PP vs. Villacorta GR No. 186412 September 7.

2011

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 186412               September 7, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ORLITO VILLACORTA, Accused-Appellant.

DECISION

LEONARDO-DE CASTRO, J.:

On appeal is the Decision1 dated July 30, 2008 of the Court of Appeals in CA-G.R. CR.-H.C.
No. 02550, which affirmed the Decision2 dated September 22, 2006 of the Regional Trial Court
(RTC), Branch 170, of Malabon, in Criminal Case No. 27039-MN, finding accused-appellant
Orlito Villacorta (Villacorta) guilty of murder, and sentencing him to suffer the penalty of
reclusion perpetua and to pay the heirs of Danilo Cruz (Cruz) the sum of ₱50,000.00 as civil
indemnity, plus the costs of suit.

On June 21, 2002, an Information3 was filed against Villacorta charging him with the crime of
murder, as follows:

That on or about 23rd day of January 2002, in Navotas, Metro Manila, and within the jurisdiction
of this Honorable Court, the above-named accused, armed with a sharpened bamboo stick, with
intent to kill, treachery and evident premeditation, did then and there willfully, unlawfully and
feloniously attack, assault and stab with the said weapon one DANILO SALVADOR CRUZ,
thereby inflicting upon the victim serious wounds which caused his immediate death.

When arraigned on September 9, 2002, Villacorta pleaded not guilty.4

During trial, the prosecution presented as witnesses Cristina Mendeja (Mendeja) and Dr.
Domingo Belandres, Jr. (Dr. Belandres).

Mendeja narrated that on January 23, 2002, she was tending her sari-sari store located at C-4
Road, Bagumbayan, Navotas. Both Cruz and Villacorta were regular customers at Mendeja’s
store. At around two o’clock in the morning, while Cruz was ordering bread at Mendeja’s store,
Villacorta suddenly appeared and, without uttering a word, stabbed Cruz on the left side of
Cruz’s body using a sharpened bamboo stick. The bamboo stick broke and was left in Cruz’s
body. Immediately after the stabbing incident, Villacorta fled. Mendeja gave chase but failed to
catch Villacorta. When Mendeja returned to her store, she saw her neighbor Aron removing the

1
broken bamboo stick from Cruz’s body.5 Mendeja and Aron then brought Cruz to Tondo Medical
Center.6

Dr. Belandres was Head of the Tetanus Department at the San Lazaro Hospital. When Cruz
sustained the stab wound on January 23, 2002, he was taken to the Tondo Medical Center, where
he was treated as an out-patient. Cruz was only brought to the San Lazaro Hospital on February
14, 2002, where he died the following day, on February 15, 2002. While admitting that he did
not personally treat Cruz, Dr. Belandres was able to determine, using Cruz’s medical chart and
diagnosis, that Cruz died of tetanus infection secondary to stab wound.7 Dr. Belandres
specifically described the cause of Cruz’s death in the following manner:

The wound was exposed x x – spurs concerted, the patient developed difficulty of opening the
mouth, spastivity of the body and abdominal pain and the cause of death is hypoxic
encephalopathy – neuro transmitted – due to upper G.I. bleeding x x x. Diagnosed of Tetanus,
Stage III.8

The prosecution also intended to present Dr. Deverni Matias (Dr. Matias), who attended to Cruz
at the San Lazaro Hospital, but the prosecution and defense agreed to dispense with Dr. Matias’
testimony based on the stipulation that it would only corroborate Dr. Belandres’ testimony on
Cruz dying of tetanus.

For its part, the defense presented Villacorta himself, who denied stabbing Cruz. Villacorta
recounted that he was on his way home from work at around two o’clock in the morning of
January 21, 2002. Upon arriving home, Villacorta drank coffee then went outside to buy
cigarettes at a nearby store. When Villacorta was about to leave the store, Cruz put his arm
around Villacorta’s shoulder. This prompted Villacorta to box Cruz, after which, Villacorta went
home. Villacorta did not notice that Cruz got hurt. Villacorta only found out about Cruz’s death
upon his arrest on July 31, 2002.9

On September 22, 2006, the RTC rendered a Decision finding Villacorta guilty of murder,
qualified by treachery. The dispositive portion of said Decision reads:

WHEREFORE, in the light of the foregoing, the Court finds accused Orlito Villacorta guilty
beyond reasonable doubt of the crime of Murder and is hereby sentenced to suffer the penalty of
reclusion perpetua and to pay the heirs of Danilo Cruz the sum of ₱50,000.00 as civil indemnity
for the death of said victim plus the costs of suit.10

Villacorta, through his counsel from the Public Attorney’s Office (PAO), filed a notice of appeal
to assail his conviction by the RTC.11 The Court of Appeals directed the PAO to file Villacorta’s
brief, within thirty days from receipt of notice.

Villacorta filed his Appellant’s Brief12 on May 30, 2007; while the People, through the Office of
the Solicitor General (OSG), filed its Appellee's Brief13 on October 2, 2007.

On July 30, 2008, the Court of Appeals promulgated its Decision affirming in toto the RTC
judgment of conviction against Villacorta.

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Hence, Villacorta comes before this Court via the instant appeal.

Villacorta manifested that he would no longer file a supplemental brief, as he was adopting the
Appellant's Brief he filed before the Court of Appeals.14 The OSG, likewise, manifested that it
was no longer filing a supplemental brief. 15

In his Appellant’s Brief, Villacorta raised the following assignment of errors:

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-

APPELLANT GUILTY OF THE CRIME CHARGED DESPITE THE FAILURE OF
THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.

II

THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE QUALIFYING

CIRCUMSTANCE OF TREACHERY.

III

ASSUMING ARGUENDO THAT THE ACCUSED COMMITTED A CRIME, HE

COULD ONLY BE HELD LIABLE FOR SLIGHT PHYSICAL INJURIES.16

Villacorta assails the credibility of Mendeja, an eyewitness to the stabbing incident. It was
Mendeja who positively identified Villacorta as the one who stabbed Cruz in the early morning
of January 23, 2002. Villacorta asserts that Mendeja’s account of the stabbing incident is replete
with inconsistencies and incredulities, and is contrary to normal human experience, such as: (1)
instead of shouting or calling for help when Villacorta allegedly stabbed Cruz, Mendeja
attempted to run after and catch Villacorta; (2) while, by Mendeja’s own account, there were
other people who witnessed the stabbing and could have chased after Villacorta, yet, oddly, only
Mendeja did; (3) if Cruz was stabbed so swiftly and suddenly as Mendeja described, then it
would have been physically improbable for Mendeja to have vividly recognized the perpetrator,
who immediately ran away after the stabbing; (4) after the stabbing, both Villacorta and Cruz ran
in opposite directions; and (5) Mendeja had said that the bamboo stick, the alleged murder
weapon, was left at her store, although she had also stated that the said bamboo stick was left
embedded in Cruz’s body. Villacorta maintains that the aforementioned inconsistencies are
neither trivial nor inconsequential, and should engender some doubt as to his guilt.

We are not persuaded.

To begin with, it is fundamental that the determination by the trial court of the credibility of
witnesses, when affirmed by the appellate court, is accorded full weight and credit as well as
great respect, if not conclusive effect. Such determination made by the trial court proceeds from
its first-hand opportunity to observe the demeanor of the witnesses, their conduct and attitude

3
under grilling examination, thereby placing the trial court in the unique position to assess the
witnesses' credibility and to appreciate their truthfulness, honesty and candor.17

In this case, both the RTC and the Court of Appeals gave full faith and credence to the testimony
of prosecution witness Mendeja. The Court of Appeals rejected Villacorta’s attempts to impugn
Mendeja’s testimony, thus:

Appellant’s reason for concluding that witness Mendeja’s testimony is incredible because she did
not shout or call for help and instead run after the appellant, fails to impress the Court because
persons who witness crimes react in different ways.

"x x x the makings of a human mind are unpredictable; people react differently and there is no
standard form of behavior when one is confronted by a shocking incident.

Equally lacking in merit is appellant’s second reason which is, other persons could have run after
the appellant after the stabbing incident. As explained by witness Mendeja, the other person
whom she identified as Aron was left to assist the appellant who was wounded. Further, the
stabbing occurred at 2:00 o’clock in the morning, a time when persons are expected to be asleep
in their house, not roaming the streets.

His [Villacorta’s] other argument that the swiftness of the stabbing incident rendered impossible
or incredible the identification of the assailant cannot likewise prosper in view of his admission
that he was in the store of witness Mendeja on January 23, 2002 at 2:00 o’clock in the morning
and that he assaulted the victim by boxing him.

Even if his admission is disregarded still the evidence of record cannot support appellant’s
argument. Appellant and the victim were known to witness Mendeja, both being her friends and
regular customers. There was light in front of the store. An opening in the store measuring 1 and
¼ meters enables the person inside to see persons outside, particularly those buying articles from
the store. The victim was in front of the store buying bread when attacked. Further, immediately
after the stabbing, witness Mendeja ran after the appellant giving her additional opportunity to
identify the malefactor. Thus, authorship of the attack can be credibly ascertained.18

Moreover, Villacorta was unable to present any reason or motivation for Mendeja to fabricate
such a lie and falsely accuse Villacorta of stabbing Cruz on January 23, 2002. We have ruled
time and again that where the prosecution eyewitness was familiar with both the victim and
accused, and where the locus criminis afforded good visibility, and where no improper motive
can be attributed to the witness for testifying against the accused, then her version of the story
deserves much weight.19

The purported inconsistencies in Mendeja’s testimony pointed out by Villacorta are on matters
that have no bearing on the fundamental fact which Mendeja testified on: that Villacorta stabbed
Cruz in the early morning of January 23, 2002, right in front of Mendeja’s store.

In the face of Mendeja’s positive identification of Villacorta as Cruz’s stabber, Villacorta could
only muster an uncorroborated denial. Denial, like alibi, as an exonerating justification, is

4
inherently weak and if uncorroborated, regresses to blatant impotence. Like alibi, it also
constitutes self-serving negative evidence which cannot be accorded greater evidentiary weight
than the declaration of credible witnesses who testify on affirmative matters.20

Hence, we do not deviate from the foregoing factual findings of the RTC, as affirmed by the
Court of Appeals.

Nevertheless, there is merit in the argument proffered by Villacorta that in the event he is found
to have indeed stabbed Cruz, he should only be held liable for slight physical injuries for the stab
wound he inflicted upon Cruz. The proximate cause of Cruz’s death is the tetanus infection, and
not the stab wound.

Proximate cause has been defined as "that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury, and without which the result
would not have occurred."21

In this case, immediately after he was stabbed by Villacorta in the early morning of January 23,
2002, Cruz was rushed to and treated as an out-patient at the Tondo Medical Center. On
February 14, 2002, Cruz was admitted to the San Lazaro Hospital for symptoms of severe
tetanus infection, where he died the following day, on February 15, 2002. The prosecution did
not present evidence of the emergency medical treatment Cruz received at the Tondo Medical
Center, subsequent visits by Cruz to Tondo Medical Center or any other hospital for follow-up
medical treatment of his stab wound, or Cruz’s activities between January 23 to February 14,
2002.

In Urbano v. Intermediate Appellate Court,22 the Court was confronted with a case of very
similar factual background as the one at bar. During an altercation on October 23, 1980, Urbano
hacked Javier with a bolo, inflicting an incised wound on Javier’s hand. Javier was treated by Dr.
Meneses. On November 14, 1980, Javier was rushed to the hospital with lockjaw and
convulsions. Dr. Exconde, who attended to Javier, found that Javier’s serious condition was
caused by tetanus infection. The next day, on November 15, 1980, Javier died. An Information
was filed against Urbano for homicide. Both the Circuit Criminal Court and the Intermediate
Appellate Court found Urbano guilty of homicide, because Javier's death was the natural and
logical consequence of Urbano's unlawful act. Urbano appealed before this Court, arguing that
Javier’s own negligence was the proximate cause of his death. Urbano alleged that when Dr.
Meneses examined Javier’s wound, he did not find any tetanus infection and that Javier could
have acquired the tetanus germs when he returned to work on his farm only two (2) weeks after
sustaining his injury. The Court granted Urbano’s appeal.

We quote extensively from the ratiocination of the Court in Urbano:

The issue, therefore, hinges on whether or not there was an efficient intervening cause from the
time Javier was wounded until his death which would exculpate Urbano from any liability for
Javier's death.

We look into the nature of tetanus-

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"The incubation period of tetanus, i.e., the time between injury and the appearance of
unmistakable symptoms, ranges from 2 to 56 days. However, over 80 percent of patients become
symptomatic within 14 days. A short incubation period indicates severe disease, and when
symptoms occur within 2 or 3 days of injury the mortality rate approaches 100 percent.

"Non-specific premonitory symptoms such as restlessness, irritability, and headache are

encountered occasionally, but the commonest presenting complaints are pain and stiffness in the
jaw, abdomen, or back and difficulty swallowing. As the disease progresses, stiffness gives way
to rigidity, and patients often complain of difficulty opening their mouths. In fact, trismus is the
commonest manifestation of tetanus and is responsible for the familiar descriptive name of
lockjaw. As more muscles are involved, rigidity becomes generalized, and sustained contractions
called risus sardonicus. The intensity and sequence of muscle involvement is quite variable. In a
small proportion of patients, only local signs and symptoms develop in the region of the injury.
In the vast majority, however, most muscles are involved to some degree, and the signs and
symptoms encountered depend upon the major muscle groups affected.

"Reflex spasm usually occur within 24 to 72 hours of the first symptoms, an interval referred to
as the onset time. As in the case of the incubation period, a short onset time is associated with a
poor prognosis. Spasms are caused by sudden intensification of afferent stimuli arising in the
periphery, which increases rigidity and causes simultaneous and excessive contraction of
muscles and their antagonists. Spasms may be both painful and dangerous. As the disease
progresses, minimal or inapparent stimuli produce more intense and longer lasting spasms with
increasing frequency. Respiration may be impaired by laryngospasm or tonic contraction of
respiratory muscles which prevent adequate ventilation. Hypoxia may then lead to irreversible
central nervous system damage and death.

"Mild tetanus is characterized by an incubation period of at least 14 days and an onset time of
more than 6 days. Trismus is usually present, but dysphagia is absent and generalized spasms are
brief and mild. Moderately severe tetanus has a somewhat shorter incubation period and onset
time; trismus is marked, dysphagia and generalized rigidity are present, but ventilation remains
adequate even during spasms. The criteria for severe tetanus include a short incubation time, and
an onset time of 72 hrs., or less, severe trismus, dysphagia and rigidity and frequent prolonged,
generalized convulsive spasms. (Harrison's Principle of Internal Medicine, 1983 Edition, pp.
1004-1005; Emphasis supplied)

Therefore, medically speaking, the reaction to tetanus found inside a man's body depends on the
incubation period of the disease.

In the case at bar, Javier suffered a 2-inch incised wound on his right palm when he parried the
bolo which Urbano used in hacking him. This incident took place on October 23, 1980. After 22
days, or on November 14, 1980, he suffered the symptoms of tetanus, like lockjaw and muscle
spasms. The following day, November 15, 1980, he died.

If, therefore, the wound of Javier inflicted by the appellant was already infected by tetanus germs
at the time, it is more medically probable that Javier should have been infected with only a mild
case of tetanus because the symptoms of tetanus appeared on the 22nd day after the hacking

6
incident or more than 14 days after the infliction of the wound. Therefore, the onset time should
have been more than six days. Javier, however, died on the second day from the onset time. The
more credible conclusion is that at the time Javier's wound was inflicted by the appellant, the
severe form of tetanus that killed him was not yet present. Consequently, Javier's wound could
have been infected with tetanus after the hacking incident. Considering the circumstance
surrounding Javier's death, his wound could have been infected by tetanus 2 or 3 or a few but not
20 to 22 days before he died.23

The incubation period for tetanus infection and the length of time between the hacking incident
and the manifestation of severe tetanus infection created doubts in the mind of the Court that
Javier acquired the severe tetanus infection from the hacking incident. We explained in Urbano
that:

The rule is that the death of the victim must be the direct, natural, and logical consequence of
the wounds inflicted upon him by the accused. (People v. Cardenas, supra) And since we are
dealing with a criminal conviction, the proof that the accused caused the victim's death must
convince a rational mind beyond reasonable doubt. The medical findings, however, lead us to a
distinct possibility that the infection of the wound by tetanus was an efficient intervening cause
later or between the time Javier was wounded to the time of his death. The infection was,
therefore, distinct and foreign to the crime. (People v. Rellin, 77 Phil. 1038).

Doubts are present. There is a likelihood that the wound was but the remote cause and its
subsequent infection, for failure to take necessary precautions, with tetanus may have been the
proximate cause of Javier's death with which the petitioner had nothing to do. As we ruled in
Manila Electric Co. v. Remoquillo, et al. (99 Phil. 118).

"A prior and remote cause cannot be made the basis of an action if such remote cause did
nothing more than furnish the condition or give rise to the occasion by which the injury was
made possible, if there intervened between such prior or remote cause and the injury a distinct,
successive, unrelated, and efficient cause of the injury, even though such injury would not have
happened but for such condition or occasion. If no danger existed in the condition except because
of the independent cause, such condition was not the proximate cause. And if an independent
negligent act or defective condition sets into operation the instances, which result in injury
because of the prior defective condition, such subsequent act or condition is the proximate
cause." (45 C.J. pp. 931-932). (at p. 125)24

We face the very same doubts in the instant case that compel us to set aside the conviction of
Villacorta for murder. There had been an interval of 22 days between the date of the stabbing and
the date when Cruz was rushed to San Lazaro Hospital, exhibiting symptoms of severe tetanus
infection. If Cruz acquired severe tetanus infection from the stabbing, then the symptoms would
have appeared a lot sooner than 22 days later. As the Court noted in Urbano, severe tetanus
infection has a short incubation period, less than 14 days; and those that exhibit symptoms with
two to three days from the injury, have one hundred percent (100%) mortality. Ultimately, we
can only deduce that Cruz’s stab wound was merely the remote cause, and its subsequent
infection with tetanus might have been the proximate cause of Cruz's death. The infection of

7
Cruz’s stab wound by tetanus was an efficient intervening cause later or between the time Cruz
was stabbed to the time of his death.

However, Villacorta is not totally without criminal liability.1âwphi1 Villacorta is guilty of slight
physical injuries under Article 266(1) of the Revised Penal Code for the stab wound he inflicted
upon Cruz. Although the charge in the instant case is for murder, a finding of guilt for the lesser
offense of slight physical injuries may be made considering that the latter offense is necessarily
included in the former since the essential ingredients of slight physical injuries constitute and
form part of those constituting the offense of murder.25

We cannot hold Villacorta criminally liable for attempted or frustrated murder because the
prosecution was not able to establish Villacorta’s intent to kill. In fact, the Court of Appeals
expressly observed the lack of evidence to prove such an intent beyond reasonable doubt, to wit:

Appellant stabbed the victim only once using a sharpened bamboo stick, hitting him on the left
side of the body and then immediately fled. The instrument used is not as lethal as those made of
metallic material. The part of the body hit is not delicate in the sense that instant death can ensue
by reason of a single stab wound. The assault was done only once. Thus, there is doubt as to
whether appellant had an intent to kill the victim, which should be resolved in favor of the
appellant. x x x.26

The intent must be proved in a clear and evident manner to exclude every possible doubt as to
the homicidal (or murderous) intent of the aggressor. The onus probandi lies not on accused-
appellant but on the prosecution. The inference that the intent to kill existed should not be drawn
in the absence of circumstances sufficient to prove this fact beyond reasonable doubt. When such
intent is lacking but wounds were inflicted, the crime is not frustrated murder but physical
injuries only.27

Evidence on record shows that Cruz was brought to Tondo Medical Center for medical treatment
immediately after the stabbing incident.1avvphi1 Right after receiving medical treatment, Cruz
was then released by the Tondo Medical Center as an out-patient. There was no other evidence to
establish that Cruz was incapacitated for labor and/or required medical attendance for more than
nine days. Without such evidence, the offense is only slight physical injuries.28

We still appreciate treachery as an aggravating circumstance, it being sufficiently alleged in the

Information and proved during trial.

The Information specified that "accused, armed with a sharpened bamboo stick, with intent to
kill, treachery and evident premeditation, did then and there willfully, unlawfully and feloniously
attack, assault and stab with the said weapon one DANILO SALVADOR CRUZ x x x."

Treachery exists when an offender commits any of the crimes against persons, employing means,
methods or forms which tend directly or especially to ensure its execution, without risk to the
offender, arising from the defense that the offended party might make. This definition sets out
what must be shown by evidence to conclude that treachery existed, namely: (1) the employment
of such means of execution as would give the person attacked no opportunity for self-defense or

8
retaliation; and (2) the deliberate and conscious adoption of the means of execution. To reiterate,
the essence of qualifying circumstance is the suddenness, surprise and the lack of expectation
that the attack will take place, thus, depriving the victim of any real opportunity for self-defense
while ensuring the commission of the crime without risk to the aggressor.29 Likewise, even when
the victim was forewarned of the danger to his person, treachery may still be appreciated since
what is decisive is that the execution of the attack made it impossible for the victim to defend
himself or to retaliate.30

Both the RTC and the Court of Appeals found that treachery was duly proven in this case, and
we sustain such finding. Cruz, the victim, was attacked so suddenly, unexpectedly, and without
provocation. It was two o’clock in the morning of January 23, 2002, and Cruz, who was out
buying bread at Mendeja’s store, was unarmed. Cruz had his guard down and was totally
unprepared for an attack on his person. Villacorta suddenly appeared from nowhere, armed with
a sharpened bamboo stick, and without uttering a word, stabbed Cruz at the left side of his body,
then swiftly ran away. Villacorta’s treacherous mode of attack left Cruz with no opportunity at
all to defend himself or retaliate.

Article 266(1) of the Revised Penal Code provides:

ART. 266. Slight physical injuries and maltreatment. – The crime of slight physical injuries shall
be punished:

1. By arresto menor when the offender has inflicted physical injuries which shall incapacitate the
offended party from labor from one to nine days, or shall require medical attendance during the
same period.

The penalty of arresto menor spans from one (1) day to thirty (30) days.31 The Indeterminate
Sentence Law does not apply since said law excludes from its coverage cases where the penalty
imposed does not exceed one (1) year.32 With the aggravating circumstance of treachery, we can
sentence Villacorta with imprisonment anywhere within arresto menor in the maximum period,
i.e., twenty-one (21) to thirty (30) days. Consequently, we impose upon Villacorta a straight
sentence of thirty (30) days of arresto menor; but given that Villacorta has been in jail since July
31, 2002 until present time, already way beyond his imposed sentence, we order his immediate
release.

Under paragraph (1), Article 2219 of the Civil Code, moral damages may be recovered in a
criminal offense resulting in physical injuries. Moral damages compensate for the mental
anguish, serious anxiety, and moral shock suffered by the victim and his family as being a
proximate result of the wrongful act. An award requires no proof of pecuniary loss. Pursuant to
previous jurisprudence, an award of Five Thousand Pesos (₱5,000.00) moral damages is
appropriate for less serious, as well as slight physical injuries.33

WHEREFORE, the Decision dated July 30, 2008 of the Court of Appeals in CA-G.R. CR.-H.C.
No. 02550, affirming the Decision dated September 22, 2006 of the Regional Trial Court, Branch
170, of Malabon, in Criminal Case No. 27039-MN, is REVERSED and SET ASIDE. A new
judgment is entered finding Villacorta GUILTY beyond reasonable doubt of the crime of slight

9
physical injuries, as defined and punished by Article 266 of the Revised Penal Code, and
sentenced to suffer the penalty of thirty (30) days arresto menor. Considering that Villacorta has
been incarcerated well beyond the period of the penalty herein imposed, the Director of the
Bureau of Prisons is ordered to cause Villacorta’s immediate release, unless Villacorta is being
lawfully held for another cause, and to inform this Court, within five (5) days from receipt of this
Decision, of the compliance with such order. Villacorta is ordered to pay the heirs of the late
Danilo Cruz moral damages in the sum of Five Thousand Pesos (₱5,000.00).

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice
Chairperson

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.

RENATO C. CORONA
Chief Justice

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PP vs. Guevarra GR. No. 182192, October 29, 2008

THIRD DIVISION

[G.R. NO. 182192 : October 29, 2008]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. AGRIPINO GUEVARRA y

MULINGTAPANG alias "BOY DUNGGOL, Accused-Appellant.

DECISION

CHICO-NAZARIO, J.:

For review is the Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 02367, dated 16
October 2007, 1 affirming with modification the Decision, dated 4 July 2006, of the Batangas
City Regional Trial Court (RTC), Branch IV, in Criminal Case No. 12486, 2 finding accused-
appellant Agripino Guevarra y Mulingtapang, alias "Boy Dunggol," guilty of murder, and
imposing upon him the penalty of reclusion perpetua.

The facts gathered from the records of the case are as follows:

On 30 August 2002, an Information 3 was filed with the RTC charging appellant with murder.
The accusatory portion of the information reads:

That on or about August 24, 2002 at around 9:15 o'clock in the evening at Ebora Road, Brgy.
Kumintang Ibaba, Batangas City, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, while armed with a caliber .45 pistol, a deadly weapon, with intent to
kill and with the qualifying circumstance of treachery, did then and there willfully, unlawfully
and feloniously attack, assault and repeatedly shot with said firearm suddenly and without
warning one P/Chief Inspector Marcos Barte y Paz while the latter was unarmed and completely
defenseless, thereby hitting him on different parts of his body which directly caused the victim's
death.

That the special aggravating circumstance of the use of an unlicensed firearm is attendant in the
commission of the offense.

When arraigned on 12 November 2002, appellant, assisted by his counsel de oficio, pleaded "Not guilty" to the
charge.4 Trial on the merits thereafter followed.

The prosecution presented as witnesses Anacleto Gonzales (Anacleto), Maria Antonette Gonzales (Antonette),
Senior Police Officer 1 Felixberto Cabungcal (SPO1 Cabungcal), SPO1 Florentino Buenafe (SPO1 Buenafe), Dr.

11
Edwin Castillo (Dr. Castillo), Dr. Antonio S. Vertido (Dr. Vertido), and Marita Gonzales Vda. de Barte (Mrs. Barte).
Their testimonies are summarized as follows:

Anacleto, cousin of herein deceased victim Police Chief Inspector Marcos P. Barte (Inspector Barte) of the
Batangas City Police Station, testified that on 24 August 2002, at around 3:30 p.m., Inspector Barte, accompanied by
a certain Roberto Godoy (Godoy) and Ronnie Valiente (Valiente), arrived at his house located at Barangay
Kumintang Ibaba, Batangas City. He, Inspector Barte, Godoy, Valiente, and Anacleto's father-in-law, Nicasio
Resurreccion (Nicasio), talked and drank gin inside the house. Subsequently, the group, with the exception of
Godoy, left the house and went to a videoke bar owned by a certain Sergeant Emilio Vidal (Sgt. Vidal) located at
Ebora Road, Barangay Kumintang Ibaba, Batangas City. They arrived at the videoke bar at about 8:30 p.m. He
drank one bottle of beer while Inspector Barte consumed two bottles of beer. Thereafter, at about 9:15 p.m., the
group went out of the videoke bar. He saw his wife, Antonette, outside the videoke bar. Antonette approached and
talked to him. He also saw Godoy seated in the driver's seat of an owner-type jeep parked near the videoke bar, and
a certain Imelda Shin (Imelda) sitting at the back portion of the jeep. Valiente boarded the jeep and sat beside
Imelda. Inspector Barte also boarded the jeep and sat in the front passenger's seat beside Godoy. When Anacleto was
about to board the jeep, appellant suddenly appeared and approached Inspector Barte. Appellant asked Inspector
Barte if he was "Major Barte." Thereupon, he saw appellant shoot Inspector Barte several times with a short firearm.
He was then one arm's length from Inspector Barte and one meter away from appellant. Inspector Barte slumped on
his seat bloodied while Godoy shouted that he was also hit. Appellant immediately fled the scene. 5

Subsequently, Anacleto drove the jeep and brought Inspector Barte to the Batangas Regional Hospital. Inspector
Barte was pronounced dead on arrival. Godoy was also brought to the said hospital for treatment of his wounds.
Later, the police arrived at the hospital and interviewed him about the incident. He executed a sworn statement
regarding the incident.6

Antonette narrated that on 24 August 2002, at about 8:40 p.m., she, together with Godoy and Imelda, went to a
videoke bar owned by Sgt. Vidal at Ebora Road, Barangay Kumintang Ibaba, Batangas City, to fetch her husband,
Anacleto. She and Imelda boarded an owner-type jeep driven by Godoy in going to the videoke bar. Upon arriving
thereat, she proceeded to the videoke bar, peeped in its window, and saw Anacleto, Inspector Barte, her father, and
Valiente therein. She signaled to Anacleto that she would wait for them on the jeep outside the videoke bar.
Afterwards, Anacleto, Inspector Barte, Nicasio, and Valiente went out of the videoke bar. Nicasio boarded a tricycle
and proceeded home while Valiente and Inspector Barte boarded the jeep. Valiente sat beside Imelda at the backseat
of the jeep while Inspector Barte sat beside the driver's seat then occupied by Godoy. When Anacleto was about to
board the jeep, she heard a gunshot. Upon turning her head towards the direction of the gunshot, she saw appellant
shoot Inspector Barte with a short firearm. Thereafter, she heard Godoy shouting that Inspector Barte was shot and
told her to call the police. She immediately proceeded to a nearby drug store where she used a telephone in
contacting the police. She saw Anacleto driving the jeep with Inspector Barte on board. Later, she proceeded to the
Batangas Regional Hospital where she saw the lifeless body of Inspector Barte in a stretcher. She also saw therein
Godoy being treated for wounds.7

SPO2 Cabungcal, a member of the Batangas City Police Station, Intelligence Division, testified that he was on duty
at the said station on the night of 24 August 2002. On that same night, the station received a report about a shooting
incident at Ebora Road, Barangay Kumintang Ibaba, Batangas City. He and several police officers immediately
proceeded to the crime scene. Upon arriving thereat, they searched the crime scene and recovered four caliber .45
empty shells, one live caliber .45 ammunition and one deformed caliber .45 slug. Thereafter, they went to the
Batangas Regional Hospital where they were informed that Inspector Barte was already dead. He turned over to
SPO1 Buenafe, the investigator of the case, the evidence they recovered from the crime scene. 8

SPO1 Buenafe, a member of the Batangas City Police Station, Investigation Section, averred that he conducted an
investigation in the instant case; that after the incident, he went to the Batangas Regional Hospital where he was
informed that Inspector Barte was already dead and Godoy was injured; and that SPO1 Cabungcal turned over to
him object evidence recovered from the crime scene.9

12
Dr. Castillo, a surgeon assigned at the Batangas Regional Hospital, recounted that he attended to Inspector Barte
when the latter was brought to the hospital on the night of 24 August 2002. During the initial examination, he
observed that Inspector Barte sustained gunshot wounds and had no blood pressure, cardiac and respiratory rate. He
and some medical staff tried to resuscitate Inspector Barte but to no avail. The gunshot wounds were located on the
left temporal area, left anterior chest, right nipple, and left arm of Inspector Barte. He considered the gunshot
wounds in the left temporal area and left anterior chest of Inspector Barte fatal. He issued a medico-legal certificate
pertaining to Inspector Barte and an anatomical chart showing the location of gunshot wounds sustained by
Inspector Barte.10 His findings, as stated in the medico-legal certificate of Inspector Barte, are as follows:

THIS IS TO CERTIFY that Marcos P. Barte, 46 years of age, male, Filipino of Soro-soro 2, Batangas City, at about
9:30 p.m., August 24, 2002 with the following injuries sustained by him:

Multiple gunshot wounds anterior chest left, Right nipple left temporal area, left arm

NOTE: DEAD ON ARRIVAL.11

Dr. Vertido, Medico-Legal Officer of the National Bureau of Investigation (NBI), Southern Tagalog, Region 4,
declared that he conducted an autopsy on the corpse of Inspector Barte; that Inspector Barte sustained three gunshot
wounds; that the first gunshot wound was located on the left portion of the head which fractured the skull; that the
second gunshot wound was situated on the right portion of the chest which perforated the heart and the upper lobe of
the left lung exiting at the left side of the back; that the third wound was on the left portion of the chest which
penetrated the upper lobe of the left lung and exited at the posterior side of the left arm; and that these wounds
caused the death of Inspector Barte.12 He issued a Certificate of Post-Mortem Examination on Inspector Barte in
support of his foregoing findings, viz:

POSTMORTEM FINDINGS

Pallor, lips and nailbed.

Contusion; anterior chest wall, midline, 2 x 3 cm.

GUNSHOT WOUNDS:

1. ENTRANCE 1.3 x 1.0 cm. ovaloid, edges inverted, with a contusion collar widest at its upper border, surrounded
by an area of tattoing, 8 x 6 cms. at the left temple 6 cms. infront and 5 cms. above the left external auditory meatus,
directed backwards, downwards and medially, involving the skin and underlying soft tissue, fracturing left temporal
bone, lacerating corresponding lobe, fracturing and penetrating left midcranial fossa, into the soft tissue of the left
posterior neck, 12 cms, below and 10 cm behind the left external auditory meatus where a semideformed slug was
recovered.

2. ENTRANCE 1.3 x. 1.0 cm. ovaloid, edges inverted, with a contusion collar widest at its lower border located at
the right anterior chest wall, 10 cms. from the anterior median line, 125 cms. above the right heel, directed,
backward, upward and from right to left involving the skin and underlying soft tissue perforating the heart, and
upper lobe of the left lung, then making an EXIT wound, 1.0 x 1.1. cm., ovaloid, edges everted, located at the back
left side, (scapular area) 20 cm. from the posterior median line, 137 cm. above the left heel.

3. ENTRANCE 1.2 x 1.0 cm. ovaloid, edges inverted with a contusion collar widest at its lower border, located at
the left anterior chest wall, 2 cm. from the anterior median line 131 cm. above the left heel, directed backward,
upward and laterally, involving the skin and underlying soft tissues, perforating upper lobe of the left lung then
making an EXIT wound, 1 x 1.1 cm. ovaloid, edges everted located at the left arm, posterior aspect, upper 3rd 28
cms. above the left elbow.

