proceeded towards Q If you say Madam Witness that

Masterline. you saw them when they left Lani
Galingan's house, did they take any ride
Q How about you Madam Witness, with them or not?
what did you do?
ATTYS. DANCEL & STA. MARIA:
A I was just there at the house of
Lani. Leading.

Q So after they left at 4:00, what COURT:

happened next? What happened next
as far as you are concerned? Answer.

A After some time there were shots WITNESS:

at the town.
A Yes, sir. There was.
Q Around what time would that be
when you heard gunshots?
ATTY. CALPITO:

A 6:00 o'clock. Q How many rides were there?

COURT:
A Three rides, sir.

Q And where were you then at 6:00 Q And what were these rides?
o'clock?
A One owner-type and two tricycles.
A I was at the house of Lani.
COURT:
Q Did you ever stay put at Lani's
place at 6:00 o'clock?
Q Owner type plane or what?
A No, sir.
A Owner-type jeep.
ATTY. CALPITO:
ATTY. CALPITO:
Q Did you personally see those
people leave Lani's place before the Q And who were the persons who
gunshots? Before you heard the rode on the owner-type jeep, if you
gunshots? know?

A Yes, sir. A Bong Galingan, Leo, Paul and

Rey.
COURT:
Q And you said that there were two
tricycles who rode on the two tricycles?
Q About how many minutes or hours
passed from the time you allegedly saw
the people leave Lani's place from the A Maj. Comiling and Joe.
time you allegedly heard shots in town?
COURT:
 Q One tricycle each you mean?
A No, sir. The other tricycle were on
board Sonny Rimas and Bong Clotario.
ATTY. CALPITO:
Q If I will add the persons whom you
named there were 8 whom you said
boarded the three vehicles. Is that all,
Madam Witness?
A Eddie Calderon and Gil
Salagubang.
Q And how about them? Where did
they ride?
A Tricycle.6
Naty's tenacious insistence on the minute details of what
happened suggested nothing else except that she was
telling the truth. We do not doubt her credibility.
The time-tested rule is that, between the positive
assertions of prosecution witnesses and the mere
denials of the accused, the former undisputedly deserve
more credence and are entitled to greater evidentiary
value.7
Appellant Comiling likewise contends that Naty's
testimony was inadmissible against him to prove
conspiracy because of the res inter alios acta rule under
Section 30, Rule 130 of the Rules of Court which
provides:
Admission by conspirator. – The act or
declaration of a conspirator relating to the
conspiracy and during its existence, may be
given in evidence against the co-conspirator
after the conspiracy is shown by evidence other
than such act or declaration.
This rule prescribes that any declaration made by a
conspirator relating to the conspiracy is admissible
against him alone but not against his co-conspirators
unless the conspiracy is first shown by other
independent evidence.
According to Comiling, Naty's testimony showed that she
was also a conspirator, thus, the existence of conspiracy
must be shown by evidence other than Naty's
admission. As there was no independent proof of
conspiracy except the testimony of Naty, the latter's
testimony concerning appellant's participation in the
conspiracy was inadmissible against him. This
contention is misplaced. The res inter alios acta rule
refers only to extrajudicial declarations or admissions
and not to testimony given on the witness stand where
the party adversely affected has the opportunity to cross-
examine the declarant.8 In the present case, Naty's
admission implicating appellant Comiling was made in
open court and therefore may be taken in evidence
against him.
Lastly, Comiling asserts that he cannot be held liable for
robbery as he was not physically present at the
Masterline Grocery and had no ostensible participation
therein. The contention is off-tangent. Although Comiling
was never tagged as one of the three robbers who
entered the store of Ysiong Chua nor the one who
mauled the victim or who shot PO3 Erwil Pastor to
death, his participation was his leadership in the
conspiracy to commit robbery with homicide and his
inducement to his cohorts to perpetrate the same. As
held in People vs. Assad, 9 one who plans the
commission of a crime is a principal by inducement. As
testified to by Naty Panimbaan:
Q And what happened to this fourth
meeting, Madam Witness?
A They talked about the projected
robbery and Major Comiling decided
that they will push through on
September 2.
Q What else happened during that
fourth meeting?
A Major Comiling gave their
respective assignments.
Q You said Major Comiling gave
their respective assignments to the
members of this group, what
assignments if you know was given to
Bong Galingan?
A Bong Galingan should be in front
of the LBC.
Q How about Sonny Rimas?
COURT:
Your answer should be one at a time.
WITNESS:
A Sonny Rimas and Bong
Clotario should be at the
tricycle.
ATTY. ESTRADA:
Q What about Gil Salagubang?
 A Gil Salagubang and Eddie
Calderon should be in front of the
Masterline Grocery.
Q What about Major Comiling?
A Major Comiling should be posted
at the back of the bakery including
Joe.10
Naty's testimony showed that Comiling was determined
to commit the crime as early as June 1995. The fact that
the heist was finally executed only on September 2,
1995 indicated that Comiling had indomitably clung to
his determination. Principalship by inducement (or by
induction) presupposes that the offender himself is
determined to commit the felony and must have
persistently clung to his determination.11 In all the
meetings prior to the commission of the crime, Comiling
was seen and heard presiding over and leading the
group. He was even the one who assigned each of his
men his specific role in the robbery. Then, in the house
where the perpetrators regrouped after the commission
of the crime, Comiling was handed the money and
jewelry stolen from the grocery store. It was also
Comiling who instructed Naty and Lani to hide in Makati
after the incident. He paid for the monthly rental of the
room where Naty and Lani stayed. All this can only
prove that Comiling was the acknowledged leader of the
group.
Moreover, another witness for the prosecution, Sonny
Rimas, testified that while serving beer to the accused at
Zariza Inn, he heard that Comiling was planning the
robbery of Masterline. He even heard Comiling say, "We
will enter the place of Isko," referring to Ysiong Chua's
store. Indeed, appellant Comiling was the undisputable
mastermind. The judgment of conviction of Emilio
Comiling must therefore be affirmed.
For his part, appellant Galingan interposed the defense
of alibi. He claimed that he was in the house of his uncle
in Novaliches, Metro Manila when the incident happened
on September 2, 1995. He was in Manila because his
wife was scheduled to arrive from Hong Kong on
September 4, 1995.
For the defense of alibi to prosper, the accused must
show that he was in another place for such period of
time that it was physically impossible for him to have
been at the place where the crime was committed at the
time of its commission.12
In this case, Galingan did not meet the settled
requirements of time and place. He failed to prove that
he was indeed in Novaliches at the time of the
commission of the crime; his alleged presence therein
was not established by a positive declaration from an
independent witness. Likewise, the place where he
claimed to be on the night of the crime was not of such
distance that it was impossible for him to be at the scene
of the crime at the time of its commission considering
that either place could be reached in just about four
hours by land. The fact that he met his wife upon arrival
on September 4, 1995 was likewise inconsequential as it
was two days after September 2, 1995, the date material
to this case. Alibi, in order to be given full faith and
credit, must be clearly established and must not leave
any room for doubt as to its plausibility and verity.13
It should also be noted that Rimas testified that, while he
was standing near the door of Masterline Grocery at
around 6:30 p.m. on September 2, 1995, he noticed the
arrival of an owner-type jeep. Rimas positively identified
appellant Galingan as the driver thereof.
Galingan's invocation of alibi should be disregarded not
only because of its inherent weakness but also because
of the circumstances pointing to its contrived nature and
his positive identification by prosecution witness Rimas
as one of those present during the Masterline Grocery
robbery on September 2, 1995.
Appellant Galingan also impugns the credibility of
prosecution witness Naty Panimbaan. He denies Naty's
claim that they were lovers. He maintains that Naty was
a woman of ill-repute whom he paid P700 everytime they
had sex. Galingan insists that the only reason why Naty
implicated him in the offense was because she wanted
him to leave his wife which he did not want to do.
Furthermore, according to Galingan, Naty was a drug
user and this supposedly tainted her credibility.
These attacks on Naty's character and reputation are too
flimsy and irrelevant to deserve serious consideration.
The fact that a witness is a person of unchaste character
or even a drug dependent does not per se affect her
credibility. Character is frequently used to refer to one's
reputation in the neighborhood. It means the estimate
attached to the individual by the community and not the
qualities of the individual as conceived by one
person.14 With respect to a witness in both criminal and
civil cases, evidence of his character, in order to affect
his credibility, must refer to his "general reputation for
truth, honesty or integrity."15 Thus, testimonies attacking
the character of a witness for the purpose of impugning
his credibility must relate and be confined to the general
reputation which such witness has in the community or
neighborhood where he lives or has lived. Personal
opinions on the moral character of a witness, being
usually too general, sweeping or subjective, are
excluded.
Measured against the foregoing standard, appellant
Galingan's testimony on the alleged bad character and
unreliability as a witness of Naty Panimbaan deserves
no merit. Other than his adverse testimony, Galingan
never credibly established that Naty was reputed in the
community or neighborhood to be a woman of loose
morals or a drug user. Clearly, Galingan's testimony and
evidence concerning Naty's character was based solely
on his own self-serving claim or private opinion, and did
not at all reflect the general reputation by which Naty
was held by the community. We therefore remain
convinced of Naty's credibility as a witness.
Besides, the credibility of a witness is left primarily to the
judgment of the trial judge. Given the direct opportunity
to observe the witness on the stand, the trial judge is in a
vantage position to assess the witness' demeanor,
conduct and attitude under grueling examination.16
In People vs. De Guzman, we held that:
In the resolution of the factual issues, the Court
relies heavily on the trial court for its evaluation
of the witnesses and their credibility. Having the
opportunity to observe them on the stand, the
trial judge is able to detect that sometimes thin
line between fact and prevarication that will
determine the guilt or innocence of the accused.
That line may not be discernible from a mere
reading of the impersonal record by the
reviewing court. The record will not reveal those
tell-tale signs that will affirm the truth or expose
the contrivance, like the angry flush of an
insisted assertion or the sudden pallor of a
discovered lie or the tremulous mutter of a
reluctant answer or the forthright tone of a ready
reply. The record will not show if the eyes have
darted in evasion or looked down in confession
or gazed steadily with a serenity that has
nothing to distort or conceal. The record will not
show if tears were shed in anger, or in shame,
or in remembered pain, or in feigned innocence.
Only the judge trying the case can see all these
and on the basis of his observations arrive at an
informed and reasoned verdict.17 (italics ours)
Moreover, Galingan failed to substantiate his claim that
Naty was driven by ill will or false motive in testifying
against him. His vain attempt to portray Naty as a
"woman scorned by her lover" certainly did not constitute
sufficient reason for Naty to accuse him of a very serious
crime where the possible penalty could either be death
or life imprisonment. In fact, the trial court did not
perceive such improper motivation on the part of Naty
and the other prosecution witnesses as would make
them falsely implicate appellants in the commission of
the very serious crime. To us, the only plausible
motivation for Naty was her honest desire to speak the
truth.
Our established doctrine is that the witness' testimony
deserves full faith and credit where there exists no
evidence to show any dubious reason or improper
motive why he should testify falsely against the accused,
or why he should implicate the accused in a serious
offense.18
More importantly, PO3 Erwil Pastor identified Galingan
as the robber who shot him. In the emergency room of
the Eastern Pangasinan District Hospital, at around 7:00
p.m. on September 2, 1995, Pastor moaned "I might die.
I might die." in the presence of SPO1 Conrado Hidalgo
and SPO4 Emilio Nagui. Hence, PO3 Pastor's
statements were taken down by SPO1 Hidalgo who
assisted PO3 Pastor in affixing his thumbmark with his
own blood:
Q Who shot you?
A Bong Galingan, x x x 19
Under Rule 130, Section 37 of the Rules of Court, the
declaration of a dying person with the consciousness of
impending death may be received in any case wherein
his death is the subject of inquiry, as evidence of the
cause and the surrounding circumstances of such death.
There are four requisites which must concur in order that
a dying declaration may be admissible: (1) it must
concern the crime and surrounding circumstances of the
declarant's death; (2) at the time it was made, the
declarant was under the consciousness of an impending
death; (3) the declarant was competent as a witness;
and (4) the declaration is offered in any criminal case for
homicide, murder or parricide in which the declarant was
the victim.20
(1) The first requisite is present in the ante-mortem
statements of deceased PO3 Pastor. Certainly, the
narration made by Pastor at the hospital's emergency
room before SPO1 Hidalgo and SPO4 Nagui concerned
the cause and surrounding circumstances of the
declarant's death. The two policemen heard from the
declarant's own lips his utterance of the name "Bong
Galingan" as his assailant. This fact was even testified to
by these policemen.
(2) The declarant, at the time he gave the dying
declaration, was conscious of his impending death. PO3
Pastor knew at the time he was being questioned that
his chances of recovery were nil. In fact, he uttered the
words, "I might die. I might die." to signify his perception
that death was forthcoming.
(3) PO3 Pastor, at the time he uttered the dying
declaration, was competent as a witness. This fact is too
obvious to warrant further discussion.
(4) The dying declaration of PO3 Pastor was offered as
evidence in a criminal case for robbery with homicide in
which the declarant was the victim.
Indubitably, PO3 Pastor's dying declaration is complete
in the sense that it was a full expression of all that he
wanted to say with regard to the circumstances of his
death. An ante-mortem statement is evidence of the
highest order.21 It is doctrinal that, when a person is at
the point of death, every motive of falsehood is
silenced.22 The mind is induced by the strongest of
reasons to speak the truth – the declarant's impending
meeting with his Creator.
Insofar as Ricky Mendoza is concerned, the evidence
likewise confirms his responsibility for the offense. He
was positively identified by prosecution witness Rimas
as one of the men who alighted from the jeep, barged
into the Masterline Grocery and shot his way out
therefrom. Naty Panimbaan also positively confirmed his
participation in the crime. More than that, as shown by
the records, Mendoza flew the coop after he was
arraigned and remains at large up to the present. Flight
from justice is evidence of guilt.
The existence of conspiracy in this case cannot be
doubted. The rule is, whenever homicide is committed
as a consequence or on the occasion of a robbery, all
those who take part as principals in the robbery will also
be held guilty as principals of the special complex crime
of robbery with homicide.23
They are also ordered to return to Ysiong Chua his lost
valuables, and if this cannot be done, to pay him
in solidum its value of P26,000 as reparation, plus
P81,000 which was the amount of the cash stolen, as
actual damages, and to pay the heirs of PO3 Erwil
Pastor P50,000 as civil indemnity and P25,000 as
temperate damages.
SO ORDERED.
Davide, Jr., C.J., Vitug, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Carpio, Austria-Martinez, Carpio-
Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.
Puno, J., on leave.
Panganiban, J., on official leave.