CAUSE OF DEATH: GUNSHOT WOUNDS, HEAD AND CHEST.13

13
Mrs. Barte, wife of Inspector Barte, testified on the civil aspect of the case. She presented a list of expenses
incurred for the wake and burial of Inspector Barte which amounted to P183,425.00. She also submitted official
receipts pertaining to the funeral expenses (P46,250.00), burial lot (P53,000.00), and interment fee (P10,000.00).
She claimed that at the time of Inspector Barte's death, the latter was receiving a monthly income of P30,982.00.14

The prosecution also adduced documentary and object evidence to buttress the testimonies of its witnesses, to wit:
(1) sworn statement of Mrs. Barte (Exhibit A); 15 (2) sworn statement of Anacleto (Exhibit B); 16 (3) sworn statement
of Antonette (Exhibit C); 17 (4) sworn statement of SPO1 Buenafe (Exhibit D); 18 (5) death certificate of Inspector
Barte (Exhibit E); 19 (6) certification from the PNP, Firearms and Explosives Division, Camp Crame, Quezon City,
that appellant is not a licensed/registered firearm holder of any kind and caliber (Exhibit F); 20 (7) four empty bullet
shells, one deformed slug and one live ammunition (Exhibit G); 21 (8) list of wake and burial expenses (Exhibit H); 22
(9) official receipt covering the funeral expenses (Exhibit I); 23 (10) official receipt for the burial lot (Exhibit J); 24
(11) anatomical chart showing the location of gunshot wounds sustained by Inspector Barte (Exhibit
K); 25 (12) medico-legal certificate of Inspector Barte signed by Dr. Castillo (Exhibit L); 26 (13)
pay slip of Inspector Barte for August 2002 (Exhibit M); 27 (14) list of expenses incurred for the
food served during the wake and burial of Inspector Barte (Exhibit N); 28 (15) request for autopsy
of Inspector Barte signed by Mrs. Barte (Exhibit O); 29 (16) certificate of identification signed by
Dr. Vertido (Exhibit P); 30 (17) certificate of post-mortem examination on Inspector Barte
(Exhibit Q); 31 (18) autopsy report on Inspector Barte signed by Dr. Vertido (Exhibit R); 32 and
(19) anatomical sketch of the location of the gunshot wounds sustained by Inspector Barte
prepared by Dr. Vertido.33

For its part, the defense presented the testimonies of appellant and Ferdinand Ravino (Ravino) to
refute the foregoing accusation. No documentary evidence was presented. Appellant denied any
liability and interposed the defense of alibi.

Appellant testified that at the time of the incident (9:15 p.m., 24 August 2002), he was at
Barangay Malad, Calapan City, Oriental Mindoro vacationing at the house of a certain Hector
Africa (Africa). He arrived therein on the afternoon of 23 August 2002 and left on the morning
of 26 August 2002. He was not acquainted with Inspector Barte and came to know that he was
accused of killing Inspector Barte when he arrived at Batangas City from Oriental Mindoro on
the afternoon of 26 August 2002. He was informed that he would be "salvaged" for killing
Inspector Barte. Hence, he became afraid and hid in his house for two weeks. Thereafter, he
surrendered to the mayor of Batangas City who turned him over to the Batangas City police. He
alleged that Anacleto and Antonette testified against him because he did not support the
candidacy of Antonette during the previous election for barangay captain where Antonette lost.
He supported then the candidacy of the incumbent barangay captain.34

Ravino narrated that he has known appellant since 1991 because they were co-workers in Toyota
Motors, Batangas City. On 24 August 2002, at around 12:00 in the afternoon, Africa came to his
auto mechanic shop in Calapan, Oriental Mindoro and talked to him. Africa requested him to go
to his house at Barangay Malad, Calapan City, Oriental Mindoro, to fix Africa's car and
thereafter to drink liquor with him. Subsequently, he went to Africa's house arriving therein at
5:30 p.m. of the same day. He saw Africa, appellant and one helper of Africa inside the house.
Africa told him that appellant was taking a vacation at his house. After fixing Africa's car, he,
Africa and appellant had a drinking spree until 11:00 p.m. of the same day. Thereupon, he left
Africa's house. Later, he and appellant met at the city jail of Batangas City. He was detained for
a criminal charge while appellant was detained on the charge of killing Inspector Barte. During

14
their detention, appellant requested him to testify in his favor to which he acceded. He was still a
detainee at the time he testified in the RTC as regards the instant case.35

After trial, the RTC rendered a Decision on 4 July 2006 convicting appellant of murder.36
Appellant was sentenced to reclusion perpetua. He was also ordered to pay the heirs of Inspector
Barte the amounts of P50,000.00 as compensatory damages, P109,250.00 as actual damages,
P50,000.00 as moral and exemplary damages, P4,212,312.72 for loss of earning capacity, and
cost of suit. The dispositive portion of the RTC Decision reads:

In view of all the foregoing and upon evidence established by the Prosecution, accused Agripino
Guevarra y Mulingtapang alias "Boy Dunggol" is hereby found Guilty beyond a reasonable
doubt of committing the crime of Murder under Article 248 of the Revised Penal Code as
amended by Republic Act No. 7659. The proper penalty would have been death by lethal
injection but with the repeal of the death penalty pursuant to Republic Act No. 9346 which was
recently signed into law by the President on June 22, 2006, imposition thereof is no longer
possible. Consequently, herein accused is sentenced to suffer the penalty of reclusion perpetua
and to pay the costs. Further, he shall pay the private offended party P50,000.00 for the death of
Major Barte as compensatory damages; P109,250.00 as actual damages sustained which were
reflected in the official receipts submitted in evidence; P50,000.00 as moral and exemplary
damages; P4,212,312.72 loss of earnings computed on the basis of the pay slip of Major Barte
for the month of August, 2002 showing that at the time of his death his full compensation
amounted to P30,982.00.

The accused maybe credited with his preventive imprisonment if he is entitled to any and
directed to be immediately committed to the National Penitentiary in Muntinlupa City.37

Appellant appealed to the Court of Appeals. On 16 October 2007, the appellate court
promulgated its Decision affirming with modification the RTC Decision.38 It held that an
additional amount of P25,000.00 as exemplary damages should also imposed on appellant
because the qualifying circumstance of treachery attended the killing of Inspector Barte. Thus:

WHEREFORE, premises considered, the July 4, 2006 Decision of the Regional Trial Court of
Batangas City, Branch IV, is hereby AFFIRMED with the MODIFICATION that exemplary
damages in the amount of P25,000.00 should also be awarded.39

Appellant elevated the instant case before us assigning a single error, to wit:

THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED-APPELLANT GUILTY

OF THE CRIME CHARGED DESPITE FAILURE OF THE PROSECUTION TO ESTABLISH
HIS GUILT BEYOND REASONABLE DOUBT.40

Appellant maintains in his lone assigned error that his testimony and that of his corroborating
witness, Ravino, were more credible than the testimonies of Anacleto and Antonette; that his
denial and alibi were meritorious; and that the mitigating circumstance of voluntary surrender
should be appreciated in his favor.

15
In resolving issues pertaining to the credibility of the witnesses, this Court is guided by the
following well-settled principles: (1) the reviewing court will not disturb the findings of the
lower court, unless there is a showing that it overlooked, misunderstood or misapplied some fact
or circumstance of weight and substance that may affect the result of the case; (2) the findings of
the trial court on the credibility of witnesses are entitled to great respect and even finality, as it
had the opportunity to examine their demeanor when they testified on the witness stand; and (3)
a witness who testifies in a clear, positive and convincing manner is a credible witness.41

After carefully reviewing the evidence on record and applying the foregoing guidelines to this
case, we found no cogent reason to overturn the RTC's ruling finding the testimonies of Anacleto
and Antonette credible. As an eyewitness to the incident, Anacleto positively identified appellant
as the one who shot Inspector Barte with a short firearm. He was merely one arm's length from
Inspector Barte and one meter away from appellant during the incident. In addition, the crime
scene was well-lighted by a nearby lamp post and lights coming from the videoke bar which
enabled him to recognize appellant. Further, he was familiar with the face of appellant because
the latter was his barriomate. Anacleto's direct account of how appellant shot Inspector Barte is
candid and convincing, thus:

Q: Now, while you were outside the [videoke] restaurant at around 9:15 in the evening of August
24, 2002, do you remember any untoward incident that happened thereat? cralawred

A: Yes, sir.

Q: What was that particular incident? cralawred

A: The shooting of Major Barte (Inspector Barte), sir.

Q: Who shot Major Barte? cralawred

A: Agripino Guevarra y Mulingtapang alias "Boy Dunggol."

Q: How did it happen that accused was there at that time and said place? cralawred

A: I did not notice where he came from, he suddenly appeared.

Q: After he suddenly appeared, what did the accused do? cralawred

A: He approached Major Barte and asked "are you Major Barte?" and afterwards he fired shots at
Major Barte.

Q: Was Major Barte able to answer that question of the accused to him? cralawred

A: No ma'am.

Q: What happened to Major Barte after having (sic) shot by the accused? cralawred

16
A: I saw him slumped on his seat on the car, bloodied.

Q: How far were you from Major Barte at that time? cralawred

A: About one arm['s] length, ma'am.

xxx

Q: Now, you said Agripino Guevarra is the one who shot to death Major Barte, if he is in Court
this morning, would you be able to identify him? cralawred

A: Yes, ma'am.

Q: Would you please point to him? cralawred

A: (Note: Witness is pointing to the man wearing a yellow shirt seated in the front row of the
Courtroom who answers by the name of Agripino Guevarra when he was asked by the Court).42

xxx

Q: You stated that while you were talking with Major Barte when the latter was sitted (sic) in the
front seat, the accused suddenly appeared? cralawred

A: Yes, sir.

Q: Where did he suddenly appear, from your right or left? cralawred

A: From my right side, sir.

Q: Where was he at that time in relation to the jeep? cralawred

A: On the right side of the jeep, sir.

Q: You are also on the right side of the jeep? cralawred

A: Yes, sir.

Q: You are also 1 - meters from the jeep? cralawred

A: No sir.

Q: How far were you from the jeep? cralawred

A: More or less one (1) arm length, sir.

Q: How far was the accused in this case when you first saw him? cralawred

17
A: We were both on the same distance from the jeep, sir.

Q: After you saw the accused suddenly appeared on your right side you also saw him put up his
gun? cralawred

A: No sir.

Court:

Q: How about you, how far are you from the accused when you first saw him? cralawred

A: Almost one (1) meter, sir.43

xxx

Q: You stated last time that when the accused asked if he is Major Barte the accused
immediately shot Major Barte, is that correct?cralawred

A: Yes, sir.

Q: You also stated that the accused shot him five (5) times? cralawred

A: No, sir.

Q: How many times did the accused shoot Major Barte? cralawred

A: I heard four (4) shots, sir.

Q: When you say you heard four (4) shots you mean to say you did not see him fired (sic) his
gun? cralawred

A: I saw it, sir.44

Antonette's testimony, corroborating the foregoing testimony of Anacleto, was also clear and
reliable. Being an eyewitness to the incident, she pointed to appellant as the one who shot
Inspector Barte. Her narration of the incident is truthful, to wit:

Q: After Major Barte occupied the front seat at the right [side] of the driver and your husband
was about to board the jeep, what happened next, if any? cralawred

A: I heard that gunshot, ma'am.

Q: Upon hearing that gunshot, what did you do? cralawred

A: I turned my head where the gunshot came from, ma'am.

18
Q: And what did you find out? cralawred

A: I saw a man shooting a man riding at the right side of the vehicle, ma'am.

Q: Who was being shot by that person? cralawred

A: Major Barte, ma'am.

Q: Did you recognize who [shot] Major Barte? cralawred

A: Yes, ma'am.

Q: Who is that person? cralawred

A: Mr. Agripino Guevarra, ma'am.

xxx

Q: You said that you saw Agripino Guevarra shooting Major Barte, do you know this Agripino
Guevarra? cralawred

A: Yes, ma'am.

Q: Even before this date? cralawred

A: Yes, ma'am. Being a native of this barangay and I have been a barangay councilwoman and
he became also a barangay tanod.

Q: If he [is] present in Court this afternoon, would you able to identify him? cralawred

A: Yes, ma'am.

Q: Would you please point to him? cralawred

A: (Witness is pointing to a man wearing a yellow shirt who answers by the name of Agripino
Guevarra when he was asked by the Court).45

Further, the foregoing testimonies are consistent with documentary and object evidence
submitted by the prosecution. The RTC and the Court of Appeals found the testimonies of
Anacleto and Antonette to be clear and credible.

Denial is inherently a weak defense as it is negative and self-serving. Corollarily, alibi is the
weakest of all defenses for it is easy to contrive and difficult to prove.46 Denial and alibi must be
proved by the accused with clear and convincing evidence otherwise they cannot prevail over the
positive testimony of credible witnesses who testify on affirmative matters.47 For alibi to prosper,
it is not enough for the accused to prove that he was somewhere else when the crime was

19
committed. He must likewise prove that it was physically impossible for him to be present at the
crime scene or its immediate vicinity at the time of its commission.48

Appellant testified that he was vacationing in Africa's house at Barangay Malad, Calapan City,
Oriental Mindoro at the time (9:15 p.m.) and date (24 August 2002) of the incident. Ravino
claimed that, upon arriving at Africa's house in Calapan Oriental, Mindoro at about 5:30 p.m. of
the day of the incident, he saw appellant there. Ravino then proceeded to fix Africa's car. After
fixing Africa's car, he, Africa and appellant had a drinking spree until 11:00 p.m. of the same
day. Be that as it may, Ravino neither categorically stated nor confirmed that appellant was
present in Africa's house from the time he was fixing Africa's car at past 5:30 p.m. up to the time
he was done with it which was before 11:00 p.m. As mentioned earlier, Ravino merely claimed
that he saw appellant in Africa's house at about 5:30 p.m. and after fixing Africa's car, he, Africa
and appellant had a drinking spree until 11:00 p.m. Thus, it was highly possible that since
Ravino's sight was directed or focused on Africa's car as he was fixing it, he did not notice
appellant's departure from Africa's house at past 5:30 p.m. Appellant then proceeded to the
videoke bar of Sgt. Vidal in Barangay Kumintang Ibaba, Batangas City, where he killed
Inspector Barte at around 9:15 p.m. It was also probable that Ravino did not notice appellant's
subsequent arrival in Africa's house, which was before 11:00 p.m., from the crime scene because
he was still busy fixing Africa's car. The foregoing view is bolstered by appellant's admission
that it would only take him 45 minutes to reach Calapan City, Oriental Mindoro from the
Batangas pier via a "Supercat" boat.49 There was, therefore, a great possibility that appellant was
present at the scene of the crime when it was committed at about 9:15 p.m. of 24 August 2002.
Thus, the defense failed to prove that it was physically impossible for appellant to be at or near
the crime scene when the incident occurred. Besides, we have held that an alibi becomes less
plausible as a defense when it is corroborated only by relatives or friends of the accused.50

We agree with the RTC and the Court of Appeals that the qualifying circumstance of treachery
and the special aggravating circumstance of use of an unlicensed firearm attended the killing of
Inspector Barte.

It is settled that aggravating/qualifying circumstances must be alleged in the information and

proven during the trial before they can be appreciated.51

There is treachery when the offender commits any of the crimes against the person, employing
means, methods or forms in the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from any defensive or retaliatory act which the victim
might make.52 The essence of treachery is a deliberate and sudden attack that renders the victim
unable and unprepared to defend himself by reason of the suddenness and severity of the attack.
Two essential elements are required in order that treachery can be appreciated: (1) The
employment of means, methods or manner of execution that would ensure the offender's safety
from any retaliatory act on the part of the offended party who has, thus, no opportunity for self-
defense or retaliation; and (2) deliberate or conscious choice of means, methods or manner of
execution.53

In the case at bar, treachery was alleged in the information and all its elements were duly
established by the prosecution.

20
Inspector Barte was sitting inside the jeep when appellant suddenly appeared and approached
him. Appellant asked Inspector Barte if he was "Major Barte." However, before Inspector Barte
could respond or utter a word, appellant quickly shot him several times in the head and chest
with a caliber .45 pistol. The suddenness and unexpectedness of the appellant's attack rendered
Inspector Barte defenseless and without means of escape. There is no doubt that appellant's use
of a caliber .45 pistol, as well as his act of waiting for Inspector Barte to be seated first in the
jeep before approaching him and of shooting Inspector Barte several times on the head and chest,
was adopted by him to prevent Inspector Barte from retaliating or escaping. Considering that
Inspector Barte was tipsy or drunk and he was seated inside the jeep where the space is narrow,
there was absolutely no way for him to defend himself or escape.

Pertinent provision of Presidential Decree No. 1866, as amended by Republic Act No. 8294, 54
states that if homicide or murder is committed with the use of an unlicensed firearm, such use of
an unlicensed firearm shall be considered as an aggravating circumstance. Appellant's use of an
unlicensed firearm in killing Inspector Barte was alleged in the information as a special
aggravating circumstance. Such circumstance was also duly proven by the prosecution during the
trial. The prosecution presented a certification from the PNP Firearms and Explosives Division
which attests that appellant was not a licensed/registered firearm holder.55

Appellant's assertion that he was entitled to the mitigating circumstance of voluntary surrender is
meritorious. For voluntary surrender to be appreciated as a mitigating circumstance, the
following requisites must concur: (1) that the offender had not been actually arrested; (2) that the
offender surrendered himself to a person in authority; and (3) that the surrender was voluntary.56

All of the foregoing requisites are present in the case at bar. Appellant had not been actually
arrested by the police or other law enforcers. He surrendered unconditionally to the mayor of
Batangas City, a person in authority, thereby saving the police trouble and expenses which it
would otherwise incur in his search and capture. The fact that appellant surrendered two weeks
after the incident is immaterial. We have held that for voluntary surrender to mitigate an offense,
it is not required that the accused surrender at the first opportunity.57 As long as the
aforementioned requisites are met, voluntary surrender can be appreciated.58

We shall now determine the propriety of the penalties imposed on appellant.

Article 248 of the Revised Penal Code states that murder is punishable by reclusion perpetua to
death. Article 63(4) of the same Code provides that if the penalty is composed of two indivisible
penalties, as in this case, and both mitigating and aggravating circumstances attended the
commission of the crime, the courts shall reasonably allow them to offset one another in
consideration of their number and importance. As earlier determined, the mitigating
circumstance of voluntary surrender and the aggravating circumstances of treachery and use of
an unlicensed firearm were present in the instant case. Nonetheless, the aggravating circumstance
of treachery in this case cannot be applied for offsetting because it was already considered as a
qualifying circumstance.59 Thus, only the aggravating circumstance of use of an unlicensed
firearm may be utilized in offsetting the mitigating circumstance of voluntary surrender.

21
We stated earlier that the use of an unlicensed firearm in murder is a special aggravating
circumstance and not merely a generic aggravating circumstance. As such, it cannot be offset by
an ordinary mitigating circumstance such as voluntary surrender.60 Thus, the only modifying
circumstance remaining in the present case is the special aggravating circumstance of use of an
unlicensed firearm. Article 63(1) of the Code provides that if the penalty is composed of two
indivisible penalties, as in this case, and there is present only one aggravating circumstance, the
greater penalty shall be applied. Consequently, the penalty imposable on appellant is death.
However, with the effectivity of Republic Act No. 9346 entitled, "An Act Prohibiting the
Imposition of Death Penalty in the Philippines," the imposition of the capital punishment of
death has been prohibited. Pursuant to Section 2 thereof, the penalty to be meted to appellant
shall be reclusion perpetua. Said section reads:

SECTION 2. In lieu of the death penalty, the following shall be imposed:

(a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of
the penalties of the Revised Penal Code; or

(b) the penalty of life imprisonment, when the law violated does not make use of the
nomenclature of the penalties of the Revised Penal Code.

Notwithstanding the reduction of the penalty imposed on appellant, he is not eligible for parole
following Section 3 of said law which provides:

SECTION 3. Persons convicted of offenses punished with reclusion perpetua, or whose

sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for
parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.

Hence, the RTC and the Court of Appeals were correct in imposing the penalty of reclusion
perpetuaon appellant.

As to damages, both courts acted accordingly in awarding civil indemnity 61 to the heirs of
Inspector Barte since the award of this damage is mandatory in murder cases.62 Nevertheless, the
amount of P50,000.00 imposed as civil indemnity should be increased to P75,000.00 based on
prevailing jurisprudence.63 In People v. Quiachon, 64 we explained that even if the penalty of
death is not to be imposed on accused because of the prohibition in Republic Act No. 9346, the
civil indemnity of P75,000.00 is still proper as the said award 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. In the instant case, the
qualifying circumstance of treachery and the special aggravating circumstance of use of
unlicensed firearm attended the killing of Inspector Barte. These circumstances were duly
alleged in the information and proven during the trial.

The award of moral damages in the amount of P50,000.00 is proper in view of the violent death
of Inspector Barte and the resultant grief to his family.65 Likewise, the award of exemplary
damages in the amount of P25,000.00 is in order because the killing of Inspector Barte was
committed with the aggravating circumstances of treachery and use of an unlicensed firearm.66

22
Also, the award of P109,250.00 as actual damages is appropriate since these were supported by
official receipts attached on records.67

The heirs of Inspector Barte should also be indemnified for loss of earning capacity pursuant to
Article 2206 of the New Civil Code.68 Consistent with our previous decisions, 69 the formula for
the indemnification of loss of earning capacity is:

Net Earning Capacity = Life Expectancy x

[Gross Annual Income (GAI) - Living Expenses]

  = 2/3 (80 - age of deceased) x (GAI - 50% of GAI).

Inspector Barte's death certificate states that he was 46 years old at the time of his demise.70 The
pay slip issued by the PNP, Camp Crame, Quezon City, to Inspector Barte for August 2002
shows that the latter was earning an annual gross income of P371,784.00.71

Applying the above-stated formula, the indemnity for the loss of earning capacity of Inspector
Barte is P4,213,551.00, computed as follows:

Net Earning Capacity

= 2/3 (34) x (P371,784.00 - P185,892.00)   = 2/3 (34) x P185,892.00.   = P4,213,551.00.

Hence, the amount of P4,212,312.72 awarded to the heirs of Inspector Barte as indemnity for the
latter's loss of earning capacity should be increased to P4,213,551.00.

In addition to the damages awarded, we also impose on all the amounts of damages an interest at
the legal rate of 6% from this date until fully paid.72

WHEREFORE, after due deliberation, the Decision of the Court of Appeals in CA-G.R. CR
H.C. No. 02367, dated 16 October 2007, is hereby AFFIRMED with the following
MODIFICATIONS: (1) the civil indemnity of appellant is increased from P50,000.00 to
P75,000.00; (2) the indemnity for Inspector Barte's loss of earning capacity is increased from
P4,212,312.72 to P4,213,551.00; and (3) an interest on all the damages awarded at the legal rate
of 6% from this date until fully paid is imposed.

SO ORDERED.

23
US vs Baluyot, 40Phil 385

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-14476            November 6, 1919

THE UNITED STATES, plaintiff-appellee,

vs.
JOSE I. BALUYOT, defendant-appellant.

Filemon Sotto for appellant.

Attorney-General Paredes for appellee.

STREET, J.:

This cause has been brought to the Supreme Court upon an appeal prosecuted by Jose I. Baluyot
from a judgment of the Court of First Instance of the Province of Bataan, convicting him of the
crime of murder, committed August 3, 1918, upon the person of Conrado Lerma, governor of
said province, and sentencing him to undergo the penalty of death, to indemnify the heirs of the
deceased in the sum of P1,000, and to pay the costs.

At the general election which was held on June 6, 1916, Conrado Lerma was elected governor of
the Province of Bataan. One of his competitors upon this occasion was the accused, Jose I.
Baluyot, who came out third in the race. As a result of this contest a feeling of personal rancor
was developed in the mind of Baluyot against his successful competitor, and during the two
years which followed the accused became fully imbued with the idea that Governor Lerma was
persecuting him.

In the year 1918 Baluyot was prosecuted in the Court of First Instance of the city of Manila for
the offense of estafa in connection with a loan of money which had been negotiated at the

24
Philippine National Bank. This proceeding had been tried and in the early days of August, 1918,
was pending decision by the judge who tried the case.

Upon the organization of the National Guard, Baluyot had been commissioned as captain in that
body, and owing possibly to the pendency of the accusation for estafa and its damaging effects
upon his reputation, he had been asked to resign from the position of captain in the National
Guard; and although he had not resigned when the act which gave occasion to this prosecution
occurred, he had apparently been temporarily relieved from duty with that organization pending
investigation.

The misfortunes above mentioned, as well as others of a minor character, were attributed by
Baluyot to the machinations of Governor Lerma, all of which served to foment and increase his
feeling of enmity towards the latter.

On August 2, 1918, the defendant left the city of Manila and went to the town of Orion, in the
Province of Bataan, taking with him a revolver. Early on the following day, August 3, he shipped
to Manila from Orion a piano belonging to his wife, and at 8 a.m., went to Balanga, the capital of
the Province, arriving at the recorder's office in the provincial building at about 9 o'clock a.m.,
where he inquired for Governor Lerma.

He was told that the governor had not arrived, but was expected later. The accused accordingly
determined to wait in the recorder's office, which served as a sort of anteroom to the office of the
governor. At about 11 o'clock a. m. the governor arrived. He and the accused greeted each other
in a friendly manner by shaking hands; and the governor, upon being informed that Baluyot had
called to confer with him, invited Baluyot into his office. Baluyot hesitated, having noted the
presence of another caller, and asked if the latter did not have a prior right to an interview. The
governor said that Baluyot should enter first, which the latter accordingly did. The governor and
the accused remained alone in the former's office for 3 or 4 minutes, whereupon it occurred to
Governor Lerma that the interview might be more extended than he had expected, and he
accordingly requested that Baluyot should withdraw long enough for the governor to confer with
one Antonino Aranjuez, the other caller to whom reference has already been made. Baluyot
accordingly withdrew into the recorder's office and told Aranjuez that the governor wanted to see
or talk to him. Aranjuez then went in and had a conference with the governor for a few minutes
about the appointment of the former as chief of police for the municipality of Limay. When
Aranjuez came out Baluyot said that it was now his turn and again entered the governor's office.

The evidence shows that at the time Baluyot reentered the governor's office the latter was sitting
behind his desk in an ordinary office chair. Baluyot approached the desk and upon reaching a
position directly in front of the governor spoke certain words which were heard, though not
distinctly, by persons in the recorder's office, Antonino Aranjuez merely heard the accused call
out "governor," while Gregorio de Guzman understood Baluyot to be asking the governor for his
revolver. The accused himself testified that his reference to the revolver was intended to
admonish the governor to prepare for a mortal combat and he says that the words spoken were
these:

BALUYOT. It appears to me that your revolver and mine have the same calibre.

25
 GOVERNOR LERMA. No sir; mine is 32.

BALUYOT. So is mine. Be prepared because one of us must die.

The accused gives a color to this conversation which seems to us somewhat unnatural, and his
statement as to what occurred, especially with reference to the length of time that elapsed after
he entered the governor's office until the first shot was fired, is wholly lacking in verisimilitude.
What really occurred, as the lower court found, and as the testimony of the witnesses in the
recorder's office shows, is that the first shot was fired within a few seconds after Baluyot
reentered the governor's office and that the interval which elapsed was scarcely more than
sufficient to allow Baluyot to reach the governor's desk. The inference is conclusive that,
immediately upon asking the governor about his revolver, and discovering that he was unarmed,
Baluyot drew his own revolver and fired.

In the testimony given by Baluyot himself a circumstance is mentioned which appears to us

important in this connection. He says that while he was sitting in the recorder's office, awaiting
the arrival of Governor Lerma, Paulo Venegas, a guard attached to the provincial jail, came up
and after speaking in a low voice with the recorder, entered the office of the governor and
presently emerged, bringing a revolver and some cartridges. Baluyot noticed that the revolver
was discharged and remarked to the person having it in hand that an unloaded revolver is less
useful even than a cane. The guard replied that he was not the person charged with loading it, but
was going to take it out to be cleaned, whereupon he disappeared carrying the revolver with him.
This act of carrying away of the revolver from Governor Lerma's office was especially notice by
Baluyot and naturally from this he must have supposed that the revolver seen by him was a
weapon commonly kept in the governor's office. The still further inference was obvious to
Baluyot that the governor upon arrival would be unarmed in his office, unless he should possibly
bring a revolver upon his person.

This circumstance shows that the words which Baluyot directed to Governor Lerma immediately
before the fatal attack were intended to discover whether Governor Lerma was in fact unarmed.
Upon discovering that Governor Lerma did not have his revolver at hand, the accused at once
drew his own weapon and fired. Baluyot therefore knew Governor Lerma to be unarmed and
practically defenseless, and it is plain that the attack was not begun until the assailant was fully
assured upon this point.

The bullet first fired by Baluyot entered in the frontal region of the right shoulder blade of
Governor Lerma and inflicted a wound of minor importance, passing through the aforesaid part
of the body and penetrating the back of the chair in which the governor was sitting. Passing on
from the chair, the ball entered the wall of the office building, but was so far spent that it did not
penetrate deeply. Instead it merely made a circular hole in the wall of moderate depth and
rebounded, falling on the floor. The line of direction followed by the ball indicates that the
accused directed the shot in somewhat downward direction and that Governor Lerma was in all
probability reclining backwards in the chair at the instant the shot struck him.

The governor immediately arose. His free action was impeded by the table in front, and by the
walls of the office behind and on either side, since his table was in a corner of his office. His exit

26
was further obstructed by a small book stand on his immediate right. His only convenient
direction of escape was, therefore, in the direction to his left by way of the space between the left
corner of his desk and the wall nearby. This direction the governor accordingly took, directing
himself towards a passageway in the wall a few feet from his desk leading into a corridor. When
the governor had cleared the desk so as to leave a free space between himself and his assailant,
the distance which separated them was only a few feet. Baluyot meanwhile turned somewhat to
his right and advanced slightly in the direction taken by Governor Lerma.

The latter desiring to make good his escape, started to run in the direction aforesaid, and Baluyot,
raising his revolver, again fired. The ball struck Governor Lerma in the region of the right
shoulder blade and passed through the body an inch or two from the wound made by the first
shot. The firing of the second shot was seen by Antonino Aranjuez, whose attention had been
attracted by the noise of the first shot. Being then seated at a desk in the recorder's office near the
door leading into the governor's office, this witness immediately arose upon hearing the first
shot, and having arrived at a point in the governor's office where stood a screen, occluding direct
vision from the door to the governor's desk, he placed himself at the side of the screen and was
thus able to see the scene then being transacted. It was at this instant that Baluyot, with his arm
extended, fired the second shot at his fleeing victim. The governor at this moment had his right
hand raised to his already wounded shoulder and was running in a direction away from his
assailant rather than towards him. Immediately upon seeing this shot fired, Aranjuez, instead of
intervening to save the governor, as would have been becoming, turned and fled to obtain succor.

Bonifacio Mencias, the sanitary official, who examined the wounds of Governor Lerma, says
that both of the first two wounds were made by bullets which entered from the front. This is
obviously true as to the first, but as to the second there seems to be room for doubt. The
inspection made by the doctor may have been superficial, and his opinion may have been partly a
matter of mere inference from his information as to the general features of the tragedy. At any
rate he does not state any particulars from which it could clearly be discovered that the second
shot entered from the front. The witness Aranjuez makes it clear that as the matter presented
itself to his eye, the governor was fleeing with his right side, rather than his front, exposed to
Baluyot. This witness says that the governor's face was turned in the direction of his flight,
though he thinks the governor could have seen what Baluyot was doing. In this view the second
shot should apparently have entered from behind.

The point we consider of little importance, inasmuch as it is obvious that Baluyot was the
aggressor throughout and that the second shot was fired at an unarmed man whose only purpose
was to effect an escape to a place of safety. Whether at the instant this shot was fired Governor
Lerma may have had his body turned so as momentarily to confront his assailant, moving away
sidewise, can have no bearing upon the qualification and character of the crime. The testimony
of Baluyot to the effect that as soon as Governor Lerma emerged from behind the table the two
engaged in a hand to hand struggle is preposterous in the extreme.

After the second shot was fired, Governor Lerma continued his flight along the corridor and,
instead of attempting to pass out to the right into the recorder's office, which would have exposed
him to the danger of another shot while passing through the open space, he took refuge in a

27
closet at the end of the corridor. Once within, he shut the door and placed himself in a position to
obstruct the entrance of his pursuer, who vainly attempted to open the door.

The governor then began to call aloud for help, and Baluyot, judging the position of the
governor's head from the direction of the sound thus emitted, fired his revolver in the direction
indicated. The bullet passed through the panel of the door and struck Governor Lerma in the
forward part of the head near and above the right temple. It passed downwards and came out
through the left eye, loosening the eyeball in its socket. This wound was necessarily fatal, though
not instantly so; and the governor evidently lost consciousness at once. Baluyot, feeling the
movement of the body within the closet, opened the door without resistance. As he did so the
body of Governor Lerma shot forward out of the closet, as if in an attitude to embrace the slayer,
who drew backwards, and the body fell prone on the floor. In this position it remained and was
found prostrate a few minutes later by person who came upon the scene. Death ensued in about
two or three hours, without recovery of consciousness.

Baluyot, immediately after the tragedy, stepped over to a window of the room overlooking the
public square and calling to a squad of Constabulary, who were directing themselves to the
provincial building, indicated that they should come up. At the same time he threw his revolver
to the ground, with three empty shells and others that had not been discharged. Upon the arrival
of the Constabulary he surrendered without resistance.

The offense committed in this case exhibits features markedly similar to those which
characterized the crime which was the subject of prosecution in United States vs. Gil (13 Phil.
Rep., 530); and the offense here committed was properly qualified by the trial judge as murder,
in which was present the qualifying circumstance of alevosia. The presence of this element is
easily and in our opinion irrefutably indicated in the conditions and manner both of the original
attack and of the final act by which the offense was consummated.

With reference to the manner in which the attack was begun, the proof shows that access was
gained by Baluyot, to the governor's office upon the pretext that he desired a friendly interview;
and although the strained relations existing between the two, owing to their political
antagonisms, was appreciated by both, there was nothing in the situation to warn the governor of
impending trouble. The fact Baluyot had already been called into the office upon the governor's
first arrival and had withdrawn for a few moments to permit another person to have an interview
was also calculated to put the governor off his guard at the moment Baluyot reentered the office.
Being seated in a reclining chair, and hemmed in by obstacles which prevented him from
reaching his assailant, it is plain that the unarmed governor could make no effectual defense
against a person armed with such a deadly weapon as a revolver. It is obvious also that the means
and methods thus deliberately selected by the assailant were intended to insure the execution of
the crime without any risk to himself arising from the defense which the offended party could
make.

We need not detain ourselves to analyze the conditions which existed when the second shot was
fired, and we pass on to the third, with the single observation that the entire assault from the
beginning must be considered continuous and that the second shot was fired while the victim was
endeavoring to flee to a place of safety. The presence of alevosia in the firing of the third shot

28
seems to be too patent to permit of controversy. The victim in his effort to escape had been
driven to take refuge in the closet, and with the door shut, it was impossible for him to see what
his assailant was doing or to make any defense whatever against the shot directed through the
panel of the door. It was as if the victim had been bound or blindfolded, or had been
treacherously attacked from behind in a path obscured by the darkness of night.

Even supposing that alevosia had not been present in the beginning of the assault, it would be
necessary to find this element present from the manner in which the crime was consummated. In
United States vs. Elicanal (35 Phil. Rep., 209) Justice Moreland said:

This court has held repeatedly that, even though the beginning of an attack resulting in
the death of the deceased is free from treachery of any sort, nevertheless it will be found
present if, at the time the fatal blow is struck, the deceased is helpless and unable to
defend himself. While the writer of this opinion formerly held the view that, where there
is no treachery in the attack which results in the death of the deceased, there can be no
treachery which will qualify the crime as murder notwithstanding the fact that, at the time
the fatal blow was struck, the deceased was unarmed and defenseless, nevertheless, the
court having held so frequently the contrary, the writer accepts the doctrine so well
established.

There was present in the offense in question the generic aggravating circumstance that said
offense was committed in a place where public authority was engaged in the discharge of duty.
(Subsec. 19, art. 10, Penal Code.) There is no discernible difference at this point between the
present case and that of United States vs. Gil (13 Phil. Rep., 530, 533), in which this aggravating
circumstance was declared to be present.

The trial court also found that the crime in question was characterized by the further aggravating
circumstance of evident premeditation. Certain items of proof which tend strongly to show the
presence of this element may be briefly mentioned. It was testified by one Pedro Magajes, a
friend of the accused, that on July 14, 1918, Baluyot in the course of a conversation with
Magajes exhibited ill-feeling against Lerma and said that Lerma would pay for the misfortunes
that were befalling him (Baluyot). Domingo Lintag, compadre of the accused, testified that on
the Friday in the month of August, prior to the commission of the crime in question, he saw the
defendant in Orion; that when he and the defendant shook hands the latter squeezed his hand
tightly and said, "Parece ser que esta es la ultima vez que vamos a dar la mano" [may be that this
will be the last time we will shake hands]. This remark is especially noteworthy, since it shows
that the accused contemplated some occurrence which would have grave consequences to him.
On the morning of August 3, the day on which the crime was committed, the accused asked more
than one person if they thought he was in Bilibid, intimating that a false rumor to this effect had
been maliciously circulated by his arch-enemy, Governor Lerma. This shows clearly that the
mind of the accused was fixed upon Lerma as the supposed author of his wrongs.

No very satisfactory explanation is given by the accused as to the reason for his trip to Orion and
especially to Balanga; and the conclusion is irresistible that he was carried to the latter place by a
thirst for vengeance . Furthermore, the conduct of the accused in the next day or two succeeding
the commission of the crime was that of a person stimulated by a feeling of gratification over the

29
successful accomplishment of a fixed purpose, not the conduct of one effected by grief over the
fatal results of a sudden and unexpected altercation. At no time did he exhibit any sign of regret
for the act committed. The conclusion reasonably to be drawn from the evidence as a whole is
that the accused, for several days prior to the perpetration of this murder, had determined to seek
an interview or encounter with Governor Lerma regardless of consequences. It is impossible to
say at what moment the determination to take life became a fixed resolution. The design to kill
was probably entertained when the accused went in the early morning of August 3 to the
governor's office, and the putting of this resolution into effect was at once determined upon when
the accused found that the governor was unarmed. In order to constitute the element of known
premeditation in the crime of murder it is not necessary that the slayer should have prefigured in
his mind all of the details of the crime or determined upon the exact moment when he should
carry his purpose into effect. It is enough that the determination to take life should have been
formed for a period sufficiently long to allow the actor time to reflect coolly upon the character
and the consequences of the act, the accomplishment of the crime being left to some suitable
opportunity such as chance or design may present.

It is thus manifest that the conclusion of the trial court that the offense was characterized by
known premeditation is by no means without support in the evidence. Nevertheless, as an
express ruling on this point is unnecessary to the disposition of the case, was concede to the
accused the benefit of the possible doubt, and we accordingly refrain from making any express
findings as to the presence of said element.

It is contended in behalf of the accused that the crime in question was qualified by two
extenuating circumstances, namely, first, that it was committed under "an impulse so powerful as
naturally to have produced passion and obfuscation" (art. 9, subsec. 7, Penal Code), and,
secondly, that "the offender had no intention to commit so great a wrong as that committed."
(Art. 9, subsec. 3, Penal Code). This contention rests upon certain statements found in the
testimony of the accused and which, in our opinion, are discredited by other evidence. Baluyot
states that he began his first interview with Governor Lerma on August 3 by saying that he
wished Diputado [delegate] Reyes of Bataan could have been present as there were certain things
which he wanted to say in the presence of them both. Baluyot then stated that there was no doubt
that Governor Lerma had won in the political contest and that it was also undeniable that in all
his own misfortunes the governor had played an important and direct part. The governor,
according to Baluyot, thereupon replied: "viene usted con la misma queja, Sr. Baluyot, pero no
somos enemigos? Si fueramos amigos, menos mal; y usted en nuestro lugar hubiera hecho lo
mismo como usted ha hecho con mi compadre Velez que acaba de ser separado de la Guardia
Nacional." [You come with the same complaint, Mr. Baluyot, but, are we not enemies? If we
were friends, not quite so bad. If you were in our place you would have done the same as you
have done with my friend (compadre) Velez who has just been discharged from the National
Guard.] Baluyot says that in reply to this he protested that he had nothing to do with the
separation of Captain Velez from the National Guard. At his juncture the governor suggested that
the interview was going to be somewhat lengthy and requested that Baluyot should yield his turn
for a few minutes until the governor could have a short interview with Aranjuez. Thereupon the
interview was interrupted in the manner already stated, Baluyot withdrawing for a few moments
into the recorder's office.

30
Baluyot says that, when he was readmitted into the presence of the governor, he seated himself in
the same chair in front of the governor's desk where he had been seated before, and the
conversation was resumed. This conversation according to Baluyot was of the following tenor:

GOVERNOR LERMA. Where do you say you are going to, Mr. Baluyot?

BALUYOT. I am thinking of going to Cebu and residing therefor some time with my
brother-in-law.

THE GOVERNOR. But you will not be able to do so very soon, perhaps until after
several months.

BALUYOT. That is not true. On my return to Manila, I'll prepare for my trip and go to
Cebu.

THE GOVERNOR. I believe you will not be able to carry that out, because Judge
Concepcion will detain you.

BALUYOT. Why?

THE GOVERNOR. Well, Judge Concepcion has sentenced you for estafa to four
months, and I don't know how many days; truly that is a good idea, to change location, a
location so full of people as Cebu where nobody knows you perhaps you may be able to
cheat better.

Baluyot says that, upon being informed by Governor Lerma that Judge Concepcion had rendered
judgment against him in the estafa case condemning him to prison, he lost his head, as he was in
high hopes of being acquitted in that prosecution. He accordingly, at the close of the foregoing
words imputed to Governor Lerma, rose from his chair and used the words which we have
quoted in a former part of this opinion with reference to the calibre of Governor Lerma's
revolver, at the same time unbuttoning his coat and producing his own weapon.

Even supposing that the conversation between the accused and Governor Lerma was exactly as
stated by Baluyot, the language used by Governor Lerma was not such as could have produced
passion and obfuscation in Baluyot sufficient to constitute the mitigating circumstance defined in
subsection 7 of article 9 of the Penal Code. It is to be noted, however, that no such conversation
as that above transcribed could possibly have taken place in the interval between the reentrance
of Baluyot into the governor's office and the time when the words addressed to the governor
about the revolver were heard in the recorder's office. From the testimony given by the witnesses
Pedro Gonzales, Antonino Aranjuez and Gregorio de Guzman, we consider it to be irrefutably
established that the first shot was fired within nine or ten seconds after Baluyot reentered the
governor's office and that the interval which elapsed was scarcely more than sufficient to allow
Baluyot to reach the governor's desk.

The mind of an unbiased person must also be impressed with the inverisimilitude of imputing to
Governor Lerma knowledge of a judgment rendered by a court in the City of Manila against

31
Baluyot of which Baluyot was ignorant, for under section 41 of the Code of Criminal Procedure
sentence in such a proceeding as that then pending against this accused must be pronounced in
the presence of the condemned person, and if Baluyot had in fact been convicted he himself
would have been among the first to learn of it. It is highly improbable that governor Lerma
would have been guilty of conduct so unbecoming as to have engaged in bantering a political
enemy over a matter so delicate, when judgment had not in fact been pronounced. Our
conclusion is that Baluyot's account of the words which passed between him and Governor
Lerma immediately prior to the firing of the first shot must be rejected as false.

The contention that the accused had no intention to commit so great a wrong as that committed
rests upon the statement of Baluyot that the third shot was accidentally discharged from his
revolver while he was attempting to push open the door of the closet in which the Governor had
taken refuge. This pretension is hardly deserving of serious notice, as it is refuted not only by the
circumstantial evidence bearing upon this phase of the tragedy but also by an admission made by
Baluyot on August 5 in conversation with Eusebio Reyes, reporter of a Manila newspaper. In this
conversation Baluyot stated that he pursued the deceased to the door of the closet and, having
observed from the cries emitted by Governor Lerma that the latter was seated behind the door, he
(Baluyot) discharged his pistol in the direction where he divined the governor to be. We have no
doubt as to the truth of this admission, and it is a complete refutation of the suggestion that the
discharge of the revolver was accidental.

What we have thus far said suffices to demonstrate that in slaying Governor Lerma, the accused
was guilty of murder with at least one aggravating circumstance and that the penalty for murder
was properly imposed in its maximum degree. It is, however, further insisted in the brief of the
Attorney-General that in reality two crimes were committed by the accused in the same act,
namely, murder and assault upon a person in authority. Under this conception of the case also the
penalty for murder should be imposed in its maximum degree under article 89 of the Penal Code.

We agree with the Attorney-General upon the proposition that the same act in fact resulted in this
case in the perpetration of two crimes. That the homicide is to be characterized as murder we
have already determined; and it is undeniable that, an attack was in the same act made upon a
person in authority while exercising the duties of his office, as charged in the complaint, since
the deceased was, as a provincial governor, an authority within the meaning of article 249 of the
Penal Code. These considerations in our opinion supply an additional irrefutable basis for the
imposition of the death penalty by the trial judge though his decision did not discuss this aspect
of the case.

What has been said is sufficient to dispose of so much of the appeal as is concerned with the
commission of the offense and its legal qualification under the law. Other questions, however,
are raised relative to the conditions under which the case was called to trial and the manner in
which the prosecution was conducted in the Court of First Instance. In this connection various
errors of law are imputed, in a separate assignments, to the action of the Hon. Carlos Imperial,
who acted as judge in the court below.

In the first specification of error the appellant alleges that "he was not given ample opportunity
to defend himself," because the court denied his attorney's last request for a continuance. Upon

32
this ground the appellant seeks to secure from this court, if not a reversal of the judgment, at least
an order for a new trial. The assignment of error is in our opinion without merit. It appears in
evidence that on August 3, 1918, the provincial fiscal filed an information in the court of the
justice of the peace charging the accused with the crime of murder. On the 5th, he appeared and
waived the right to be defended by an attorney and requested that the "expediente" be sent to the
Court of First Instance as soon as possible. On the 9th, an information was filed in the Court of
First Instance, whereupon Manuel Banzon, a regularly admitted member of the bar, was
appointed by the court as attorney de officio for the defendant upon the latter's request, and he
was duly arraigned, entering a plea of not guilty. On that date the attorneys for the Government
asked that the trial be set for the 12th, but the counsel for the accused requested that it be set for
the 15th, which petition was granted . After the case was called for hearing on the 15th, the court
received a telegram from Vicente Sotto, then a member of the bar in Manila, stating that he had
been employed by the family of the accused and asking that the hearing be postponed until the
following Monday. The attorneys for the Government objected to this request but the court,
nevertheless, postponed the hearing until the following day, and Sotto was immediately notified
by telegram of that order. Sotto at once departed for Balanga and was present in court when the
case was called for trial the next morning. Banzon was authorized by the court to retire from the
case only with the defendant's consent and after Sotto had made his appearance and taken charge
of the case.

From the foregoing statement it is seen that the accused was at all times represented before the
court by a competent attorney, and no fact is adduced which would enable us to say that he was
in any wise embarrassed in the making of his defense by the action of the court in setting the
case for trial on August the sixteenth and proceeding with it on that day. It cannot be permitted
that a trial court should be put in error for refusing a continuance when there is nothing whatever
to show that the accused was in fact prejudiced by the action taken. Where a continuance is
sought on the ground of want of preparation, an affidavit should ordinarily be filed showing in
what respect the applicant is not ready and that he has made reasonable exertions to prepare for
trial without success, or some good reasons for not making such exertions. (13 Cor. Jur., 183.)
Nothing of the kind was done in this case; and when Sotto actually appeared in court and
assumed the duties of attorney for the accused, no application for a continuance of any sort was
really made. On the contrary the attorney was content merely to cause a note to be made in the
record to the effect that he respectfully protested against the telegram which the court had sent to
him the day before notifying that the cause was set for trial on the 16th. No statement whatever
was made showing why further delay was necessary. The action taken by the court was in our
opinion in no wise prejudicial and was therefore not erroneous.

In United States vs. Lao Chueco (37 Phil. Rep., 53), it was held that "when an accused is obliged
to come to trial without having the opportunity to cite his witnesses it cannot be said that he is
given the opportunity to be tried completely, fully and impartially as the law prescribes, and a
new trial will be ordered." But in that case the accused was deprived of the opportunity to
subpoena his witnesses, whereas in the case at bar neither the accused nor his attorney informed
the court that there was any witness that they wanted to be cited. It does not appear even now
that there was any essential witness whom he could have presented had not the case been tried on
August 16th. When the accused was arraigned on August 9 the court told him that, if he had any

33
witness that he wanted the court to subpoena, he should so inform the court as soon as possible
in order that the trial of the case might not be delayed.

The second assignment of error raises a question which is addressed to the personal qualification
of his Honor, Carlos A. Imperial, to preside at the hearing of this case. The exception to the trial
judge was based on the fact that the latter had attended the funeral obsequies of Governor Lerma,
which had been characterized by marked manifestations of public grief and sympathy. This fact
was relied upon as showing that Judge Imperial was biased and could not be relied on to try the
accused with rectitude, justice, and impartiality. The judge, however, did not accede to this
suggestion and proceeded with the trial as already stated. There is in our opinion no merit in the
assignment. No prejudice on the part of the judge is in fact shown, and the record by no means
bears out the assumption that the judge was in fact in any wise biased.

Furthermore, the objection raised is not based upon any of the grounds of disqualification stated
in section 8 of Act No. 190. This section expressly enumerates without ambiguity the cases in
which a judge or justice of the peace is disqualified from acting as such, and the express
enumeration of these cases excludes others. Such is the tenor of the decisions of this court in the
cases of Perfecto vs. Contreras (28 Phil. Rep., 538), and Joaquin vs. Barretto (25 Phil. Rep.,
281). In the case last cited it was held that extreme delicacy was no ground for disqualifying a
judge from trying a case. The decisions just cited are civil cases but in the absence of express
provision in the Code of Criminal Procedure, the analogy is of value.

In the third assignment it is imputed as error that the court at the hearing denied a motion of the
attorney of the accused to withdraw the plea of not guilty previously entered by him in order to
permit a demurrer to be filed to the information. The attorney did not disclose to the court the
ground on which he proposed to base his demurrer, and as the information appears to be
sufficient, it is evident that this motion was merely dilatory, and the court committed no error in
refusing to accede thereto. The action of the trial court in passing upon an application of this
character is largely discretionary and is not subject to review except where the judicial discretion
appears to have been abused.

The fourth specification is addressed to the supposed error of the court in refusing to compel the
provincial fiscal to produce in court at the request of the attorney for the accused certain written
statements which had been made by the witnesses Pedro Gonzales, Gregorio de Guzman, and
Antonio Aranjuez in a preliminary inquiry conducted by the fiscal preparatory to this
prosecution. It appears that after the witnesses above mentioned had been examined in court for
the prosecution, they were turned over to the attorney for the accused and were by him fully
cross-examined. Later, when the giving of testimony for the prosecution had been concluded, the
defense proceeded to introduce sundry witnesses who were examined in due course. After four
had thus testified, and immediately before the accused was placed upon the stand in his own
behalf, his attorney made the request that the declarations or statements above referred to should
be produced. The attorney for the prosecution objected on the ground that one party cannot be
compelled to produced evidence in favor of the other. The court was of the opinion that the
written declarations the production of which was sought were of a privileged nature and
accordingly overruled the motion. We are of the opinion that the court was not in error in
refusing to compel the production of the documents in question. They were not original or

34
independent evidence of such a character as to give the accused an unqualified right to compel
their production, and no proper basis was laid in the cross-examination of the witnesses who had
made those statements to justify their production with a view to the impeachment of the
declarants. The request was of course based upon the supposition or expectation that if the
statements of the witnesses before the fiscal were produced, they might be found to contain
something different from what was contained in their testimony given in court.

We know of no rule of practice which sustains the contention of the appellant. The statements in
question were not the sworn declarations of witnesses taken in conformity with the requirements
of section 13 of General Orders, No 58, and which are commonly attached to the "expediente"
transmitted by the committing magistrate to the Court of First Instance. In the case at bar the
preliminary examination before the committing magistrate was waived by the accused, and the
declarations of the witnesses for the prosecution were therefore not taken before the magistrate.
The declarations referred to were, on the contrary, taken in an investigation conducted by the
fiscal under the authority of section 1687 of the Administrative Code. This section authorizes the
fiscal, if he deems it wise, to conduct an investigation into the matter of any crime or
misdemeanor for the purpose of instituting or carrying on a criminal prosecution. It is expressly
declared that this section shall not be construed to authorize a provincial fiscal to act as a justice
of the peace in any preliminary investigation. The proceeding here contemplated is of an
administrative character, and the information thereby acquired is intended for the use of the
fiscal in the conduct of the prosecution. Such declarations therefore pertain to the official file in
the office of the public prosecutor and are not subject to production at the mere request of the
attorney for the accused where no ground therefor had been laid.

In order that we may not be misunderstood, as well as for the purpose of clarifying the practice
in such matters, a few words may here by properly said in respect to the proper mode of
proceeding in a case where a party wishes to get before the court contradictory statements made
by a witness who is testifying for the adversary party. For instance, if the attorney for the
accused had information that a certain witness, say Pedro Gonzales, had made and signed a
sworn statement before the fiscal materially different from that given in his testimony before the
court, it was incumbent upon the attorney when cross-examining said witness to direct his
attention to the discrepancy and to ask him if he did not make such and such statement before the
fiscal or if he did not there make a statement different from that delivered in court. If the witness
admits the making of such contradictory statement, the accused has the benefit of the admission,
while the witness has the opportunity to explain the discrepancy, if he can. On the other hand, if
the witness denies making any such contradictory statement, the accused has the right to prove
that the witness did make such statement; and if the fiscal should refuse upon due notice to
produce the document, secondary evidence of the contents thereof would be admissible. This
process of cross-examining a witness upon the point of prior contradictory statements is called in
the practice of the American courts "laying a predicate" for the introduction of contradictory
statements. It is almost universally accepted that unless a ground is thus laid upon cross-
examination, evidence of contradictory statements are not admissible to impeach a witness;
though undoubtedly the matter is to a large extent in the discretion of the court.

We wish to add that in a case of this kind, if the accused had, by affidavit or otherwise, made it
appear to the satisfaction of the court that the witnesses named had made statements in their

35
declarations before the fiscal materially at variance with their statements in court and that the
production of said declarations was necessary or even desirable, in the interests of justice, the
court would have had ample power to order their production. No such showing, or intimation,
was made in this case; and the attorney who made the motion was merely angling at random to
discover something that might prove to be favorable to his client. To put a court in error for
refusing to entertain such a motion would encourage frivolous delays and tend to embarrass the
speedy and proper administration of justice.

The last assignment directed to supposed error of law in the action of the trial court is to the
effect that the judge made his decision without hearing the assessors who acted at the trial. In this
connection it appears that at the request of the accused two assessors were appointed in
accordance with the provisions of sections 153-161 of Act No. 190, which provisions were
extended to criminal causes by Act No. 2369 of the Philippine Legislature. The record does not
show that the assessors in the case before us were in fact consulted by the judge, and the decision
of the court makes no mention of them. We are of the opinion that the irregularity, if such it be,
is immaterial. The functions of the assessor are purely advisory, and the responsibility for the
decision rests exclusively with the judge. The statute does not require that the opinions of the
assessors shall be recorded except where two or more assessors are of the opinion that the court's
findings of fact are wrong. In the silence of the record it is to be presumed not only that the
functions of the assessors were properly performed but that they agreed with the findings of the
court. This presumption is borne out in the case before us by the circumstance that after the
records of the case had been sent up to this court, the clerk of court of Bataan forwarded as part
of said records certifications signed by the assessors who had sat in the case, stating that they had
read the decision rendered by the court and that they concurred in the findings of fact made
therein. It is not necessary that the record should affirmatively show that the judge consulted the
assessors before making his decision as in the absence of a showing to the contrary it is to be
presumed that he did so.

From the preceding discussion it is apparent that, in the view sustained by the majority of the
members of this court, no material error was committed by the trial judge either in the mode of
conducting the trial or in the qualification of the crime and fixing the penalty attendant
thereupon. However, as one of the Justices of this court is not in accord with the majority with
regard to the propriety of the imposition of the death penalty, the penalty imposed must, in
conformity with the requirements of Act No. 2726 of the Philippine Legislature, be reduced from
death to cadena perpetua with the accessory penalties prescribed in article 54 of the Penal Code.
As thus modified the judgment appealed from is affirmed, with costs against the appellant. So
ordered.

Arellano, C.J., Torres, Johnson and Avanceña, JJ., concur.

Malcolm, J., was not present at the argument, and did not take part in the disposition of the
case.

Moir, J., voted with the majority of the court for the affirmance of the judgment, but on account
of his absence at the time of the promulgation of this opinion his name does not appear signed
thereto. (Sgd.) C. S. Arellano.

36
PP vs. Regalario GR. No. 177302, April 16, 2009

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 177302               April 16, 2009

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
JAIME LOPEZ, ROGELIO REGALADO, AND ROMEO ARAGON, Appellants.

DECISION

CARPIO-MORALES, J.:

Jaime Lopez, Rogelio Regalado and Romeo Aragon (appellants) were charged of Murder by an
Information filed before the Regional Trial Court (RTC) of Surigao del Sur, the accusatory
portion of which reads:

That on or about 3:30 o’clock in the afternoon of April 25, 1996 at Bandola Street, Pob.
Municipality of Hinatuan, Province of Surigao del Sur, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused conspiring, confederating and mutually helping
one another for a common purpose, with treachery and evident premeditation and with deliberate
intent to kill, and armed with sharp bladed instruments (knives and "Tare"), did then and there
willfully, unlawfully and feloniously attack, assault, box and stab to death EDENCITO CHU Y
VILLAHERMOSA, thereby inflicting upon the latter fatal multiple stab wounds as certified to
by a doctor, which caused his instantaneous death, to the damage and prejudice of the heirs of
the said CHU.

CONTRARY TO LAW: (In violation of Article 248 of the Revised Penal Code of the
Philippines, with the aggravating circumstances of superior strength).1

From the evidence for the prosecution, the following version of events is culled:2

At around 3:30 P.M. of April 25, 1996, appellant Rogelio Regalado (Regalado), who was outside
Bantogan3 Tailoring, a tailoring shop at Bandola street corner Villaluz, Hinaruan, Surigao del
Sur, called out: "You let Bonjong come out so we could measure his courage!," referring to
Edencito Chu (Chu) whose nickname is "Bonjong." Chu thereupon emerged from his mother’s
bakery, Purity Bakery, fronting the tailor shop, put his arms around Regalado’s shoulders and
asked for forgiveness. Regalado, however, pushed Chu’s arms aside, drew a curved four to five
inches long knife as he uttered "Putang Ina, ka Jong!" and stabbed Chu below the left nipple.

37
As Chu ran towards Villaluz street, Regalado chased him and picked up two pieces of firewood
along the way with which he hit Chu.

Appellant Jaime Lopez (Lopez) in the meantime surfaced from a house beside the tailoring shop
and, armed with a hunting knife, joined the chase.

Soon appellant Romeo Aragon (Aragon) also surfaced from the back of the tailoring shop and
also joined the chase.

The three appellants caught up with Chu at the corner of Lindo and Bandola streets at which
Aragon boxed Chu, causing the latter to fall. Aragon kicked Chu. Lopez then stabbed Chu
several times as Regalado looked on. When Chu was no longer moving, the three appellants left.
Chu expired before reaching the hospital.

Post-mortem examination of Chu’s body yielded the following findings:

STAB WOUND LEFT DELTOID 4CM MUSCLE DEEP

PENETRATING STAB WOUND LEFT POSTERIOR AXILLARY LINE AT THE

LEVEL OF T10, 3CM

PENETRATING STAB WOUND RIGHT POSTERIOR AXILLARY LINE AT THE

LEVEL OF T8, 1.5 CM

PENETRATING STAB WOUND RIGHT ANTERIOR TRUNK AT THE LEVEL OF

T10, 1 CM

PENETRATING STAB WOUND LEFT ANTERIOR AXILLARY LINE 1 CM

STAB WOUND LEFT NIPPLE 1 CM SUBCUTANEOUS DEEP

2 LACERATED WOUNDS LEFT ELBOWS SKIN DEEP 0.5 CM EACH4

Autopsy of Chu’s body yielded results which coincided with those of the post-mortem
examination, thus:

Body, embalmed, well-preserved.

Embalming incisions, sutured: neck, antero-lateral aspect, right, 3.5 cm.; supra-umbilibical
region, right, 1.0 cm.

Contused-abrasions, patellar region, bilateral right, 5.0 x 11. 5cm; left, 11.0 x 12.0cm.

Incised wounds, modified by suturing and embalming: chest, infra-mammary region, right, 1.5
cm.; inguinal region, right, 1.5 cm.; forearm, proximal third, postero-lateral aspect, left, 1.6 cm.

38
Stab wounds, modified by suturing and embalming:

1. Roughly curved-shaped, 4.5cm., edges are clean-cut, oriented vertically, superior

extremity is blunt, inferior extremity is sharp. Located at the left arm, proximal third,
antero-lateral aspect, 23.0cm. above the left elbow, directed backward, downward, and
laterally, involving the soft tissue, cutting the major blood vessels with an approximate
depth of 7.5cm.

2. Roughly spindle-shaped, 2.3cm., edges are clean-cut, oriented vertically, superior

extremity is sharp, inferior extremity is blunt. Located at infra-mammary region, between
sixth (6th) and seventh (7th) intercostal space, lateral aspect, left, 16.0cm. from anterior
median line, directed, backward, downward, and medially, involving the soft tissues, into
the thoracic cavity, into the pericardial sac, penetrating the left ventricle of the heart with
an approximate depth of 10.0cm.

3. Roughly spindle-shaped, 1.8cm., edges are clean-cut oriented vertically, superior

extremity is sharp, inferior extremity is blunt. Located at supra-mammary region; left,
1.0cm. from anterior median line, directed backward, sideward, and medially involving
the soft tissues, cutting the sternum superficially, with an approximate depth of 5.0cm.

4. Roughly spindle-shaped, 2.0cm., edges are clean-cut, oriented vertically, superior

extremity is blunt, inferior extremity is sharp. Located at the infra-scapular region, right,
20.0cm. from posterior median line, directed forward, downward, and laterally, involving
the soft tissues only, with an approximate depth of 5.0cm.

5. Roughly curved-shaped, 3.5 edges are clean-cut, oriented horizontally, lateral

extremity is blunt, medial extremity is sharp. Located at the infra-scapular region,
11.0cm. from posterior medial line, directed forward, downward and medially, involving
the soft tissues only with an approximate depth of 5.2cm.

Hemopericardium, residual clotted blood – 250cc.

Brain & other visceral organs, pale, embalmed.

Stomach – small amount of grayish food particles.5

Dr. Ricardo M. Rodaje, who conducted the autopsy, explained that wounds 1 and 5 were caused
by a curve-shaped weapon.6

At the witness stand,7 Regalado claimed as follows:

At 3:00 P.M. on April 25, 1996, after he bought a hotcake from the hotcake stand of Angelina
Aragon (Angelina), wife of appellant Aragon and daughter of appellant Regalado, at the corner
of Bandola and Villaluz streets, Chu approached and choked him.

39
He elbowed Chu and extricated himself. He then left but Chu pursued him as he (Regalado)
proceeded to Angelina’s house at the corner of España and Villaluz streets where he hid for
around two minutes.

When he returned to the hotcake stand, his son-in-law appellant Lopez summoned him, telling
him "I have done something, you accompany me in going to the police station because I am
going to surrender."

He and Lopez thereupon boarded a tricycad and repaired to the police station where Lopez
surrendered, handed a knife to the police, and was detained. As he (Regalado) was about to go
home, he was restrained as he might be waylaid by Chu. The following morning, he was
detained because the police found him to have participated in the killing of Chu.

As for appellant Lopez, he interposed "defense of relative" and "self-defense."8

His version goes as follows:

At 3:00 P.M. of April 25, 1996, while he was at one Lily Balbuena’s mahjong house along
Villaluz street, he heard a woman’s voice shouting. "Police, police, police!" He thus stepped out
and saw Chu chasing Regalado, his father-in-law, prompting him to go to Regalado’s nearby
house to get a knife, and to thereafter follow Chu as he was chasing Regalado. Lopez soon

intercepted Chu who boxed him as he (Chu) posed "Are you going to defend your father-in-
law?" He thereupon stabbed Chu several times and surrendered to the police station in the
company of Regalado.

Appellant Aragon invoked alibi,9 claiming that at 3:00 P.M. of April 25, 1996, he went to the
wharf which is 40 meters away from Angelina’s hotcake stand to buy fish. He waited for 30
minutes for fishermen but no one came, so he went home. Before reaching his house he was
surprised to see many people at the corners of Villaluz and Bandola streets. Angelina soon met
him and told him that Lopez had stabbed Chu because he choked Regalado.

He later learned that police investigator Pedic Mangin was looking for him, hence, he visited the
latter who told him that they would talk things over at the municipal hall. When he reached the
municipal hall, he was immediately detained.

The defense presented evidence of Chu’s supposed reputation as a bully who picked fights for no
reason and who had an existing criminal record.10

Branch 29 of the Bislig City RTC found the three appellants to have killed Chu, qualified by
treachery which absorbed "abuse of superior strength". The trial court thus disposed:

WHEREFORE, finding the accused JAIME LOPEZ alias "DODONG", ROGELIO

REGALADO alias "ROGER", and ROMEO ARAGON, all co-principals by direct
participation, guilty beyond reasonable doubt of the crime of MURDER defined and penalized
under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, this Court

40
hereby sentences them to suffer the penalty of Reclusion Perpetua with all the accessory
penalties provided by law.

To pay the heirs of the victim the sum of one hundred nine thousand six hundred seventy five
pesos and forty (P109,675.40) centavos as interment and burial expenses, fifty thousand
(P50,000.00) pesos as life indemnity twenty-three thousand (P23,000.00) pesos as attorney’s
fees, and ten thousand (P10,000) pesos as exemplary damages.

To pay the cost.

SO ORDERED.11

On appeal, appellants faulted the trial court for

x x x FINDING THAT CONSPIRACY ATTENDED THE KILLING OF THE VICTIM.

II

x x x NOT CONSIDERING THE DEFENSES INTERPOSED BY THE ACCUSED-

APPELLANTS.12

III

x x x CONVICTING THE ACCUSED APPELLANTS OF MURDER. 13

The Court of Appeals affirmed the trial court’s decision,14 hence, the present appeal.15

The appeal is bereft of merit.

This Court finds no reason to overturn the factual findings of the trial court, especially since the
prosecution’s version is culled from the testimony of eyewitnesses.

Appellants’ disclaimer of the presence of conspiracy fails. The evidence shows that they
cooperated in a common design to kill Chu. Regalado initiated the killing when he stabbed Chu
on the chest, and the two other appellants joined Regalado in chasing Chu, with Regalado hitting
Chu with firewood along the way. Then, when the three of them had cornered Chu, Aragon
boxed and kicked Chu, enabling Lopez to stab him several times. These indicate a conspiracy.

Aragon’s alibi does not persuade. As the trial court held:

x x x From the ocular inspection of the wharf conducted in Hinatuan, Surigao del Sur on
February 26, 2000,16 it was established that the wharf was located at the dead-end portion of
Villaluz Street. Aragon was at the wharf at about the same date and time of the stabbing incident,
allegedly to buy fish. He was seated at the last step of the wharf. He stayed there for thirty (30)

41
minutes to wait for a pump boat bringing in fish but there was none. At about the time of the
incident, the water level was supposed to be low tide17 so that no pump boat, if there was any,
can dock on the wharf. Applying common sense, nobody in his right mind would wait for about
thirty (30) minutes just to buy fish where no pump boat is in sight. x x x Aragon was positively
identified by prosecution witnesses, hence his defense of being at the wharf does not hold water.
For alibi to prosper, accused must prove not only (1) that he was somewhere else when the crime
was committed; but (2) it must likewise be demonstrated that he was so far away that he could
not have been physically present at the place of the crime or its immediate vicinity at the time of
its commission. In this case, the wharf was only a few meters from the scene of the incident.
Ergo, Aragon could have been physically present at the place or its immediate vicinity at the
time of the commission of the crime. (Citations omitted)18

Neither does Lopez’s "defense of relative." As the Court of Appeals held:

Under [Paragaraph 2 of Article 11 of the Revised Penal Code], the elements of the justifying
circumstance of defense of relatives are as follows:

1. Unlawful aggression;

2. Reasonable necessity of the means employed to prevent or repel it;

3. In case provocation was given by the person attacked, that the one making the defense
had no part therein.

Even if We adopt accused-appellants’ version of the incident, We still find the foregoing
elements absent in the case at bar.

As alleged by Lopez, he merely heard someone shouting "police, police, police!" and when he
looked out he allegedly saw his father-in-law being chased by Chu. He then went to Regalado’s
house to get a knife and when he caught up with Chu, he no longer saw accused-appellant
Regalado and it was only Chu who was there. He allegedly stabbed Chu because of the latter’s
threatening words, "Are you going to defend your father-in-law?"

We cannot, by any stretch of imagination, consider said remarks threatening as to consider it

unlawful aggression. It bears stressing that unlawful aggression, as defined under the Revised
Penal Code, contemplates assault or at least threatened assault of an immediate and imminent
kind. There is unlawful aggression when the peril to one’s life, limb or right is either actual or
imminent. To constitute unlawful aggression, it is necessary that an attack or material aggression,
an offensive act positively determining the intent of the aggressor to cause injury shall have been
made. A mere threatening or intimidating attitude is not sufficient…there must be a real danger
to life and personal safety.

Even assuming ex gratia argumenti, that there was unlawful aggression on Chu’s part when he
chased Regalado, Lopez was not justified in stabbing Chu since as admitted by him, he did not
see accused-appellant Regalado anymore when he was able to catch up with Chu. The unlawful
aggression of Chu, had it indeed been present, had already ceased when upon reaching Chu, as

42
Regalado, whom Lopez allegedly wanted to protect, was no longer there. When an unlawful
aggression that has begun no longer exists, the one who resorts to self-defense has no right to kill
or even to wound the former aggressor.

We further do not find any reasonable necessity in the means employed by Lopez to repel Chu’s
alleged aggression.

Nowhere in the records is it shown that when Chu allegedly chased Regalado, the former was
wielding a weapon. Thus, the intention of Lopez to get a knife for his protection and that of his
father-in-law was unwarranted.