While we are convinced that appellants are guilty

beyond reasonable doubt of robbery with homicide, we
cannot impose the penalty of death on them. Under
Article 294 (1) of the Revised Penal Code,24 the crime of
robbery carries the penalty of reclusion perpetua to
death. In imposing the death penalty, the trial court
appreciated the aggravating circumstances of band,
evident premeditation, craft and disguise against
appellants. However, these circumstances were not
specifically alleged in the information as required under
Rule 110, Section 8 of the Revised Rules of Criminal
Procedure. Hence, inasmuch as no aggravating and
mitigating circumstances can be deemed to have
attended the commission of the offense, the lower
penalty of reclusion perpetua should be imposed on
them.

On the award of damages, this Court modifies the

amounts as well as the designations thereof. Thus,
appellants Emilio Comiling, Geraldo Galingan alias
"Bong" and accused Ricky Mendoza alias "Leo" must
in solidum restore to Ysiong Chua his lost valuables, and
if impossible to do so, must pay him as reparation the
amount of P26,000, plus the P81,000 in cash he lost, as
actual damages. They should also pay the heirs of PO3
Erwil Pastor P50,000 as civil indemnity for his death as
this is in accord with prevailing jurisprudence.25 In
addition, the heirs of PO3 Pastor are entitled to P25,000
as temperate damages in lieu of actual damages,
pursuant to the case of People vs.
Abrazaldo.26 However, we cannot award moral damages
to the heirs of PO3 Pastor because of their failure to
present any proof or testimony that they suffered
anguish and distress as a result of his death.

WHEREFORE, the decision of the trial court is hereby

AFFIRMED with MODIFICATION. Appellants Emilio
Comiling, Geraldo Galingan and accused Ricky
Mendoza are hereby found guilty of robbery with
homicide and sentenced to suffer the penalty
of reclusion perpetua.

EN BANC
G.R. No. 133887 May 28, 2002
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AVELINO GALGO, DOMITILO GALGO, DIOSDADO
GALGO, and NELSON GALGO, accused-appellants.
KAPUNAN, J.:
On automatic review is the decision1 dated February 16,
1998 of the Regional Trial Court of Iloilo City, Branch 23,
in Criminal Case No. 44165, finding herein accused-
appellants Avelino, Domitilo, Diosdado, and Nelson, all
surnamed Galgo, guilty beyond reasonable doubt of the
crime of Murder and imposing upon them the penalty of
death.
In an Information filed on October 25, 1994, accused-
appellants were charged with the murder of Tranquilino
Quiling as follows:
The Provincial Prosecutor, through the
undersigned, accuses AVELINO GALGO,
DOMITILO GALGO, DIOSDADO GALGO, and
NELSON GALGO of the crime of MURDER
committed as follows:
That on or about October 2, 1994, in the
Municipality of Badiangan, Province of Iloilo,
Philippines, and within the jurisdiction of this
Court, the above-named accused, conspiring,
confederating and helping one another, armed
with firearms, with deliberate intent and decided
purpose to kill, taking advantage of their superior
strength and by means of treachery, did then
and there willfully, unlawfully and feloniously
shoot one Tranquilino Quiling, with the firearms
which the accused were then provided, hitting
the victim on the different parts of his body
which caused his death.
CONTRARY TO LAW.
On arraignment, accused-appellants pleaded "Not
Guilty" and trial ensued thereafter.
The prosecution presented as its witnesses, Fred
Guiling, Pablito Japitana, and Dr. Leticia Tobias, the
physician who conducted an autopsy on the
victim.1âwphi1.nêt
Fred Quiling testified that around nine o’clock in the
evening of October 2, 1994, he was in a drinking spree
inside the house of Jose Japitana in Brgy. Cabaangan,
Badiangan, Iloilo together with Jose Japitana, Virgilio
Presto, Judy Superio, Gaspar Superio, Jesus Superio,
Pablito Japitana,2 and the victim Tranquilino
Quiling.3 After a while, the victim stood up to leave. As
soon as he opened the door, the victim was met with
gunshots coming from below the house.4 Because of the
light coming from three kerosene lamps inside the
house,5 witness saw that the shots were being fired by
Nelson and Diosdado Galgo who were outside the
house, about an arms length away from the victim and
armed with a 12-gauge shotgun each.6 The first shot
fired by Nelson hit the victim in the chest and the second
shot fired by Diosdado hit the victim at the
stomach.7 Behind Nelson and Diosdado were accused-
appellants Avelino and Domitilo Galgo who were also
armed with shotguns; however, the two did not fire their
guns.8 Witness Quiling claimed that he was not aware of
any altercation between accused-appellants and the
victim prior to the shooting9 but he knew that the victim’s
family and the Galgos once had a dispute when Melchor
Quiling and Domitilo Galgo quarelled as to who between
the two of them was braver.10
The prosecution also offered the testimony of Pablito
Japitana to corroborate Fred Quiling’s statements.
Japitana narrated that in the evening of October 2, 1994,
he was inside the house of Jose Japitana celebrating the
arrival of the latter’s mother-in-law.11 With him were
Virgilio Persisto, Judy Superio, Jesus Superio, Gaspar
Superio, Fred Quiling, Jose Japitana, and the victim.
They were drinking elizalde lipid to celebrate the
occasion.12 After some time, the victim got up to leave
and as soon as he opened the door, there was a sudden
burst of gunshots hitting him.13 The shots created a
pandemonium among the group. Witness Japitana
immediately jumped out of the house and took cover
behind an acacia tree. From where he was hiding, he
heard the voice of accused-appellant Avelino Galgo
saying: "You run, what are you waiting for?"14 Upon
hearing the voice, he opened and pointed his flashlight
in the direction of the gate of Jose Japitana’s house and
saw Avelino, Domitilo, Diosdado, and Nelson
Galgo.15 When the four of them left, witness went back
inside the house and saw that Tranquilino Quiling
(victim) was wounded.16 The latter allegedly pointed to
accused-appellants as the assailants.17
Dr. Leticia Tobias, Rural Health Physician of Badiangan,
Iloilo, testified that after conducting an autopsy on the
victim on October 6, 1994, she concluded that the cause
of death was severe hemorrhage due to multiple
gunshot wounds. She set forth the following findings in
the Autopsy Report:
I. Generalized Rigor Mortis
 II.
1. Gunshot wound (entrance) 0.5 cm in
diameter, just above the navel to the left directed
towards the abdominal cavity hitting the large
intestine, making its exit at the back left side.
2. Gunshot wound (entrance) 0.5 cm in diameter
below the left nipple directed towards the chest
cavity hitting the left lower lobe of the lungs,
making its exit at the left infrascapular region.
3. Gunshot wound (entrance) 0.5 cm in diameter
below gunshot wound no. 2 directed towards the
chest cavity hitting the lower lobe of the lung
making its exit at the back, left side.
4. Gunshot wound (entrance) 0.5 cm in diameter
adjacent gunshot wound no. 3 directed towards
the chest cavity hitting the lungs left side making
its exit at the back left side.
5. Gunshot wound (entrance) 0.5 cm in diameter
at the epigastric region, directed towards the
back, without hitting any vital organ, making its
exit at the back left side.
6. Gunshot wound left elbow, medial side, bullet
recovered at the posterior elbow, left.
Cause of Death - Severe Hemorrhage due to
multiple gunshot wounds.18
Dr. Tobias also stated, on cross-examination, that based
on the location of the wounds of the victim, the
assailants appeared to have been in front of the victim
and the shots were fired in a straight direction.19
The defense, on the other hand, presented the
testimonies of accused-appellants Nelson, Domitilo and
Avelino Galgo, SPO1 Julianito Ortigas, P/Inspector
Robert Page and Dr. Leticia Tobias.
Accused-appellant Nelson Galgo testified that around
nine o’clock in the evening of October 2, 1994, he was
resting inside his house in Barangay Cabaangan,
Badiangan, Iloilo when he heard a shot.20 As he was
used to hearing gunshots in the area, he did not do
anything.21 The following day, he went to the house of
his father to inquire what happened.22 His father,
accused-appellant Avelino Galgo, told him that
Tranquilino was shot by Pablito Japitana and that he
came to know such information because the latter
himself confessed to him.23 After learning such
information, Nelson went to work as usual.
Around ten o’clock in the morning of the following day,
police officers arrived at his grandfather’s house and
invited him to go with them to Iloilo City.24 He was taken
to Camp Delgado where he was investigated.25 After the
investigation, he was allowed to go home.26 On October
7, 1994, around seven o’clock in the evening, several
police officers again arrived at his house.27 Together with
his father (accused-appellant Avelino) and brother
(accused-appellant Domitilo), they were brought to the
Badiangan Municipal Jail.28 Nelson claimed that while
they were in said police station, no investigation was
conducted, they were not shown any documents and
they did not have the assistance of a lawyer.29
Accused-appellant Domitilo Galgo corroborated Nelson’s
testimony. He claimed that on October 2, 1994, at
around nine o’clock in the evening, he was resting in his
house together with his wife and four (4) children, when
he heard a gunshot in the direction of the house of Jose
Japitana which was about 150 meters away from his
house.30 After a while, he heard a shout for help. When
he went down his house to inquire, he chanced upon
Pablito Japitana.31 Japitana asked him where he was
going and Domitilo replied that he heard somebody
shout for help.32 Saying that he was the one who shot
Tranquilino Quiling, Japitana advised Domitilo to go back
to his house.33
The following day, Domitilo went to his father’s house to
inquire what happened.34 When he arrived, his uncle
Ruel Galgo, a Barangay Councilman, told him that the
victim was already dead.35 Domitilo then proceeded to
work at a bamboo plantation. Soon after, police officers
arrived and informed him that he was one of the
suspects in the shooting of Tranquilino Quiling.36 He was
brought to Iloilo City for a paraffin test but was also
released because the results were negative.37 Domitilo
denied shooting the victim and told the police that it was
Pablito Japitana who was responsible for the
shooting.38 Later on, he learned that Pablito Japitana
was apprehended at the pier in Iloilo City.39 Domitilo
averred that there was no misunderstanding between
their family and the victim. However, he knew that four
days before the killing, the victim fired a shot in front of
the house of Pablito Japitana and this irked the latter.40
In his testimony, accused-appellant Avelino Galgo
narrated that he was in his house around nine o’clock in
the evening of October 2, 1994. He, too, heard a
gunshot and a shout for help coming from the house of
Jose Japitana which was 130 meters away from his own
house.41 He heard noises coming from the direction of
the road and saw the victim being loaded into a
jeepney.42 Around 10:30 p.m., Pablito Japitana came to
his house and told him, "Nong, please accompany me. I
am going to surrender."43 When asked why, Japitana
informed him that he shot Tranquilino Quiling.44 Because
he was suffering from rheumatism, Avelino failed to
accompany Japitana to the police station; instead, he
advised him to go to the Barangay Captain.45 He
observed that Japitana was wearing fatigue pants and
shirt, and was carrying a pistolized "pugakhang" about
two feet long.46
At seven o’clock in the morning of the following day,
October 3, 1994, Avelino’s brother, Ruel Galgo, arrived
and informed him that the victim died.47 At that time, his
two sons, accused-appellants Nelson and Domitilo, were
also in his house. When Galgo left, Japitana arrived and
tried to borrow money from him to facilitate his
escape.48 When Avelino refused to lend him money,
Japitana left. Soon after, police officers arrived and
invited his sons to Iloilo City for an investigation. When
his sons came back, they told him that Japitana was
already apprehended by the police at Fort San Pedro in
Iloilo City.49 In the evening of October 7, 1994, the police
arrived and served a warrant of arrest for him and his
sons.50 Avelino maintained that he and his sons were in
good terms with the victim and it was Japitana who bore
a grudge against the latter because the victim once fired
a shot at the house of Japitana.51
The defense also presented two (2) police officers,
namely: P/Insp. Robert Taneo Page and SPO1 Julianito
Ortigas. P/Insp. Page was the Branch Chief of the
Ballistics Crimes Head Office, PNP Crime Laboratory
Service, Camp Delgado, Iloilo City, while SPO1 Ortigas
was the Investigator in the Badiangan Police Station at
the time of the shooting incident.
SPO1 Julianito Ortigas testified that on October 3, 1994,
he conducted an investigation at the scene of the crime
and arrested two (2) suspects in connection therewith,
namely, accused-appellants Diosdado and Domitilo
Galgo, who were brought to the Badiangan Municipal
Jail.52 The two suspects were later brought to the crime
laboratory at Camp Delgado, Iloilo City for a paraffin
test.53 Acting on the information given by the suspects
that it was Pablito Japitana who was responsible for the
shooting, the police proceeded to Fort San Pedro and
arrested Japitana.54 Japitana was detained at the
Badiangan Police Station, but was also released four
days after, October 7, 1994, because the family of the
victim did not believe that he had any participation in the
crime.55 However, on the basis of the allegations of the
victim’s relatives (Rosalina Quiling, Gaspar Superio and
Fred Quiling), a criminal case for murder was filed
against accused-appellants.56
P/Insp. Robert Page’s testimony dwelt on the
characteristics of an improvised shotgun in comparison
with a patented shotgun, particularly the dispersion of
the pellets when fired and the distribution pattern of the
bullet.57 He explained that the ammunition used for an
improvised shotgun contains nine (9) pellets, and when
fired at a distance of one meter, the distribution pattern
of the pellets will be confined to a circumference of about
two (2) to two-and-a-half (2½) inches radius.58 At a
distance of forty (40) yards, the pellets will be distributed
within a circumference of about thirty (30) inches
radius.59
Lastly, Dr. Leticia Tobias’ testimony for the defense
merely reiterated her findings that the assailants were in
front of the victim and the guns were fired in a straight
direction.60
On February 16, 1998, the trial court rendered its
decision convicting accused-appellants and sentencing
them to suffer the penalty of death, to wit:
WHEREFORE, premises considered, judgment
is hereby rendered finding accused AVELINO
GALGO, DIOSDADO GALGO, DOMITILO
GALGO, and NELSON GALGO guilty beyond
reasonable doubt and hereby sentences them to
suffer the penalty of DEATH. All the accused are
likewise to ordered (sic) to pay the family of the
late Tranquilino Quiling the sums of P21,475.00
as actual damages and P50,000.00 as death
compensation.
SO ORDERED.
With the imposition of the death penalty, the case is now
before us for automatic review. Accused-appellants
raised the following errors in their Brief:
THE TRIAL COURT ERRED IN CONVICTING
THE ACCUSED-APPELLANTS BEYOND
REASONABLE DOUBT FOR THE CRIME OF
MURDER.
THE TRIAL COURT ERRED IN RELYING
HEAVILY ON THE EVIDENCE OF THE
PROSECUTION.
THE TRIAL COURT ERRED IN
DISREGARDING THE TESTIMONIES OF
EXPERT WITNESSES.
THE TRIAL COURT ERRED IN
DISREGARDING COMPLETELY THE
DEFENSE OF ALIBI DESPITE WEAKNESS OF
THE PROSECUTION’S EVIDENCE.61
The errors raised by accused-appellants concern
primarily the credibility of witnesses. It is a well-settled
rule in criminal jurisprudence that the Supreme Court will
not interfere with the trial court’s determination of the
credibility of witnesses unless there appear on record
some facts or circumstances of weight and influence
which have been overlooked or the significance of which
has been misinterpreted by the trial court.62 The reason
behind this dictum is that the trial judge enjoys the
peculiar advantage of observing directly and at first hand
the witnesses’ deportment and manner of testifying, and
is, therefore, in a better position to form accurate
impressions and conclusions on the basis thereof.
The Court has consistently reiterated that "xxx the matter
of assigning values to declarations on the witness stand
is best and most competently performed by the trial
judge who had the unmatched opportunity to observe
the witnesses and to assess their credibility by the Q: Door of the house?
various indicia available but not reflected in the
record."63 The comportment of the person on the witness A: Yes, sir.
stand is a good gauge of one’s credibility, it can reveal if
the witness is telling the truth or lying.
Q: What was he doing at the door?