The fact that Chu allegedly boxed and taunted him prompting him to stab the victim several
times in retaliation negates the reasonableness of the means employed to repel Chu’s aggression
assuming that indeed, Chu started the aggression. x x x

xxxx

The wounds sustained by Chu xxx indicate that the assailant who inflicted the same was more in
a killing rage than one who was merely acting in defense of a relative.19 (Underscoring supplied)

Finally, appellants’ denial of the existence of treachery in this wise does not convince:

x x x Based on the prosecution witnesses’ testimony, the victim was allegedly asking forgiveness
from accused-appellant Rogelio Regalado and placed his hands on his shoulder when the latter
stabbed the former. Based from the foregoing, it is apparent that the victim committed a
wrongful act against herein accused-appellant, which was so grave that there was a need for him
to ask for forgiveness. Thus, x x x the victim was expecting a retaliation from herein accused-
appellant.20 (Underscoring supplied)

The essence of treachery is a deliberate and sudden attack that renders the victim unable and
unprepared to defend himself by reason of the suddenness and severity of the attack.21

In the case at bar, Chu was caught off-guard when, after he was asking forgiveness from
Regalado, the latter suddenly drew a curved knife and stabbed and pursued the following victim.
And once Regalado and his co-appellants cornered Chu, Aragon kicked and punched him while
Lopez stabbed him several times to thus preclude Chua from defending himself.

WHEREFORE, the appeal is DENIED. The September 22, 2008 Decision of the Court of
Appeals is AFFIRMED.

Costs against appellant.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

43
PP vs Amodia, GR No. 173791, April 7, 2009

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 173791               April 7, 2009

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
PABLO AMODIA, Accused-Appellant.

DECISION

BRION, J.:

We review in this appeal the decision of the Court of Appeals1 (CA) affirming with modification
the decision of the Regional Trial Court (RTC), Branch 38, Makati City in Criminal Case No.
97-289. The RTC found the accused-appellant Pablo Amodia (Pablo) guilty beyond reasonable
doubt of the crime of murder and sentenced him to suffer the penalty of reclusion perpetua and to
pay the corresponding civil liabilities to the heirs of the victim.

Pablo was indicted, together with three other accused, under the following Information:2

That on or about the 26th day of November 1996, in the City of Makati, Philippines, a place
within the jurisdiction of this Honorable Court, the above-named accused, conspiring and
confederating together and mutually helping and aiding one another, while armed with a piece of
wood and bladed weapon, taking advantage of their superior strength [sic] and employing means
to weaken the defense, did then and there, willfully, unlawfully and feloniously attack, assault
and employ personal violence upon one FELIX OLANDRIA y BERGAÑO, by beating him on
the head with a piece of wood and stabbing him repeatedly on the different parts of his body,
thereby inflicting upon him mortal/fatal stab wounds which directly caused his death.

CONTRARY TO LAW.3

The Information, dated February 21, 1997, was filed with the court on February 28, 1997.

44
Pablo was arrested on June 5, 1998 and was thereafter prosecuted. The other accused remained at
large.4 Pablo moved to quash the Information on the ground of mistaken identity and the
staleness of the warrant of arrest issued on March 4, 1997. The RTC denied his motion.5

Pablo entered a plea of "not guilty" to the charge when arraigned on August 3, 1998.6

The Prosecution’s Version

The prosecution presented evidence, both documentary7 and testimonial,8 to establish that Pablo
was one of the four assailants who, by their concerted efforts, killed Felix Olandria y Bergaño
(victim).9 Acting together, they hit him on the head and stabbed him.

The records show that Romildo Ceno (Romildo) was a resident of Zone 17, Pembo, Makati City
and lived in the house of Freda Elnar (Freda).10 At around 12:05 a.m. of November 26, 1996, he,
Mario Bitco (Mario),11 and Freda were talking and watching television at their house12 when he
heard a noise coming somewhere below the C-5 bridge, located some forty (40) to fifty (50)
meters away from their house; he also heard somebody shout "may away doon."13 Curious, he
and Mario went to the bridge14 and saw five persons whom he identified as the victim, Pablo,
Arnold Partosa (Arnold), George Palacio (George),15 and Damaso Amodia (Damaso). He knew
these men; the victim was his neighbor, while Pablo, Arnold, George and Damaso were residents
of Scorpion Street, Zone 17 Pembo, Makati City.16

When Romildo was about three arms-length away from the place of the commotion, then
illuminated by light coming from a Meralco post located some five (5) to six (6) meters from the
scene, he saw the victim being held on his right hand by Pablo, while the other hand was held by
Arnold.17 George was positioned at the victim’s back and clubbed the victim on the head;
Damaso was in front of the victim and stabbed him three times.18

Luther Caberte (Luther), who happened to be passing by the C-5 Bridge at the time, also saw
what happened. He testified that he saw men fighting under the C-5 Bridge which was
illuminated by a light coming from a lamppost located some ten (10) meters away.19 From his
vantage point (about 15 meters away from the fight), he saw Pablo, Damaso, George and Arnold
ganging up (pinagtulung-tulungan) on the victim.20 He saw Pablo holding the victim’s hand
while Damaso was stabbing him. He also confirmed that George was positioned behind the
victim.21 He personally knew both Pablo and the victim; they have been neighbors since 1986.22

Both eyewitnesses left the scene after the stabbing; Romildo was chased away by George and
Damaso, while Luther went home immediately. Both were shaken and shocked with what they
had seen.23

At 3:00 a.m. of the same day, the CID Homicide received a report of an unidentified body found
in a road along Comembo Bridge, Barangay Pembo.24 SPO2 Romeo Ubana (SPO2 Ubana), a
police investigator assigned to the CID Homicide, and a police photographer went to the place
and saw the body of a dead male person with three stab wounds whom they subsequently
identified as the victim.25 He prepared a Final Investigation Report of the incident.26

45
After the spot investigation, the victim’s body was taken to the Veronica Memorial Chapel
where Dr. Antonio Bertido (Dr. Bertido), a National Bureau of Investigation (NBI) Medico Legal
Officer, subjected it to a post-mortem examination.27 The autopsy yielded the following findings:

Pallor, intergument and nailbeds.

Stab wounds.

1. Elongated 4.5. cms. Edges are clean cut, medial border is sharp, lateral border is blunt.
Located at the chest, anterior, left side, 6.0 cms. From the anterior median line. Directed
backwards, upwards and medially involving the skin and underlying soft tissues, into the
thoracic cavity, perforating the pericardial sac, into the pericardial cavity, penetrating the
heart with an approximate depth of 10.0 cms.

2. Elongated, 3.5 cms edges are clean cut, medial border is blunt, lateral border is sharp.
Located at the anterior abdominal wall, left side, 6.5 cms. From the anterior median line.
Directed backwards, upwards and medially involving the skin and underlying soft tissues,
perforating the stomach with an approximate depth of 14.0 cms.

3. Elongated, 3.0 cms, edges are clean-cut, medial border is blunt, lateral border is sharp.
Located at the anterior abdominal wall, right side. 2.0 cms. From the anterior median
line. Directed backwards, upwards and laterally involving the skin and underlying soft
tissues, penetrating the head of the pancreas with an approximate depth of 12.0 cms.28

Dr. Bertido stated that the victim was stabbed three times on the body by a single-bladed sharp-
pointed instrument.29 Through the use of an anatomic diagram, Dr. Bertido showed that the
victim was stabbed on his left chest and over his right and left abdominals.30 He also stated that
of the three stab wounds, the wound on the victim’s chest was the most fatal because it was near
his heart, while the other wounds involved the victim’s stomach and pancreas.31 Dr. Bertido
declared that no other wound, aside from the three stab wounds, was found on the victim’s
body.32 He later on executed a Certificate of Post-Mortem Examination showing the cause of
death as hemorrhage, secondary to stab wounds.33

Dr. Bertido admitted that while he could not specifically determine the position of the victim at
the time he was stabbed, he was certain that the stab wounds were inflicted when the victim and
his assailant were facing each other.34 He also disclosed that the sizes of the wounds were
different from each other.35

The prosecution also presented Claudio Olandria,36 the victim’s father, who took the witness
stand and testified on the expenses that he and his family incurred by reason of his son’s death.

The Defense’s Version

The defense relied on the defense of alibi, submitting testimonial and documentary evidence37 to
support Pablo’s claim that he was in another place at the time of the stabbing.

46
Pablo averred that his name is Pablito Amodia and stated that at the time of the incident, he lived
in the house of Elma Amodia Romero (Elma), his sister, located at Zone 13, Ilocos Street,
Barangay Rizal, Makati City.38 He has lived there since 1994. He claimed that he was at home in
the evening of November 25, 1996, until the early morning of the next day.39 At around 10:00 of
that evening, his brother – Elias Amodia (Elias) – who lived next door, awakened him40 and told
him that his (Elias’) wife, then pregnant, had started having labor pains.41 He went back to sleep
only to be awakened by Elias at past 12:00 midnight. Elias then requested him to take care of his
house.42

Pablo related that it was at this time that Damaso (another brother), George, Arnold, and another
person he did not know, came to Elma’s house.43 He noticed that Damaso was in a hurry and was
packing his clothes; the latter told him that they (Damaso and his companions) encountered
trouble.44 Damaso and his companions left past midnight; on the other hand, he went to Elias’
house to take care of the latter’s children, while Elias and his wife went to a lying-in clinic.45
While at Elias’ house, Elma visited him to check on him and the children.46 He stayed there until
9:00 a.m. of November 26, 1996 when he went back to Elma’s house; he went to school later in
the day.47

Pablo also alleged that it was only after returning from school that he came to know of the
victim’s death; he only knew the victim by name and even went to the victim’s wake the first
night.48

He further alleged that he stopped schooling for lack of funds and went to Zamboanga del Norte
in January 1997.49 He went back to Manila on May 22, 1998 to continue his education, but was
arrested on June 5, 1998.50

Elma and Elias corroborated Pablo’s story.51 Elma stated that Pablo lived with her in their
brother’s house together with her husband, their children, and Damaso.52 She added that Damaso
told her that they were in trouble (atraso) because of a fight, and that he and his companions
were on their way to Cebu.53 Elma declared that Pablo was with her when Damaso came to the
house to pack his clothes.54 Pablo and Damaso left at 12:30, but for different destinations.55 She
knew that Pablo went to Elias’ house because she went to check on him and the children around
1 a.m. and then again at 2 a.m.56 Elias’ wife gave birth to a baby girl at 2:50 p.m. of November
26, 1996.57

After some prodding, Elma admitted that she knew that cases have been filed against Pablo and
Damaso as early as December 1996.58 The defense thereafter rested its case.

Prosecution’s Rebuttal Evidence

The prosecution presented Amelita Sagarino, a resident of Scorpion Street, Zone 17 since 1989,
as a rebuttal witness.59 She testified that she knew the victim and the accused who were all her
neighbors.60 She stated that she served food at the victim’s wake from seven in the evening up to
six in the morning and that she never saw Pablo there.61 She also heard from her neighbors that
the people responsible for the victim’s death were George, Arnold, Damaso, Pabling and Pablito
Amodia.62 She clarified that Pabling and Pablito Amodia are one and the same person.63

47
Subsequently, she stated that Pablito Amodia also attended the wake of the victim.64

Ruling of the RTC

The RTC convicted Pablo of murder after finding sufficient evidence of his identity, role in the
crime as principal by direct participation, and conspiracy between him and the other accused
who used their superior strength to weaken the victim. The RTC relied on the testimonies of
eyewitnesses Romildo and Luther, the autopsy results conducted on the body of the victim, and
the lack of physical impossibility on the part of Pablo to be at the crime scene. The dispositive
portion of the RTC decision reads:

WHEREFORE, the Court finds accused Pablo guilty of having committed the crime of murder
as principal by conspiracy. Considering that there are no aggravating or mitigating circumstances
attendant to the commission of the crime, pursuant to Article 64 (1) of the Revised Penal Code,
accused is sentenced to suffer imprisonment of reclusion perpetua. He is further sentence to pay
the heirs of the deceased Felix Olandria the amount of ₱50,000.00 as moral damages and to
reimburse said heirs of the amount of ₱23,568.00 for expenses incurred for the funeral service,
burial and incidental expenses.

SO ORDERED.65

Ruling of the CA

On appeal, the CA agreed with the RTC’s findings and affirmed Pablo’s conviction.66 The CA,
however, corrected the RTC’s ruling on the applicable provision of the Revised Penal Code, as
amended (Code), and modified the award of actual damages, as follows:

WHEREFORE, premises considered, the appeal is hereby DENIED. The assailed Decision dated
July 19, 1999 is hereby AFFIRMED with MODIFICATION. Appellant is hereby sentenced to
suffer the penalty of reclusion perpetua in accordance with Rule 63(2) of the Revised Penal
Code. He is likewise ordered to pay the heirs of the victim, ₱23,268.00, as actual damages,
₱50,000 as civil indemnity and P25,000.00, as exemplary damages, in addition to the award of
P50,000.00 as moral damages.

SO ORDERED.

The Issues

In his Brief before this Court,67 Pablo assigns the following errors committed by both the RTC
and CA:

(1) In finding that his guilt for the crime charged has been proven beyond reasonable
doubt.

(2) In finding the existence of conspiracy.

48
Pablo argues that the lower courts erred in failing to give evidentiary weight to his alibi, thus
disregarding the constitutional presumption of innocence in his favor.68 He emphasizes that his
alibi was corroborated by defense witness Elma who confirmed that he was at Elias’s house at
the time of the stabbing.69

He alternatively argues that granting that he was a part of Damaso’s group and that this group
killed the victim, the prosecution failed to prove the conspiracy among them; there was no
evidence adduced to establish how the incident that led to the stabbing began. Any doubt that he
acted as a principal should have been resolved in his favor.70

In their Brief,71 the Office of the Solicitor General (OSG) representing the People, maintain that
no reversible error was committed by the lower courts. The OSG avers that the prosecution’s
evidence has satisfactorily proven all the elements of the crime. Similarly, the conspiracy
between Pablo and the three accused was proven by the autopsy report which corroborated the
categorical testimonies of Romildo and Luther on how the accused and the others acted, clearly
showing a unity of purpose in the accomplishment of their criminal objective.72 The testimonies
of these two eyewitnesses also reveal that the killing was attended by the aggravating
circumstance of abuse of superior strength, and the employment of means to weaken the defense
of the victim. These circumstances qualify the killing to murder.

The Court’s Ruling

We affirm Pablo’s conviction.

The appeal essentially attacks the soundness of the factual findings of the RTC and CA that,
according to Pablo, are not in accord with the totality of the evidence in the case. He emphasizes
that the RTC and CA disregarded his alibi and the lack of evidence establishing a conspiracy to
kill the victim.

A review of the records fails to persuade us to overturn Pablo’s judgment of conviction. We have
emphasized often enough that the factual findings of the trial court, its calibration of the
testimonies of the witnesses, and its assessment of their probative weight are given high respect,
if not conclusive effect, unless cogent facts and circumstances of substance were ignored,
misconstrued or misinterpreted, which, if considered, would alter the outcome of the case.73
Under the circumstances, we find no exceptional reason to warrant a deviation from this rule.

The records show that both the RTC and CA convicted Pablo of murder based on the positive
identification by Romildo and Luther and their eyewitness accounts of the actual killing,
showing the existence of a conspiracy among Pablo’s group to kill the victim. The CA decision
clearly reflects these findings and reasoning:

The evidence on record gives the picture of the incident at the time when Felix Olandria was
already being held on both hands by accused Pablo Amodia and Arnold Pantosa. It was while in
this position that accused Damaso Amodia delivered three (3) stab blows which proved to be
fatal . . .74

49
Both courts gathered, too, from these testimonies that the killing was qualified by the
aggravating circumstance of abuse of superior strength, demonstrated by the concerted efforts of
Pablo’s group to overpower the victim’s strength with their own in carrying out their criminal
plan:

… the nature of the evidence presented, there are sufficient reasons to conclude and consider as
having been established beyond reasonable doubt, the existence of conspiracy and the qualifying
aggravating circumstances of abuse of superior strength and employment of means to weaken the
defense. These are: first, the convergence of four (4) accused; x x x second, the time when the
four (4) accused were seen together which is about 12:05 in the early morning of November 26,
1997; x x x third, the place where they were seen together which is below the bridge of C-5;
fourth, possession by accused Damaso Amodia of a knife his occupation being that of a painter;
fifth, absence of any other injuries in other parts of the body of the victim Felix Olandria x x x;
sixth, the location of the three stab wounds all of which were directed against delicate parts of
the body indicating intent to kill… The foregoing circumstances clearly proven by the
prosecution evidence, when taken together with the fact that death ensued indicate that there was
conspiracy on the part of the accused that they abused their superior strength and employed
means to weaken the defense. The act of one is to be considered therefore the act of the other.75

The Eyewitnesses Testimonies.

The RTC and CA found the identification made by Romildo and Luther to be clear, categorical,
and consistent.76 We observed that in accepting the truth of the identification and the account of
how the stabbing took place, the RTC and CA considered the witnesses’ proximity to the victim
and his assailants at the time of the stabbing – they were about three arms length away and 15
meters away, respectively; the well-lighted condition of the crime scene; and the familiarity of
these eyewitnesses with the victim and his assailants – they were all residents of the same area.
Similarly, we also note that no evidence was presented to establish that these eyewitnesses
harbored any ill-will against Pablo and had no reason to fabricate their testimonies. The weight
of jurisprudence is to accept these kinds of testimonies as true for being consistent with the
natural order of events, human nature and the presumption of good faith.77

Aside from these, we additionally note that Romildo and Luther never wavered, despite the
contrary efforts of the defense, in their positive identification of Pablo as one of the assailants of
the victim. The records glaringly show the defense counsel’s vain efforts to prove that these
eyewitnesses committed a mistake in identifying Pablo as one of the assailants since his name
was allegedly Pablito Amadio, and not Pablo.

We state in this regard that positive identification pertains essentially to proof of identity and not
necessarily to the name of the assailant. A mistake in the name of the accused is not equivalent,
and does not necessarily amount to, a mistake in the identity of the accused especially when
sufficient evidence is adduced to show that the accused is pointed to as one of the perpetrators of
the crime. In this case, the defense’s line of argument is negated by the undisputed fact that the
accused’s identity was known to both the eyewitnesses. On the one hand, we have Romildo’s
testimony stating that Pablo lived across Scorpion Street from where he lived.78 He also stated
that he had known Pablo for more than a year.79 On the other hand, Luther testified that he had

50
known Pablo since 1986 because they were neighbors and that he even played basketball with
him.80 We stress that Pablo never denied these allegations.

In People v. Ducabo, we took notice of the human trait that once a person knows another through
association, identification becomes an easy task even from a considerable distance; most often,
the face and body movements of the person identified has created a lasting impression on the
identifier’s mind that cannot easily be erased.81

The association the eyewitnesses cited – specifically, being neighbors and even basketball game
mates – rendered them familiar with Pablo, making it highly unlikely that they could have
committed a mistake in identifying him as one of the assailants. Their identification came at the
first opportunity (i.e., when they revealed) what they knew of the killing, and culminated with
their courtroom identification of Pablo as among those who assaulted the victim.82

Two reasons settle the argument about Pablo’s name against his favor. It strikes us that this
argument is a line of defense that came only as the defense’s turn to present evidence neared. We
have on record that prior to the defense’s presentation of evidence, Pablo referred to himself as
Pablo Amodia when the court asked him his name.83 We likewise find no competent evidence,
other than his assertion and those of his siblings, showing that his true name is really Pablito
Amodia. We therefore conclude that any uncertainty on the name by which the accused is or
should be known is an extraneous matter that in no way renders his identification as a participant
in the stabbing uncertain.

We find nothing irregular, unusual, or inherently unbelievable, in the eyewitnesses’ testimonies

that would affect their credibility. Their narratives are remarkably compatible with the physical
evidence on hand; likewise, their accounts are also consistent with each other. More importantly,
the narration of these eyewitnesses are in full accord with the human experience of individuals
who are exposed to a startling event and their initial reluctance to involve themselves in the
criminal matters especially those involving violent crimes committed by individuals known to
them.

The Defense of Alibi

Pablo argues that his alibi should have been given greater evidentiary weight because it was
corroborated by his sister, Elma. As reproduced by Pablo in his Brief, the substance of Elma’s
testimony is as follows:

Q: Mrs. Witness while you were sleeping which you said you start sleeping at 10:00
o’clock in the evening of November 25, 1996, while you were sleeping, what transpired,
if any, was there any unusual incident that transpired? [sic]

A: Pumunta po ang isang kapatid ko, si Elias Amodia dahil naglalabor daw and hipag
ko at manganganak at dadalhin niya sa lying-in, eh malayo po at siya ang
pinagbabantay sa mga pamangking kong maliliit, sir.

51
 Q: Could you tell the Honorable Court what time did your brother Elias Amodia wake up
Pablo Amodia?

A: 12:00 midnight, sir.

xxx

Q: When Pablo woke up, what if any did Pablo Amodia do?

A: Pumunta po siya sa bahay ng kapatid ko, sir?

Q: And where was that house of your brother Elias located?

A: Malapit lang po sa amin.

Q: How far is your house to his house?

A: Tatlong (3) dipa po ang layo, sir.84

Alibi is a defense that comes with various jurisprudentially-established limitations. A first

limitation fully applicable to this case is that alibi cannot overcome positive identification.85 For
the defense of alibi to prosper, evidence other than the testimony of the accused must be
adduced. Evidence referred to in this respect does not merely relate to any piece of evidence that
would support the alibi; rather, there must be sufficient evidence to show the physical
impossibility (as to time and place) that the accused could have committed or participated in the
commission of the crime. For alibi to be given evidentiary value, there must be clear and
convincing evidence showing that at the time of the commission of the crime, it was physically
impossible for the accused to have been at the situs criminis.86

As we have discussed at length, Pablo was positively identified by Romildo and Luther as one of
the victim’s assailants. We find no reason to doubt the accuracy of the identification made.

Pablo’s alibi does not also meet the requirements of physical impossibility of time and place. A
scrutiny of the entire testimony of Elma failed to show that it was physically impossible for
Pablo to be at the crime scene when the stabbing took place. We note that although Elma
testified that Pablo was at Elias’ house at the time of the stabbing, she nonetheless admitted that
her house (which was located beside Elias’ house) and the bridge where the crime was
committed is a 10-minute walking distance away from each other.87 She further testified that
after Pablo left for Elias’ house, she only saw him again at around 1:00 a.m. and at 2:00 a.m at
their brother’s house. 88 Hence, it was possible that Pablo could have gone out of Elias’ house to
join Damaso, George, and Arnold in assaulting the victim, and afterwards returned to his
brother’s house without Elma knowing that he was ever gone.

We scrutinize Elma’s version of the events with utmost care considering that she is Pablo’s
sister. This is not the first time that this Court has encountered a case where alibi is provided by a
close kin; we have recognized that in these situations, it may come naturally to some to give

52
more weight to blood ties and close relationship than to the objective truth;89 thus, our strict
scrutiny.

We find that the time frame in Elma’s version of events shows a pattern of inconsistency that
renders its truthfulness suspect. The testimony is inconsistent on the time Pablo slept and was
awakened by Elias – details that, to our mind, are material to show his whereabouts on that
fateful night.90

Elma initially stated that Pablo slept at 9:00 p.m. and was awakened by Elias at 12:00 midnight.91
Thereafter, she claimed that Pablo was also awakened by Elias at 9:00 p.m. (the same time that
Pablo slept) that evening, and that Pablo went to Elias’s house around 12:30 p.m.92 Subsequently,
she averred that Pablo was awakened at 10:00 p.m. but went back to sleep then awakened again
at 12:00 p.m.93

These conflicting statements are not rendered any more believable by their conflict with the time
frames claimed in Pablo’s version of events.94 Similarly, Elma’s version of what occurred when
is likewise inconsistent with Elias’ version of events.95

Finally, even granting that a semblance of truth exists in the defense’s narration of events, the
inconsistencies and contradictions in its witnesses’ testimonies render their evidence uncertain.
In the final analysis, even their version does not preclude Pablo from being physically present at
the crime scene when the killing took place. Thus, the defense and prosecution’s evidence taken
together, render Pablo guilty of the crime charged beyond reasonable doubt.

Conspiracy

As an alternative argument, Pablo puts into issue the failure of the prosecution’s evidence to
establish the conspiracy between him and his other co-accused to make him liable for murder. He
emphasizes that the evidence, as testified to by the eyewitnesses, only relate to events during,
and not prior to, the assault and the stabbing of the victim. He argues that no evidence was
adduced to show that the accused all agreed to kill the victim.

Conspiracy exists when two or more persons come to an agreement concerning the commission
of a felony and decide to commit it.96 It arises on the very instant the plotters agree, expressly or
impliedly, to commit the felony and forthwith decide to pursue it.97 It may be proved by direct or
circumstantial evidence.98

Direct proof of conspiracy is rarely found; circumstantial evidence is often resorted to in order to
prove its existence.99 Absent of any direct proof, as in the present case, conspiracy may be
deduced from the mode, method, and manner the offense was perpetrated, or inferred from the
acts of the accused themselves, when such acts point to a joint purpose and design, concerted
action, and community of interest.100 An accused participates as a conspirator if he or she has
performed some overt act as a direct or indirect contribution in the execution of the crime
planned to be committed.101 The overt act may consist of active participation in the actual
commission of the crime itself, or it may consist of moral assistance to his co-conspirators by
being present at the commission of the crime, or by exerting moral ascendancy over the other co-

53
conspirators.102 Stated otherwise, it is not essential that there be proof of the previous agreement
and decision to commit the crime; it is sufficient that the malefactors acted in concert pursuant to
the same objective.103

Although there was no evidence in the present case showing a prior agreement among Pablo,
Arnold, George, and Damaso, the following chain of events however show their commonality of
purpose in killing the victim: first, the accused surrounded the victim on all sides: Damaso at the
front, George at the victim’s rear, while Pablo and Arnold flanked the victim on each side;
second, Pablo then wrested the right arm of the victim and restrained his movement, while
Arnold did the same to the left arm of the victim; third, George then hit the victim’s head with a
piece of wood; and fourth, Damaso stabbed the victim three times.

In People v. Elijorde,104 we said: Me-sm

The cooperation that the law punishes is the assistance knowingly or intentionally rendered
which cannot exist without previous cognizance of the criminal act intended to be executed. It is
therefore required in order to be liable either as a principal by indispensable cooperation or as an
accomplice that the accused must unite with the criminal design of the principal by direct
participation. S

In People v. Manalo,105 we declared that the act of the appellant in holding the victim’s right
hand while the latter was being stabbed constituted sufficient proof of conspiracy:

Indeed, the act of the appellant of holding the victim’s right hand while the victim was being
stabbed by Dennis shows that he concurred in the criminal design of the actual killer. If such act
were separate from the stabbing, appellant’s natural reaction should have been to immediately let
go of the victim and flee as soon as the first stab was inflicted. But appellant continued to
restrain the deceased until Dennis completed his attack.

Tested against these, the existence of conspiracy among the four accused is clear; their acts were
aimed at the accomplishment of the same unlawful object, each doing their respective parts in the
series of acts that, although appearing independent from one another, indicated a concurrence of
sentiment and intent to kill the victim. Following the reasoning in Manalo, if there was in fact no
unity of purpose among Pablo and the three other accused, Pablo’s reaction would have been to
let go of the victim and flee after the first stabbing by Damaso. The evidence reveals, however,
that after the first stabbing, Pablo still continued to hold the right arm of the victim, rendering
him immobile and exposed to further attack.1avvphi1

Where there is conspiracy, a person may be convicted for the criminal act of another.106 Where
there is conspiracy, the act of one is deemed the act of all.107

The Crime

Murder is committed by killing a person under any of the qualifying circumstances enumerated
by Article 248 of the Code not falling within the provisions of Article 246 (on parricide), Article
249 (on homicide), and Article 255 (on infanticide) of the said Code.

54
With Pablo’s participation in the killing duly established beyond reasonable doubt, what is left to
examine is whether or not the aggravating circumstance of abuse of superior strength, which
qualifies the crime to murder, is present under the circumstances.

To take advantage of superior strength means to purposely use excessive force out of proportion
to the means of defense available to the person attacked.108 Taking advantage of superior strength
does not mean that the victim was completely defenseless.109

In People v. Ventura, we opined that there are no fixed and invariable rules in considering abuse
of superior strength or employing means to weaken the defense of the victim.110 Superiority does
not always mean numerical superiority. Abuse of superiority depends upon the relative strength
of the aggressor vis-à-vis the victim.111 Abuse of superiority is determined by the excess of the
aggressor’s natural strength over that of the victim, considering the position of both, and the
employment of the means to weaken the defense, although not annulling it.112 The aggressor
must have advantage of his natural strength to ensure the commission of the crime.113

In the present case, we find that there was abuse of superior strength employed by Pablo, Arnold,
George and Damaso in committing the killing. The evidence shows that the victim was unarmed
when he was attacked. In the attack, two assailants held his arms on either side, while the other
two, on the victim’s front and back, each armed with a knife and a piece of wood that they later
used on the victim. Against this onslaught, the victim’s reaction was graphically described by the
prosecution eyewitness, Luther, when he testified:

Q: Which came first, by the way, was the victim or what was the victim doing then when
the fight took place?

A: Wala siyang nagawa kase hinawakan siya, gusto niyang makawala pero wala siyang
magawa hinawakan siya sa leeg, sir.114 [Emphasis supplied]

Under these circumstances, no doubt exists that there was gross inequality of forces between the
victim and the four accused and that the victim was overwhelmed by forces he could not match.
The RTC and CA therefore correctly appreciated the aggravating circumstance of abuse of
superior strength which qualified the killing to the crime of murder.

The Penalty

The penalty for murder under Article 248 of the Code is reclusion perpetua to death. Article 63
(2)of the same Code states that when the law prescribes a penalty consisting of two indivisible
penalties and there are neither mitigating nor aggravating circumstances in the commission of the
crime, the lesser penalty shall be imposed. Since the aggravating circumstance of abuse of
superior strength already qualified the killing to murder, it can no longer be used to increase the
imposable penalty. We note that while another aggravating circumstance, i.e., employing means
to weaken the defense of the victim, was alleged in the Information, the prosecution failed to
adduce evidence to support the presence of this circumstance. Hence, the RTC and CA correctly
imposed the penalty of reclusion perpetua.

55
Likewise, the CA correctly awarded ₱50,000.00 as moral damages and P25,000 as exemplary to
the heirs of the victim consistent with prevailing jurisprudence.115 However, in line with recent
jurisprudence, the award of civil indemnity shall be increased from ₱50,000.00 to ₱75,000.00.116

Further, the CA erred in awarding actual damages in the amount of ₱23,268.00. In People v.
Villanueva, we held that when actual damages proven by receipts during the trial amount to less
than ₱25,000.00, the award of temperate damages for ₱25,000.00 is justified in lieu of actual
damages of a lesser amount.117 We reiterated this ruling in the recent cases of People v. Casta118
and People v. Ballesteros119 where we awarded temperate damages, in lieu of actual damages, in
the amount of ₱25,000.00.

WHEREFORE, premises considered, this Court AFFIRMS the Court of Appeals decision dated
May 4, 2006 in CA-G.R. CR.-H.C. No. 01764 finding accused-appellant Pablo Amodia
GUILTY beyond reasonable doubt of the crime of murder, with the MODIFICATION that:

(1) The award of civil indemnity shall be increased from P50,000.00 to P75,000.00;

(2) The award of actual damages in the amount of ₱23,268.00 is hereby DELETED; and

(3) In lieu thereof, accused-appellant is ORDERED to pay ₱25,000.00 as temperate

damages.

The other portions of the appealed decision are hereby AFFIRMED.

SO ORDERED.

56
PP vs. Malibiran GR No. 178301 April 24, 2009

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVSION

G.R. No. 178301               April 24, 2009

PEOPLE OF THE PHILIPPINES, Plaintiff/Appellee,

vs.
ROLANDO "Botong" MALIBIRAN Accused,
and BEVERLY TIBO-TAN, Accused/Appellant.

DECISION

AUSTRIA-MARTINEZ J.:

For review is the November 13, 2006 Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 02167 which
affirmed the Joint Decision2 dated September 23, 2003 of the Regional Trial Court (RTC), Special Court for
Heinous Crimes, Branch 156, of Pasig City, Metro Manila, finding Rolando "Botong" Malibiran (Rolando) and
Beverly Tibo-Tan (appellant) guilty of Murder and Parricide, respectively, and sentencing them to suffer the penalty
of reclusion perpetua.

The conviction arose from the death of Reynaldo Tan (Reynaldo) on February 5, 1995. The antecedents that led to
Reynaldo's death, however, go way back in the 70's when Reynaldo left his common-law wife, Rosalinda Fuerzas
(Rosalinda), and their two (2) children, Jessie and Reynalin, in Davao, and went to Manila to seek greener pastures.
While in Manila, Reynaldo met and had a relationship with appellant. They eventually married in 1981. Reynaldo
and appellant begot three (3) children – Renevie, Jag-Carlo and Jay R.

In 1984, Reynaldo's and Rosalinda's paths crossed again and they resumed their relationship. This led to the
"souring" of Reynaldo's relationship with appellant; and in 1991, Reynaldo moved out of the conjugal house and
started living again with Rosalinda, although Reynaldo maintained support of and paternal ties with his children.

On that fateful day of February 5, 1995, Reynaldo and appellant were in Greenhills with their children for their usual
Sunday gallivant. After finishing lunch at the Kimpura restaurant, the family separated at around 2:00 o'clock in the
afternoon to do some shopping. Later, they regrouped and purchased groceries at Unimart. At around 4:00 o'clock in
the afternoon, the family stepped out of the shopping mall and Reynaldo proceeded to the parking lot to get his red
Honda Accord, while the rest of his family stayed behind and waited. Immediately thereafter, the family heard an
explosion coming from the direction where Reynaldo parked his car. Appellant and Renevie got curious and
proceeded to the parking lot. There, they saw the Honda Accord burning, with Reynaldo lying beside the driver's
seat, burning, charred and bleeding profusely. A taxi driver named Elmer Paug (Elmer) appeared and pulled
Reynaldo out of the car. Reynaldo was then rushed to the Cardinal Santos Medical Hospital where he eventually
died because of the severe injuries he sustained.3 The underlying cause of his death was Multiple Fracture &
Multiple Vascular Injuries Secondary to Blast Injury.4

An investigation was conducted by the police after which two separate Informations for Murder and Parricide, dated
September 10, 1997, were filed against appellant, Rolando and one Oswaldo Banaag (Oswaldo).

The Information in Criminal Case No. 113065-H accused Rolando and Oswaldo of the crime of Murder, to wit:

57
On February 5, 1995, in San Juan, Metro Manila and within the jurisdiction of this Honorable Court, the accused,
conspiring and confederating with Beverly Tibo-Tan, and three other individuals whose identities are still unknown,
did then and there willfully, unlawfully, and feloniously, with intent to kill, treachery, evidence (sic) premeditation
and with the use of explosion, plan, plant the explosive, and kill the person of Reynaldo C. Tan, by placing said
grenades on the driver’s side of his car, and when said victim opened his car, an explosion happened, thereby
inflicting upon the latter mortal wound which was the direct and immediate cause of his death.

The accused Oswaldo, without having participated in said crime of murder as principal, did and there willfully,
unlawfully and feloniously take part, as an accomplice, in its commission, by cooperating in the execution of the
offense by previous and simultaneous acts.

Contrary to law.5

The Information in Criminal Case No. 113066-H accused appellant of the crime of Parricide, to wit:

On February 5, 1995, in San Juan Metro Manila and within the jurisdiction of this Honorable Court, the accused,
while still married to Reynaldo C. Tan, and such marriage not having been annulled and dissolved by competent
authority, conspiring and confederating with Rolando V. Malibiran, and three other individuals whose identities are
still unknown, did then and there willfully, unlawfully and feloniously with intent to kill, treachery, evidence (sic)
premeditation and with the use of explosion, plan, plant the explosive, and kill the person Reynado C. Tan, by
placing said grenades on the driver’s side of his car, and when said victim opened his car, an explosion happened,
thereby inflicting upon the latter mortal wound which was the direct and immediate cause of his death.

Contrary to law.6

Rolando and appellant pleaded not guilty on arraignment.7 Their co-accused, Oswaldo, was later discharged and
utilized as one of the prosecution witnesses.

The prosecution presented Jessie Tan, Inspector Silverio Dollesin, Elmer Paug, Police Inspector Wilson Lachica,
Supervising Investigating Agent Reynaldo Olasco, Rosalinda Fuerzas, Janet Pascual (Janet), and Oswaldo, as its
witnesses.

For its part, the defense presented the following witnesses, namely: Renevie Tan, Romulo Bruzo (Romulo), Tessie
Luba, Emily Cuevas, Jose Ong Santos, Victorino Feliz, Virgilio Dacalanio and accused Rolando. Appellant did not
testify in her behalf.

The RTC summed up the testimonies, as follows:

THE EVIDENCE FOR THE PROSECUTION

1. Jessie Tan, a son of Reynaldo with Rosalinda Fuerzas, testified that he moved to Manila from Davao in
1985 to study at the instance of his father Reynaldo and to enable then to bring back time that had been lost
since his father left his mother Rosalinda and the latter’s children in Davao (TSN, Jan. 27, p.14); In 1991
Reynaldo moved to their house because his relationship with Beverly was worsening, and to exacerbate
matters, Beverly had then a lover named Rudy Pascua or Pascual, a contractor for the resthouse of
Reynaldo. Reynaldo and Beverly were then constantly quarreling over money (TSN, February 10, 1999,
pp. 28-29); Jessie had heard the name of Rolando Malibiran sometime in 1994 because one day, Reynaldo
came home before dinner feeling mad since he found Rolando Malibiran inside the bedroom of Beverly at
their White Plains residence; Reynaldo had his gun with him at the time but Malibiran ran away (TSN,
January 27, 1999, pp. 19-21). He eventually came to learn about more details on Rolando Malibiran from
Oswaldo Banaag, the family driver of Beverly who was in the house at White Plains at the time of the
incident (Ibid, p. 22). One night in December of the same year (1994) Jessie overheard Reynaldo talking to
Beverly over the phone, with the latter fuming mad. After the phone conversation he asked his father what

58
happened because the latter was already having an attack of hypertension and his father told him that
Beverly threatened him and that "he, (Reynaldo) will not benetit from his money if he will continue his
move for separation" (p. 40 ibid). This threat was taped by Reynaldo in his conversation with Beverly (Exh.
"B") Jessie himself has received threat of his life over the phone in 1989 (p. 30 ibid).

At the lounge at Cardinal Santos Hospital, on the day of the mishap, Jessie testified on the emotional state
of his mother Rosalinda while in said Hospital; that she was continuously crying while she was talking to
Jessie’s uncle. When asked where Beverly was and her emotional state, he said that Beverly was also at the
lounge of the said hospital, sometimes she is seated and then she would stand up and then sit again and then
stand up again. He did not see her cry "hindi ko po syang nakitang umiyak" (pp. 52-23 ibid). When asked if
his father had enemies when he was alive, he said he knows of no one (p.54 ibid). Jessie was informed by
his mother (Rosalinda) few months after the death of Reynaldo that there was a letter by Rosalinda
addressed to his uncle which stated that "if something happened to him, Beverly has a hand in it" (p. 56
ibid, Exh. "D" Letter dated March 24, 1999)

On cross examination, he admitted having gone to Mandaluyong City Jail and talked with Oswaldo Banaag
about latter’s claim that both accused have planned to kill his father. When asked if he knows the
consequences if Beverly is convicted, on the matter of Conjugal Partition of Property, Jessie knows that
Beverly’s share would be forfeited. Counsel confirmed Jessie’s request of whatever property of his father
remaining shall shared equally by the legitimate and illegitimate children. Thus, Jessie confirmed as the
agreement between them (p. 28, March 24, 1999 TSN).

2. Mr. Salonga, a locksmith in Greenhills Supermarket whose work area is at the entrance door of the
grocery of Unimart testified that he can duplicate any key of any car in five (5) minutes. And that he is
accessible to any one passing to Greenhills Shopping Complex (p. 45, March 24, 1999 TSN). The Honda
Car representative on the other hand testified that the Honda Accord of the deceased has no alarm, that the
Honda Accord key can be duplicated without difficulty. And the keyless entry device of the said vehicle
can be duplicated (pp. 46-47 ibid, Stipulation. Order p. 335 record Vol. 1).

3. Insperctor Selverio Dollesin, the Chief of the Bomb Disposal Unit of the Eastern Police District, and the
Police Officer who conducted the post aftermath report of the incident whose skills as an expert was
uncontroverted, testified that the perpetrator knew who the intended vicitim was and has reliable
information as to his position when opening the vehicle. If the intended victim does not usually drive and
usually sits on the rear portion of the vehicle (p. 49, April 14, 1999 TSN) Inspector Dollesin’s conclusion
states that the device (bomb) was placed in front of the vehicle in between the driver’s seat and the front
door because the perpetrator had information about the victim’s movements, otherwise he could have
placed the device underneath the vehicle, in the rear portion of the vehicle or in any part thereof (p. 53
ibid). He testified that persons who have minimal knowledge can set up the explosive in the car in five (5)
minutes (p. 65 ibid). The explosion will commence at about 4-7 seconds (p. 66 ibid).

4. Elmer Paug, the taxi driver, testified that on February 5, 1995 he was just dropping a passenger to
Greenhills Shopping Complex when he heard a loud explosion at the parking level. Being curious of the
incident he hurriedly went out to look for a parking, then proceeded to the area where the explosion
occurred. He saw a man wearing a shirt and short who is about to give assistance to a man who was a down
on the ground bloodied. Finding that the man could not do it on his own, Elmer rushed through to give aid.
He held both arms of the victim, grabbed him in the wrists and dragged him out and brought him farther to
the burning car. (pp. 7 July 7, 1999 TSN). The man lying on the pavement has burnt fingers and hair, chest
bloodied and skin already sticking to Elmer’s clothes (p. 8 Ibid). He noticed two women at about two
armlength from the car where he was. The younger woman shouted "Daddy, Daddy, kaya mo iyan". She
was crying had wailing (p. 10 ibid). He said that the older woman gestured her left hand exclaimed in a not
so loud voice "wala bang tutulong sa amin?" while her right hand clutched her shoulder bag (p. 11 ibid).
When asked if the older woman appears to be alarmed, Elmer testified that he cannot say, and said she
looked normal; he did not notice her crying. Neither of the two female rendered assistance to drag the
victim, they just followed him when he pulled him out. The older woman never touched the victim. (p. 12

59
ibid). Considering that his Taxi is quite far where the victim was lying, he flagged a taxi, and the victim
was brought to Cardinal Santos Hospital (pp. 15-16 ibid).

On cross examination, he was asked what the meaning of normal is, and he said "natural Parang walang
nangyari" It looks like nothing happened (p. 42 ibid). Her was uncertain as to whether the two females
joined the deceased in the taxi cab (p. 43) as he left.

5. Police Inspector Wilson Lachica testified that he was the police officer who investigated the case. In the
Cardinal Santos Hospital he was able to interview Beverly Tan. He asked her name, address, name of the
victim, how the incident happened and who their companions were. She answered those questions in a calm
manner (p. 13, Sept. 21, 1999 TSN). As per his observation which was told to his superiors, he has not seen
remorse on the part of the victim, (meaning the wife) for an investigator that is unusual. Based on his more
than six years of experience as an investigator, whenever a violent crime happened, usually those relatives
and love ones appears hysterical, upset and restless. Her reaction at the time according to him is not normal,
considering that the victim is her husband. He interviewed persons close to the victim even at the wake at
Paz Funeral in Quezon City. He was able to interview the daughter of the lady-accused; the other lady and
family or relatives of the victim, the same with the driver of the lady accused. He came to know the identity
of the policeman linked with the lady accused, named Rolando Malibiran. He testified that he obtained the
information that he desired from the widow nonchalantly and marked with blithe unconcern, which in his
observation is unusual since she is supposed to be the one who would diligently push through in the
investigation. When asked the level of interest as regards accused Malibiran, witness testified that because
of the manner of the commission of the crime through the use of explosives, only a trained person can do
that job (pp. 15-16 ibid).

6. Supervising Investigating Agent Reynaldo Olasco testified that his only observation on the demeanor of
Beverly Tan is that she did not give her statement readily without the assistance of her counsel which for
the investigator is quite irregular. Considering that she is the legal wife, he could not see the reason why
Beverly would bring a counsel when she is supposed to be the complainant in the case (p. 11, April 5, 2000
TSN). He testified that after having interviewed a representative from Honda, they had set aside the
possibility that it was a third party who used pick lock in order to have access to the Honda Accord and the
presumption is that the duplicate key or the main key was used in opening the car. The assessment was
connected with the statement of Renevie that she heard the clicking of all the locks of the Honda Accord,
which she was sure of when they left the car in the parking lot (p. 12 ibid) In 1998 they arrested Rolando
Malibiran in Candelaria Quezon, he was fixing his owner type jeep at that time. The arresting officers
waited for Beverly Tan, and after thirty minutes they were able to arrest Beverly Tan on the same place (p
8, May 31, 2000 TSN). They searched the premises of the place where they reside and found a white paper
which he presumed to be "kulam" because there’s some oracle words inscribe in that white piece of paper
and at the bottom is written the same of Jessie (pp. 8-9 ibid). On cross examination, he admitted that 70%
of the information on the case was given by Oswaldo Banaag through the persistence of the NBI which
convinced him to help solve the case. It was disclosed to the investigating officer after he was released,
that’s the only time he gave in to the request (p. 14, may 31, 2000 TSN). As to how the NBI operatives
effected the arrest, it was through an information from the Lucena Sub-Office (p. 17, Ibid).

7. Rosalinda Fuerzas testified that her life in Makati was "medyo magulo lnag kase nanggugulo sya sa
amin." When asked who this "siya" was, she said Beverly. That one day Beverly called on her and harassed
her, and one day she received a murder letter threatening that she (Rosalinda) would be around the
newspaper saying that she would be killed, like what they did in the news papers, puputu-putulin iyong
mga dodo o anuman dahil mang-aagaw daw ako (Rosalinda) ng asawa (p. 11 ibid, June 27, 2000 TSN). She
stated that her husband wanted to separate with Beverly because he found out that the latter has paramour
named Rudy Pascua contractor of Jollibee (pp. 13-14 ibid). She had never seen Beverly appeared to be
lonely when her husband was then kidnapped. A telephone conversation with Beverly was recorded by
Reynaldo which was a quarrel regarding money. In the Cardinal Santos Hospital, she did not see Beverly’s
appearance to be lonely but appeared to be a criminal, and Beverly did not cry (pp. 13-17 ibid). She
mentioned the letter of Reynaldo that if something happened to him, Beverly is the one who killed him (p.
26 Ibid; pp. 24-25, Exh. "D, Vol. 1-A Record).

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8. Janet Pascual testified that she was able to know Rolando Malibiran, because on March 1993 when she
was in White Plains, Beverly showed her a picture of him (Malibiran) and said to her that he is her boy
friend. Witness told her that he was handsome. She was close to Beverly that she frequently stayed in
White Plains when Beverly and Reynaldo is no longer living in the same roof. They played mahjong, chat
and has heard Beverly’s hurtful emotions by reason of her philandering husband Reynaldo. Beverly told
her of how she felt bad against underwear not intented for her (p. 9, Oct. 11, 2000 TSN); that on August
1994, Malibiran told Beverly that he has a "kumapre" who knows how to make "kulam" for an amount of
₱10,000.00. That Reynaldo would just sleep and never wake up. Witness testified that they went to Quiapo
to buy the needed ingredients but nothing happened (p. 14 Ibid). The accused wanted to kill Reynaldo in a
way that they would not be suspected of having planned it, and for him just to die of "bangungot". She
testified that they wanted to separate their properties but it did not push through, referring to Beverly and
Reynaldo. That Beverly heard of the house being built in Corinthian intended for Rosalinda and family. In
July 1994 Malibiran told witness testified that she heard this on their way to Batangas, it was Beverly’s
birthday (p. 16 ibid). On October 1994 she asked by Malibiran to convince Beverly to marry him, this was
asked at the time when Beverly was in Germany (p. 17 ibid).

When asked whether Beverly and Rolando ever got married the witness testified that the two got married
on November 8, 1994. (p. 155 Vol. 1-A records Exh. "JJ" Certificate of Marriage). That she executed an
affidavit of corroborating witnesses for Beverly and Malibiran to facilitate the processing of their
exemption in obtaining marriage license requirement (p. 128 Ibid; Exh. "BB"). She is an employee of the
Municipality of San Juan. After getting married they discussed how Malibiran would get inside the car of
Reynaldo. On December of 1994, Beverly was able to duplicate Reynaldo’s key at the time when they have
shopped for many things, Reynaldo asked her to bring the goods to the car in the compartment as the kids
would still shop (p. 17 ibid). After having done so, she proceeded to a key duplicator in Virra Mall and had
the key duplicated. Thereafter on the succeeding days or weeks, she was able to give the duplicate to
Malibiran. That they would use the grenade since Malibiran has one in his house but his only problem is
how to get inside the car and place the grenade (p. 18, Oct. 11, 2000 TSN; Vide p. 35 ibid)

As to when the killing would take place, the witness heard that they will do it during the baptism of the
child of Gloria, Rolando Malibiran’s sister. They chose that date so that they would not be suspected of
anything and that pictures would be taken in the baptism to reflect that Malibiran took part in the same (pp.
17-18 ibid). During Reynaldo’s internment when asked whether Beverly looked sad, witness said that she
did not see her sad (p. 20 ibid). On February 8, 1995, during the wake, witness met Malibiran in a canteen
in White Plains and they rode a Canter owned by Beverly, on the road while the vehicle was cruising along
Katipunan avenue near Labor Hospital, Malibiran told her among others that on the day he placed a
grenade on Reynaldo’s car he saw a security guard roving and so what he did was to hurriedly tie the wire
in the grenade (p. 21 ibid) not connected with the wire unlike the one intended for Reynaldo which has a
connection (p. 21 ibid). As far as she knows, there were four or five grenades placed. She told this secret to
another friend so that in case something happened to her, it was the doing of Malibiran and Beverly.

On Cross examination, she was asked whether Malibiran did it alone, she said that he has a look out as
what Malibiran told him (p. 26 ibid). When confronted why she was testifying only now, she said she was
bothered by her conscience. As to how did she get the information of key duplication, she said that it was
told to her by Beverly (p. 35 ibid). It was also disclosed that she did ask Atty. Morales for a sum of
P5,000.00 for he to buy medicine.

9. Oswaldo Banaag (or Banaag) testified that Beverly told him that she and Malibiran had a relationship (p.
39, April 1994 TSN). He testified that on April 10, 1994 Beverly asked him to look for a hired gunman, if
he could not find one, he just look for a poison that would kill Reynaldo, ten thousand (₱10,000.00) pesos
was given him for this (p. 14 Ibid). In his sworn statement he said that Beverly asked him to seek means for
Reynaldo to die. That she will pay any amount just for him to get out of her life. He has driven for her in
going to Hilltop Police Station, Taytay Rizal to see Rolando Malibiran. That Malibiran blames Beverly of
the reason why Reynaldo is still alive and then volunteered himself to remedy the situation, that he would
seek a man that would kill Reynaldo he made an example of a man they killed and threw in Antipolo
"Bangin" with Beverly, Malibiran and two other persons who appear to be policeman because they have

61
 something budging in their waste [sic] which is assumed to be a gun, they went to Paombong Bulacan via
Malabon. He heard that they would fetch a man in Bulacan that knows how to place a bomb in a vehicle.
Near the sea they talked to a person thereat. From Paombong they rode a banca and went to an islet where
the planning was discussed as to how much is the fee and how the killing will be had. They ordered him to
return back to the vehicle and just fetched them in Binangonan.

He swore that on February 5, 1995 around 10:30 a.m. Beverly asked one of her siblings to call Reynaldo
for them to be picked up because every Sunday, the family would go out for recreation. Around 12:00 pm
he was asked by Beverly to follow where they will go and when they are already parked, he was instructed
to fetch Malibiran in Caltex, Katipunan near Shakeys and bring them to the place where Reynaldo was
parked. In the Caltex station he saw Malibiran with two persons who looked like policemen and another
person he previously saw in Bulacan. He drove the L300 Van, and brought them to the parking lot where
Reynaldo’s Honda Car was parked and Malibiran told him just drove [sic] in the area and come back. At
around 3:00 p.m. after half an hour he saw Malibiran and company and I picked them up. He heard from
the person in Bulacan "Ayos na, siguradong malinis ito." Then he was asked to drive them to Hilltop Police
Station. He discovered the death of Reynaldo when he saw and read newspaper, he called Beverly to
confirm this incident and he was asked to be hired again and drove for her. When he was in White Plains
already, he was asked by Beverly and Malibiran not to squeal what he knows of, otherwise, his life will just
be endangered. That Beverly and Malibiran were lovers since March 1993, when they met each other in a
piggery in Marikina. There was an incident that Reynaldo saw Malibiran in their own bedroom, and there
was almost a gunshot incident, he was there because he was asked to drive the vehicle. Beverly Tan’s
source of money was from Reynaldo Tan, that he (Banaag) was asked frequently by Beverly who in turn
would give it to Malibiran (Exh. "y", pp. 122-125 Vol. 1-A, Sworn Statement November 29, 1996).

On March 29, 1996 he was no longer driving for Beverly because he was arrested by the Presidential Anti-
Crime Commission for his alleged involvement in the kidnapping of the father of the classmate of Renevie
Tan. He was later on acquitted (p. 16, Feb. 20, 2001 TSN) and released from incarceration on May 7, 1997.
When asked whether Jessie Tan helped him to be acquitted in the kidnapping case, he said no (p. 16 ibid).

On Cross examination, he was asked how many times did Jessie Tan visit him in prison, he said that it was
Atty. Olanzo who visited him for about six times and that he saw Jessie when he was already out of jail (pp.
24-25 ibid). He testified that there was one incident when Reynaldo and Mabiliran almost had a shootout in
the bedroom downstairs because Malibiran was inside the bedroom where Beverly was, Reynaldo have a
gun at that time bulging in his waste [sic] (p. 40 ibid).

Further on Cross, he testified that sometime in June 1994, he with Beverly went to Hilltop Police Station
and fetched Malibiran and company to go to Paombong Bulacan, they passed by Malabon before going to
Bulacan. When they reached the bridge near the sea, they rode a banca, about six of them plus the one
rowing the boar towards an Island. In the Island, there was one person waiting (p. 44-45 ibid). he stayed
there for just for about ten (10) minutes, and during that period, at about one arms length he overheard their
conversation concerning a man to bring the bomb in the car. When asked who was in the banca then, he
said it was Beverly, Botong (Malibiran), Janet and the man they picked up at Hilltop. He was told to return
the L300 and just wait for them in Binangonan, hence he rode a banca to return to the bridge and then
drove the L300 Van towards Binangonan (p. 50 ibid). When asked if he knows that Malibiran is engaged in
the fishing business of bangus, he had no idea (p. 45 ibid).

DEFENSE EVIDENCE

For the defense, in opposition to the testimony of Elmer Paug, it called to the witness stand Renevie Tan. She
testified that she believe that her mother (Beverly) did not kill her dad because she was with them at the time of the
incident (p. 6 Feb. 5, 2002 TSN). That it is not true that they did nothing when his dad was lying on the ground at
the time of the incident. That her mom screamed at that time and did tried to pull her dad who was under the car that
she kept going around to find a safer place to pull him out because the car was burning and so they could not pick
her dad without burning. Her mother tried crawling underneath the car so she can reach him but he pulled her mom

62
aside and pulled dad risking himself from burning (p. 11 ibid) She found out that the person who helped them was
the taxi driver, Elmer Paug.

That a driver of a Ford Fiera or Toyota Tamaraw of some kind of delivery van boarded her dad with her mom and
headed for Cardinal Santos Hospital. She said that if is not true that her mom appeared unaffected or acting normal
as if nothing happened. That it is likewise not true when Elmer Paug said that he alone carried her dad’s body, and
said that there was another man who helped put her dad on the car (p. 14 ibid). She swore that her mom was shocked
and was crying at that time (pp. 112-115, Exh. "U" Sworn Statement of Renevie Tan). She admitted that it was only
the taxi driver who pulled out his dad from the danger area to a safer place at about four (4) meters, while Elmer
Paug was dragging her dad, they where there following him (p. 43 February 5, 2002, TSN). That she touched her
father when they where (p. 45 ibid). It was confirmed in her testimony that it was the taxi drivers who looked for a
taxi cab ( p. 46 ibid). She asked if she observed whether her mom carried a portion of her dad’s body or arms, hands,
legs or buttocks of her father, she said she could not remember (p. 7-8, February 12, 2002 TSN). When asked
whether her mom has a shoulder bag at that time, she could not remember.

She testified that her parents keep quarreling to each other may be in 1988-89 and stopped in 1991. it was a once a
month quarrel (pp. 23-24 ibid). A certain Janet Pascual frequently stayed in their house in the months of October
1994 until February of 1995, and her mom’s relationship with Janet was cordial (pp. 27-28, ibid). As regards to
Malibiran, she knows him at the month of August or September of 1994 but no knowledge of a marriage that took
place between her mom and Malibiran on November of the same year (p. 30 ibid).

Romulo Bruzo, the security guard of Tan Family at White Plains testified that there was an offer of half a million to
him by an unknown person and a demand for him to leave the employ of Beverly Tan and a threat to his life should
he testify before the Court. He testified that Banaag was a family driver of the Tan in White Plains from March 1993
until August 1994, after said date, he was taken by Reynaldo Tan as driver at Winreach. He testifies that the
statement of Oswaldo Banaag that he came over to White Plains on February 5, 1995, drove the L300 Van and
followed the family to Greenhills Shopping Complex is false. Because at that time, the L300 was still parked inside
White Plains, it was just a concocted statement of Banaag because he has a grudge on Mrs. Tan as she did not help
him when he was incarcerated in Camp Crame (p.47-48 ibid).

He was told by Banaag that they were supposed to kidnap the three siblings of Beverly Tan but he took pity on them
because Beverly is a nice person to him. He stated that Jessie Tan helped him to be acquitted (p. 49 ibid) and
promised good job and house to live in.

As regards Janet Pascual, he testified that he had an altercation with her (Janet) because there was an instruction for
him by Renevie for Janet not to let inside the house. That Janet got mad at them because she is not been [sic] treated
the way Renevie’s mom did not to her. Likewise, Renevie has refused to give her ₱5,000.00 allowance as her mom
did before to Janet for the latter’s medicine (pp. 50-51).

On account of said incident, she made a threatening remark that if she will not be treated fairly and the ₱5,000.00
allowance be not given to her, she will go to the Tan Brother and she will testify Mrs. Tan. When asked whom she
was angry of Bruzo said it was against Renevie and Atty. Morales. She was angry with the latter because she
thought that Atty. Morales was telling Renevie not to give her allowance anymore and refuse access inside the white
plains (p. 51 ibid).

When asked if he knows Malibiran, he said that he was able to join him twice when there was a delivery of rejected
bread for fish feeds in Bulacan. That he saw him eight (8) times in a month in 1994 and just twice a week in the
month of August, September and October of said year. (p. 52 ibid). He also saw him on July of 1994 on the occasion
of Beverly’s Birthday.

That on February 5, 1994, Beverly called on him to relay to Roger to fetch the three kids in Green Hills. When asked
the tone of Beverly at the time of the phone call, he said the tone was that she was scared and confused (p. 63 ibid)

63
Tessie Luba, the caretaker of Manila Memorial Park testified that she was paid by Beverly to take care of the tomb
of Reynaldo and that in some points in time Jessie took over and later her services were not availed of anymore (p.
23, April 30, 2002 TSN) That she saw Beverly with Banaag on November 1996 (p. 8 ibid) and Jessie with Banaag in
one occasion in going to the tomb on November 1997 (p. 47 ibid) and in April 2001 (p. 20 ibid).

Emily Cuevas, one of the friends of Beverly testified that Janet Pascual is a back fighter and a traitor, that Janet tried
to convince her to testify against Beverly and if witness will be convinced, Janet will receive a big amount of money
about three (3) million from another source. Testified that it is not true that Beverly and Malibiran orchestrated or
masterminded the death of Reynaldo, and that Janet testified because she needed money because she is sick and
diabetic (p. 7, May 21, 2002 TSN). She knows such fact by heart that they are innocent and that they are good
people (p. 20 ibid).

Victorino Felix, a police officer testified that Malibiran is a member of the Aquarius Multi-Purpose Cooperative, a
cooperative that is engaged in the culture of fish particularly "Bangus" at Laguna De Bay particularly Bagumbong,
Binangonan, Laguna.

He testified that sometime in 1994, he together with Malibiran waited at Tropical Hut, Cainta for them to be picked
up for Bulacan to purchase fingerlings. They were fetched by an L300 Van driven by Oswaldo Banaag and they
were around six or seven at that time that headed first to Dampalit, Malabon, Metro Manila to meet the owner of the
fish pond, finding that the owner thereof was already in Bulacan they proceeded thereat, at Taliptip, Bulacan. In said
place, they left the L300 Van along the bridge, near the sea and from there they rode a motor banca in going to the
fingerlings ponds. He testified that Oswaldo was not with them in going to the pond from Taliptip (pp. 11-13, Sept.
3, 2002 TSN). When asked where he was, he said he drove the L300 back (p. 14 ibid). The pond was about three
kilometers from Talilip, and they were able to buy fingerlings, loaded it in another water transport going to Laguna
Lake from Bulacan traversing Pasig River and thereafter they returned back to Binangonan (p. 15 ibid).

On Cross, he testified that has met Banaag many times because he used to deliver rejected for bangus feeds, but said
that it was only once when Banaag drove with him, that is sometimes in 1994 (p. 20 ibid). he testified that Malibiran
together with him went to Talilip, Bulacan to procure some fingerlings sometime in June 1995 to mid 1996 (Joint
Order, Sept. 3, 2002, p. 366 Vol. III record).

Virgilio Dacanilao testified that on February 5, 1995 at about 12:00 noon he was at the residence of one Gloria
Malibiran Santos and from there, he saw accused Rolando Malibiran together with his wife and children, witness’
parents-in-law and sisters-in-law. When asked who his parents-in-law is, he said Fernando Malibiran and Jovita
Malibiran, the parents of Rolando Malibiran (p. 5, Sept. 17, 2002 TSN). He said that they left the occasion at around
5:00pm and at that time, accused Malibiran, with Boy Santos and Eduardo was still playing "pusoy". When asked if
there was such a time that Malibiran left the house of Gloria Santos, he said, he did not go out of the house sir (pp.
5-7 ibid).

On Cross examination, it was disclosed that he knows Malibiran at the time witness was still his wife, the sister of
Malibiran, that was sometime in 1988. when asked if he considered Malibiran to be close to him as the brother of his
wife, he said yes sir (p. 10 ibid). Asked if his relationship with him is such that he would place Malibiran in a
difficult situation, he answered, it depends on the situation (p. 11 ibid). Witness was asked how long it would take to
reach Unimart Supermarket from his residence in Malanday, he estimate it to be more or less half an hour (p. 13
ibid). He testified that no game was ever stop [sic] on the reason that they have to wait for Malibiran.

Said witness testimony was corroborated by Jose Ong Santos, the father of the child who was baptized on said
occasion. He testified that he played "pusoy" with Malibiran at around 2:00pm, until 6:30 to 7:00 pm and there was
never a time that Malibiran left the table where they were playing except when he feels like peeing (p. 10 July 16,
2002 TSN). It was estimated at abut five times, and it took him about three to five minutes everytime he would rise
to pee and return to the table. That Malibiran may have left their house at around 6:30 or 7:00 in the evening on
February 5, 1995 (p. 11, ibid)

64
On Cross examination, he testified that the idea of baptism was rushly scheduled, because he won in a cockfight
three to four days before the baptism of his child at about February 1 or 2 of 1995. That amount was about
₱50,000.00 (pp. 20-21 ibid). Malibiran did not take any participation in the baptism nor was he present at the
church, but was already at the reception with his family, for lunch. He testified that Malibiran left by call of nature,
to pee, about four to five times and a span of five minutes (p. 31 ibid).

Accused Rolando Malibiran in his Counter-Affidavit said that he does intelligence work for seven years. He doesn’t
know Banaag as to reckless discuss a supposed plot to kill somebody within his hearing. That would be inconsistent
with the entire training and experience as a police officer. Especially when the expertise is intelligence work.
Banaag drove for them in June or July 1995 not in June of 1994 (for months after the death of Reynaldo) [pp. 147-
152, Exh. "HH" Vol. 1-a record].

He testified that he met Banaag sometime in the last quarter of 1993 at the piggery of Beverly Tan (pp. 12-13, Oct.
8, 2002 TSN). He admitted that he was with Banaag using the L300 Van of Beverly in one occasion, in 1994 when
they purchased fingerlings from Bulacan. They procured the same because their cooperative was culturing "bangus"
in Barangay Bombon, Binangonan, Rizal (pp. 14-15). He testified that in Bulacan, Banaag was left at the foot of the
bridge where the L300 was parked (p. 19 ibid) and heard that Beverly told Banaag to go back, in White Plains (p.
21, ibid). After procuring the fingerlings, they rode a big banca called "pituya" then they went back to Pritil,
Binangonan. In Pritil, they waited for Banaag (P. 26 ibid).

He denied having met Janet Pascual on Wednesday at about February 8, 1995 because since Tuesday (February 7,
1995) he was already confined in the Camp by Order of his Unit Commander, Chief Inspector Florentin Sipin (p. 5,
January 21, 2003 TSN) because he was under investigation by the Presidential Anti-Crime Commission. He
admitted that he met Beverly in the last quarter of 1993 (p. 8, October 22, 2002) but denied having intimate relations
with her (p. 21 ibid).

He testified that he met Janet Pascual only once, on November 1994, but said that they never talked (p. 12,
November 12, 2002 TSN). He denied having married Beverly Tan nor did he ever requested Janet Pascual to secure
a license for them to get married. He denied having had a trip with Janet in Bulacan and admitted that he went to
Zamables once, with Beverly, kids and yaya as well as his father (p. 25, ibid), that was sometime in 1994, before
Reynaldo died. He testified that he used his own vehicle with his father in going to Zamables. He denied seeing
Reynaldo; he said he just heard him based on his conversation with Beverly Tan which took place in the piggery in
Marikina. In sum, the place of incidents where he managed to meet and talk with Beverly Tan was in the piggery in
Marikina; at Camp station in Taytay Rizal; in Bulacan when they procured fingerlings in Binangonan; Malabon;
Zambales; White Plains and Cainta. (pp. 30; 32; 35 ibid).

He testified that he was arrested in Candelaria Quezon on December 1998 (p. 11 January 21, 2003) but denied living
with Beverly Tan at the time of the arrest. He said he just saw Beverly thirty (30) minutes after his arrest in the town
proper of Candelaria, Quezon (P. 21, ibid). He denied that he uttered the remark "its better to kill Rene since you are
not benefiting from him" (p. 38 ibid); never have access to grenades; never asked Beverly Tan how he could get
inside Reynaldo’s Car never claimed to be a sharp shooter and had never went to Batangas uttering the remarks
mentioned by Janet Pascual nor went to Batangas at the time of Beverly’s birthday.

On Cross examination, he said that he never talk to Janet at the time of his restriction and thereafter. He had no
commercial dealing with Janet nor have any romantic relations with her (p. 8, ibid). It was only when the case was
filed he was able to talk to her (p. 5, February 4, 2003 TSN). He testified that he evaded arrest because there was a
pending petition for review filed by his lawyer before the Department of Justice despite the fact that there is an
existing warrant of arrest which he found out at the end of 1997 (p. 15 ibid).

On September 23, 2003, the RTC found Rolando guilty of Murder and appellant, of Parricide. The dispositive
portion of the Joint Decision reads as follows:

WHEREFORE, the Court finds both accused guilty beyond reasonable doubt as charged. Accused Rolando
Malibiran for the crime of Murder in Criminal Case No. 113065-H and accused Beverly Tibo-Tan for Parricide in

65
Criminal Case No. 113066-H defined and penalized under Article 248 and Article 246, respectively, of the Revised
Penal Code, as amended, in relation to Republic Act No. 7659 with the attendant circumstances of treachery, evident
premeditation and use of explosion and sentencing both accused the supreme penalty of DEATH, and ordering them
to pay jointly and severally to the heirs of Reynaldo Tan the amount of Fifty Thousand (₱50,000.00) Pesos as
indemnity for death, Eighty Thousand (₱80,000.00) Pesos as actual damages; Fifty Thousand (₱50,000.00) as moral
damages; and to pay the costs.

SO ORDERED.8

Appellant then appealed to this Court; the appeal was, however, referred to the CA pursuant to People v. Mateo.9

In its Decision dated November 13, 2006, the CA affirmed the Decision of the RTC. The CA, however, took judicial
notice of Republic Act No. 9346 prohibiting the imposition of the death penalty and thus reduced the penalty to
reclusion perpetua. The dispositive portion of the said Decision reads as follows:

WHEREFORE, premises considered, the joint decision dated September 23, 2003 of the Regional Trial Court,
Special Court for Heinous Crimes, Branch 156, Pasig City in Criminal Case No. 113065-H for Murder and Criminal
Case No. 113066-H for Parricide is hereby AFFIRMED with Modification in that the supreme penalty of death
imposed on both accused-appellants is hereby reduced to RECLUSION PERPETUA.

SO ORDERED.10

As manifested by the Office of the Solicitor General (OSG), Rolando did not file a Motion for Reconsideration or a
Notice of Appeal from the CA Decision.11 For all intents and purposes, the judgment of conviction as to Rolando
became final and executory on December 14, 2006. This was confirmed by CA Resolution dated January 29, 2007,
which noted that "pursuant to the report dated January 23, 2007 of the Judicial Records Division that no motion for
reconsideration or notice of appeal had been filed by counsel for appellant Rolando Malibiran, entry of judgment is
issued against said appellant x x x."12

This review shall therefore pertain only to appellant Beverly Tibo-Tan's conviction.

Appellant and the OSG were required by the Court in its Resolution dated October 3, 2007 to file supplemental
briefs, if they so desired. The OSG filed a Manifestation and Motion that it would no longer file any supplemental
brief. As regards appellant, records show that, as of even date, she had not filed any supplemental brief, despite due
notice.13

In the Brief she filed with the Court prior to the endorsement of the case to the CA, appellant raised the following
assignment of errors:

I.

THE REGIONAL TRIAL COURT ERRED IN FINDING THAT ACCUSED-APPELLANT BEVERLY TIBO
TAN GUILTY OF THE CRIME OF PARRICIDE BASED MERELY ON CIRCUMSTANCIAL EVIDENCE, THE
REQUISITES THEREOF NOT HAVING BEEN SUBSTANTIALLY ESTABLISHED;

II.