After a careful study and review, the Court does not find A: He was standing.
sufficient grounds to deviate from the trial court’s
appreciation of the credibility of the witnesses for the
prosecution. The trial court, which had the opportunity to Q: Where was he facing?
hear directly the testimonies of these witnesses, gave
credence to Fred Quiling’s assertion that he saw A: Facing outside.
accused-appellants shoot the victim, and to Pablito
Japitana’s declaration that he saw accused-appellants Q: In relation to Diosdado, where was he
fleeing from the scene of the crime immediately after the when he shot Tranquilino?
incident. The Court does not doubt the credibility of said
witnesses. There is no showing that they had any ill A: Downstairs.
motive in imputing a grave offense to accused-
appellants but were merely interested in seeing that the
Q: How far was Diosdado from Tranquilino?
assailants are meted justice. Thus, we have the
following positive and categorical testimony from
eyewitness Fred Quiling: A: About one (1) arms length.

Q: While you were there, do you recall of Q: How about Nelson, where was he located
any unusual incident that happened? from Tranquilino when he delivered the shot?

A: Yes, sir. A: Beside Diosdado.

Q: Please tell the Honorable Court? Q: How far?

A: Tranquilino Quiling was shot. A: Also one (1) arms length.

Q: By whom? Q: You said that the assailants were

downstairs, how many steps had this stairs?
A: By Diosdado and Nelson Galgo.
A: 3 steps.
Q: Was he hit?
Q: Was Tranquilino hit by the shot delivered
by Diosdado and Nelson?
A: Yes sir, he was hit on the stomach and
chest.
A: Yes, sir.
Q: How many times did Diosdado Galgo
shot Tranquilino? xxx

A: They shot him twice from each of them. Q: Was Tranquilino armed at that time?

Q: What was the firearm used by Diosdado? A: No, sir.

A: 12 gauge shotgun. Q: Before Nelson and Diosdado shot

Tranquilino, did they converse?
Q: How about Nelson?
A: No, sir.
A: Also a 12 gauge shotgun.
Q: So there was no previous altercation
before the shooting?
Q: Where was Tranquilino situated when he
was shot by the Galgos?
A: No, sir.
A: At the door.
Q: Do you know their companions?
A: Avelino Galgo and Dometilo Galgo. Q: Where did the lights come from?

Q: Where was Avelino Galgo and Dometilo A: From the door.

Galgo in relation to Diosdado and Nelson Galgo
at the time of the shooting? Q: Of the house?

A: At their back. A: Yes, sir.

Q: What were they doing? Q: Where were you located in relation to the
door where Tranquilino was at the time of the
A: They were also standing there with their shooting?
arms.
A: I was also at the doorway.
Q: What were they doing with the firearms at
the time Diosdado and Nelson were shooting xxx64
Tranquilino?
This testimony was corroborated by Pablito Japitana
A: They were holding their firearms. who recounted circumstances before and immediately
after the shooting incident, to wit:
Q: They were not pointing their firearms at
Tranquilino? Q: On October 2, 1994, at 9:00 o’clock in the
evening where were you?
A: No, sir.
A: I was in the house of Jose Japitana.
Q: What were their firearms?
xxx
A: 12 gauge shotgun.
Q: Why were you in the house of Jose
xxx Japitana?

Q: What Avelino and Dometilo were doing, A: There was a celebration.

they were merely standing there and holding
their firearms and did nothing more? xxx

A: Yes, sir. Q: Please tell us who were your

companions?
Q: And they did not utter any word?
A: Virgilio Persisto, Judy Superio, Jesus
A: No, sir. Superio, Gaspar Superio, Fred Quiling,
Tranquilino Quiling, Jose Japitana and Pablito
Q: Neither did they prevent Nelson and Japitana.
Diosdado from shooting the victim?
xxx
A: No, sir.
Q: In connection with that celebration what
xxx were you doing?

Q: Considering that the incident took place A: Drinking.

at 9:00 o’clock in the evening, how were you
able to see the four accused and identified xxx
them?
Q: During that time that you were drinking
A: I saw them. lipid, can you recall any unusual incident that
took place?
Q: Why, considering that it was nighttime?
A: Tranquilino Quiling was about to open the
A: Because there were lights. door when he was shot.
 xxx Q: Did you notice if they were carrying
something?
Q: When he was shot what did you do?
A: Yes, sir, they were carrying something.
A: When the gun burst I jumped.
Q: What were they carrying?
Q: And what happened after you jumped?
A: I am not certain but I saw it was short.
A: I covered myself at the acacia tree.
xxx
Q: How about your other companions?
Q: After they have ran away, what did you
A: They also jumped. do?

Q: While you were there hiding at the acacia A: I went back to the house of Jose Japitana.
tree, what happened?
Q: For what purpose?
A: I heard a voice.
A: To see what happened to Tranquilino
Q: Whose voice was that? Quiling.

A: That of Avelino Galgo. Q: What did you see?

xxx A: Tranquillino Quiling was already

wounded.
Q: What did he say?
Q: Was he still alive?
A: "You run, what are you waiting for?"
A: Yes, sir, we even talked.
Q: What did you do when you heard that?
Q: What did you talk about?
A: I opened my flashlight towards the gate of
the house of Jose Japitana. A: He told me that he was shot by the
Galgos.
Q: When you flashed the flashlight, what did
you see if you saw anything? xxx65

A: I saw Avelino Galgo. Accused-appellants insist that the trial court should have
discredited the prosecution witnesses’ testimonies
Q: Was he alone? inasmuch as they were inconsistent and conflicting. In
particular, accused-appellants point out that the
testimonies of Fred Quiling and Pablito Japitana differed
A: There were 3 persons ahead of Avelino as to the exact number and names of people present
Galgo. when the shooting incident happened, and the reason
for the celebration in the house of Jose Japitana. They
Q: Do you know these 3 persons? also argue that Fred Quiling’s testimony that he saw
accused-appellants shoot the victim was belied by his
A: Yes, sir. own admission that he was looking down on the floor
when the victim was shot.
Q: Who were they?
The Court finds these perceived inconsistencies to be
A: Dometilo, Diosdado and Nelson. immaterial and absolutely without any relevance to the
issues at hand. Inconsistencies that refer only to minor
details and collateral matters do not affect the substance
Q: Since it was dark that evening, how did
of the prosecution’s declarations, their weight and their
you recognize the three?
veracity.66 Equally important, inconsistencies which refer
only to minor and insignificant details, such as those
A: Because I opened my flashlight to them. pointed out by accused-appellants, serve to reinforce
rather than weaken the credibility of a witness. In fact,
such inaccuracies prove that the statements were
spontaneous and unrehearsed.67 Moreover, such kind of
inconsistencies have never been grounds for acquittal.
As to the assertion that witness Fred Quiling did not
actually see the victim when he was shot because he
was looking down on the floor, this has been sufficiently
explained by the witness. He testified that when the
victim was bidding goodbye to them, he was looking
down on the floor. However, he was very resolute in
stating that he was then seated facing the door when the
victim opened the door and was greeted by a burst of
gunshots, coming from accused-appellants Nelson and
Diosdado who were right outside the door firing 12-
gauge shotguns. He explained, thus:
xxx
Q: Successively?
A: Successively.
Q: What is the time interval more or less
between the first and second shots?
A: About seconds only.
Q: Since you claimed you have seen Nelson
and Diosdado fired (sic) the shots, tell the Court
who fired the first shot?
A: Nelson fired first.
A: No Ma’am I was sitting down the floor
when Tranquilino was bidding goodbye.
Q: When Tranquilino was bidding goodbye
you were sitting on the floor and facing the
kitchen?
A: I was facing the door.
xxx69
Accused-appellants’ defense of denial and alibi must
likewise fail. For alibi to prosper, the requirements of
time and place must be strictly met. Accused-appellants
must not only prove their presence at another place at
the time of the commission of the offense, but they must
also demonstrate that it would be physically impossible
for them to be at the scene of the crime when it was
committed.70 Where the distance between the scene of
the crime and the alleged whereabouts of the accused is
only two (2) kilometers,71 three (3) kilometers,72 or even
five (5) kilometers,73 the same are not considered to be
too far as to preclude the possibility of the presence of
the accused at the locus criminis,74 even if the sole
means of travelling between the two places at that time
was by walking. In this case, accused-appellants’
respective houses were found to be more or less only
one-half kilometer away from the scene of the crime.
They were, in fact, within earshot of the place because
they all testified that they heard the gunshots from their
respective houses. Hence, it was not physically
impossible for accused-appellants to have been within
the vicinity of the house of Jose Japitana at the time the
victim was shot.1âwphi1.nêt

Q: What firearm did he use? The claim that prosecution witness Pablito Japitana was
the one responsible for the crime because he allegedly
A: 12 gauge shotgun. confessed to accused-appellant Avelino Galgo on the
same night is incredible and nothing more than a last
Q: Who fired second shot? ditch effort to escape punishment. We quote with favor
the trial court’s disquisition on this point, to wit:
A: Diosdado.
The attempt to put the blame on Pablito Japitana
for the death of the victim should likewise be
Q: What firearm?
taken with a grain of salt. The court is not
prepared to lend credence and weight to such
A: Also a 12 gauge. claim otherwise, the culprit can always resort to
an expedient subterfuge of pointing to any
xxx68 person as the assailant and thereby avoid
criminal culpability. It is worthy to note that, as
Q: Since you were not expecting anything to testified to by defense witness SPO1 Julianito
happen, you were not able to look around inside Ortigas, even the family of the late Tranquilino
the house of Jose Japitana when Tranquilino Quiling was convinced that Pablito Japitana
was bidding goodbye to Jose Japitana? does not have any responsibility whatsoever to
the alleged crime. Except by the bare allegations
A: I looked on the floor. of the accused, there is not a bit of evidence on
record to support the assertion of the defense
that Pablito Japitana was indeed accountable for
Q: You said that you were one (1) foot away the alleged crime.75
from Tranquilino when the successive gunfire
explosions happened?
Accused-appellants capitalize on the testimony of Police
Inspector Page that the size and location of the wounds
found on the body of the victim do not correspond to the
kind of gun used in shooting him down. Witness Page
opined that a shotgun fired at a distance of two feet
would result in wounds about one inch in diameter and
only about 2 to 2-1/2 inches apart. Accused-appellants
point out that the wounds found by the physician on the
body of the victim were inconsistent with the expert
testimony inasmuch as they were only 0.5 centimeter in
diameter and were far from each other.
The Court does not find such testimony compelling
enough so as to overturn the trial court’s decision and
acquit accused-appellants. The shotgun used in the
shooting was improvised and did not pass through the
regular quality control procedures. The factors
influencing the character of a gunshot wound and
degree of dispersal are the "muzzle-target distance,
gauge of the shotgun, degree of choke and the type of
ammunition."76 P/Insp. Page was not able to physically
examine the shotguns and ammunition used in the
shooting so that he had no way of knowing the actual
gauge, degree of choke and type of ammunition
employed in the shooting of the victim. These factors are
crucial in explaining the size and dispersal of the victim's
wounds.
In any criminal prosecution, the only requisite is that the
prosecution proves the guilt of the accused beyond
reasonable doubt.77 Proof beyond reasonable doubt
does not mean such a degree of proof that, excluding
the possibility of error produces absolute
certainty.78 Only moral certainty is required, or the
degree of proof which produces conviction in an
unprejudiced mind.79 From the evidence presented by
the prosecution, we are convinced that such quantum of
evidence has been satisfied. However, as the Solicitor
General pointed out, the penalty imposed on accused-
appellants must be lowered from death to reclusion
perpetua.
In imposing the supreme penalty of death, the trial court
appreciated the aggravating circumstances of treachery
and abuse of superior strength. Treachery was held to
have qualified the crime to murder under Art. 248 of the
Revised Penal Code and abuse of superior strength was
considered as a separate generic aggravating
circumstance; hence, the imposition of the greater
penalty under par. 1, Art. 63 of the Code.
We agree with the trial court that the aggravating
circumstance of treachery was duly proven by the
prosecution. The shooting of a victim at a distance
without the least expectation on his part that he would be
assaulted is characterized by treachery.80 In criminal
jurisprudence, there is treachery when (1) at the time of
the attack the victim was not in a position to defend
himself; and (2) the offender consciously adopted the
particular means, method or form of attack employed by
him.81
In the present case, it was obvious that accused-
appellants consciously adopted the mode of attack,
which was a sudden and unexpected firing upon the
victim when the latter was about to step out of the
house. Accused-appellants deliberately waited outside
Jose Japitana’s house and fired upon the victim as he
was coming out the door. The suddenness of the attack
caught the victim unaware and precluded him from
defending himself, thus ensuring the execution of the
crime. There was not the slightest provocation on the
part of the victim. The trial court was, therefore, correct
in appreciating treachery as a qualifying circumstance
which changed the nature of the crime to murder.
However, we take exception to the trial court’s
appreciation of abuse of superior strength as a separate
aggravating circumstance warranting the imposition of
the higher penalty which is death. It is already settled
that where treachery is present, abuse of superior
strength is deemed absorbed82 and the same cannot be
taken separately from treachery. Since treachery, which
absorbs abuse of superior strength, already qualifies the
crime to murder, and there being no other aggravating
circumstance, the lesser penalty shall be applied in
accordance with Article 63 in relation to Article 24883 of
the Revised Penal Code, to wit:
ART. 63. Rules for the application of indivisible
penalties. xxx - In all cases in which the law
prescribes a penalty composed of two indivisible
penalties, the following rules shall be observed
in the application thereof:
xxx
2. When there are neither mitigating nor
aggravating circumstances in the commission of
the deed, the lesser penalty shall be applied.
Finally, we approve the trial court’s finding of conspiracy
among accused-appellants. Previous agreement to
commit the crime need not be proved to establish
conspiracy.84 Where the acts of the accused collectively
and individually demonstrate the existence of a common
design towards the accomplishment of the same
unlawful purpose, conspiracy is evident, and all the
perpetrators will be liable as principals.85 Eyewitness
Fred Quiling saw all four accused-appellants at the
scene of the crime. Although he testified that only
Nelson and Diosdado Galgo actually fired shots at the
victim, he declared that Avelino and Domitilo Galgo were
right behind them and likewise armed with shotguns.
The other witness, Pablito Japitana, averred that when
Avelino shouted, "Run!," all four immediately fled from
the scene of the crime. Their physical presence at the
scene of the crime, their being armed with shotguns and
their act of simultaneously running away after the victim
was shot, manifest a common design and a unity of
purpose and action among accused-appellants leading
to the indubitable conclusion that they were in
conspiracy.
We have ruled that moral damages, which include
mental anguish, serious anxiety and wounded feelings,
may be recovered in criminal offenses resulting in the
victim's death.86 Thus, in addition to civil indemnity and
actual damages awarded by the trial court, the Court
additionally grants moral damages to the victim's heirs in
the amount of P50,000.00.
WHEREFORE, the decision of the Regional Trial Court
of Iloilo City, Branch 23, in Criminal Case No. 44165,
finding accused-appellants guilty beyond reasonable
doubt of the crime of murder is hereby AFFIRMED save
for the MODIFICATION that the penalty of death is
hereby lowered to RECLUSION PERPETUA. Accused-
appellants are further ordered to pay the heirs of the
victim the amount of P50,000.00 as moral damages in
addition to the civil indemnity and actual damages
awarded by the trial court.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza,
Panganiban, Quisumbing, Ynares-Santiago, Sandoval-
Gutierrez, Carpio, Austria-Martinez, and Corona,
JJ., concur.
De Leon, Jr., J., on official leave
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 178771 June 8, 2011
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
ALBERTO ANTICAMARA y CABILLO and
FERNANDO CALAGUAS FERNANDEZ a.k.a. LANDO
CALAGUAS,
DECISION
PERALTA, J.:
This is an appeal from the Decision1 of the Court of
Appeals (CA) in CA-G.R. CR-H.C. No. 00556, affirming
the trial court's judgment finding appellants Fernando
Calaguas Fernandez (Lando) and Alberto Cabillo
Anticamara (Al) guilty beyond reasonable doubt of the
crime of Murder in Criminal Case No. 4498-R and of the
crime of Kidnapping and Serious Illegal Detention in
Criminal Case No. 4481-R.
Lando, Al, Dick Tañedo (Dick), Roberto Tañedo (Bet),
Marvin Lim (Marvin), Necitas Ordeñiza-Tañedo (Cita),
and Fred Doe are charged with the crimes of Murder and
of Kidnapping/Serious Illegal Detention in two separate
Informations, which read:
For Murder (Criminal Case No. 4498-R)
That on or about the early morning of May 7, 2002, in
Sitio Rosalia, Brgy. San Bartolome, Municipality of
Rosales, Province of Pangasinan, and within the
jurisdiction of this Honorable Court, the above-named
accused, being then armed with a hand gun, conspiring,
confederating and mutually helping one another, with
intent to kill, with treachery, evident premeditation and
superior strength, did then and there, willfully, unlawfully
and feloniously take Sulpacio Abad, driver of the
Estrellas, hog tied (sic) him, brought (sic) to a secluded
place, shoot and bury in a shallow grave, to the damage
and prejudice of the heirs of the victim.
Contrary to Article 248, Revised Penal Code.
For Kidnapping/Serious Illegal Detention (Criminal Case
No. 4481-R)
That on or about the 7th day of May 2002, more or less
3:00 o'clock in the early morning, at the Estrella
Compound, Brgy. Carmen East, Municipality of Rosales,
Province of Pangasinan, and within the jurisdiction of
this Honorable Court, the above-named accused, who
are private persons, conspiring, confederating and
mutually helping one another, armed with firearms, did
then and there willfully, unlawfully and feloniously kidnap
Sulpacio Abad and AAA,2 both employees of the
Estrellas, thereby depriving them of their liberty, all
against their will for a period of twenty-seven (27) days.
That in the course of the kidnapping, Sulpacio Abad was
killed and buried in Brgy. Carmen, Rosales, Pangasinan
and AAA was raped for several times by her abductors.
Contrary to Article 267 of the Revised Penal Code, in
relation to RA 7659.
When arraigned of the aforementioned crimes, Lando, Al
and Cita all pleaded not guilty, while Dick, Bet, Marvin
and Fred Doe remained at-large. Thereafter, a joint trial
ensued.
As summarized in the People's brief, the facts as
established by the evidence of the prosecution are as
follows:
About 3 o'clock in the early morning of May 7, 2002,
househelper AAA and driver Abad Sulpacio were
sleeping in their employers' house located in Barangay
Carmen East, Rosales, Pangasinan. Their employers,
Conrado Estrella and his wife, were out of the house at
that time (TSN, December 4, 2002, pp. 4-7).
Momentarily, AAA was jolted from sleep when she heard
voices saying, "We will kill her, kill her now" and another
voice saying, "Not yet!" Hiding under her blanket, AAA
later heard someone saying, "We only need money, we
only need money." Thereafter, she heard someone
talking in Ilocano which she could not understand. Then
she heard somebody say, "Cebuana yan, Cebuana yan,
kararating lang galing Cebu." AAA heard the persons
conversing which she estimated about four to five
meters away (TSN, ibid., pp. 11-12).
Thereafter, AAA observed about six (6) persons enter
the house, who she later identified as accused Dick
Tañedo, Marvin Lim, Bert Tañedo, a certain Fred and
appellants Alberto Anticamara alias "Al Camara," and
Fernando Fernandez alias "Lando Calaguas." One of the
intruders approached her and told her not to move (TSN,
ibid., p. 8).
Later, when AAA thought that the intruders were already
gone, she attempted to run but to her surprise, someone
wearing a bonnet was watching her. Someone, whom
she later recognized as Dick Tañedo, tapped her
shoulder. AAA asked Tañedo, "Why Kuya?" Tañedo
replied, "Somebody will die." After a brief commotion,
appellant alias "Lando Calaguas" asked the group
saying, "What shall we do now?" They then decided to
tie AAA. Later, AAA was untied and led her outside the
house. Outside, AAA saw Abad, who was also tied and
blindfolded, seated inside a vehicle (TSN, April 26, 2004,
pp. 6-10).
The group later brought AAA and Abad to the fishpond
owned by their employers. AAA saw Cita Tañedo there.
The group brought Abad outside the vehicle and led him
away (TSN, December 2, 2002, pp. 13-18; TSN,
February 17, 2003, pp. 5-8).
Later, alias "Fred" returned telling the group, "Make the
decision now, Abad has already four bullets in his body,
and the one left is for this girl." When Cita Tañedo made
a motion of cutting her neck, appellant alias "Lando
Calaguas" and "Fred" boarded the vehicle taking along
with them AAA. They later proceeded towards San
Miguel Tarlac, where Lando Calaguas resided. They
stayed in Lando's house where they kept AAA from May
7 to May 9, 2002 (TSN, December 4, 2002, pp. 18-22;
TSN, February 17, 2003, pp. 7-9).
On May 9, 2002, appellant Lando Calaguas told AAA
that Fred and Bert Tañedo would kill her. Lando then
brought AAA to a hotel in Tarlac, telling AAA that he
would leave her there as soon as Fred and Bert Tañedo
leave the place. However, once inside the hotel room,
appellant Lando Calaguas sexually molested AAA.
Lando told AAA to follow what he wanted, threatening
her that he would turn her over to Fred and Bert Tañedo.
After Lando raped AAA, he brought her back to his
house. Later, Fred, Bert Tañedo and Lando Calaguas
transferred AAA to Riles, Tarlac (TSN, ibid., pp. 9-13).
AAA was brought to the residence of Fred's niece, a
certain Minda, where Fred kept AAA as his wife. At
nighttime, Fred would repeatedly ravish AAA,
threatening her that he would give her back to appellant
Lando Calaguas who, AAA knew, killed Abad Sulpacio.
She was afraid Lando might also kill her (TSN, ibid., pp.
14-16).
On May 22, 2002, Fred brought AAA to Carnaga (should
be Kananga), Leyte, together with his wife Marsha and
their children. AAA stayed in the house of Marsha's
brother Sito, where she was made as a house helper
(TSN, ibid., p. 17).
On June 4, 2002, AAA escaped from the house of Sito.
She proceeded to Isabel, Leyte and sought the help of
her friend Susana Ilagan. After hearing AAA's plight,
Susana called AAA's brother in Cebu, who later fetched
AAA in Isabel, Leyte and brought her to Mandaue City.
When they arrived in Mandaue City, they immediately
reported the incident to the police authorities. On June