THE REGIONAL TRIAL COURT SHOULD HAVE NOT APPRECIATED THE TESTIMONY OF
PROSECUTION WITNESS OSWALDO BANAAG AS ITS BASIS FOR ESTABLISHING CONSPIRACY
BETWEEN ACCUSED-APPELLANT MALIBIRAN AND ACCUSED-APPELLANT BEVERLY TAN, SUCH
TESTIMONY BEING HEARSAY ON SOME PARTS AND REPLETE WITH INCONSISTENCIES;14

66
Before proceeding to the merits of appellant's arguments, the Court takes note of the RTC's observation regarding
appellant's stoic stance during and after the incident and her non-presentation as witness. The RTC took this
negatively against appellant. The Court differs therefrom.

Appellant's seeming indifference or lack of emotions cannot be categorically quantified as an indicium of her guilt.
There is no hard and fast gauge for measuring a person's reaction or behavior when confronted with a startling, not
to mention horrifying, occurrence. It has already been stated that witnesses of startling occurrences react differently
depending upon their situation and state of mind, and there is no standard form of human behavioral response when
one is confronted with a strange, startling or frightful experience. The workings of the human mind placed under
emotional stress are unpredictable, and people react differently — some may shout, some may faint and others may
be shocked into insensibility.15

Also, appellant's failure to testify in her defense should not be taken against her. The Court preserves the rule that an
accused has the right to decline to testify at the trial without any inference of guilt drawn from his failure to be on
the witness stand.16 The constitutional right to be presumed innocent still prevails.

This notwithstanding, the totality of the circumstantial evidence presented against appellant justifies her conviction
of the crime of Parricide.

Appellant claims that the circumstantial evidence proven during trial only shows that there was a possibility that
appellant may have conspired with Rolando, but nevertheless claims that it came short of proving her guilt beyond
reasonable doubt.17

Appellant further argues that the testimony of Oswaldo was in some parts hearsay and replete with inconsistencies. 18
Specifically, appellant contends that the testimony of Oswaldo that "he overheard a conversation between Malibiran
(Rolando) and Beverly (appellant) that they will fetch a man in Bulacan that knows how to place a bomb in a
vehicle" is hearsay.19 Likewise, in her Reply Brief,20 appellant claims that the testimony of Janet is hearsay.

Contrary to the claim of appellant, the testimonies of Oswaldo and Janet are not covered by the hearsay rule.

The hearsay rule states that a witness may not testify as to what he merely learned from others either because he was
told, or he read or heard the same. This is derived from Section 36, Rule 130, Revised Rules of Court, which
requires that a witness can testify only to those facts that he knows of or comes from his personal knowledge, that is,
that are derived from his perception. Hearsay testimony may not be received as proof of the truth of what he has
learned.21

The law, however, provides for specific exceptions to the hearsay rule. One is the doctrine of independently relevant
statements, where only the fact that such statements were made is relevant, and the truth or falsity thereof is
immaterial. The hearsay rule does not apply; hence, the statements are admissible as evidence. Evidence as to the
making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue or be
circumstantially relevant as to the existence of such a fact.22 The witness who testifies thereto is competent because
he heard the same, as this is a matter of fact derived from his own perception, and the purpose is to prove either that
the statement was made or the tenor thereof.23

In this case, Oswaldo's testimony that he overhead a conversation between Rolando and appellant that they would
fetch a man in Bulacan who knew how to place a bomb in a vehicle is admissible, if only to establish the fact that
such statement was made and the tenor thereof. Likewise, Janet may testify on matters not only uttered in her
presence, since these may be considered as independently relevant statements, but also personally conveyed to her
by appellant and Rolando.

Appellant further argues that Oswaldo's testimony to the effect that he drove the L300 van of the Tan family and
brought Rolando to the parking lot where Reynaldo’s Honda Accord was parked, was refuted by defense witness

67
Romulo, the security guard of the Tan family. Romulo testified that the L300 van never left White Plains on the day
of the incident.24

While the defense may have presented Security Guard Romulo to refute the testimony of Oswaldo, it is settled that
when credibility is in issue, the Supreme Court generally defers to the findings of the trial court, considering that it
was in a better position to decide the question, having heard the witnesses themselves and observed their deportment
during trial.25 Thus, in the absence of any palpable error, this Court defers to the trials court's impression and
conclusion that, as between Oswaldo and Romulo, the former's testimony deserved more weight and
credence.1awphi1

There is nothing on record to convince the Court to depart from the findings of the RTC. On the contrary, the
testimony of Janet as corroborated by Oswaldo, though circumstantial, leaves no doubt that appellant had in fact
conspired with Rolando in bringing about the death of her husband Reynaldo. As a rule of ancient respectability now
molded into tradition, circumstantial evidence suffices to convict, only if the following requisites concur: (a) there is
more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination
of all the circumstances is such as to produce a conviction beyond reasonable doubt.26

The case of the prosecution was primarily built around the strength of the testimonies of Janet and Oswaldo. The
salient portions of Janet's testimony are extensively quoted hereunder:

Q. Anything else significant that happened in the remaining of 1994, Ms. Pascual?

A. After they were married, they talked about what they're gonna do for Rene.

Q. Where did they discuss it?

A. Inside the car, Botong was asking Beverly how would he be able to get inside the car since he has
no key and Beverly said that she can do something about it and so it was in the last week of
November 1994 of first week of December 1994 when they shopped for so many things.

Q. Who is (sic) with him?

A. Rene, Beverly and her three kids. Rene asked her since Rene and kids would still shop, Rene asked her
to brings the goods to the car in the compartment.

Q. And then?

A. And after Beverly placed the things inside the compartment, she had with her the key, she
proceeded to a key duplicator in Virra Mall and had the key duplicated.

Q. When did she give the key to Malibiran, if you know?

A. That was already December, I cannot recall the exact date, sir.

Q. Why did Mr. Malibiran need the key?

A. Because they planned, since they cannot use the gun Butch said that they would use grenade
instead because he had a grenade in his house. But their only problem is how to get inside the car.

COURT:

Who is Butch?

68
A. Mr. Malibiran, your Honor.

COURT

Butch and Botong are one and the same person?

A. Yes, your Honor.

Q. Did they discuss how, where and when they would planted the grenade in the car of Rene?

A. I heard from them that they would do it during the baptismal of the child of Gloria who is the sister of
Butch.

Q. And Butch is Botong?

A. Botong, sir.

Q. Do you know when that binyag when supposed to be held?

A. The baptismal be held on February 5, 1995, sir.

Q. Why did they choose that date of the binyag?

A. So that if a picture was taken during the baptism, there would be witnesses that they were in the baptism,
they would not be suspected that they have something to do with that.27

xxxx

Q. What day of the week was this?

A. Sunday, Ma'm.

Q. What kind of kind [sic] was duplicated?

A. The key in the new car of Rene the Honda Accord.

Court:

But in the first place, you were not there when it was duplicated? How you were [sic] able to know
that it was indeed duplicated?

A. Because after Beverly had duplicated the key, she told me that she was able to have the key
duplicated and she told me how she did it and she told me that she will give the key to Butch.

Q. Did she show you the duplicated key?

A. Ginanoon niya lang.

Q. What does it looked [sic] like?

A. Iyong mahaba na malaki. Hindi ko na inano basta susi, nag-iisa.

69
Q. On what occasion did she tell you about this?

A. None, I was just in White Plains.

Q. When was this?

A. That was December, 1994.

Q. What was their decision when they will execute the plan?

A. It will be during the baptismal of the child of Gloria because Butch is one of the sponsors.28 (Emphasis
Supplied)

In addition, Oswaldo testified on the occurrences on the day of the incident, in this wise:

Q: Why did you go to Greenhills?

A. I was told by Ate Beverly to follow them wherever they go.

Q. What time did she tell you to go there?

A. After lunch, sir.

Q. What vehicle did you use to follow her?

A. L300, sir.

Q. Upon whose instruction?

A. Ate Beverly, sir.

Q. Did you in fact follow her?

A. Yes, sir.

Q. What time did they reach. the[W]hiteplains?

A. Almost 1 o'clock, sir.

Q. Incidentally, who was with Beverly?

A. Kuya Rene Tan, Beverly Tan, Renebie, Jag and JR.

Q. What car did they use?

A. Honda Accord.

Q. Color?

A. Red, sir.

70
Q. Who drived [sic]?

A. Kuya Rene, sir.

Q. What part of Greenhills did they go?

A. The parking lot infront [sic] of Unimart, sir.

Q. What did you do when they come [sic] to Greenhills?

A. When I found out they already parked and Kuya Rene got in I went straight to Katipunan.

Q. Why?

A. Because I was told by Ate to fetch Botong.

Q. Where in Katipunan?

A. In Caltex near Shakeys.

COURT

Who is Botong?

A. Rolando Malibiran, Your Honor.

Q. The accused in this case?

A. Yes, your Honor.29

xxxx

Q. You picked up Malibiran at Caltex on February 5, 1995?

A. Yes, sir.

Q. What time was that?

A. Around 2 o'clock, sir.

Q. Who if any was with him?

A. Two guys. One whom I saw in [sic] Bulacan and the one whom we sinakay at Hilltop.

Q. When did you go in [sic] Bulacan?

A. In June 1994, sir.

Q. With whom?

71
A. Botong, Beverly, Janet, I and two guys in Hilltop because that is the instruction of Beverly.

Q. Do you know the name of the two guys from Hilltop?

A. If given the chance I can recognize them but I do not know them by name.

Q. What did you do in Bulacan?

A. We went to the Island near the sea.

Q. What did you do at that Island?

A. They talked to a person.

Q. What if you know the date [sic] all about?

A. As far as I remember they talked about the plans about the killing of Kuya Rene. 30

xxxx

Q. Where did they ride on Feb. 5, 1995?

A. In Katipunan, sir.

Q. What did they ride?

A. L300 that I was driving, sir.

Q. Where if any did you go after picking them up?

A. From Caltex we proceeded to Greenhills.

Q. Why?

A. Because that is the instruction of Ate Beverly. Where they were, I will drop them there.

Q. Did you do that?

A. Yes, sir.

Q. Where exactly did you drop them on?

A. In the place where Kuya Rene was parked.31

xxxx

COURT: x x x What happened while they were inside the vehicle while you were going back to the place
as instructed by Beverly?

A. After that I brought them where the car of Kuya Rene was parked, Your Honor. Before they alighted,
Botong asked, dito na ba?32

72
 Atty. Rondain:

So you replied Opo, dyan po pumasok si Kuya Rene?

A. After I alighted they just go [sic] around.

Q. Where?

A. In Greenhills, sir.

Q. Then, what happened?

A. After half an hour I saw Kuya Botong, the three of them. Then they stopped me and the three of
them boarded the vehicle.

Q. What happened?

A. After they boarded, the man from Bulacan said, ano pare, malinis na paggawa nito. Then, I was
told by Botong to bring them to Hilltop.33

Based on the foregoing, the testimonies of Janet and Oswaldo clearly link appellant to the planning of the crime.
True, as intimated by appellant, she may not have been at the scene of the crime at the time of the explosion; 34 but
then again, if she was, then she would have suffered the same fate as Reynaldo. Moreover, the nature of the crime
and the manner of its execution, i.e., via a booby trap, does not demand the physical presence of the perpetrator at
the very time of its commission. In fact, the very manner in which it was carried out necessitated prior scheming and
execution for it to succeed. Thus, appellant's absence from the actual scene of the crime does not negate conspiracy
with Rolando in plotting the death of her husband. A conspiracy exists even if not all the parties committed the same
act, but the participants performed specific acts that indicated unity of purpose in accomplishing a criminal design. 35
Moreover, direct proof of previous agreement to commit an offense is not necessary to prove conspiracy --
conspiracy may be proven by circumstantial evidence. 36

The testimonies of Janet and Oswaldo established the following set of circumstances which, if taken collectively,
show the guilt of appellant: that appellant and Rolando conspired, planned and agreed to kill Reynaldo using a
grenade; that appellant duplicated the key to the red Honda Accord of Reynaldo so that Rolando could gain access to
the car; that appellant thereafter gave the duplicate key to Rolando; that on February 5, 1995, appellant told Oswaldo
to follow the red Honda Accord of Reynaldo until the latter parked the car; that appellant told Oswaldo to thereafter
pick up Rolando at Katipunan and bring the latter to where Reynaldo parked his red Honda Accord. Reynaldo died
soon after due to injuries he sustained from an explosion caused by grenades planted in his car.

Another notable fact is that according to the expert opinion of Inspector Selverio Dollesin, Chief of the Bomb
Disposal Unit of the Eastern Police District, the perpetrator had information about the victim's movements. Dollesin
also observed that the perpetrator knew his intended victim, since the grenade was specifically placed in between the
driver's seat and the front door. That the perpetrator knew the victim's movements was further corroborated by the
affidavits executed by the Tan children, Renevie37 and Jag Carlo38 , attesting that while they spent their Sundays with
their father, this was the only time that they spent a Sunday in Greenhills. Only someone who had close personal
contact with Reynaldo would know his movements, where the car would be parked, and that he was the one who
usually drove the red Honda Accord, such that it was precisely positioned to ensure damage to the intended victim.

There is no doubt that, based on the testimony of Janet, it was Rolando who planted the grenades inside the car of
Reynaldo, to wit:

Q. Where did you go?

73
 A. When I was inside the Canter, Botong (Rolando) was asking me while the vehicle was moving slowly.
He asked me what happened in the funeral parlor.

Q. And what did you say?

A. I told him that Major Penalosa called me for an interview but I did not say anything.

Then were already in front of the V. Luna Hospital.

COURT

What Hospital?

A. V. Luna, your Honor, along Katipunan.

COURT

Luna in Katipunan?

A. V. Luna is going to Katipunan, your Honor. It was Labor Hospital, your Honor and not V. Luna. Then
Botong told me that on the day he placed the grenade, he was seeing a guard roving and so what he
did since he was already perspiring at that time he hurriedly tied the wire in the grenade.

Atty. Rondain:

Iqoute na lang natin.

COURT

Dinali-dali niyang ibinuhol ang alambre. That's her term.39 (Emphasis Supplied)

What sealed appellant's fate was that, as observed by the RTC, there were already outstanding warrants of arrest
against appellant and Rolando as early as September 11, 1997; yet they evaded arrest and were only arrested on
December 4, 1998.40 It is well settled that flight, when unexplained, is a circumstance from which an inference of
guilt may be drawn. "The wicked flee, even when no man pursueth; but the righteous are as bold as a lion."41
Appellant did not even proffer the slightest explanation for her flight.

All told, this Court is convinced beyond a reasonable doubt that appellant is guilty of the crime as charged.
Moreover, considering the manner in which appellant and Rolando planned and executed the crime, the RTC was
correct in appreciating the aggravating circumstances of treachery, evident premeditation, and use of explosives.
Thus, appellant is guilty of the crime of Parricide as provided in the Revised Penal Code, to wit:

Article 246. Parricide- Any person who shall kill his father, mother, or child, whether legitimate or illegitimate, or
any of his ascendants, or descendants, or his spouse, shall be guilty of parricide and shall be punished by reclusion
perpetua to death. (Emphasis Supplied)

Moreover, the Revised Penal Code provides for death as the proper penalty:

Article 63. Rules for the application of indivisible penalties.

xxxx

74
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:

When in the commission of the deed there is present only one aggravating circumstance, the greater penalty shall be
applied.

However, as observed by the CA, with the effectivity of Republic Act (R.A.) No. 9346 entitled "An Act Prohibiting
the Imposition of Death Penalty in the Philippines" on June 24, 2006, the imposition of the penalty of death has been
prohibited. Thus, the proper penalty to be imposed on appellant as provided in Section 2, paragraph (a) of said law is
reclusion perpetua.42 The applicability of R.A. No. 9346 is undeniable in view of the principle in criminal law that
favorabilia sunt amplianda adiosa restrigenda. Penal laws that are favorable to the accused are given retroactive
effect.43

In addition, appellant is not eligible for parole pursuant to Section 3 of R.A. No. 9346, which states:

SECTION 3. Persons convicted with reclusion perpetua, or those whose sentences will be reduced to reclusion
perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4103, otherwise known as the
Indeterminate Sentence Law, as amended.

Lastly, as to the award of damages, the RTC awarded the following amounts: (1) ₱50,000.00 as civil indemnity for
death, (2) ₱80,000.00 as actual damages, and (3) ₱50,000.00 as moral damages.1avvphi1

In the recent case of People v. Regalario,44 the Court stated:

While the new law prohibits the imposition of the death penalty, the penalty provided for by law for a heinous
offense is still death and the offense is still heinous. Consequently, the civil indemnity for the victim is still
₱75,000.00. x x x the said award 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 to the award of moral and exemplary damages x x x. Moral damages are awarded despite the absence of proof of
mental and emotional suffering of the victim's heirs. As borne out by human experience, a violent death invariably
and necessarily brings about emotional pain and anguish on the part of the victim's family. If a crime is committed
with an aggravating circumstance, either qualifying or generic, an award of exemplary damages is justified under
Article 2230 of the New Civil Code. This kind of damage is intended to serve as deterrent to serious wrongdoings
and as vindication of undue sufferings and wanton invasion of the rights of an injured, or as a punishment for those
guilty of outrageous conduct. However, consistent with recent jurisprudence on heinous crimes where the imposable
penalty is death but reduced to reclusion perpetua pursuant to Republic Act No. 9346, the award of moral damages
should be increased from ₱50,000.00 to ₱75,000.00 while the award of exemplary damages should be increased
from ₱25,000.00 to ₱30,000.00.

Consistent therewith, the RTC's award should be modified: the civil indemnity should be increased to ₱75,000.00,
and moral damages to ₱75,000.00.

Moreover, although not awarded by the RTC and pursuant to Regalario, exemplary damages in the amount of
₱30,000.00 is likewise warranted because of the presence of the aggravating circumstances of intent to kill,
treachery, evident premeditation and the use of explosives. The imposition of exemplary damages is also justified
under Art. 2229 of the Civil Code in order to set an example for the public good.45

However, the award of ₱80,000.00 by the RTC as actual damages is deleted for lack of competent evidence to
support it. Only substantiated and proven expenses, or those that appear to have been genuinely incurred in
connection with the death, wake or burial of the victim will be recognized by the court.46 In lieu thereof, appellant
should pay temperate damages in the amount of ₱25,000.00, said amount being awarded in homicide or murder
cases when no evidence of burial and funeral expenses is presented in the trial court,47 and in accordance with

75
prevailing jurisprudence.48 Under Article 2224 of the Civil Code, temperate damages "may be awarded 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."

Finally, Section 11, Rule 122 of the Rules of Court provides that:

An appeal taken by one or more of several accused shall not affect those who did not appeal, except insofar as the
judgment of the appellate court is favorable and applicable to the latter.

Since Rolando did not appeal the decision of the CA, only portions of this judgment that are favorable to Rolando
may affect him. On the other hand, portions of this judgment that are unfavorable to Rolando cannot apply to him.
Thus, he cannot be made liable to pay for exemplary damages, as the same were not awarded by the RTC.49
However, he benefits from this Court's finding that, instead of actual damages, only temperate damages should be
awarded to the heirs of the victim.

WHEREFORE, the Court of Appeals Decision dated November 13, 2006 and Resolution dated September 23,
2003, finding appellant Beverly Tibo-Tan guilty beyond reasonable doubt of Parricide and sentencing her to suffer
the penalty of RECLUSION PERPETUA are hereby AFFIRMED. Appellant is ineligible for parole and is further
ordered to pay, jointly and severally with Rolando Malibiran, the heirs of Reynaldo Tan the amounts of ₱75,000.00
as civil indemnity, ₱75,000.00 as moral damages and ₱25,000.00 as temperate damages. In addition, appellant is
solely liable to pay the heirs of Reynaldo Tan the amount of ₱30,000.00 as exemplary damages.

Costs de oficio.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

76
PP vs. Legaspi GR No. 173485, November 23, 2011

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 173485               November 23, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
NENITA LEGASPI y LUCAS, Accused-Appellant.

DECISION

LEONARDO-DE CASTRO, J.:

Challenged in this appeal is the January 16, 2006 Decision1 promulgated by the Court of Appeals in CA-G.R. CR.-
H.C. No. 01209, which affirmed in toto the Judgment2 of conviction for violation of Section 5, Article II of Republic
Act No. 9165 rendered by the Pasig City Regional Trial Court (RTC), Branch 164, in Criminal Case No. 12351-D.

On April 23, 2003, accused-appellant Nenita Legaspi y Lucas (Legaspi), also known as "Nita," was charged before
the RTC for violating Section 5, Article II of Republic Act No. 9165. The accusatory portion of the Information
reads:

The Prosecution, through the undersigned Public Prosecutor, charges Nenita Legaspi y Lucas a.k.a. "Nita" with the
crime of violation of Section 5, Art. II of R.A. No. 9165, committed as follows:

On or about April 22, 2003, in Pasig City and within the jurisdiction of this Honorable Court, the accused, not being
lawfully authorized to sell, possess or otherwise use any dangerous drug, did then and there willfully, unlawfully
and feloniously sell, deliver and give away to Police Officer Arturo San Andres, a police poseur buyer, one (1) heat-
sealed transparent plastic sachet containing white crystalline substance weighing sixteen (16) decigrams (0.16
grams), which was found positive to the test for methamphetamine hydrochloride (shabu), a dangerous drug, in
violation of said law.3

Upon arraignment4 on July 14, 2003, Legaspi pleaded not guilty to the charge against her. After the pre-trial
conference5 held on the same day, trial on the merits ensued.

The prosecution evidence, upon which the RTC anchored its finding of guilt, consisted of the testimonies of two of
the operatives involved in the buy-bust operation, Police Officer (PO) 2 Arturo San Andres and PO1 Janet A. Sabo.6
Their version of the incident leading to Legaspi’s arrest is summarized as follows:

San Andres and Sabo were assigned to the Mayor Special Action Team (MSAT), Pasig City Police Station. On
April 22, 2003, at around 4:00 p.m., a certain informant, whose identity remained confidential, approached San
Andres to report about the rampant incidence of drug abuse at Centennial Village, Pinagbuhatan, Pasig City and
about the drug pusher who was identified as Legaspi. After gathering all the necessary details, San Andres
immediately informed his superior, Police Inspector Villaruel, who instructed him, Sabo, PO1 Aldrin Mariano, and
PO1 Roland Panis to conduct a buy-bust operation. Villaruel designated San Andres to act as the poseur-buyer and
gave him two pieces of one hundred-peso (₱ 100.00) bills to be used as buy-bust money. Mariano was tasked to be
the team leader, and he, along with the rest of the team, served as San Andres’s backup. At around 5:15 p.m., the
team reached Centennial Village, where after a briefing on their operations, San Andres, together with the
informant, proceeded to Legaspi’s house, while the others strategically placed themselves in the entrapment area,

77
keeping San Andres within their view. Upon seeing Legaspi, who was just outside her house, the informant
introduced San Andres to her as a "scorer."7 Legaspi asked them how much they wanted to "score," to which San
Andres replied "₱ 200.00 panggamit lang."8 After San Andres gave Legaspi the buy-bust money, which he had
previously marked with his initials "ABS," Legaspi reached into her pocket and gave him one heat-sealed plastic
sachet containing the suspected shabu. As soon as San Andres got the sachet, he scratched his head, to signal to his
team that the transaction was over. He thereafter introduced himself as a police officer, informed Legaspi of her
rights, and marked the sachet he had received from her with his initials. The team then brought Legaspi to Rizal
Medical Center for a check-up, and then to the police station wherein they filed the appropriate charges against her.
Meanwhile, San Andres sent the sachet to the Philippine National Police (PNP) Crime Laboratory and requested for
an examination to determine the nature of its contents.9

Annalee R. Forro, a PNP forensic chemist at the Eastern Police District Crime Laboratory, examined the "heat-
sealed transparent plastic sachet with markings ‘EXH A ABS 04/22/03’ containing 0.16 gram white crystalline
substance"10 on the same day. In her Chemistry Report No. D-727-03E, she stated the following:

FINDINGS:

Qualitative examination conducted on the above-stated specimen gave POSITIVE result to the tests for
Methamphetamine Hydrochloride, a dangerous drug.

xxxx

CONCLUSION:

Specimen A contains Methamphetamine Hydrochloride, a dangerous drug.11

This report, along with the plastic sachet with white crystalline substance bought from Legaspi, and the two ₱
100.00 bills used as marked money,12 were presented in court.

After the prosecution had rested its case, Legaspi was called to the witness stand to relay her version of the events.
Legaspi primarily denied the charges against her. She testified that on April 22, 2003, while she was inside her
house taking care of her grandson, San Andres and Mariano peeked through her window and asked her if she was
"Nita." Legaspi alleged that after she answered in the affirmative, the two police officers pushed the door open and
told her to go with them. She claimed that because of the shock the events had caused her, she was not able to ask
the police officers why they were taking her with them. Legaspi said that she was brought to the police precinct in
Pasig City where she was asked about her shabu source. Legaspi averred that she told the police officers that she did
not know what they were talking about. She asseverated that she had never been arrested before and that she had
never been involved in any illegal drugs case. 13

On December 12, 2003, the RTC rendered its Decision, the dispositive portion of which reads:

WHEREFORE, the court finds accused NENITA LEGASPI Y LUCAS a.k.a. "Nita" GUILTY beyond reasonable
doubt of Violation of Section 5, Article II of R.A. 9165 and hereby imposes upon her the penalty of life
imprisonment and a fine of five hundred thousand pesos (₱ 500,000.00), with the accessory penalties provided under
Section 35 thereof.

Moreover, the heat-sealed transparent plastic sachet containing 0.16 gram of methamphetamine hydrochloride or
shabu (Exhibit "E-1") is hereby confiscated in favor of the government and turned over to the Philippine Drug
Enforcement Agency for destruction in accordance with law.

With Costs.14

78
In convicting Legaspi, the RTC stated that it was more convinced with the version of the prosecution. The RTC held
that the positive testimonies of the two police officers were stronger than Legaspi’s negative testimony. The RTC
added that aside from the presumption that the two police officers performed their duties in a regular manner, there
was no showing that they had any ill motive in arresting Legaspi.

Aggrieved, Legaspi appealed15 her case to this Court. However, conformably with this Court’s Decision in People v.
Mateo,16 which modified certain rules on direct appeals from the RTC to the Supreme Court in cases where the
penalty imposed is death, reclusion perpetua, or life imprisonment, Legaspi’s case was transferred to the Court of
Appeals for appropriate action and disposition.17

Legaspi anchored her appeal on the lone error as follows:

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME
CHARGED DESPITE THE FACT THAT THE POLICE INSTIGATED THE ALLEGED BUY-BUST
TRANSACTION.18

On January 16, 2005, the Court of Appeals promulgated its Decision, affirming the RTC’s judgment of conviction,
to wit:

WHEREFORE, the Decision dated December 12, 2003 of the Regional Trial Court of Pasig City, Branch 164
finding accused-appellant guilty beyond reasonable doubt for violation of Section 5, Article II of Republic Act No.
9165 is AFFIRMED en toto.19

In its Decision, the Court of Appeals explained the difference between instigation, which is deemed contrary to
public policy, and entrapment, a valid means of arresting violators of the Dangerous Drugs Law. It then held that the
buy-bust operation that led to Legaspi’s arrest was an entrapment, and that Legaspi miserably failed to substantiate
her allegation of instigation, which must be supported by clear and convincing evidence. The Court of Appeals also
said that contrary to Legaspi’s assertions, neither prior surveillance nor the presentation of the informant in court
was an indispensable requirement to the successful prosecution of a drug case. 20

Undaunted, Legaspi is once again before this Court, assigning the same error she assigned before the Court of
Appeals.21

The Ruling of this Court

Legaspi was charged and convicted for selling methamphetamine hydrochloride, more popularly known as shabu, in
violation of Section 5, Article II of Republic Act No. 9165 or the Dangerous Drugs Law, which provides:

Section 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous
Drugs and/or Controlled Precursors and Essential Chemicals. - The penalty of life imprisonment to death and a fine
ranging from Five hundred thousand pesos (₱ 500,000.00) to Ten million pesos (₱ 10,000,000.00) shall be imposed
upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to
another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy
regardless of the quantity and purity involved, or shall act as a broker in any of such transactions.

The penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine ranging
from One hundred thousand pesos (₱ 100,000.00) to Five hundred thousand pesos (₱ 500,000.00) shall be imposed
upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to
another, distribute, dispatch in transit or transport any controlled precursor and essential chemical, or shall act as a
broker in such transactions.

79
If the sale, trading, administration, dispensation, delivery, distribution or transportation of any dangerous drug
and/or controlled precursor and essential chemical transpires within one hundred (100) meters from the school, the
maximum penalty shall be imposed in every case.

For drug pushers who use minors or mentally incapacitated individuals as runners, couriers and messengers, or in
any other capacity directly connected to the dangerous drugs and/or controlled precursors and essential chemicals
trade, the maximum penalty shall be imposed in every case.

If the victim of the offense is a minor or a mentally incapacitated individual, or should a dangerous drug and/or a
controlled precursor and essential chemical involved in any offense herein provided be the proximate cause of death
of a victim thereof, the maximum penalty provided for under this Section shall be imposed.

The maximum penalty provided for under this Section shall be imposed upon any person who organizes, manages or
acts as a "financier" of any of the illegal activities prescribed in this Section.

The penalty of twelve (12) years and one (1) day to twenty (20) years of imprisonment and a fine ranging from One
hundred thousand pesos (₱ 100,000.00) to Five hundred thousand pesos (₱ 500,000.00) shall be imposed upon any
person, who acts as a "protector/coddler" of any violator of the provisions under this Section.

Defense of Instigation

Legaspi contends that she was instigated to commit the crime, as she was not the one who sought out San Andres to
sell him shabu. She avers that San Andres’s own testimony clearly shows that he had suggested the commission of
the crime by offering her ₱ 200.00 for the purchase of shabu. Legaspi claims that this is supported by her testimony
wherein she denied selling shabu to San Andres or to anyone for that matter. This, she says, is confirmed by the fact
that she has no police or criminal record.22

Taking a cue from the Court of Appeals, we shall first distinguish between entrapment and instigation. Entrapment
is sanctioned by the law as a legitimate method of apprehending criminals. Its purpose is to trap and capture
lawbreakers in the execution of their criminal plan. Instigation, on the other hand, involves the inducement of the
would-be accused into the commission of the offense. In such a case, the instigators become co-principals
themselves.23

Where the criminal intent originates in the mind of the instigating person and the accused is lured into the
commission of the offense charged in order to prosecute him, there is instigation and no conviction may be had.
Where, however, the criminal intent originates in the mind of the accused and the criminal offense is completed,
even after a person acted as a decoy for the state, or public officials furnished the accused an opportunity for the
commission of the offense, or the accused was aided in the commission of the crime in order to secure the evidence
necessary to prosecute him, there is no instigation and the accused must be convicted. The law in fact tolerates the
use of decoys and other artifices to catch a criminal.24

The distinction between entrapment and instigation has proven to be very relevant in anti-narcotics operations. It has
become common practice for law enforcement officers and agents to engage in buy-bust operations and other
entrapment procedures in apprehending drug offenders.25 This Court, elaborating on the concept of a buy-bust
operation within the context of entrapment and instigation, has said:

A buy-bust operation is a form of entrapment which in recent years has been accepted as a valid means of arresting
violators of the Dangerous Drugs Law. It is commonly employed by police officers as an effective way of
apprehending law offenders in the act of committing a crime. In a buy-bust operation, the idea to commit a crime
originates from the offender, without anybody inducing or prodding him to commit the offense. Its opposite is
instigation or inducement, wherein the police or its agent lures the accused into committing the offense in order to
prosecute him. Instigation is deemed contrary to public policy and considered an absolutory cause. x x x.26

80
Instigation is recognized as a valid defense that can be raised by an accused. To use this as a defense, however, the
accused must prove with sufficient evidence that the government induced him to commit the offense. 27 Legaspi
claims that she was induced into committing the crime as charged, as she was the one approached by San Andres,
who was then looking to buy shabu.

We find, however, that Legaspi’s defense of instigation must fail. It is an established rule that when an accused is
charged with the sale of illicit drugs, the following defenses cannot be set up:

(1) that facilities for the commission of the crime were intentionally placed in his way; or

(2) that the criminal act was done at the solicitation of the decoy or poseur-buyer seeking to expose his
criminal act; or

(3) that police authorities feigning complicity in the act were present and apparently assisted in its
commission. 28

The foregoing are especially true in that class of cases where the offense is the kind that is habitually committed, and
the solicitation merely furnished evidence of a course of conduct. Mere deception by the police officer will not
shield the perpetrator, if the offense was committed by him free from the influence or the instigation of the police
officer.29

In the case at bar, the police officers, after receiving a report of drug trafficking from their confidential informant,
immediately set-up a buy-bust operation to test the veracity of the report and to arrest the malefactor if the report
proved to be true. The prosecution evidence positively showed that Legaspi agreed to sell ₱ 200.00 worth of shabu
to San Andres, who was then posing as a buyer. Legaspi was never forced, coerced, or induced to source the
prohibited drug for San Andres. In fact, San Andres did not even have to ask her if she could sell him shabu. Legaspi
was merely informed that he was also a "scorer"; and as soon as she learned that he was looking to buy, she
immediately asked him how much he needed. Under the circumstances, the police officers were not only authorized
but were under an obligation to arrest Legaspi even without an arrest warrant as the crime was committed in their
presence.30

The RTC was correct in upholding the testimonies of the prosecution witnesses and in applying the presumption of
regularity in the performance of duty by the police officers, especially since Legaspi failed to impute on them any
motive to falsely testify against her.31 Unless there is clear and convincing evidence that the members of the buy-
bust operation team were inspired by improper motive or did not properly perform their duty, their testimonies on
the operation deserve full faith and credit.32

Furthermore, when Legaspi testified in court, her defense was one of denial and not instigation.1awp++i1 While
instigation is a positive defense, it partakes of the nature of a confession and avoidance. 33 In instigation, the crime is
actually performed by the accused, except that the intent originates from the mind of the inducer. 34 Thus, it is
incompatible with the defense of denial, where the theory is that the accused did not commit the offense at all.
Instigation and denial, therefore, cannot be present concurrently. Besides, this Court has consistently held that:

[B]are denials are weak forms of defenses, especially in this case where the accused-appellant’s testimony was not
substantiated by clear and convincing evidence. The uncorroborated denial by the accused-appellant cannot prevail
over the testimonies of the arresting officer and the poseur-buyer, who both testified on affirmative matters.