23, 2002, AAA executed a Sworn Statement (Exh. "D,"
TSN, ibid., pp. 18-20).
Meanwhile, Dr. Ronald Bandonil, Medico-Legal Officer of
the National Bureau of Investigation (NBI), conducted an
autopsy on the cadaver of Sulpacio Abad. Dr. Bandonil
prepared Autopsy Report No. N-T2-23-P (Exh. "A")
which contains the following findings, to wit:
x Remains placed in a sealed metal coffin, wrapped in
two (2) layers of black, plastic garbage bags, and
covered in (sic) a red-stripped cotton blanker. A thick
layer of lime embeds the whole torso.
x Remains in a far advanced state of decomposition,
with the head completely devoid of soft tissue. A cloth is
wrapped around the eyesockets and tied to the back of
the skull. The skull does not show any signs of dents,
chips nor fractures. The other recognizable body part is
the chest area which retained a few soft tissues and
skin, but generally far advanced in decomposition. The
whole gamut of internal organs have undergone
liquefaction necrosis and have been turned into grayish-
black pultaceous masses. Worn on top of the remaining
chest is a sando shirt with observable holes at the left
side, both front and back. A large hole is seen at the
area of the left nipple, with traces of burning at its edges
and inward in direction. A tied cloth is also observable at
the remnants of the left wrist.
x At the upper chest, which is the most recognizable,
remaining and intact part of the torso, a hole, 1.0 cm. x
2.0 cms., with signs of burning, edges inverted, is seen
at the left anterior axillary line just below the left nipple.
Another hole is seen 1.5 cms. x 2.5 cms. in diameter,
edged averted (sic) at the right chest, along the right
anterior axillary line, 5.0 cms. below the right nipple. A
3rd hole, almost unrecognizable is seen at the left groin
area.
x The other parts of the cadaver are too far advanced in
decomposition to have remarkable findings.
CAUSE OF DEATH:
GUNSHOT WOUNDS, TRUNK3
In his defense, Lando denied having committed the
crimes charged and interposed alibi as a defense. He
claims that at the time of the incident on May 7, 2002, he
was in Barangay Maligaya, San Miguel, Tarlac, with his
family. He denied ever going to the Estrella farm in Sitio
Rosalia, Barangay San Bartolome, Rosales,
Pangasinan.
Al claimed that he acted as a lookout and was tasked to
report to his companions if any person or vehicle would
approach the house of the Estrellas. He said that he was
forced to follow what was ordered of him and did not
report the matter to the police because he was
threatened to be killed, including the members of his
family who were in Cebu.
On August 23, 2004, the Regional Trial Court (RTC) of
Rosales, Pangasinan, Branch 53, rendered its
Decision,4 the dispositive portion of which states:
WHEREFORE, judgment is hereby rendered as follows:
I. In Criminal Case No. 4498-R for Murder:
A. Accused Nicetas "Cita" Tañedo is hereby
acquitted of the crime charged for insufficiency
of evidence;
B. Accused Fernando Calaguas Fernandez
(alyas Lando Calaguas) and Alberto Anticamara
(alyas Al Camara) are hereby found guilty
beyond reasonable doubt, as principal, of the
crime of Murder qualified by treachery, defined
and penalized under Article 248 of the Revised
Penal Code. Considering the presence of
aggravating circumstance of pre-meditation, with
no mitigating circumstance to offset the same,
the penalty of DEATH is hereby imposed upon
the two (2) accused Fernando Calaguas
Fernandez (Lando Calaguas) and Alberto
Anticamara (Al Camara). They are also ordered
jointly and severally [to] pay the heirs of the
victim Abad Sulpacio the following:
1) Fifty Thousand Pesos (₱50,000.00)
as moral damages;
2) Seventy-Five Thousand Pesos
(₱75,000.00) as indemnity for the death
of the victim;
3) Fifty-Seven Thousand One Hundred
Twenty-Two Pesos and Thirty Centavos
(₱57,122.30) as actual damages; and
4) The cost of suit.
II. Criminal Case No. 4481-R for Kidnapping/Serious
Illegal Detention:
A) Accused Nicetas "Cita" Tañedo is hereby
acquitted of the crime charged for insufficiency
of evidence;
B) Accused Fernando Calaguas Fernandez
(alyas Lando Calaguas) and Alberto Anticamara
(alyas Al Camara) are hereby found guilty
beyond reasonable doubt, as principal, of the
crime of Kidnapping/Serious Illegal Detention of
the victim AAA as charged, defined and
penalized under Article 267 of the Revised
Penal Code, as amended by R.A. 7659.
Considering that the victim AAA was raped
during her detention, the maximum penalty of
DEATH is hereby imposed upon the two
accused, Fernando Calaguas Fernandez (Lando
Calaguas) and Alberto Anticamara (Al Camara).
The two accused are also ordered to pay, jointly
and severally, the victim AAA the amount of:
1) One Hundred Thousand Pesos
(₱100,000.00) as moral damages;
2) Fifty Thousand Pesos (₱50,000.00)
as exemplary damages; and
3) Cost of suit.
As to the rest of the accused who are still at-large, let
this case be set to the archives until they are
apprehended.
SO ORDERED.5
In light of the Court’s ruling in People v. Mateo, 6 the
records of the cases were forwarded by the RTC to the
CA for its review. The CA rendered a Decision dated
December 15, 2006, affirming the decision of the RTC in
Criminal Case Nos. 4498-R and 4481-R. However, in
view of the abolition of the death penalty pursuant to
Republic Act (R.A.) No. 9346, which was approved on
June 24, 2006, the appellants were sentenced
to reclusion perpetua.
On January 9, 2007, Lando, through the Public
Attorney's Office (PAO), appealed the Decision of the
CA to this Court. Lando had assigned the following
errors in his appeal initially passed upon by the CA, to
wit:
I
THE TRIAL COURT GRAVELY ERRED IN HOLDING
THAT CONSPIRACY EXISTED BETWEEN AND
AMONG THE ALLEGED PERPETRATORS OF THE
CRIME.
 II
ASSUMING THAT THE ACCUSED-APPELLANT IS
GUILTY, THE LOWER COURT GRAVELY ERRED IN
CONVICTING HIM OF THE CRIME OF MURDER
INSTEAD OF HOMICIDE.
III
THE TRIAL COURT GRAVELY ERRED IN IMPOSING
UPON THE ACCUSED-APPELLANT THE SUPREME
PENALTY OF DEATH FOR THE CRIME OF
KIDNAPPING/SERIOUS ILLEGAL DETENTION,
AGGRAVATED BY RAPE, IN SPITE OF THE FACT
THAT THE CRIME OF RAPE WAS NOT DULY
PROVEN BEYOND REASONABLE DOUBT.
IV
THE TRIAL COURT GRAVELY ERRED IN GIVING
SCANT CONSIDERATION TO THE EVIDENCE
PRESENTED BY THE ACCUSED-APPELLANT WHICH
IS MORE CREDIBLE THAN THAT OF THE
PROSECUTION
V common experience .9 Circumstantial evidence is
THE TRIAL COURT GRAVELY ERRED IN
RENDERING A VERDICT OF CONVICTION DESPITE
THE FACT THAT THE GUILT OF THE ACCUSED-
APPELLANT WAS NOT PROVEN BEYOND
REASONABLE DOUBT.7
On January 9, 2007, Al, through the PAO, appealed the
Decision of the CA to this Court. Al had assigned the
following errors, to wit:
I the prosecution, when analyzed and taken together, lead
THE TRIAL COURT ERRED IN FINDING THE
ACCUSED-APPELLANT GUILTY OF THE CRIME OF
KIDNAPPING/SERIOUS ILLEGAL DETENTION IN
SPITE OF THE FAILURE OF THE PROSECUTION TO
PROVE BEYOND REASONABLE DOUBT THAT HE
CONSPIRED WITH HIS CO-ACCUSED TO COMMIT
THE CRIME CHARGED.
II
THE TRIAL COURT GRAVELY ERRED IN IMPOSING
UPON THE ACCUSED THE SUPREME PENALTY OF
DEATH FOR THE SPECIAL COMPLEX CRIME OF
KIDNAPPING/SERIOUS ILLEGAL DETENTION WITH
RAPE, IN SPITE OF THE FACT THAT HE HAD NO
PARTICIPATION IN THE COMMISSION OF [TWO]
SEXUAL ABUSES AGAINST THE VICTIM.
III
THE TRIAL COURT GRAVELY ERRED IN FINDING
THE ACCUSED-APPELLANT GUILTY OF THE CRIME
OF MURDER IN SPITE OF THE FAILURE OF THE
PROSECUTION TO PROVE BEYOND REASONABLE
DOUBT THAT HE CONSPIRED WITH HIS CO-
ACCUSED TO COMMIT THE SAME.8
In capsule, the main issue is whether the appellants are
guilty of the crimes charged.
In Criminal Case No. 4498-R for Murder:
Circumstantial Evidence
The trial court found that although there was no direct
eyewitness in the killing of Sulpacio in the early morning
of May 7, 2002 at Sitio Rosalia, Barangay San
Bartolome, Rosales, Pangasinan, the prosecution
adduced sufficient circumstantial evidence to establish
with moral certainty the identities and guilt of the
perpetrators of the crime.
Circumstantial evidence consists of proof of collateral
facts and circumstances from which the existence of the
main fact may be inferred according to reason and
sufficient to sustain conviction if: (a) there is more than
one circumstance; (b) the facts from which the
inferences are derived are proven; (c) the combination of
all circumstances is such as to produce a conviction
beyond reasonable doubt.10 A judgment of conviction
based on circumstantial evidence can be sustained
when the circumstances proved form an unbroken chain
that results in a fair and reasonable conclusion pointing
to the accused, to the exclusion of all others, as the
perpetrator.11
In this case, the circumstantial evidence presented by
to the inescapable conclusion that the appellants are
responsible for the death of Sulpacio. The Court quotes
with approval the lower court's enumeration of those
circumstantial evidence:
The testimony of AAA had clearly established the
following facts:
1. At about 3:00 in the early morning of May 7,
2002, while she and the victim Abad Sulpacio
were sleeping inside the house of the Estrella
family in Barangay Carmen, Rosales,
Pangasinan several persons entered to rob the
place;
2. Inside the house, she saw and recognized the
accused Lando Calaguas and Dick Tañedo, and
heard the latter uttering "somebody will die";
3. Bringing her outside the house, Lando pushed
her into the Revo where she saw inside Abad
 Sulpacio who was blindfolded and with his
hands tied;
4. Inside the Revo, she recognized the accused
Dick Tañedo, Lando Calaguas, Marvin Lim,
Roberto Tañedo, Alberto Anticamara and Fred;
5. The Revo then proceeded towards the
fishpond owned by the Estrellas in Sitio Rosalia,
Brgy. San Bartolome, Rosales, Pangasinan;
6. The last time that she saw Abad Sulpacio was
when he was dragged out from the vehicle by
Lando, Fred, Marvin and Al upon reaching Sitio
Rosalia. At that, time Dick Tañedo stayed with
her in the vehicle;
7. Thereafter, when Fred returned to the vehicle,
she heard him uttered (sic): "Make a decision
now. Abad has already four (4) bullets in his
body, and the one left is for this girl."12
In addition to these circumstances, the trial court further
found that AAA heard Fred utter "Usapan natin pare,
kung sino ang masagasaan, sagasaan." (Our agreement
is that whoever comes our way should be eliminated).
Moreover, NBI Agent Gerald V. Geralde testified that on
June 23, 2002, appellant Al admitted his participation as
lookout and naming his companions Dick, Lando, Fred,
Marvin and Bet as the ones who took AAA and Sulpacio
from the house of the Estrellas and brought them to the
fishpond. Al also pointed and led the authorities to a
shallow grave in Sitio Rosalia, Barangay San Bartolome,
Rosales, Pangasinan, where the remains of Sulpacio
were buried. The autopsy conducted on the body,
prepared by the Medico Legal Officer Dr. Bandonil,
shows that several holes were found on various parts of
the body of the victim and Dr. Bandonil concluded that
the cause of the victim's death was the gunshot wounds.
The report also indicates that a piece of cloth was found
wrapped around the eye sockets and tied at the back of
the skull, and another cloth was also found tied at the
remnants of the left wrist.
In the case at bar, although no one directly saw the
actual killing of Sulpacio, the prosecution was able to
paint a clear picture that the appellants took Sulpacio
away from the house of the Estrellas, tied and
blindfolded him, and brought him to another place where
he was repeatedly shot and buried.
Conspiracy
Under Article 8 of the Revised Penal Code, there is
conspiracy when two or more persons come to an
agreement concerning a felony and decide to commit it.
It may be inferred from the acts of the accused before,
during or after the commission of the crime which, when
taken together, would be enough to reveal a community
of criminal design, as the proof of conspiracy is
frequently made by evidence of a chain of
circumstances.13 To be a conspirator, one need not
participate in every detail of the execution; he need not
even take part in every act or need not even know the
exact part to be performed by the others in the execution
of the conspiracy. Each conspirator may be assigned
separate and different tasks which may appear unrelated
to one another but, in fact, constitute a whole collective
effort to achieve their common criminal objective. Once
conspiracy is shown, the act of one is the act of all the
conspirators. The precise extent or modality of
participation of each of them becomes secondary, since
all the conspirators are principals.14
In the present case, prior to the commission of the crime,
the group met at the landing field in Carmen,
Pangasinan and discussed their plan to rob the house of
the Estrellas with the agreement that whoever comes
their way will be eliminated.15 Appellant Al served as a
lookout by posting himself across the house of the
Estrellas with the task of reporting any movements
outside. Fred then climbed the old unserviceable gate of
the Estrella compound and then opened the small door
and the rest of the group entered the house of the
Estrellas through that opening.16 After almost an hour
inside the house, they left on board a vehicle with AAA
and Sulpacio. AAA and Sulpacio were brought to Sitio
Rosalia, Brgy. San Bartolome, Rosales, Pangasinan. In
that place, Sulpacio was killed and AAA was brought to
another place and deprived of her liberty. These
circumstances establish a community of criminal design
between the malefactors in committing the crime.
Clearly, the group conspired to rob the house of the
Estrellas and kill any person who comes their way. The
killing of Sulpacio was part of their conspiracy. Further,
Dick's act of arming himself with a gun constitutes direct
evidence of a deliberate plan to kill should the need
arise.
Appellant Al attempts to evade criminal liability by
alleging that he was only forced to participate in the
commission of the crime because he and his family were
threatened to be killed. Al's defense fails to impress us.
Under Article 1217 of the Revised Penal Code, a person
is exempt from criminal liability if he acts under the
compulsion of an irresistible force, or under the impulse
of an uncontrollable fear of equal or greater injury,
because such person does not act with freedom.18 To
avail of this exempting circumstance, the evidence must
establish: (1) the existence of an uncontrollable fear; (2)
that the fear must be real and imminent; and (3) the fear
of an injury is greater than, or at least equal to, that
committed.19 For such defense to prosper, the duress,
force, fear or intimidation must be present, imminent and
impending, and of such nature as to induce a well-
grounded apprehension of death or serious bodily harm
if the act be done. A threat of future injury is not
enough.20
There is nothing in the records to substantiate appellant
Al's insistence that he was under duress from his co-
accused while participating in the crime that would
suffice to exempt him from incurring criminal liability. The
evidence shows that Al was tasked to act as a lookout
and directed to station himself across the house of the
Estrellas. Al was there from 7:30 p.m. to 1:00 a.m.21 of
the following day, while the rest of the group was waiting
in the landing field. Thus, while all alone, Al had every
opportunity to escape since he was no longer subjected
to a real, imminent or reasonable fear. However, he
opted to stay across the house of the Estrellas for almost
six (6) hours,22 and thereafter returned to the landing
field where the group was waiting for his report.
Subsequently, the group proceeded to the Estrellas’
house. When the group entered the house, Al stayed for
almost one (1) hour outside to wait for his companions.
Later, when the group left the house aboard a vehicle, Al
rode with them in going to Sitio Rosalia, Brgy. San
Bartolome, Rosales, Pangasinan, bringing with them
Sulpacio and AAA.23 Clearly, appellant Al had ample
opportunity to escape if he wished to, but he never did.
Neither did he request for assistance from the authorities
or any person passing by the house of the Estrellas
during the period he was stationed there. Clearly, Al did
not make any effort to perform an overt act to dissociate
or detach himself from the conspiracy to commit the
felony and prevent the commission thereof that would
exempt himself from criminal liability.24 Therefore, it is
obvious that he willingly agreed to be a part of the
conspiracy.
Alibi and Denial
Appellant Lando denied having committed the crime
charged and interposed alibi as a defense. He claims
that at the time of the incident he was in his house at
Tarlac, together with his family. On the other hand, the
appellants were positively identified by AAA, as two (2)
of the six (6) malefactors who forcibly took her and
Sulpacio from the Estrella house in the early morning of
May 7, 2002. Both the trial court and the CA found the
testimony of AAA credible. The Court gives great weight
to the trial court’s evaluation of the testimony of a
witness because it had the opportunity to observe the
facial expression, gesture, and tone of voice of a witness
while testifying; thus, making it in a better position to
determine whether a witness is lying or telling the
truth.251avvphi1
Between the categorical statements of the prosecution
witness, on one hand, and the bare denial of the
appellant, on the other, the former must perforce prevail.
An affirmative testimony is far stronger than a negative
testimony especially when it comes from the mouth of a
credible witness. Alibi and denial, if not substantiated by
clear and convincing evidence, are negative and self-
serving evidence undeserving of weight in law. They are
considered with suspicion and always received with
caution, not only because they are inherently weak and
unreliable but also because they are easily fabricated
and concocted.26 Denial cannot prevail over the positive
testimony of prosecution witnesses who were not shown
to have any ill-motive to testify against the appellants.27
As to the defense of alibi. Aside from the testimony of
appellant Lando that he was in Tarlac at the time of the
incident, the defense was unable to show that it was
physically impossible for Lando to be at the scene of the
crime. Basic is the rule that for alibi to prosper, the
accused must prove that he was somewhere else when
the crime was committed and that it was physically
impossible for him to have been at the scene of the
crime.Physical impossibility refers to the distance
between the place where the appellant was when the
crime transpired and the place where it was committed,
as well as the facility of access between the two
places.28 Where there is the least chance for the
accused to be present at the crime scene, the defense of
alibi must fail.29 During the trial of the case, Lando
testified that the distance between his house in Brgy.
Maligaya, San Miguel, Tarlac to the town of Rosales,
Pangasinan is only around forty (40) kilometers. Such
distance can be traversed in less than 30 minutes using
a private car and when the travel is continuous.30 Thus, it
was not physically impossible for the appellant Lando to
be at the locus criminis at the time of the incident. In
addition, positive identification destroys the defense of
alibi and renders it impotent, especially where such
identification is credible and categorical.31
Qualifying and Aggravating Circumstances
In convicting the appellants, the courts a quo
appreciated treachery in qualifying the killing to murder
and evident premeditation in imposing the penalty of
death. There is treachery when the offender commits
any of the crimes against persons, employing means,
methods or forms in the execution thereof which tend
directly and specially to ensure its execution without risk
to himself arising from the defense that the offended
party might make.32 Two conditions must concur for
treachery to exist, namely, (a) the employment of means
of execution gave the person attacked no opportunity to
defend himself or to retaliate; and (b) the means or
method of execution was deliberately and consciously
adopted.33
In the case at bar, it was proven that when AAA boarded
the vehicle, she saw Sulpacio tied and blindfolded. Later,
when they reached the fishpond, Sulpacio, still tied and
blindfolded, was led out of the vehicle by the group.
When the remains of Sulpacio was thereafter found by
the authorities, the autopsy report indicated that a piece
of cloth was found wrapped around the eye sockets and
tied at the back of the skull and another cloth was also
found tied at the left wrist of the victim. There is no
question therefore, that the victim's body, when found,
still had his hands tied and blindfolded. This situation of
the victim when found shows without doubt that he was
killed while tied and blindfolded; hence, the qualifying
aggravating circumstance of treachery was present in
the commission of the crime. In People v. Osianas,34 the
Court held that:
x x x In the case at bar, the means used by the accused-
appellants to insure the execution of the killing of the
victims, so as to afford the victims no opportunity to
defend themselves, was the act of tying the hands of the
victims. Teresita saw the accused-appellants hog-tie the
victims and take them away with them. Later that night,
Dionisio Palmero saw the victims, still hog-tied, walking
with the accused-appellants. The following day, the
victims were found dead, still hog-tied. Thus, no matter
how the stab and hack wounds had been inflicted on the
victims in the case at bar, we are sure beyond a
reasonable doubt that Jose, Ronilo and Reymundo
Cuizon had no opportunity to defend themselves
because the accused-appellants had earlier tied their
hands. The fact that there were twelve persons who took
and killed the Cuizons further assured the attainment of
accused-appellants' plans without risk to themselves.35
The aggravating circumstance of superior strength
cannot be separately appreciated because it is absorbed
by treachery.36
The circumstance of evident premeditation requires
proof showing: (1) the time when the accused
determined to commit the crime; (2) an act manifestly
indicating that the accused has clung to his
determination; and (3) sufficient lapse of time between
such determination and execution to allow him to reflect
upon the consequences of his act.37 The essence of
premeditation is that the execution of the act was
preceded by cool thought and reflection upon the
resolution to carry out the criminal intent during a space
of time sufficient to arrive at a calm judgment.38 From the
time the group met at the landing field at around 6:30
p.m. of May 6, 2002, and discussed the possibility of
killing anyone who stands on their way, up to the time
they took Sulpacio away from the Estrellas’ house and
eventually killed him thereafter at around past 3:00 a.m.,
more than eight hours had elapsed – sufficient for the
appellants to reflect on the consequences of their
actions and desist from carrying out their evil scheme, if
they wished to. Instead, appellants evidently clung to
their determination and went ahead with their nefarious
plan.
In Criminal Case No. 4481-R for Kidnapping and Serious
Illegal Detention.
The Court finds appellant Lando guilty of the special
complex crime of kidnapping and serious illegal
detention with rape, defined in and penalized under
Article 267 of the Revised Penal Code. The elements of
kidnapping and serious illegal detention under Article
267 of the Revised Penal Code39 are: (1) the offender is
a private individual; (2) he kidnaps or detains another or
in any other manner deprives the latter of his liberty; (3)
the act of detention or kidnapping must be illegal; and (4)
in the commission of the offense, any of the following
circumstances is present: (a) the kidnapping or detention
lasts for more than 3 days; or (b) it is committed by
simulating public authority; or (c) any serious physical
injuries are inflicted upon the person kidnapped or
detained or threats to kill him are made; or (d) the
person kidnapped or detained is a minor, female, or a
public officer.40
The crime of kidnapping was proven beyond reasonable
doubt by the prosecution. Appellants Lando and Al, both
private individuals, forcibly took AAA, a female, away
from the house of the Estrellas and held her captive
against her will. Thereafter, appellant Lando brought
AAA to his house in San Miguel Tarlac, whereby she
was deprived of her liberty for almost one month. It is
settled that the crime of serious illegal detention consists
not only of placing a person in an enclosure, but also in
detaining him or depriving him in any manner of his
liberty.41 For there to be kidnapping, it is enough that the
victim is restrained from going home.42 Its essence is the
actual deprivation of the victim's liberty, coupled with
indubitable proof of the intent of the accused to effect
such deprivation.43 Although AAA was not confined in an
enclosure, she was restrained and deprived of her
liberty, because every time appellant Lando and his wife
went out of the house, they brought AAA with them. The
foregoing only shows that AAA was constantly guarded
by appellant Lando and his family.
The crime of rape was also established by the
prosecution. Appellant Lando succeeded in having
carnal knowledge of AAA through the use of threat and
intimidation. AAA testified that on May 9, 2002, appellant
Lando brought her to a hotel to hide her from Fred and
Bert, who intended to kill her. Appellant Lando told her to
follow his orders, otherwise, he will give her to Fred and
Bert. While in the hotel, appellant Lando raped
her.44 Clearly, for fear of being delivered to Fred and
Bert and of losing her life, AAA had no choice but to give
in to appellant Lando's lustful assault. In rape cases, the
credibility of the victim's testimony is almost always the
single most important factor. When the victim's testimony
is credible, it may be the sole basis for the accused's
conviction.45 This is so because owing to the nature of
the offense, in many cases, the only evidence that can
be given regarding the matter is the testimony of the
offended party.46
The last paragraph of Article 267 of the Revised Penal
Code provides that if the victim is killed or dies as a
consequence of the detention, or is raped or subjected
to torture or dehumanizing acts, the maximum penalty
shall be imposed. In People v. Larrañaga,47 this
provision gives rise to a special complex crime. Thus,
We hold that appellant Lando is guilty beyond
reasonable doubt of the special complex crime of
kidnapping and serious illegal detention with rape in
Criminal Case No. 4481-R.
However, the Court does not agree with the CA and trial
court's judgment finding appellant Al liable for Rape in
Criminal Case No. 4481-R. In People v. Suyu,48 We
ruled that once conspiracy is established between
several accused in the commission of the crime of
robbery, they would all be equally culpable for the rape
committed by anyone of them on the occasion of the
robbery, unless anyone of them proves that he
endeavored to prevent the others from committing
rape.49 Also, in People v. Canturia,50 the Court held that:
x x x For while the evidence does convincingly show a
conspiracy among the accused, it also as convincingly
suggests that the agreement was to commit robbery
only; and there is no evidence that the other members of
the band of robbers were aware of Canturia's lustful
intent and his consummation thereof so that they could
have attempted to prevent the same. x x x
The foregoing principle is applicable in the present case
because the crime of robbery with rape is a special
complex crime defined in and penalized under Article
294, paragraph 1 of the Revised Penal Code, and the
crime of kidnapping with rape in this case is likewise a
special complex crime as held in the case of People v.
Larrañaga.51 There is no evidence to prove that
appellant Al was aware of the subsequent events that
transpired after the killing of Sulpacio and the kidnapping
of AAA. Appellant Al could not have prevented appellant
Lando from raping AAA, because at the time of rape, he
was no longer associated with appellant Lando. AAA
even testified that only Fred and appellant Lando
brought her to Tarlac,52 and she never saw appellant Al
again after May 7, 2002, the day she was held captive.
She only saw appellant Al once more during the trial of
the case.53 Thus, appellant Al cannot be held liable for
the subsequent rape of AAA.
The Penalties
In Criminal Case No. 4498-R, the attendant
circumstance of treachery qualified the killing to murder.
The penalty for murder under Article 248 of the Revised
Penal Code is reclusion perpetua to death. Since the
aggravating circumstance of evident premeditation was
alleged and proven, the imposable penalty upon the
appellants is death, pursuant to Article 63, paragraph 1,
of the Revised Penal Code.54 In view, however, of the
passage of R.A. No. 9346,55 prohibiting the imposition of
the death penalty, the penalty of death is reduced to
reclusion perpetua,56 without eligibility for parole.57
In Criminal Case No. 4481-R, the penalty for the special
complex crime of kidnapping and serious illegal
detention with rape is death. In view of R.A. No. 9346,
the penalty of death is reduced to reclusion
perpetua,58 without eligibility for parole.59 Accordingly,
the imposable penalty for appellant Lando is
reclusion perpetua.
As to appellant Al, the prescribed penalty for serious
illegal detention under Article 267 of the Revised Penal
Code is reclusion perpetua to death. There being no
aggravating or mitigating circumstance in the
commission of the offense, the proper penalty to be
imposed is reclusion perpetua, pursuant to Article 6360 of
the Revised Penal Code.
The Damages
In Criminal Case No. 4498-R, the award of civil
indemnity is mandatory and granted to the heirs of the
victim without need of proof other than the commission
of the crime.61 In People v. Quiachon,62 even if the
penalty of death is not to be imposed because of the