Furthermore, there is no indication that the arresting team and the other prosecution witnesses were actuated by
improper motives, prevaricating just to cause damnation to him. Thus, their affirmative statements proving accused-
appellant’s culpability must be respected and must perforce prevail. 35

No Prior Surveillance

81
Legaspi also argues that the veracity of the buy-bust operation is suspect as it was conducted without prior
surveillance.36

This Court has many times discussed the dispensability of prior surveillance in buy-bust operations, as it is not a
pre-requisite for the validity of an entrapment or such buy-bust operation. In People v. Eugenio, 37 we held that the
conduct of surveillance prior to a buy-bust operation is not required especially when the police officers are
accompanied to the scene by their civilian informant. This is so because there is no rigid or textbook method in
conducting buy-bust operations. Flexibility is a trait of good police work, and the need for prior surveillance may be
dispensed with when time is of the essence.38 In People v. Gonzales,39 we said:

The Court has left to the discretion of police authorities the selection of effective means to apprehend drug dealers.
Thus, we have refused to establish on a priori basis what detailed acts the police authorities might credibly undertake
in their entrapment operations.40

Non-presentation of Informant

Legaspi further contends that the failure to present the informant as a witness in court is very material and relevant
in the case at bar, inasmuch as she had denied having sold shabu to anyone. She also claims that since the identity of
the informant was known to her from the beginning, there was no reason for the prosecution to not present him in
court as a witness, especially since he is in the best position to establish that she had indeed been engaged in the sale
of shabu prior to the buy-bust operation against her.41

We do not agree. The presentation of an informant is not a requisite for the successful prosecution of drug cases.
Informants are almost always never presented in court because of the need to preserve their invaluable service to the
police. 42 In People v. Ho Chua,43 we held:

[P]olice authorities rarely, if ever, remove the cloak of confidentiality with which they surround their poseur-buyers
and informers since their usefulness will be over the moment they are presented in court. Moreover, drug dealers do
not look kindly upon squealers and informants. It is understandable why, as much as permitted, their identities are
kept secret. In any event, the testimony of the informant would be merely corroborative. 44

Legaspi argues that it was the civilian informant who reported on her alleged drug-pushing; hence, only he had
personal knowledge of such activities, subject of this case. Contrary to Legaspi’s claims, the subject matter of this
case is her sale of shabu to San Andres on April 22, 2003. She was not charged and convicted for her activities prior
to such sale. Since San Andres, who was the poseur-buyer himself, already testified to the events, which he had
personal knowledge of, the testimony of the informant would be merely corroborative, and can thus be dispensed
with. 45

Only two elements are to be proven for the prosecution of illegal sale of regulated or prohibited drugs:

(1) the identity of the buyer and the seller, the object, and the consideration; and

(2) the delivery of the thing sold and the payment therefor.

The prosecution had presented evidence that established both elements by the required quantum of proof, i.e., guilt
beyond reasonable doubt.46

Legaspi was positively identified by the prosecution’s eyewitnesses as the person who sold to the poseur-buyer a
heat-sealed plastic sachet containing a white crystalline substance. Her identity as the culprit cannot be doubted,
having been caught in flagrante delicto in an entrapment operation conducted by the MSAT of Pasig City. Such
positive identification prevails over Legaspi’s uncorroborated and weak defense of denial, and unsubstantiated and
contradictory defense of instigation.47

82
The prosecution also succeeded in establishing with certainty and conclusiveness the corpus delicti of the crime.
After Legaspi received the ₱ 200.00 from San Andres, the poseur-buyer, she reached into her pocket and handed
him one heat-sealed plastic sachet containing shabu. The delivery of the contraband to the poseur-buyer and the
receipt by the seller of the marked money successfully consummated the buy-bust transaction between the
entrapping officers and Legaspi.48

As the prosecution ably established Legaspi’s guilt beyond reasonable doubt, both the RTC and the Court of
Appeals did not err in convicting her for violation of Section 5, Article II of Republic Act No. 9165.

WHEREFORE, premises considered, the Court hereby AFFIRMS the January 16, 2006 Decision of the Court of
Appeals in CA-G.R. CR.-H.C. No. 01209.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

83
PP vs. Carriaga, GR No.135029, September 12, 2003

SECOND DIVISION

[G.R. No. 135029. September 12, 2003.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. NESTOR CARRIAGA, COSME CARRIAGA and

BEN PALIS, Accused-Appellants.

DECISION

AUSTRIA-MARTINEZ, J.:

This is an appeal from the decision, 1 dated February 27, 1998, of the Regional Trial Court (Branch 30), Bambang,
Nueva Vizcaya, finding appellants Nestor Carriaga, Cosme Carriaga and Ben Palis guilty of Murder, sentencing
each of them to suffer the penalty of reclusion perpetua and to pay in solidum to the heirs of the deceased the
amount of P49,713.75 as actual expenses, P50,000.00 as death indemnity, P50,000.00 for lost income and
P100,000.00 as moral damages.

The facts are as follows:chanrob1es virtual 1aw library

On March 4, 1994, appellants Nestor Carriaga, Cosme Carriaga and Ben Palis were charged with Murder in an
Information, docketed as Criminal Case No. 755, which reads:chanrob1es virtual 1aw library

That on or about 2:30 P.M. of December 3, 1993, at Sitio Nabetangan, Barangay Canabay, Municipality of Dupax
del Sur, Province of Nueva Vizcaya, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, with intent to kill, conspiring, confederating together and mutually helping one another, by means
of treachery and taking advantage of superior strength, did then and there willfully, unlawfully and feloniously
attack, assault and hack Ernesto de Guzman, inflicting mortal wounds on the different parts of his body, causing his
untimely death, to the damage and prejudice of his heirs.

CONTRARY TO LAW. 2

Upon arraignment on May 6, 1994, all three appellants pleaded not guilty. 3 Thereupon, trial ensued.

The prosecution presented eight witnesses, namely: Lita de Guzman, Balbino 4 de Guzman, Ernesto de Guzman, Jr.,
SPO4 Johnny Baguidudol, 5 SPO1 Saulo Fontanilla, SPO4 Alfredo Dotimas and Dr. Pepito Balgos. SPO4 Alfonso
dela Cruz testified as rebuttal witness for the prosecution.chanrob1es virtua1 1aw 1ibrary

The facts established by the prosecution are as follows:chanrob1es virtual 1aw library

On December 1, 1993, at around 10:00 in the morning, victim Ernesto de Guzman, Sr. (Ernesto, for brevity)
confided to his brother, Balbino de Guzman, that appellants Cosme and Nestor Carriaga were grabbing his
(Ernesto’s) land and that they threatened to kill him. 6 Ernesto became the object of their ire since he started to
improve the river as a source of livelihood. On one occasion, the appellants Carriaga brothers told Ernesto not to
continue working the area or else something might happen to him and his family. Appellant Ben Palis accused
Ernesto of informing the police that the Carriaga brothers owned guns. 7

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On December 3, 1993, at around 2:30 in the afternoon, Ernesto was sleeping in their house in Sitio Nabetangan, 8
Brgy. Canabay, Dupax del Sur, Nueva Vizcaya. His wife Lita was washing the dishes and his twelve-year old son
Ernesto, Jr. was listening to a radio program. Lita stopped washing the dishes when she sensed somebody enter the
house. She then saw appellants Cosme and Nestor, each holding a bolo, and Palis, standing by the door, with both
hands placed at his back. Lita shouted "Apay" (Why). Upon hearing the shout, Ernesto, Jr. peeped and saw the three
appellants. Nestor and Cosme went directly to where Ernesto was sleeping and immediately began hacking him.
Cosme first hacked Ernesto and hit him on the right leg. Lita tried to help her husband, but Nestor pushed her aside
and attempted to hack her as well. She was able to evade the hacking and exited through the second door near the
wash area. 9 In the meantime, Ernesto, Jr. saw Nestor go to his father and hack the latter’s head, followed by Cosme
who gave Ernesto another hack on the head. Still not content, Nestor hacked Ernesto at the back. Ernesto, Jr. became
so scared that he jumped out of the window and scampered away. Lita who was running and crying for help, heard
her son, saying "Inay, Inay, wait for me." Thus, she waited for him, after which, they both ran. They then heard a
vehicle approaching. Thinking that the killers might have boarded the same, Lita and Ernesto, Jr. hid among the tall
grasses. When they peeped, they saw the three appellants in the front seat of a blue passenger jeepney. After the
vehicle passed, the two continued to run until they reached the poblacion. Lita instructed her son to go to his uncle
and report what had happened. As told, Ernesto, Jr. informed his uncle Balbino about the incident. 10 Lita proceeded
to PNP Station Commander Baguidudol of Dupax del Sur and reported the matter. 11

SPO4 Johnny Baguidudol, SPO1 Saulo Fontanilla and SPO4 Alfredo Dotimas were at the police station when Lita
reported that her husband was hacked by the appellants. The three officers immediately proceeded with her to the
crime scene in order to investigate. They saw Ernesto sprawled on the floor, lying face up near the bed, bathed in
blood and undoubtedly dead. Lita told SPO4 Baguidudol who the perpetrators were and where they were headed. He
called up his co-policemen at the station and instructed them to apprehend the appellants. SPO1 Fontanilla prepared
a sketch of the crime scene. SPO4 Dotimas called on some neighbors to help in bringing the body of the victim to
the poblacion for autopsy and embalment. The three appellants were apprehended by SPO4 Alfonso dela Cruz. 12
SPO4 Baguidudol and his companions returned to the station and conducted further investigation. Upon questioning,
Nestor admitted that he hacked the victim, while Cosme and Palis kept their silence. The following day, the police
officers executed a Joint Affidavit in connection with the case. 13

Dr. Pepito Balgos conducted an autopsy on the victim. Portions of his Report read:chanrob1es virtual 1aw library

III. EXTERNAL AND INTERNAL EXAMINATION:chanrob1es virtual 1aw library

INCISED WOUNDS:chanrob1es virtual 1aw library

— 6 cms. long located over the R shoulder involving the skin, soft tissues and muscle.

— 10 cms. long located over the R upper arm involving the skin, soft tissues and muscle.

— 8 cms. long located over the chest below the L breast involving the skin, soft tissues and muscle.chanrob1es
virtua1 1aw library

— 5 cms. long located over the thigh R involving the skin, soft tissues and muscle.

LACERATED WOUNDS:chanrob1es virtual 1aw library

— 8 cms. and 4 cms. long located over the R wrist involving the skin, soft tissues and muscle with fracture of the
wrist bones.

— 5 cms. long located over the back R involving the skin, soft tissues and muscle.

— 14 cms. long located over the occiput involving the scalp with fracture of the occipital bone and injuring the brain
tissues.

— 10 cms. long located over the occiput involving the scalp with fracture of the occipital bone underneath and

85
injuring the brain tissues.

— 8 cms. long located over the occiput, 1 cm. below injury no. 4 involving the scalp with fracture of the occipital
bone underneath and injuring the brain tissues.

— 13 cms. long located over the R leg involving the skin, soft tissues and muscle with fracture of the tibia and
fibular bones underneath.

IV. CAUSE OF DEATH:chanrob1es virtual 1aw library

Severe hemorrhagic shock due to leg and head injuries secondary to multiple incised and lacerated wounds. 14

According to Dr. Balgos, the long incised wounds on the left breast and on the right thigh, as well as the three
lacerated wounds on the occiput, that is, at the back area of the head, caused a lot of blood loss which resulted in the
death of the victim. Further, he testified that since there were two kinds of wounds inflicted on the victim — incised
and lacerated — it is probable that at least two weapons were used, one plain cut, sharp edged instrument, and
another instrument which is not too sharp so as to have produced the jagged portion of the wounds. 15

On the other hand, the defense presented six witnesses, namely: appellants Nestor Carriaga, Ben Palis and Cosme
Carriaga, as well as Mariano Bombongan, 16 Dr. Ernesto Calla and Teodoro Bombongan. 17

Appellant Nestor Carriaga admits hacking the victim but invokes self-defense. According to him, at around 2:00 in
the afternoon of December 3, 1993, while he was grazing his carabao near the house of Manang Lita (Ernesto’s
wife), he saw Ernesto cutting grass. Ernesto invited him over to his house and so, before heading home, appellant
dropped by the former’s house. Lita and Ernesto, Jr. were not inside the house. His co-appellants, Palis and Cosme,
were not with him during that time. 18 Because Ernesto promised to tell him something while he was grazing his
carabao, he asked Ernesto what he wanted to say to him. To his surprise, Ernesto said, "You Carriaga are greedy."
He told Ernesto that he should better head home. As he turned his back on Ernesto, the latter hacked him at the back
portion of his head. When he looked back, he saw that Ernesto was about to hack him a second time, so he
immediately unsheathed his bolo and retaliated by hacking Ernesto on the legs. Ernesto jumped towards him, but
appellant was able to hack him again. Ernesto fell on his left side. He could no longer remember how many times he
hacked Ernesto as his mind went blank. At that moment, he thought he was going to die. After the encounter,
appellant headed home, walking slowly. On his way home, he met Palis who helped him reached his house where he
treated his injuries with herbal medicine. Moments later, Palis and Cosme, accompanied him to the hospital in
Dupax where he was attended to in the hospital for about an hour. From the hospital, Cosme surrendered him to the
municipal hall where the latter was slapped, punched and kicked by Station Commander Baguidudol several times.
19

The physical examination conducted by Dr. Ernesto Calla of the Dupax District Hospital showed that Nestor
sustained hacking wounds on the left temporal area and on the region of the occiput. The medical report reveals that
on December 3, 1993, the date that Ernesto was killed, Nestor was treated at the Out-Patient Department of the
hospital for "Hacking wound 4 cm. Left Temporal Area" and "Hacking wound 3 cm. Occipital Area." 20 Dr. Calla
further remarked that the physical injuries sustained by appellant required medical attendance for a period of not
more than nine days. 21

Appellants Ben Palis and Cosme Carriaga interpose the defenses of denial and alibi. According to Palis, on
December 3, 1993, he was at Brgy. Canabay, Dupax del Sur, Nueva Vizcaya to see his ricefield, after which, he
proceeded to the house of Doro Bombongan where he played the game of cards, tong-it, with Mariano Bombongan
and Cosme. They played from 9:00 in the morning until 2:30 in the afternoon, after which, he walked home to their
house at Brgy. Canabay. He stayed home for around 15 minutes, then he headed to their other house at the
poblacion. On his way, he met the bloodied Nestor. He accompanied the latter to his home and treated his wound.
Then, he went to Cosme’s house, around 60 meters away, to inform him about his brother. Cosme rode on his
vehicle, and, together, they brought Nestor to the hospital at Dupax del Norte where the latter was treated for around
40 minutes. Then they surrendered him to the Dupax del Sur Police Station. Nestor was invited inside the office of
the Police Investigation Officer while he and Cosme waited in the vehicle for about an hour. After the investigation
of Nestor, the policemen called for them and they stayed in the office until the arrival of the station commander.

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When Station Commander Baguidudol arrived, he maltreated them and asked them why they killed Ernesto.
Although they insisted that it was Nestor who killed Ernesto, they were all put in prison and have not left the cell
since that time. Palis denies that he was present in the crime scene. 22

Appellant Cosme Carriaga corroborated the testimony of Palis. In addition, he testified that they surrendered Nestor
to the police because the latter admitted to them that he had engaged in a hacking incident with Manong Pilong,
referring to Ernesto. Further, Cosme related that investigation officer dela Cruz invited them to go inside the office
because the relatives of Ernesto who were then in the police station might harm them. To his surprise, however, the
station commander kicked him and slapped Palis, while saying "why did you kill my dog?." Cosme claimed that the
victim was a police asset who conducted surveillance. Like Palis, Cosme denied that he hacked the victim. He
stressed that complainants Lita and Ernesto, Jr. were just taught by the station commander on what to say. 23

Brothers Mariano and Teodoro Bombongan corroborated the testimony of Palis and Cosme that both played tong-it
in Teodoro’s house from 9:00 in the morning until 2:30 in the afternoon. 24

The trial court ruled that the culpability of the appellants had been established beyond reasonable doubt. It held that
Nestor was not able to demonstrate by clear and convincing evidence the existence and concurrence of the
circumstances needed to prove self-defense, while Cosme’s and Palis’ reliance on alibi and denial are weak defenses
as they are easily susceptible of concoction. The trial court found that the prosecution proved by direct and
circumstantial evidence the culpability of the three as well as the presence of conspiracy and treachery. The
dispositive portion of the trial court’s decision reads:chanrob1es virtual 1aw library

WHEREFORE, premises considered, finding the accused, Nestor Carriaga, Cosme Carriaga and Ben Palis,
GUILTY beyond reasonable doubt of the crime of Murder defined and penalized under Article 248 of the Revised
Penal Code, all three accused are hereby sentenced to suffer the penalty of RECLUSION PERPETUA.

They are likewise ordered to pay in solidum to the heirs of the victim the amounts of P49,713.75, as actual expenses;
P50,000.00, as mandatory death indemnity; P50,000.00 for the income the victim would have had earned by himself
for his family; and, P100,000.00, as moral damages.

The Provincial Warden is directed to transport all three accused to the National Penitentiary as soon as possible and
to make a report to the Court about the matter.

SO ORDERED.25cralaw:red

On appeal to this Court, appellant Palis contends that the lower court erred in holding that he was a co-conspirator to
the crime of murder for rendering "moral assistance" to his co-accused 26 while appellants Nestor and Cosme raise
the following Assignment of Errors:chanrob1es virtual 1aw library

I. THE LOWER COURT ERRED IN ACCORDING FULL CREDENCE TO THE TESTIMONIES OF THE TWO
ALLEGED EYEWITNESSES, LITA DE GUZMAN AND ERNESTO DE GUZMAN, JR.

II. THE LOWER COURT ERRED IN COMPLETELY DISCARDING THE DEFENSE OF ALIBI RAISED BY
ACCUSED COSME CARRIAGA.

III. THE LOWER COURT ERRED IN COMPLETELY DISCARDING THE DEFENSE OF SELF-DEFENSE
RAISED BY THE ACCUSED NESTOR CARRIAGA.

IV. THE LOWER COURT ERRED IN NOT FINDING THAT THE GUILT OF THE ACCUSED, NESTOR AND
COSME CARRIAGA, HAD NOT BEEN PROVEN BEYOND REASONABLE DOUBT.

V. IN ANY EVENT, THE LOWER COURT ERRED IN REFUSING TO APPRECIATE THE MITIGATING
CIRCUMSTANCE OF VOLUNTARY SURRENDER IN FAVOR OF THE ACCUSED. 27

This Court shall resolve the following issues: (1) whether or not the trial court erred in giving credence to the
testimonies of prosecution witnesses Lita and Ernesto, Jr.; (2) whether or not the trial court erred in disregarding

87
appellant Nestor’s claim of self-defense; (3) whether or not the trial court erred in not giving credence to appellants
Cosme’s and Palis’ defense of alibi and denial; (4) whether or not conspiracy has been established by the
prosecution; and (5) whether or not the trial court erred in not appreciating the mitigating circumstance of voluntary
surrender.

Anent the first issue: As often happens in criminal cases on appeal, this Court is asked to disregard the testimony of
the prosecution witnesses for being incredible, and, instead, give full credence to those of the defense witnesses.
When faced with the issue of credibility, the Court ordinarily defers to the factual assessment made by the trial
court, the latter being in a better position to decide the question because it had the full opportunity to observe
directly the deportment and manner of testifying on the witness stand. 28

Appellants contend that the trial court erred in giving credence to the testimonies of prosecution witnesses Lita and
Ernesto, Jr. arguing that the testimonies of the two are inconsistent for whereas Lita testified that appellant Nestor
was the first who hacked the victim on the right leg, Ernesto, Jr. declared that it was appellant Cosme.

After going over the records of the case, the Court finds that while Lita was ambivalent as to who between Nestor
and Cosme hacked her husband first, Ernesto, Jr. was positive and categorical in testifying that it was Cosme who
hacked his father first and the Carriaga brothers took turns in hacking his father, Ernesto, who was oblivious of the
initial attack as he was sleeping.

Appellants fail to convince the Court on this matter. Witnesses testifying on the same event do not have to be
consistent in every detail considering the inevitability of differences in their recollection, viewpoint or impression;
total recall or perfect symmetry is not required as long as the witnesses concur on material points. 29

Both Lita and Ernesto, Jr. positively recognized the three appellants as the assailants of Ernesto. They have known
the appellants even before the incident and therefore they could not have been mistaken as to their identities. They
unwaveringly declared that they saw the Carriaga brothers each holding a bolo enter their house while Ben Palis
stood guard at the door. They were firm in their identification of appellants even under rigid cross-
examination.chanrob1es virtua1 1aw 1ibrary

Appellants further contend that Ernesto, Jr.’s credibility is suspect given the contradictions in his sworn statement
and his testimony in court. In his sworn declaration, Ernesto, Jr. stated that after witnessing Cosme hack the right leg
of his father, he didn’t see what transpired after that, but on the witness stand, he narrated the sequence of the hack
blows inflicted by the Carriaga brothers upon his father. Appellants insist that the blow-by-blow account given by
Ernesto, Jr. on the witness stand is a sure sign of fabrication.

We are not persuaded. As already stated, Ernesto, Jr. knew the appellants as friends of his father. 30 His detailed
narration on the witness stand of the events of December 3, 1993 is worthy of belief. He was consistent even on
cross-examination. That he remembered the sequence of blows delivered by the appellants on his father is not far-
fetched. Human experience tells us that a first-hand experience of a twelve-year old seeing the dastardly killing of
his own father by people known to him as friends of his father will surely be etched in his memory.

Further, sworn statements, which are ex parte, are often incomplete and inaccurate because of partial suggestion or
want of suggestions and inquiries, without the aid of which the witness may be unable to recall all connected
circumstances. 31 It is axiomatic that as between the sworn statement and the testimony of the complainant given in
court, the latter is given more weight. 32

Appellants further insist that the testimony of Lita and Ernesto, Jr. are incredible because while both of them
testified that the victim was lying on his right side when he was hacked, the autopsy report reveals that most of the
wounds sustained by the victim were on his right side.

We are not convinced. Indeed, both Lita and Ernesto, Jr. testified that Ernesto was lying on his right side when he
was hacked. Lita saw the first hack inflicted on the leg of the victim. She testified thus:chanrob1es virtual 1aw
library

COURT

88
Q: Will you point to that body of your husband that was hacked by Cosme Carriaga?

A: On this portion (Witness pointing the middle portion of her right leg, between the knee and the ankle and witness
using [her] index finger to line or to draw about 5 inches long]. 33

Ernesto, Jr. also witnessed the initial hack, followed by several other hacks on the back and occipital region of the
head inflicted by appellants Nestor and Cosme.

The hack wounds on Ernesto’s right side as well as at the back and occiput do not contradict the testimonies of Lita
and Ernesto, Jr. that Ernesto was lying on his right side when he was hacked. Ordinary human experience an
common sense dictate that the sleeping victim must have been awakened after he was hacked the first time on the
leg and therefore, with utmost degree of certainty, he must have moved as a natural reaction which explains why he
sustained hacking wounds on different parts of his body. In fact, he was later on found sprawled on the floor face up.
Besides, the claim of appellants that the victim could not have sustained wounds on the right side if it were true that
he was lying on his right side is a mere collateral matter which does not impair the weight of the testimonies of the
prosecution witnesses taken in their entirety. It does not demolish the commission of the crime of murder and the
positive identification of the malefactors.

In People v. Aquino, the Court held that the trial judge’s assessment of the credibility of witnesses will be disturbed
only if he plainly overlooked certain facts of substance and value that, if considered, might affect the result of the
case, or if the trial court acted arbitrarily. 34 None of said exceptions have been shown to exist in the instant case.
Thus, we find no reason to disturb the trial court’s evaluation and assessment of the credibility of Lita and Ernesto,
Jr., the same not being tainted by any arbitrariness or palpable error.

Appellants furthermore argue that since Dr. Balgos found the incised and lacerated wounds inflicted upon the victim
were caused by two different instruments, then the prosecution witnesses lied when they testified that Nestor and
Cosme used the same type of weapon, a bolo. Apparently, appellants misconstrued the testimony of Dr. Balgos, to
wit:chanrob1es virtual 1aw library

Q: In your findings, there are 2 kinds of wounds, isn’t it?

A: Yes, Incised and Lacerated Wound[s].

Q: Do you want to tell the Court that there might be 2 weapons used in the killing?

A: It is probable.

Q: What kind of weapon is used when the wound is incised?

A: The character of a wound that is incised is that, it is plain cut edges, so, a weapon that is sharp or has sharp edge
is a possible or probable weapon used.

Q: How about a weapon used on wounds which are lacerated in character?

A: The character of a lacerated wound, it is not clean cut and there is a jagged portion of the wounds and it may be
caused or probably caused by not too sharp instrument.

x       x       x

COURT

Q: Is it possible for a very strong bladed instrument to cause lacerated wound? A sharp edge instrument or weapon,
may it cause lacerated wound as reflected in the cadaver that you autopsied?

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A: It is not possible.

Q: Is it possible for a jagged edge instrument to cause incised wound that are clean cut?

A: No. 35

Clearly therefrom, what Dr. Balgos asserted on the witness stand was that, considering the types of wounds inflicted,
it was probable that there were two weapons used to inflict the fatal wounds. He did not testify that there are two
different kinds of weapons or that the weapons used could not have been both bolos. The doctor’s testimony does
not preclude the possibility that one bolo had a sharp edge causing the incised wounds while the other was a bolo
that was not too sharp thus causing jagged, lacerated wounds.

Finally, in their effort to discredit the credibility of Lita and Ernesto, Jr., appellants belabored on the involvement of
the police in the fabrication of charges against them. This contention is unfounded and deserves scant consideration.
Appellant Cosme himself testified that the police, particularly Station Commander Baguidudol, had no motive to
falsely impute the cold-blooded slaying of the victim to them, as there has been no animosity or bad blood between
them. 36

It is a settled rule that proof beyond reasonable doubt does not connote absolute certainty; it means that degree of
proof which, after an investigation of the whole record, produces moral certainty in an unprejudiced mind of the
accused’s culpability; it signifies such proof that convinces and satisfies the reason and conscience of those who are
to act upon it that appellant is guilty of the crime charged. 37

As to the second issue: Appellant Nestor claims self-defense. Self-defense is a time-worn excuse resorted to by an
appellant in appealed criminal cases. 38

Under par. 1, Article 11 of the Revised Penal Code, there are three requisites to prove the claim of self-defense,
namely: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to
prevent or repel it; and (3) lack of sufficient provocation on the part of the person defending himself.

It is a settled rule that when an accused admits killing the victim but invokes self-defense, it is incumbent upon him
to prove by clear and convincing evidence that he acted in self-defense; and as the burden of the evidence is thus
shifted to him, he must rely on the strength of his own evidence and not on the weakness of the prosecution. 39

Appellant Nestor contends that unlawful aggression came from the victim with no provocation on his part. He
testified thus:chanrob1es virtual 1aw library

FISCAL BALGOS

Q: What transpired next?

A: After uttering those statements, I told him, if you are like that, I better go home, and when I turned my back to
him, that was the time he hacked me on my head. (witness pointing to the back portion of his head.)

Q: How many times did Ernesto de Guzman hack you?

A: Only once, sir.

Q: After that what happened next?

A: After he hacked me, I looked at my back and I saw him and he will again hack me, so what I did is, I tasked my
bolo on my waist line and hacked him also, sir.chanrob1es virtua1 law library

Q: What part of his bolo was hit by you?

A: His legs, sir.

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Q: What was the position of Ernesto de Guzman when you hit his legs?

A: He was standing and his right foot was a little bit placed in front of left foot and beside him is a table or a bed, sir.

Q: After hitting his legs, what happened next?

A: He jumped towards me and again attempted to hack me, sir.

Q: What did you do?

A: I hacked him and he fell down on his left side, sir, and I left.

Q: Where did you go, when you said you left?

A: I went home, sir. 40 (Emphasis supplied)

But on cross-examination, he vacillated and stated that he could not recall if he hacked the victim twice, that he lost
control of himself and he could not recall how many times he hacked the victim, thus:chanrob1es virtual 1aw library

Q: How many times did you hack Mr. de Guzman?

A: I cannot recall how many hacks I have inflicted on him, sir.

Q: Is it not that yesterday, you said that the first time you hacked him was at his right leg?

A: Yes, sir.

Q: After hitting his leg, he jumped towards you and attempted to hack you but you hacked him that’s why, Mr. de
Guzman fell, is it not?

A: Yes, sir.

Q: So, do you want to tell the Court that you only hacked Mr. de Guzman twice?

A: I cannot recall, sir. 41

On re-direct examination, he further fumbled:chanrob1es virtual 1aw library

Q: During the cross-examination, you stated that after hitting Ernesto de Guzman, Sr. on his leg, you could no
longer recall how many times you hacked the said victim, is that correct?

A: Yes, sir.

Q: Kindly tell us why you could no longer recall how many times did you hack him?

A: Because after hacking him at the second time, as if I have a blank mind because what I knew is that I am going to
die, sir. 42

Appellant Nestor’s defense is not only inherently weak but it is countervailed by the physical evidence presented by
the prosecution. The Autopsy Report shows that the victim sustained four incised wounds located on the right
shoulder, right upper arm, below the left breast and right thigh, three lacerated wounds on right wrist, right back, and
right leg, and another three lacerated wounds on the occiput region of the head. If appellant Nestor’s claim that
unlawful aggression came from Ernesto is true, the wounds sustained by the victim prove that he did not stop
hacking the victim after he (appellant) had rendered Ernesto helpless when the latter fell as a result of the second
hacking in which case his claim of self-defense must fail. The nature, number and location of the wounds sustained

91
by the victim belie the assertion of self-defense since the gravity of said wounds is indicative of a determined effort
to kill and not just to defend. 43 A person making a defense has no more right to attack an aggression when the
unlawful aggression has ceased. 44

Likewise, the infliction of incised and lacerated wounds on the victim prove that two weapons were used thus
demolishing appellant Nestor’s testimony that he alone hacked the victim. Self-defense is unavailing to an accused
where the nature of the injuries sustained by the victim ineluctably shows that the latter was attacked by several
assailants armed with weapons of various kinds used not by the former alone. 45 The incised and lacerated wounds
readily show that two weapons were used in killing the victim which in turn confirm the testimonies of Lita and
Ernesto, Jr. that Nestor and Cosme hacked Ernesto.

Moreover, the fact that appellant Nestor sustained a 4 cm. wound on the left temporal area and 3 cm. wound on the
occipital area which took only forty five minutes to treat 46 does not necessarily support his claim that he acted in
self-defense. The mere fact that an accused was wounded would not necessarily mean that he acted in self-defense
or that he was not the aggressor. 47

Considering the foregoing and the positive testimonies of Lita and Ernesto, Jr. identifying the three appellants as the
assailants of the victim, we agree with the trial court in not giving credence to appellant Nestor’s declaration that he
killed the victim in self-defense and that appellants Cosme and Palis were not with him when Ernesto was hacked to
death.

On the third issue: Appellants Cosme and Palis deny that they participated in the hacking but insist on the alibi that
they were in the house of Doro Bombongan playing tong-it from 9:00 in the morning until 2:30 in the afternoon of
December 3, 1993. For alibi to prosper, however, it is not enough for the accused to prove that he was elsewhere
when the crime was committed, but he must also show that it was physically impossible for him to have been at the
scene of the crime at the time of its commission. 48 As an element of a credible alibi, 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. 49

In the case at bar, although appellants Cosme and Palis claim that they were playing cards in a friend’s house at the
time of the commission of the crime, they failed to show that it was physically impossible for them to have been at
the victim’s house at the time Ernesto was hacked. Appellant Cosme himself admitted that the house of Doro
Bombongan is located at Sitio Nabetangan, the same place where the victim resided and was hacked to death. 50
They could have easily left and proceeded to the house of Ernesto and then went back to Doro’s house. Thus, in the
light of the positive identification of appellants as the perpetrators of the crime, their defense of denial and alibi
cannot be sustained. 51

As to the fourth issue: We find that the trial court did not err in ruling that there was conspiracy among the three
appellants in the commission of the crime of Murder. The elements of conspiracy are: (1) two or more persons came
to an agreement; (2) the agreement concerned the commission of a felony; and (3) the execution of the felony was
decided upon. 52 For the prosecution to establish conspiracy, we considered the following rules:chanrob1es virtual
1aw library

1. The well-settled rule is that conspiracy must be proven as clearly as the commission of the offense itself. 53

2. Proof of previous agreement among the malefactors to commit the crime would be unnecessary to establish
conspiracy when by their overt acts it would be deduced that they conducted themselves in concert with one another
in pursuing their unlawful design. 54

3. Conspiracy may be inferred from the acts of the accused before, during and after the crime, which are indicative
of a joint purpose, concerted action and concurrence of sentiments. 55

The prosecution has established beyond reasonable doubt that the appellants were in conspiracy in killing the victim.
Based on the positive and convincing testimonies of Lita and Ernesto, Jr., the prosecution had established that all
three appellants entered the house of Ernesto unannounced, without prior permission. With the use of bolos,
appellants Nestor and Cosme went to the sleeping Ernesto and hacked him repeatedly and mercilessly while

92
appellant Palis watched and stood by the door of the house; after which, all three of them left Ernesto’s house and
together, rode in a jeepney. The rule is that when the defendants by their acts aimed at the same object, one
performing one part and the other performing another part so as to complete it, with a view to the attainment of the
same object, and their acts, though apparently independent, were in fact concerted and cooperative, indicating
closeness of personal association, concerted action and concurrence of sentiments, the court will be justified in
concluding that said defendants were engaged in a conspiracy. 56 Appellants performed specific acts with such
closeness and coordination as unmistakably to indicate a common purpose or design in bringing about the crime is
clear. Cosme and Nestor delivered the hack blows upon the victim while Palis placed himself by the door of the
house. The fact that Palis did not hack the victim does not negate his participation in the conspiracy. His act of
barging into the house of Ernesto with appellants Nestor and Cosme who were armed with bolos and standing by the
door while his two companions hack Ernesto to death was a willful act or an act of complicity showing unity of
purpose and design to kill Ernesto. There exists no doubt that there was conspiracy among appellants Nestor, Cosme
and Palis. It is not necessary that all the participants deliver the fatal blow, as the act of one is the act of all. 57

However, under the facts of the case, we deem it necessary that we distinguish the nature of the participation of
appellants Nestor, Cosme and Palis.

Article 17 of the Revised Penal Code provides:chanrob1es virtual 1aw library

Art. 17. Principals. — The following are considered principals:chanrob1es virtual 1aw library

1. Those who take a direct part in the execution of the act.

2. Those who directly force or induce others to commit it.

3. Those who cooperate in the commission of the offense by another act without which it would not have been
accomplished.

Thus, in the commission of a crime by two or more persons, those who take direct participation are principals by
direct participation under paragraph 1 above; those who directly force or induce others to commit the crime are
principals by induction under paragraph 2 above; while those who cooperate in the commission of the crime by
another act without which the commission of the offense would not have been accomplished are principals by
indispensable cooperation under paragraph 3 of Article 17 as above-quoted.chanrob1es virtua1 1aw 1ibrary

In the present case, it is clear that appellants Nestor and Cosme are principals by direct participation. Both of them
with the same purpose and design hacked Ernesto repeatedly to kill the victim.

The question is: What is the nature of participation of appellant Palis? It is an established fact borne by the
prosecution evidence that the three appellants went inside the house of Ernesto without prior notice or permission
from the occupants of the house; that appellant Palis merely stood by the door of the house while his co-appellants
hacked Ernesto to death; that he left the scene of the crime together with the other appellants; and that they were
altogether found riding in a jeepney and arrested by the police. That Palis just stood by the door without saying
anything cannot therefore be considered as a mere passive presence that would have negated his participation as a
conspirator. However, there are no other facts established by the prosecution that would prove beyond reasonable
doubt that appellant Palis committed acts in the killing of Ernesto that would categorize him as a principal by
induction, by direct participation or by indispensable cooperation. What is certain from the facts established by the
prosecution, is that he had the same purpose and design as the other appellants as shown by the fact that he went
inside the house of the victim, uninvited and unannounced together with his co-appellants Nestor and Cosme who
were armed with bolos; and that after the hacking, he left the house together with appellants Nestor and Cosme and
rode a jeepney together.