prohibition in R.A. 9346, the civil indemnity of
₱75,000.00 is proper, because it is not dependent on the
actual imposition of the death penalty but on the fact that
qualifying circumstances warranting the imposition of the
death penalty attended the commission of the offense.
As explained in People v. Salome,63 while R.A. No. 9346
prohibits the imposition of the death penalty, the fact
remains that the penalty provided for by law for a
heinous offense is still death, and the offense is still
heinous. Accordingly, the award of civil indemnity in the
amount of ₱75,000.00 is proper.
Anent moral damages, the same are mandatory in cases
of murder, without need of allegation and proof other
than the death of the victim.64 However, consistent with
recent jurisprudence on heinous crimes where the
imposable penalty is death but reduced to reclusion
perpetua pursuant to R.A. No. 9346, the award of moral
damages should be increased from ₱50,000.00 to
₱75,000.00.65
The award of exemplary damages is in order, because
of the presence of the aggravating circumstances of
treachery and evident premeditation in the commission
of the crime.66 The Court awards the amount of
₱30,000.00, as exemplary damages, in line with current
jurisprudence on the matter.67
Actual damages is also warranted. Modesta Abad, the
spouse of victim Sulpacio, incurred expenses in the
amount of ₱57,122.30, which was duly supported by
receipts.68lawphil
In Criminal Case No. 4481-R, AAA is entitled to civil
indemnity in line with prevailing jurisprudence that civil
indemnification is mandatory upon the finding of
rape.69 Applying prevailing jurisprudence, AAA is entitled
to ₱75,000.00 as civil indemnity.70
In addition, AAA is entitled to moral damages pursuant
to Article 2219 of the Civil Code,71 without the necessity
of additional pleadings or proof other than the fact of
rape.72 Moral damages is granted in recognition of the
victim's injury necessarily resulting from the odious crime
of rape.73 Such award is separate and distinct from the
civil indemnity.74 However, the amount of ₱100,000.00
awarded as moral damages is reduced to ₱75,000.00, in
line with current jurisprudence.75
The award of exemplary damages to AAA in the amount
of ₱50,000 is hereby reduced to ₱30,000.00 in
accordance with recent jurisprudence.76
As to appellant Al. In the absence of conspiracy, the
liability of the accused is individual and not
collective.77 Since appellant Al is liable only for the crime
of serious illegal detention, he is jointly and severally
liable only to pay the amount of ₱50,000.00 as civil
indemnity. For serious illegal detention, the award of civil
indemnity is in the amount of ₱50,000.00, in line with
prevailing jurisprudence.78
Along that line, appellant Al's liability for moral damages
is limited only to the amount of ₱50,000.00. 79 Pursuant
to Article 2219 of the Civil Code, moral damages may be
recovered in cases of illegal detention. This is predicated
on AAA's having suffered serious anxiety and fright
when she was detained for almost one (1) month.80
WHEREFORE, the Decision of the Court of Appeals in
CA-G.R. CR-H.C. No. 00556
is AFFIRMED with MODIFICATIONS as follows:
(a) In Criminal Case No. 4498-R, appellants
Fernando Calaguas Fernandez alias "Lando"
and Alberto Cabillo Anticamara alias "Al" are
found GUILTY beyond reasonable doubt of the
crime of Murder and are sentenced to suffer the
penalty of Reclusion Perpetua, without eligibility
of parole, and to pay, jointly and severally, the
heirs of Sulpacio Abad the amounts of
₱75,000.00 as civil indemnity, ₱75,000.00 as
moral damages, ₱30,000.00 as exemplary
damages, and ₱57,122.30 as actual damages.
(b) In Criminal Case No. 4481-R, appellant
Fernando Calaguas Fernandez alias "Lando" is
found GUILTY beyond reasonable doubt of the
special complex crime of kidnapping and serious
illegal detention with rape and is sentenced to
suffer the penalty of Reclusion Perpetua, without
eligibility of parole, and to pay the offended party
AAA, the amounts of ₱75,000.00 as civil
indemnity, ₱75,000.00 as moral damages and
₱30,000.00 as exemplary damages. Appellant
Alberto Cabillo Anticamara alias "Al" is found
GUILTY beyond reasonable doubt of the crime
of kidnapping and serious illegal detention and is
sentenced to suffer the penalty of Reclusion
Perpetua. He is also directed to pay, jointly and
severally, with appellant Fernando Calaguas
Fernandez alias "Lando," the victim AAA the
amounts of ₱50,000.00 as civil indemnity and
₱50,000.00 as moral damages.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 88724 April 3, 1990
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CEILITO ORITA alias "Lito," defendant-appellant.
The Office of the Solicitor General for plaintiff-appellee.
C. Manalo for defendant-appellant.
MEDIALDEA, J.:
The accused, Ceilito Orita alias Lito, was charged with
the crime of rape in Criminal Case No. 83-031-B before
the Regional Trial Court, Branch II, Borongan, Eastern
Samar. The information filed in the said case reads as
follows (p. 47, Rollo):
The undersigned Second Assistant Provincial
Fiscal upon prior complaint under oath by the
offended party, accuses CEILITO
ORITA alias LITO of the crime of Rape
committed as follows:
That on March 20, 1983, at about 1:30 o'clock in
the morning inside a boarding house at Victoria
St., Poblacion, Borongan, Eastern Samar,
Philippines, and within the jurisdiction of this
Honorable Court, above named accused with
lewd designs and by the use of a Batangas knife
he conveniently provided himself for the purpose
and with threats and intimidation, did, then and
there wilfully, unlawfully and feloniously lay with
and succeeded in having sexual intercourse with
Cristina S. Abayan against her will and without
her consent.
CONTRARY TO LAW.
Upon being arraigned, the accused entered the plea of
not guilty to the offense charged. After the witnesses for
the People testified and the exhibits were formally
offered and admitted, the prosecution rested its case.
Thereafter, the defense opted not to present any
exculpatory evidence and instead filed a Motion to
Dismiss. On August 5, 1985, the trial court rendered its
decision, the dispositive portion of which reads (pp. 59-
60, Rollo):
WHEREFORE. the Court being morally certain
of the guilt of accused CEILITO ORITA @ LITO,
of the crime of Frustrated Rape (Art. 335, RPC),
beyond reasonable doubt, with the aggravating
circumstances of dwelling and nightime (sic)
with no mitigating circumstance to offset the
same, and considering the provisions of the
 Indeterminate Sentence Law, imposes on
accused an imprisonment of TEN (10) YEARS
and ONE (1) DAY, PRISION MAYOR, as
minimum to TWELVE (12) YEARS PRISION
MAYOR, maximum; to indemnify CRISTINA S.
ABAYAN, the amount of Four Thousand
(P4,000.00) Pesos, without subsidiary
imprisonment in case of insolvency, and to pay
costs.
SO ORDERED.
Not satisfied with the decision, the accused appealed to
the Court of Appeals. On December 29, 1988, the Court
of Appeals rendered its decision, the dispositive portion
of which reads (p. 102, Rollo):
WHEREFORE, the trial court's judgment is
hereby MODIFIED, and the appellant found
guilty of the crime of rape, and consequently,
sentenced to suffer imprisonment of reclusion
perpetua and to indemnify the victim in the
amount of P30,000.00.
SO ORDERED.
On January 11, 1989, the Court of Appeals issued a
resolution setting aside its December 29, 1988 decision
and forwarded the case to this Court, considering the
provision of Section 9, paragraph 3 of Batas Pambansa
Blg. 129 in conjunction with Section 17, paragraph 3,
subparagraph 1 of the Judiciary Act of 1948.
The antecedent facts as summarized in the People's
brief are as follows (pp. 71-75, Rollo):
Complainant Cristina S. Abayan was a 19-year
old freshman student at the St. Joseph's College
at Borongan, Eastern Samar. Appellant was a
Philippine Constabulary (PC) soldier.
In the early morning of March 20, 1983,
complainant arrived at her boarding house. Her
classmates had just brought her home from a
party (p. 44, tsn, May 23, 1984). Shortly after her
classmates had left, she knocked at the door of
her boarding house (p. 5, ibid). All of a sudden,
somebody held her and poked a knife to her
neck. She then recognized appellant who was a
frequent visitor of another boarder (pp. 8-9, ibid).
She pleaded with him to release her, but he
ordered her to go upstairs with him. Since the
door which led to the first floor was locked from
the inside, appellant forced complainant to use
the back door leading to the second floor (p.
77, ibid). With his left arm wrapped around her
neck and his right hand poking a "balisong" to
her neck, appellant dragged complainant up the
stairs (p. 14, ibid). When they reached the
second floor, he commanded her to look for a
room. With the Batangas knife still poked to her
neck, they entered complainant's room.
Upon entering the room, appellant pushed
complainant who hit her head on the wall. With
one hand holding the knife, appellant undressed
himself. He then ordered complainant to take off
her clothes. Scared, she took off her T-shirt.
Then he pulled off her bra, pants and panty (p.
20, ibid).
He ordered her to lie down on the floor and then
mounted her. He made her hold his penis and
insert it in her vagina. She followed his order as
he continued to poke the knife to her. At said
position, however, appellant could not fully
penetrate her. Only a portion of his penis
entered her as she kept on moving (p. 23, ibid).
Appellant then lay down on his back and
commanded her to mount him. In this position,
only a small part again of his penis was inserted
into her vagina. At this stage, appellant had both
his hands flat on the floor. Complainant thought
of escaping (p. 20, ibid).
She dashed out to the next room and locked
herself in. Appellant pursued her and climbed
the partition. When she saw him inside the
room, she ran to another room. Appellant again
chased her. She fled to another room and
jumped out through a window (p. 27, ibid).
Still naked, she darted to the municipal building,
which was about eighteen meters in front of the
boarding house, and knocked on the door.
When there was no answer, she ran around the
building and knocked on the back door. When
the policemen who were inside the building
opened the door, they found complainant naked
sitting on the stairs crying. Pat. Donceras, the
first policeman to see her, took off his jacket and
wrapped it around her. When they discovered
what happened, Pat. Donceras and two other
policemen rushed to the boarding house. They
heard a sound at the second floor and saw
somebody running away. Due to darkness, they
failed to apprehend appellant.
Meanwhile, the policemen brought complainant
to the Eastern Samar Provincial Hospital where
she was physically examined.
Dr. Ma. Luisa Abude, the resident physician who
examined complainant, issued a Medical
Certificate (Exhibit "A") which states:
Physical Examination — Patient is fairly
built, came in with loose clothing with no
 under-clothes; appears in state of
shock, per unambulatory.
PE Findings — Pertinent Findings only.
Neck- — Circumscribed hematoma at
Ant. neck.
Breast — Well developed, conical in
shape with prominent nipples; linear
abrasions below (L) breast.
Back — Multiple pinpoint marks.
Extremities — Abrasions at (R) and (L)
knees.
Vulva — No visible abrasions or marks
at the perineal area or over the
vulva, errythematous (sic) areas noted
surrounding vaginal orifice,
tender, hymen intact; no laceration fresh
and old noted; examining finger can
barely enter and with difficulty; vaginal
canal tight; no discharges noted.
As aforementioned, the trial court convicted the accused
of frustrated rape.
In this appeal, the accused assigns the following errors:
1) The trial court erred in disregarding the substantial
inconsistencies in the testimonies of the witnesses; and
2) The trial court erred in declaring that the crime of
frustrated rape was committed by the accused.
The accused assails the testimonies of the victim and
Pat. Donceras because they "show remarkable and vital
inconsistencies and its incredibility amounting to
fabrication and therefore casted doubt to its candor, truth
and validity." (p. 33, Rollo)
A close scrutiny of the alleged inconsistencies revealed
that they refer to trivial inconsistencies which are not
sufficient to blur or cast doubt on the witnesses'
straightforward attestations. Far from being badges of
fabrication, the inconsistencies in their testimonies may
in fact be justifiably considered as manifestations of
truthfulness on material points. These little deviations
also confirm that the witnesses had not been rehearsed.
The most candid witnesses may make mistakes
sometimes but such honest lapses do not necessarily
impair their intrinsic credibility (People v. Cabato, G.R.
No. L-37400, April 15, 1988, 160 SCRA 98). Rather than
discredit the testimonies of the prosecution witnesses,
discrepancies on minor details must be viewed as
adding credence and veracity to such spontaneous
testimonies (Aportadera et al. v. Court of Appeals, et al.,
G.R. No. L-41358, March 16, 1988, 158 SCRA 695). As
a matter of fact, complete uniformity in details would be
a strong indication of untruthfulness and lack of
spontaneity (People v. Bazar, G.R. No. L-41829, June
27, 1988, 162 SCRA 609). However, one of the alleged
inconsistencies deserves a little discussion which is, the
testimony of the victim that the accused asked her to
hold and guide his penis in order to have carnal
knowledge of her. According to the accused, this is
strange because "this is the only case where an
aggressor's advances is being helped-out by the victim
in order that there will be a consumation of the act." (p.
34, Rollo). The allegation would have been meritorious
had the testimony of the victim ended there. The victim
testified further that the accused was holding a Batangas
knife during the aggression. This is a material part of the
victim's testimony which the accused conveniently
deleted.
We find no cogent reason to depart from the well-settled
rule that the findings of fact of the trial court on the
credibility of witnesses should be accorded the highest
respect because it has the advantage of observing the
demeanor of witnesses and can discern if a witness is
telling the truth (People v. Samson, G.R. No. 55520,
August 25, 1989). We quote with favor the trial court's
finding regarding the testimony of the victim (p
56, Rollo):
As correctly pointed out in the memorandum for
the People, there is not much to be desired as to
the sincerity of the offended party in her
testimony before the court. Her answer to every
question profounded (sic), under all
circumstances, are plain and straightforward. To
the Court she was a picture of supplication
hungry and thirsty for the immediate vindication
of the affront to her honor. It is inculcated into
the mind of the Court that the accused had
wronged her; had traversed illegally her honor.
When a woman testifies that she has been raped, she
says in effect all that is necessary to show that rape was
committed provided her testimony is clear and free from
contradiction and her sincerity and candor, free from
suspicion (People v Alfonso, G.R. No. 72573, August 31,
1987, 153 SCRA 487; People v. Alcid, G.R. Nos. 66387-
88, February 28, 1985, 135 SCRA 280; People v.
Soterol G.R. No. 53498, December 16, 1985, 140 SCRA
400). The victim in this case did not only state that she
was raped but she testified convincingly on how the rape
was committed. The victim's testimony from the time she
knocked on the door of the municipal building up to the
time she was brought to the hospital was corroborated
by Pat. Donceras. Interpreting the findings as indicated
in the medical certificate, Dr. Reinerio Zamora (who was
presented in view of the unavailability of Dr. Abude)
declared that the abrasions in the left and right knees,
linear abrasions below the left breast, multiple pinpoint
marks, circumscribed hematoma at the anterior neck,
erythematous area surrounding the vaginal orifice and
tender vulva, are conclusive proof of struggle against
force and violence exerted on the victim (pp. 52-
53, Rollo). The trial court even inspected the boarding
house and was fully satisfied that the narration of the
scene of the incident and the conditions therein is true
(p. 54, Rollo):
. . . The staircase leading to the first floor is in
such a condition safe enough to carry the weight
of both accused and offended party without the
slightest difficulty, even in the manner as
narrated. The partitions of every room were of
strong materials, securedly nailed, and would
not give way even by hastily scaling the same.
A little insight into human nature is of utmost value in
judging rape complaints (People v. Torio, et al., G.R. No.
L-48731, December 21, 1983, 126 SCRA 265). Thus,
the trial court added (p. 55, Rollo):
. . . And the jump executed by the offended party
from that balcony (opening) to the ground which
was correctly estimated to be less than eight (8)
meters, will perhaps occasion no injury to a
frightened individual being pursued. Common
experience will tell us that in occasion of
conflagration especially occuring (sic) in high
buildings, many have been saved by jumping
from some considerable heights without being
injured. How much more for a frightened barrio
girl, like the offended party to whom honor
appears to be more valuable than her life or
limbs? Besides, the exposure of her private
parts when she sought assistance from
authorities, as corroborated, is enough indication
that something not ordinary happened to her
unless she is mentally deranged. Sadly, nothing
was adduced to show that she was out of her
mind.
In a similar case (People v. Sambili G.R. No. L-44408,
September 30, 1982, 117 SCRA 312), We ruled that:
What particularly imprints the badge of truth on
her story is her having been rendered entirely
naked by appellant and that even in her nudity,
she had to run away from the latter and
managed to gain sanctuary in a house owned by
spouses hardly known to her. All these acts she
would not have done nor would these facts have
occurred unless she was sexually assaulted in
the manner she narrated.
The accused questions also the failure of the
prosecution to present other witnesses to corroborate
the allegations in the complaint and the non-presentation
of the medico-legal officer who actually examined the
victim. Suffice it to say that it is up to the prosecution to
determine who should be presented as witnesses on the
basis of its own assessment of their necessity (Tugbang
v. Court of Appeals, et al., G.R. No. 56679, June 29,
1989; People v. Somera, G.R. No. 65589, May 31,
1989). As for the non-presentation of the medico-legal
officer who actually examined the victim, the trial court
stated that it was by agreement of the parties that
another physician testified inasmuch as the medico-legal
officer was no longer available. The accused did not
bother to contradict this statement.
Summing up, the arguments raised by the accused as
regards the first assignment of error fall flat on its face.
Some were not even substantiated and do not,
therefore, merit consideration. We are convinced that the
accused is guilty of rape. However, We believe the
subject matter that really calls for discussion, is whether
or not the accused's conviction for frustrated rape is
proper. The trial court was of the belief that there is no
conclusive evidence of penetration of the genital organ
of the victim and thus convicted the accused of
frustrated rape only.
The accused contends that there is no crime of
frustrated rape. The Solicitor General shares the same
view.
Article 335 of the Revised Penal Code defines and
enumerates the elements of the crime of rape:
Art. 335. When and how rape is committed. —
Rape is committed by having carnal knowledge
of a woman under any of the following
circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or
otherwise unconscious and
3. When the woman is under twelve years of
age, even though neither of the circumstances
mentioned in the two next preceding paragraphs
shall be present.
xxx xxx xxx
Carnal knowledge is defined as the act of a man in
having sexual bodily connections with a woman (Black's
Law Dictionary. Fifth Edition, p. 193).
On the other hand, Article 6 of the same Code provides:
Art. 6. Consummated, frustrated, and attempted
felonies. — Consummated felonies as well as
those which are frustrated and attempted, are
punishable.
A felony is consummated when all the elements
necessary for its execution and accomplishment
are present; and it is frustrated when the
offender performs all the acts of execution which
would produce the felony as a consequence but
which, nevertheless, do not produce it by reason
 of causes independent of the will of the
perpetrator.
There is an attempt when the offender
commences the commission of a felony directly
by overt acts, and does not perform all the acts
of execution which should produce the felony by
reason of some cause or accident other than his
own spontaneous desistance.
Correlating these two provisions, there is no debate that
the attempted and consummated stages apply to the
crime of rape.1âwphi1 Our concern now is whether or
not the frustrated stage applies to the crime of rape.
The requisites of a frustrated felony are: (1) that the
offender has performed all the acts of execution which
would produce the felony and (2) that the felony is not
produced due to causes independent of the perpetrator's
will. In the leading case of United States v. Eduave, 36
Phil. 209, 212, Justice Moreland set a distinction
between attempted and frustrated felonies which is
readily understood even by law students:
. . . A crime cannot be held to be attempted
unless the offender, after beginning the
commission of the crime by overt acts, is
prevented, against his will, by some outside
cause from performing all of the acts which
should produce the crime. In other words, to be
an attempted crime the purpose of the offender
must be thwarted by a foreign force or agency
which intervenes and compels him to stop prior
to the moment when he has performed all of the
acts which should produce the crime as a
consequence, which acts it is his intention to
perform. If he has performed all of the acts
which should result in the consummation of the
crime and voluntarily desists from proceeding
further, it can not be an attempt. The essential
element which distinguishes attempted from
frustrated felony is that, in the latter, there is no
intervention of a foreign or extraneous cause or
agency between the beginning of the
commission of the crime and the moment when
all of the acts have been performed which
should result in the consummated crime; while in
the former there is such intervention and the
offender does not arrive at the point of
performing all of the acts which should produce
the crime. He is stopped short of that point by
some cause apart from his voluntary desistance.
Clearly, in the crime of rape, from the moment the
offender has carnal knowledge of his victim he actually
attains his purpose and, from that moment also all the
essential elements of the offense have been
accomplished. Nothing more is left to be done by the
offender, because he has performed the last act
necessary to produce the crime. Thus, the felony is
consummated. In a long line of cases (People v. Oscar,
48 Phil. 527; People v. Hernandez, 49 Phil. 980; People
v. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA
666; People v. Amores, G.R. No. L-32996, August 21,
1974, 58 SCRA 505), We have set the uniform rule that
for the consummation of rape, perfect penetration is not
essential. Any penetration of the female organ by the
male organ is sufficient. Entry of the labia or lips of the
female organ, without rupture of the hymen or laceration
of the vagina is sufficient to warrant
conviction. Necessarily, rape is attempted if there is no
penetration of the female organ (People v. Tayaba, 62
Phil. 559 People v. Rabadan et al., 53 Phil. 694; United
States v. Garcia: 9 Phil. 434) because not all acts of
execution was performed. The offender merely
commenced the commission of a felony directly by overt
acts. Taking into account the nature, elements and
manner of execution of the crime of rape and
jurisprudence on the matter, it is hardly conceivable how
the frustrated stage in rape can ever be committed.
Of course, We are aware of our earlier pronouncement
in the case of People v. Eriña 50 Phil. 998 [1927] where
We found the offender guilty of frustrated rape there
being no conclusive evidence of penetration of the
genital organ of the offended party. However, it appears
that this is a "stray" decision inasmuch as it has not been
reiterated in Our subsequent decisions. Likewise, We
are aware of Article 335 of the Revised Penal Code, as
amended by Republic Act No. 2632 (dated September
12, 1960) and Republic Act No. 4111 (dated March 29,
1965) which provides, in its penultimate paragraph, for
the penalty of death when the rape is attempted
or frustrated and a homicide is committed by reason or
on the occasion thereof. We are of the opinion that this
particular provision on frustrated rape is a dead
provision. The Eriña case, supra, might have prompted
the law-making body to include the crime of frustrated
rape in the amendments introduced by said laws.
In concluding that there is no conclusive evidence of
penetration of the genital organ of the victim, the trial
court relied on the testimony of Dr. Zamora when he
"categorically declared that the findings in the vulva does
not give a concrete disclosure of penetration. As a
matter of fact, he tossed back to the offended party the
answer as to whether or not there actually was
penetration." (p. 53, Rollo) Furthermore, the trial court
stated (p. 57, Rollo):
. . . It cannot be insensible to the findings in the
medical certificate (Exhibit "A") as interpreted by
Dr. Reinerio Zamora and the equivocal
declaration of the latter of uncertainty whether
there was penetration or not. It is true, and the
Court is not oblivious, that conviction for rape
could proceed from the uncorroborated
testimony of the offended party and that a
medical certificate is not necessary (People v.
Royeras People v. Orteza, 6 SCRA 109, 113).
But the citations the people relied upon cannot
be applicable to the instant case. The testimony
 of the offended party is at variance with the
medical certificate. As such, a very disturbing
doubt has surfaced in the mind of the court. It
should be stressed that in cases of rape where
there is a positive testimony and a medical
certificate, both should in all respect, compliment
each other, for otherwise to rely on the
testimony alone in utter disregard of the
manifest variance in the medical certificate,
would be productive of mischievous results.
The alleged variance between the testimony of the victim
and the medical certificate does not exist. On the
contrary, it is stated in the medical certificate that the
vulva was erythematous (which means marked by
abnormal redness of the skin due to capillary
congestion, as in inflammation) and tender. It bears
emphasis that Dr. Zamora did not rule out penetration of
the genital organ of the victim. He merely testified that
there was uncertainty whether or not there was
penetration. Anent this testimony, the victim positively
testified that there was penetration, even if only partially
(pp. 302, 304, t.s.n., May 23, 1984):
Q Was the penis inserted on your vagina?
A It entered but only a portion of it.
xxx xxx xxx
Q What do you mean when you said comply, or
what act do you referred (sic) to, when you said
comply?
be reclusion perpetua to death. The trial court
appreciated the aggravating circumstances of dwelling
and nighttime. Thus, the proper imposable penalty is
death. In view, however, of Article 111, Section 19(1) of
the 1987 Constitution and Our ruling in People v. Millora,
et al., G.R. Nos. L-38968-70, February 9, 1989, that the
cited Constitutional provision did not declare the
abolition of the death penalty but merely prohibits the
imposition of the death penalty, the Court has since
February 2, 1987 not imposed the death penalty
whenever it was called for under the Revised Penal
Code but instead reduced the same to reclusion
perpetua (People v. Solis, et al., G.R. Nos. 78732-33,
February 14, 1990). Reclusion perpetua, being a single
indivisible penalty under Article 335, paragraph 3, is
imposed regardless of any mitigating or aggravating
circumstances (in relation to Article 63, paragraph 1,
Revised Penal Code; see People v. Arizala, G.R. No.
59713, March 15, 1982, 112 SCRA 615; People v.
Manzano, G.R. No. L38449, November 25, 1982, 118
SCRA 705; People v. Ramirez, G.R. No. 70744, May 31,
1985, 136 SCRA 702).
ACCORDINGLY, the decision of the Regional Trial Court
is hereby MODIFIED. The accused Ceilito Orita is
hereby found guilty beyond reasonable doubt of the
crime of rape and sentenced to reclusion perpetua as
well as to indemnify the victim in the amount of
P30,000.00.
SO ORDERED.

A I inserted his penis into my vagina.

Q And was it inserted?

A Yes only a little.

The fact is that in a prosecution for rape, the accused

may be convicted even on the sole basis of the victim's
testimony if credible (People v. Tabago, G.R. No. 69778,
November 8, 1988, 167 SCRA 65; People v. Aragona,
G.R. No. L-43752, September 19, 1985, 138 SCRA 569;
People v. Taduyo, G.R. Nos. L-37928-29, September
29, 1987, 154 SCRA 349). Moreover, Dr. Zamora's
testimony is merely corroborative and is not an
indispensable element in the prosecution of this case
(People v. Alfonso, supra).

Although the second assignment of error is meritorious,

it will not tilt the scale in favor of the accused because
after a thorough review of the records, We find the
evidence sufficient to prove his guilt beyond reasonable
doubt of the crime of consummated rape.

Article 335, paragraph 3, of the Revised Penal Code

provides that whenever the crime of rape is committed
with the use of a deadly weapon, the penalty shall