In such case, we apply our ruling in People v. Ubiña where we held that when an accused does not fall under any of
the three concepts defined in Article 17 of the Revised Penal Code, he may only be considered guilty as an
accomplice. 58

Before the Court proceeds to resolve the fifth issue, it is necessary that the Court should pass upon the question

93
whether or not appellants are guilty of treachery and abuse of superior strength.

We hold that the killing of Ernesto was attended by treachery. There is treachery when the offender commits any of
the crimes against person, employing means, methods, or forms in the execution thereof which tend directly and
especially to ensure its execution without risk to himself arising from the defense which the offended party might
make. 59 Two elements must therefore concur: (1) the means of execution employed gives the person attacked no
opportunity to defend himself or retaliate; and (2) the means of execution was deliberately or consciously adopted.
60

The essence of treachery is a swift and unexpected attack on an unarmed victim without the slightest provocation on
his part. 61

The victim in this case was caught by surprise when the assailants suddenly entered his house and attacked him
while he was asleep. Thus, he had no chance to fight back or defend himself. The number of the victim’s wounds
and his relative position when found dead by the police emphasized further the existence of treachery. 62 The victim
was hacked in the occiput region of his head, on the shoulder, arm, chest, thigh, leg and at the back. The means,
method and form of the attack in this case were, therefore, consciously adopted and effectively prevented the victim
from employing a defense against his attackers.

The attendant circumstance of treachery qualified the killing to murder as defined in paragraph 1 of Article 248 of
the Revised Penal Code.

In determining the proper penalty to be imposed, the next step is to determine the presence of any aggravating or
mitigating circumstance. Since treachery attended the killing, abuse of superior strength alleged in the Information is
absorbed by said circumstance. 63 The Court finds no other aggravating circumstance that was alleged in the
Information and proven by the prosecution.

We come now to the fifth issue: whether or not the trial court erred in refusing to consider the mitigating
circumstance of voluntary surrender in favor of the appellants. The answer is in the negative. To benefit an accused,
the following requisites must be proven: (1) the offender has not actually been arrested; (2) the offender surrendered
himself to a person in authority; and (3) the surrender was voluntary. 64 A surrender to be voluntary must be
spontaneous, showing the intent of the accused to submit himself unconditionally to the authorities, either because
he acknowledges his guilt, or he wishes to save them the trouble and expense necessarily incurred in his search and
capture. The jeep in which the appellants were riding was flagged down by SPO4 de la Cruz. 65 The fact alone that
they did not resist but went peacefully although reluctantly with the police officer does not mean that they
voluntarily surrendered. 66

At the time of the commission of the crime on December 3, 1993, Article 248 of the Revised Penal Code provided
that the penalty for murder is reclusion temporal in its maximum period to death. 67 Considering that the crime was
not attended either by aggravating or mitigating circumstance, the penalty to be imposed against the appellants
Carriaga brothers, as principals by participation, should be reclusion perpetua, pursuant to Art. 64 (1) of the Revised
Penal Code; 68 while pursuant to Articles 52, 64 (1) and 77 of the same Code, the imposable penalty against
appellant Palis, as an accomplice, is prision mayor in its maximum period to reclusion temporal in its medium
period, or 10 years and 1 day to 17 years and 4 months. Applying the Indeterminate Sentence Law, and in the
absence of aggravating or mitigating circumstance, the minimum imposable penalty is the period anywhere from 6
years, 1 month and 11 days to 8 years and 20 days of prision mayor, to the period anywhere from 12 years, 5 months
and 11 days to 14 years, 10 months and 20 days of reclusion temporal, as the maximum imposable penalty.

We now consider the civil liability of appellants. Jurisprudence dictates that appellants should be ordered to pay his
legal heirs the amount of P50,000.00 as indemnity 69 for the death of Ernesto de Guzman.

In addition to the civil indemnity, the heirs of the deceased are entitled to moral damages. Lita de Guzman testified
that the death of her husband caused her sadness, fright and sleepless nights. 70 Recent jurisprudence fixes the
award of moral damages at P50,000.00 71 and therefore the amount of P100,000.00 must accordingly be reduced.

The crime was committed in the dwelling of the victim. Dwelling, although proven, could not aggravate the crime

94
because said circumstance was not alleged in the Information in violation of Section 8, Rule 110 of the Revised
Rules of Criminal Procedure. 72 However, insofar as the civil aspect of the case is concerned, the presence of this
aggravating circumstance entitles the heirs of the victim to exemplary damages in the amount of P20,000.00. 73

For actual damages, the prosecution was able to prove only the amount of P12,439.00 covering funeral and burial
expenses (Exhs. B to B-3) and not P49,713.75 as found by the trial court. The electric bills, food for the 9 and 40
days of prayer and other miscellaneous expenses were not proven by competent evidence. However, recent
jurisprudence allows the award of temperate damages instead of actual damages in the amount of P25,000.00 where
the prosecution was not able to prove all the expenses incurred by the heirs of the victim by reason of his death. 74

Although the amount of P100,000.00 for loss of income awarded by the trial court in favor of the heirs of the victim
was not assailed by appellants, the amount awarded would have to be modified pursuant to the formula followed in
People v. Napalit, 75 to wit:chanrob1es virtual 1aw library

Net earning capacity = 2/3 x (80-age of the x a reasonable portion

victim at the time of of the annual net

his death) income which

would have been

received by the

heirs for support

In the absence of proof of living expenses, the net income is deemed to be 50% of the gross income. 76

In the case at bar, Ernesto was 42 years old at the time of his death. 77 His wife testified that he earns P4,000.00 a
month as a bulldozer operator and that he works for nine months in a year, 78 amounting to an annual income of
P36,000.00. Thus, by reason of the death of the victim, the heirs should be awarded the amount of P456,000.00 for
loss of earning capacity, computed as follows:chanrob1es virtual 1aw library

Net earning capacity = 2/3 x (80-42) x [P36,000.00-1/2 (P18,000.00)]

= 2/3 x (38) x P18,000.00

= 25.3333333 x P18,000.00

= P455,999.999 79

The total amount of the civil damages is P601,000.00. Under Articles 109 and 110 of the Revised Penal Code, 80 to
wit:chanrob1es virtual 1aw library

Art. 109. Share of each person civilly liable. — If there are two or more persons civilly liable for a felony, the courts
shall determine the amount for which each must respond.

Art. 110. Several and subsidiary liability of principals, accomplices, and accessories of felony — Preference in
payment. — Notwithstanding the provisions of the next preceding article, the principals, accomplices, and
accessories, each within their respective class, shall be liable severally (in solidum) among themselves for their
quotas, and subsidiarily for those of the other persons liable.

The subsidiary liability shall be enforced, first against the property of the principals; next, against that of the
accomplices; and lastly, against that of the accessories.

Whenever the liability in solidum or the subsidiary liability has been enforced, the person by whom payment has

95
been made shall have a right of action against the others for the amount of their respective shares.

appellants Carriaga brothers as principals should be held liable in solidum for the amount of P500,000.00 and
appellant Palis, as an accomplice, should be held primarily liable for the amount of P101,000.00. The subsidiary
liability of all of the appellants shall be enforced in accordance with the above-quoted provisions of Article 110.

WHEREFORE, the decision of the Regional Trial Court of Bambang, Nueva Vizcaya (Branch 30) in Criminal Case
No. 755 is AFFIRMED with the following MODIFICATIONS: Nestor Carriaga and Cosme Carriaga are found
GUILTY of the Crime of MURDER beyond reasonable doubt as principals and each of them are sentenced to suffer
the penalty of RECLUSION PERPETUA with all the accessory penalties appurtenant thereto. Ben Palis is found
GUILTY beyond reasonable doubt of the crime of Murder as an accomplice and sentenced to suffer imprisonment,
after applying the Indeterminate Sentence Law and in the absence of any aggravating or mitigating circumstance, for
a period of 6 years, 1 month and 11 days of prision mayor as the MINIMUM to 12 years, 5 months and 11 days of
reclusion temporal as the MAXIMUM.

As to the civil aspect of the case: Appellants are ordered to pay the heirs of Ernesto de Guzman the total amount of
Six Hundred and One Thousand Pesos (P601,000.00) broken down as follows: Fifty Thousand Pesos (P50,000.00)
as civil indemnity for the victim’s death; Twenty-Five Thousand Pesos (P25,000.00) as temperate damages; Fifty
Thousand Pesos (P50,000.00) as moral damages; Twenty Thousand Pesos (P20,000.00) as exemplary damages; and
Four Hundred Fifty-Six Thousand Pesos (P456,000.00) for loss of income of the deceased victim.

Appellants Nestor and Cosme Carriaga, as principals shall be primarily liable and in solidum among themselves in
the amount of Five Hundred Thousand Pesos (P500,000.00) while appellant Ben Palis is primarily liable in the
amount of One Hundred and One Thousand Pesos (P101,000.00). The subsidiary liability of all of them shall be
enforced in accordance with Article 110 of the Revised Penal Code.chanrob1es virtua1 1aw 1ibrary

No pronouncement as to costs.

SO ORDERED.

Bellosillo, Quisumbing, Callejo, Sr. and Tinga, JJ., concur.

96
PP vs. Tolentino GR No. 139179, April 3, 2002

THIRD DIVISION

G.R. No. 139179      April 3, 2002

PEOPLE OF THE PHILIPPINES, appellee,

vs.
WILFREDO TOLENTINO Y ESPERAT and JONATHAN FABROS Y CASTRO, accused,
JONATHAN FABROS Y CASTRO, appellant.

PANGANIBAN, J.:

An appeal in a criminal case opens the entire records to review. The appellate court may pass upon every
circumstance favorable to the accused. In the present case, the prosecution failed to prove the existence of
conspiracy beyond reasonable doubt. Neither was it able to show that appellant was an accomplice or accessory.
Hence, he must be acquitted on reasonable ground.

The Case

Jonathan Fabros y Castro appeals the May 27, 1999 Decision1 of the Regional Trial Court (RTC) of Zamboanga
City (Branch 17) in Criminal Case No. 13698, finding him guilty of murder and sentencing him to reclusion
perpetua. The dispositive portion of the Decision reads as follows:

"WHEREFORE, finding the accused Wilfredo Tolentino and Jonathan Fabros guilty beyond reasonable
doubt of the crime of murder, and taking into consideration the aggravating circumstance of dwelling
(morada) without any mitigating circumstance to offset the same, the Court hereby sentences the above-
named accused separately to suffer the penalty of [r]eclusion [p]erpetua, to pay separately the heirs of the
victim the sum of P50,000.00 as moral damages, the sum of P50,000.00 as exemplary damages, and to
indemnify the said heirs [in] the sum of P15,000.00 as actual damages, and to pay the costs."2

The Information, dated March 2, 1996, charged appellant as follows:

"That on or about February 28, 1996, in the City of Zamboanga, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, armed with a piece of wood and knife, conspiring and
confederating together, mutually aiding and assisting with one another, by means of treachery and evident
premeditation and with intent to kill, did then and there without any warning, assault, attack and stab with
the use of said weapons that they were armed with, at the person of HERNAN SAGARIO y CUESTA,
thereby inflicting mortal wounds on the different parts of the latter's body which directly caused his death,
to the damage and prejudice of the heirs of said victim.

"That the commission of the above-stated offense has been attended by the following aggravating
circumstances, to wit:

97
 1. Abuse of superior strength; and

2. Dwelling."3

With the assistance of counsel,4 appellant pleaded not guilty when arraigned on June 7, 1996.5 After due trial, the
RTC rendered the assailed Decision.

The Facts

Version of the Prosecution

The prosecution's version of the facts is summarized by the Office of the Solicitor General as follows:6

"On February 28, 1996 around 7:30 in the evening, appellant and his cousins, Sheila Guilayan and Merwin
Ledesma, were at their house in Luyahan, Pasonanca, Zamboanga City when their neighbor Wilfredo
Tolentino called them. When asked what was it all about, Wilfredo simply motioned to them to come to his
house located just across the road. Once they were inside the house, Wilfredo immediately revealed his
plan to kill Hernan Sagario, Sheila's stepfather. Wilfredo explained that it was the only way to free Sheila's
mother - appellant's aunt - of the sufferings being caused by Hernan. Wilfredo then instructed Merwin to go
back to the house and get the bolo of Hernan. Merwin obliged, got the bolo, and gave it to Wilfredo.
Thereafter, they were told by Wilfredo to go home and wait for Hernan.1âwphi1.nêt

"Around 8:30 in the evening, Hernan arrived. He went directly to the kitchen and fixed the bag of rice he
was carrying. Meanwhile, appellant, together with Sheila and Merwin, just stayed quiet in the living room.
Moments later, Wilfredo with a 2"x2" piece of wood in his hand entered the house. He then followed
Hernan towards the kitchen. When about an armslength away from Hernan, Wilfredo, without saying a
word, immediately walloped Hernan on the right side of the neck sending the latter unconscious and falling
face down to the ground. Wilfredo immediately instructed appellant and Merwin to help him bring Hernan
out of the house. Lifting Hernan out of the house, Wilfredo held him by the neck while both appellant and
Merwin grasped his feet. They then carried Hernan towards the creek about seven meters away from the
house.

"Upon reaching the creekside, the three stopped and moved closer to the water. At this juncture, Wilfredo
successively stabbed Hernan on different parts of the body causing the latter's instant death. After throwing
the victim's lifeless body in the creek, the three immediately left.

"The post-mortem examination on the victim's cadaver disclosed that the cause of his death was cardio-
respiratory arrest due to shock and hemorrhage secondary to [a] stab wound penetrating the chest."
(Citations omitted)

Version of the Defense

Appellant, on the other hand, presented the following version of the facts:7

"Accused Jonathan Fabros and Wilfredo Tolentino both denied killing the victim. Instead, they pointed to
each other as the one who killed Hernan Sagario. Fabros pointed to Tolentino as the assailant and the latter
also fingered the former as the killer of Sagario.

"Relying on his lone testimony and corroborating the testimony of prosecution witness Sheila Guilayan,
accused Fabros narrated that he is a resident of Luyuhan, Pasonanca, particularly in the house of his auntie
Amparo Guilayan (the common-law wife of Hernan Sagario), together with his cousins Merwin Ledesma
and Sheila Guilayan.

98
"On 28 February 1996, at around 7:00 p.m., he returned home to Luyahan after his work at Astoria Hotel as
a waiter. Sheila was at home when he arrived. Shortly thereafter, their neighbor, accused Tolentino, came
over and called for Sheila. Sh[ei]la stood up and went to the house of Tolentino, leaving behind Fabros and
Merwin Ledesma. After a while, he and Ledesma heard Sheila crying and the two went to the house of
Tolentino. At the house of Tolentino, Fabros and Ledesma asked Sheila why she cried. [She] disclosed
Tolentino's plan to kill her stepfather Hernan Sagario. When asked for his motive to kill Hernan Sagario,
Tolentino merely reasoned that he just wanted to help their auntie Amparo get rid of her problems. When
they expressed apprehension [about] being implicated and tried to prevent Tolentino from pursuing his
plan, the latter told them not to worry; for he will take care.

"When Tolentino saw their uncle Hernan coming towards the house, he ordered them to go home and they
obeyed. As he arrived, Hernan ordered Fabros to boil water. Afterwards, Hernan went out of the house to
buy Ovaltine. When Hernan returned, Tolentino approached him and they talked for about two minutes.
Afterwards, Tolentino went to his house while their uncle Hernan told him (Fabros) to check if the water
was already boiling. Jonathan went to the kitchen while their uncle placed the rice he brought in a
container. At that instance, Jonathan heard the sound 'pok', and saw Tolentino holding a piece of wood (2"
x 2"). Then, he saw his uncle f[a]ll down slowly, his chest hitting the corner edge of a table. Tolentino
approached his uncle and kicked him. Then he ordered Fabros to come near him and carry Hernan by his
feet. Afraid that Tolentino will hit him with the piece of wood, Fabros held his uncle by the feet while
Tolentino pulled Hernan by the shirt and he just followed Tolentino. Tolentino brought Hernan near the
river. When Jonathan noticed that his uncle regained consciousness, he ran away towards a banana
plantation and from there he saw Tolentino [stab] Sagario on the chest. After stabbing the victim, Tolentino
pushed and waded him into the water. Scared, Jonathan ran home. About twenty minutes later, Tolentino
arrived and with thumbs up sign, he said, 'Okey na!'. Jonathan also observed that there was blood on the
shoulder of Tolentino. The latter then called the three (3) and warned them that if they will tell other
people, he will kill them. Out of fear, they just followed whatever Tolentino told them.

"By reason of fear of Tolentino's threat, Jonathan told the police that he did not know what happened. On
01 March 1996, however, he was arrested for the death of Hernan Sagario on account of an information
received by the police identifying him as the assailant. He was brought to the Sta. Maria Police Station and
thereat he was told by the police that if he will not admit, they will show him the witness, which the police
later did by showing to him his co-accused Tolentino. On seeing Tolentino, he declared that he (Tolentino)
was the one who killed the victim.

"However, on 14 July 2000, long after the trial court's decision had become final and executory on his part,
Wilfredo Tolentino, apparently conscience-stricken, executed an affidavit admitting sole responsibility for
the death of Hernan Sagario and retracted his testimony implicating accused-appellant Jonathan Fabros. His
affidavit is herein reproduced as follows:

'I, WILFREDO TOLENTINO y ESPERAT, 65 years old, widower, Filipino, a convicted prisoner
with the San Ramon Prison and Penal Farm in Zamboanga City, after having been duly sworn to
in accordance with law hereby depose and state:

'That I was convicted for the crime of Murder in Criminal Case No. 13698 entitled 'The People of
the Philippines, Plaintiff, versus, Wilfredo Tolentino y Esperat and Jonathan Fabros y Castro,
accused,' which Decision was promulgated on May 30, 1999 and ha[s] become final;

'That of the four years I have been in prison, I have contemplated on the consequences of my acts
and have been conscience stricken causing me sleepless nights and deep pity [for] my co-accused
Jonathan Fabros whom I have wrongfully imputed to be the killer of the victim Hernan Sagario y
Cuesta. As he appealed the Decision, [maybe] I still have the chance to rectify the wrong I have
done to him and tell the Honorable Court what actually happened [o]n the night of February 28,
1996, as hereunder narrated;

99
 'That I had known Hernan Sagario earlier in 1994 when he was still a security guard and he
attempted to shoot me with his service firearm and although we had amicably settled the matter
between us, when he came to be my neighbor, I would remember that incident and my old grudge
against him would be rekindled;

'That earlier that night of February 28, 1996, I came home quite drunk [after] my drinking spree
with my relatives across the river and one of the topics we discussed was about the incident when
Hernan Sagario attempted to shoot me. As I recalled that incident, my old grudge against him
resurfaced and I resolved right then and there to take my revenge on Hernan. So when he came
home and he was in the kitchen, I took hold of a piece of wood and hit him with it and when he
fell down unconscious, I dragged his body outside of the house, ordering Jonathan Fabros who
was then in the kitchen to help me carry the body of Hernan outside or else he would also become
my victim. Jonathan unwillingly assisted me carry the body of Hernan outside and upon my
direction, we dragged the body of Hernan towards the river where to finish him off, I stabbed
[him] in the chest and pushed him down into the water to hide his body. For his part, Jonathan left
me when the body reached the river;

'That after [the] killing, I threatened Jonathan Fabros, Neneng (the daughter of Hernan's live-in-
partner) and Weng-weng, a cousin of Neneng and Jonathan[,] never to report the incident to any
one or else they could become my next victim;

'That during the investigation of the killing, I pointed to Jonathan as the killer of Hernan, thinking
that I would not be implicated. Even when I was also charged for the killing, I was confident that I
would be acquitted if I would point to Jonathan as the killer. During the trial of the case, I bribed
Jonathan and even gave P20,000.00 to a middle man to effect the pay off but Jonathan returned the
money to me saying he could not admit what he did not commit;

'That my conscience ha[d] been greatly troubled by denying Jonathan his future by [my] own evil
acts and by this affidavit hopes to correct the wrongs I had done to Jonathan Fabros;

'That I am executing this affidavit [to] attest to the truth of the foregoing narration of facts and to
appeal to the Court authorities to rectify the wrongs I had done to Jonathan Fabros and I am
willing to testify in court o[n] these statements narrated.'"

Ruling of the Trial Court

The trial court held that the prosecution's evidence positively identified Wilfredo Tolentino as the person who had
hit the victim with a piece of wood and later stabbed him with a bolo. It also ruled that the killing was qualified by
treachery and attended by the aggravating circumstance of dwelling.

The court a quo observed that overt and positive acts of appellant manifested his approval of the killing and the
concurrence of his acts with those of the other accused.8 Thus, the RTC concluded that Fabros was a co-conspirator
and should be held equally responsible for the murder.

Hence, this appeal.9

The Issue

In his Brief, appellant assigns the following alleged errors for our consideration:

100
 "The Court a quo gravely erred in convicting herein Accused-appellant Jonathan Fabros of the crime
charged notwithstanding the categorical statement of Prosecution Witness Sheila Guilayan that it was
Accused Wilfredo Tolentino who actually killed the victim, Hernan Sagario.

II

"The Court a quo gravely erred in convicting accused-appellant notwithstanding Wilfredo Tolentino's
categorical admission of guilt [of] the crime charged."10

The errors boil down to the sufficiency of the prosecution evidence.

This Court's Ruling

The appeal is meritorious; appellant should be acquitted.

Main Issue:

Sufficiency of Prosecution Evidence

The RTC held that the assistance of appellant in bringing the body of the victim from the house to the river bank
where the latter was allegedly stabbed to death positively showed that the former had conspired in the commission
of the crime.11 In its abbreviated nine-page Brief, the Office of the Solicitor General agrees that conspiracy has
been duly proven. On the other hand, appellant argues that his "fleeting participation" in helping carry the victim's
body to the river bank did not indicate unity of purpose or design. We agree with him.

An appeal in a criminal action opens the whole case to review. This implies that the Court may pass upon every
circumstance favorable to the accused. In People v. Manambit,12 the Court explained thus:

"Indeed, the Supreme Court is clothed with ample authority to review matters, even those not raised on
appeal, if it finds that their consideration is necessary in arriving at a just disposition of the case. It is a
matter of justice that the two other appellants be exonerated of the charges. This we do because an appeal
in a criminal action opens the whole case for review and this includes the review of the penalty and
indemnity. Every circumstance in favor of the accused shall be considered."13

No Conspiracy

Even the Office of the Solicitor General admits that appellant did not directly kill the victim. It, however, urges us to
convict him on the basis of conspiracy.

In theory, conspiracy exists when two or more persons come to an agreement concerning the commission of a felony
and decide to commit it.14 To prove conspiracy, the prosecution must establish the following three requisites: (1)
two or more persons came to an agreement, (2) the agreement concerned the commission of a crime, and (3) the
execution of the felony was decided upon.15 Once conspiracy is established, the act of one becomes the act of all.16

Well-settled is the rule that the existence of conspiracy cannot be presumed.17 Quite the contrary, the evidence for it
must be shown beyond reasonable doubt.18 As this Court has repeatedly stated, criminal conspiracy must be
founded on facts, not on mere surmises or conjectures.19 Prior agreement or assent is usually inferred from the acts
of the accused showing concerted action, common design and objective, actual cooperation, and concurrence of
sentiments or community of interests.20 Mere presence at the scene of the crime or even knowledge of the plan or
acquiescence thereto are not sufficient grounds to hold a person liable as a conspirator.21 Therefore, the task in
every case is to determine whether the particular acts established by the requisite quantum of proof reasonably yield
that inference.22

101
In the case before us, we agree that the culpability of Tolentino was clearly established, but we are also convinced
that the evidence fails to show the culpability of appellant beyond reasonable doubt.23 Because, unquestionably, the
latter did not personally inflict any of the fatal flows, he can be held liable as a principal, only if conspiracy is
proven.24 To recall, Sheila Guilayan, the prosecution eyewitness, narrated the circumstances surrounding the killing
of Hernan Sagario as follows:

"Q       On February 28, this year, 1996, at around 7:30 o'clock in the evening, can you still remember
where were you?

A       Yes, I could still remember, I was in our house.

Q       You were in your house, are you referring to your house in Pasonanca, Luyahan?

A       Yes.

Q       Can you also remember who were with you in that evening of February 28, 1996 in your house at
Pasonanca, Luyahan?

A       Yes, I can still remember, my companions were Jonathan Fabros and Melwin Ledesma.

x x x      x x x      x x x

Q       And you said while you were in the sala sitting down, writing, there was an incident that transpired,
will you please tell us what transpired?

ATTY. JIMENEZ:

That will ask for narration, what transpired?

COURT:

Be more specific on that.

PROSECUTOR ORILLO:

Q       What happened?

A       I was called by Tolentino and he requested me to go to their house.

Q       You are referring to Wilfredo Tolentino?

ATTY. JIMENEZ:

Leading, Your Honor.

COURT:

Sustained.

PROSECUTOR ORILLO:

102
Q       What did you do after you were called by this Tolentino?

A       So I went with him to their house.

Q       Where is his house?

A       Just beside our house or near our house.

COURT:

Q       Where was Tolentino when he called you to go with him?

A       He was by the door of our house although he was still outside but he was at the door of our house
when he called me.

COURT:

Continue.

PROSECUTOR ORILLO:

Q       And you said you went with him to his house, now what happened there in his house?

A       There in their house he told me just to keep quiet because he [was] going to kill my step-father.

Q       And what did you do next after he told you about that?

A       After he told me that I cried and I told him not to do that because we will be implicated.

Q       What else did you do aside from crying and telling him not to do it because we will be implicated,
what else did you do?

A       Well, I just cried until my two cousins heard me and they, the two, also went to the house of
Tolentino.

Q       While your two cousins were already in the house of Tolentino, what happened next?

A       My cousins asked me why I was crying.

Q       And then?

A       They asked Tolentino why I was crying.

Q       What did you do next?

A       I just cried and kept on telling him not to do it because we will be implicated and also my mother
[was] not [t]here.

Q       And how about Tolentino, what did he do?

103
A       Well, he again told me just not to tell it to anybody because if I [was] going to tell it to anybody, he
will also kill us.

Q       How about your two cousins, what did they do?

A       My cousins also told him not to do it because they said they [were] the only persons [t]here and for
sure we will be implicated.

Q       And thereafter, what happened next?

A       Tolentino said he will just take care.

Q       So what happened next after that?

A       And then Tolentino asked Melwin Ledesma to get the bolo of my stepfather in our house.

Q       And what did your cousin Melwin Ledesma do after he was ordered by Tolentino to get the bolo?

A       Then Melwin Ledesma went to the house and got the bolo and brought the same to the house of
Tolentino.

Q       And after bringing the bolo to the house of Tolentino, what happened next?

A       Then when my step-father was on his way to our house, Tolentino told us to go home."25

"Q       What happened next after you said your step-father went out to buy ovaltine?

A       Then several minutes thereafter my stepfather again arrived in our house then he got inside the house
and he went directly to the kitchen.

Q       And what did your step-father do?

A       After that he transferred the rice he brought which was placed on a plastic cellophane to another
plastic container.

Q       And what else happened?

A       And then after that Tolentino entered our house and went directly to the kitchen and there he hit my
step-father.

Q       And what instrument did Tolentino use in hitting your step-father?

A       A piece of wood.

Q       Will you please describe this piece of wood?

A       A round piece of wood.

Q       How about the length of this piece of wood?

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A       (Witness extended her both hands to demonstrate the length which when measured gave us twenty
inches in length).

Q       You said it was a round piece of wood, can you more or less tell us the diameter of this piece of
wood?

A       (Witness again made a circle to demonstrate the diameter which [was] three and a half inches x x x).

PROSECUTOR ORILLO:

Q       And where was your step-father hit by that piece of wood used by Tolentino?

A       He was hit on the right side of his neck x x x extending to his right jaw.

Q       Will you please tell this Honorable Court your particular position when you saw Tolentino hit with
the piece of wood your step-father?

A       I was in a sitting position in the sala but you know in our house even if you are seated in the sala you
can see the kitchen from there.

Q       Before you saw that, where did Tolentino come from?

ATTY. JIMENEZ:

Witness is incompetent, Your Honor.

PROSECUTOR ORILLO:

If she knows, Your Honor.

ATTY. JIMENEZ:

She was seated in the sala, how can [she] know?

COURT:

According to her she went home and she was in the sala. If she went to the sala, probably she will
know. If she knows she may answer.

A I did not know where he came from but I just saw him getting inside our house and [going] directly to
the kitchen.

PROSECUTOR ORILLO:

Q       When you saw Tolentino hit your step-father, where was your step-father facing?

A       He was facing forward while Tolentino came from behind him.

Q       And what happened next after your step-father was hit by that piece of wood used by Tolentino?

105
A       After he was hit he fell [face] down x x x, he fell down first on the table and after that to the ground.
From the table he continued to fall to the ground.

Q       And while your step-father was already on the ground, what if any did Tolentino do?

A       Then when my step-father was already at the cemented pavement Tolentino stepped on his head
several times.

Q       And then what happened next?

A       After that I cried but he told me to keep quiet because if I [was] not going to keep quiet he will also
kill us.

Q       After that, what happened?

A       And then he asked my cousins to help him to bring the body of my step-father outside of the house.

Q       And then?

A       Then they brought my step-father outside of the house and Tolentino held him on the collar of his
shirt and my cousins held him on his feet.

Q       And while already outside the house, towards what direction did they bring your step-father?

ATTY. JIMENEZ:

Witness is incompetent, we object, Your Honor.

COURT:

Sustained.

PROSECUTOR ORILLO:

Q       What else happened after you saw your cousins Jonathan Fabros and Tolentino carrying your step-
father?

ATTY. FABIAN:

Objection, Your Honor, there was no mention of any Jonathan Fabros in her testimony.

COURT:

Cousin only.

ATTY. FABIAN:

Yes, Your Honor, cousin only, no mention of Jonathan Fabros.

COURT:

106
 I do not know if it was cousin or cousins.

ATTY. JIMENEZ:

I heard cousins, Your Honor.

COURT:

Cousins, with 'S'. She may answer. Yes, according to her it was only her cousins who were with
her.

ATTY. FABIAN:

I heard the name Jonathan Fabros being mentioned by the prosecution, Your Honor.

COURT:

That is why I told the prosecutor to change it to cousins.

ATTY. FABIAN:

Yes, Your Honor.

A       It was only Jonathan and Tolentino who carried him.

Q       So what happened next after you saw them carrying your step-father?

A       They brought my step-father to the creek.

Q       How far is this 'sapa' or creek from your house?

A       Maybe from here (witness again by the use of the witness stand as reference point, pointed to the
fourth bench from the front,) about 6.5 meters, because from the witness stand to the main door is measured
7.5 meters, so if it is from here, it is only 6.5 meters.

ATTY. JIMENEZ:

That is about 7 to 8 meters.

COURT:

That is about 7 meters already from the witness stand to the fourth bench, more or less 7 meters.

PROSECUTOR ORILLO:

Q       This 'sapa' or creek that you are referring to, please describe to this Honorable Court this creek which
according to you is only 7 meters more or less away from your house?

A       This is a wide creek.

Q       And what else did you see?

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A       Well, since it was clear from our house although I stayed inside our house and since the walling of
our house, the portion of this is made of screen, I saw Tolentino when they were carrying my step-father in
the act of stabbing my step-father (witness demonstrated as if she was holding something and thrust[ing it]
forward).

Q       What else did you see?

A       And then after that, I only saw Tolentino [place] the body of my step-father on the water and there I
did not see my cousin anymore.

Q       And then what transpired next?

A       Then a few minutes thereafter my cousin returned to the house.

Q       And what did you do when your cousin returned to the house?

A       And then when he arrived home I just cried and I told him, because his nickname is Nonong, so I
said: 'Nonong, we will be really implicated and he said nothing and instead he just went to his previous
position and sat down.

Q       How about the other cousin of yours Melwin Ledesma, where was he?

A       He was also beside me and he was embracing me from behind.

Q       What happened next?

A       Then another few minutes after, Tolentino arrived in our house.

Q       And when he arrived at your house, what did he do?

A       And then there inside our house he flashed a thumb's up and he said it is already okey.

Q       What else did he do?

A       Then he approached me and told me not to report [t]his incident because if I [was] going to report [it]
he [was] going to kill me.

Q       And that particular time when he arrived at your house, what if any did you notice from his person,
this Tolentino?

ATTY. JIMENEZ:

Leading, Your Honor.

COURT:

Sustained.

PROSECUTOR ORILLO:

What if any have you noticed from Tolentino?

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 COURT:

Will you please be more specific with your question.

PROSECUTOR ORILLO:

At the time when Tolentino arrived at your house and told you 'okey na', with thumb's up, that
particular time, what if any have you noticed on his person?

ATTY. JIMENEZ:

It is [a] very general question, Your Honor.

COURT:

Anything she noticed, she may answer.

A       I noticed that his shortpants was wet and there [were] bloodstains on his shirt."26

The above testimony shows that Tolentino attacked Hernan Sagario. The assault was carried out without the
participation of appellant,27 who did not personally hit or stab the victim, but only subsequently helped carry the
latter from the house to the nearby creek.28 Nothing in the testimony conveyed a coordinated action, concerted
purpose or community of design to commit the criminal act.29 It must be emphasized that Tolentino's plan to kill the
victim was concocted in the absence of appellant.30 The latter's participation, as shown by the foregoing testimony,
was made when the decision to kill was already a fait accompli.31

Further, conspiracy cannot be inferred from the overt acts of appellant.32 He did nothing to assist Tolentino in the
actual commission of the murder.33 Neither did the former bear any weapon, much less use one to inflict injury on
the victim.34 In fact, appellant, showing clearly his lack of support for the criminal intent of Tolentino, even tried to
prevent the latter from hacking the victim, according to the eyewitness.35

Indeed, the trial court based its finding of conspiracy on mere presumptions, not on solid facts indubitably indicating
a common design to commit murder.36 Such suppositions do not constitute proof beyond reasonable doubt.37

Because of the lack of a united purpose, appellant cannot be considered a principal by indispensable cooperation.38
Absent a conspiracy, his responsibility, as well as that of his co-accused, is individual -- not collective -- and each is
to be punished only for his own separate acts.39

Not an Accomplice

Neither can appellant be convicted as an accomplice. Article 18 of the Revised Penal Code defines accomplices as
"those persons who, not being included in Article 17,40 cooperate in the execution of the offense by previous or
simultaneous acts." To be convicted as an accomplice, it is necessary that the accused be aware of the criminal intent
of the principal and then cooperate knowingly or intentionally by supplying material or moral aid for the efficacious
execution of the crime.41

To consider a person an accomplice in the commission of the offense, the following must concur: (1) community of
design -- knowing the criminal design of the principal by direct participation, one concurs therein; (b) cooperation in
the execution of the offense by previous or simultaneous acts, with the intention of supplying material and moral aid
in the execution of the crime in an efficacious way; and (c) a relation between the acts done by the principal and
those attributed to the person charged as accomplice.42

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To be deemed an accomplice, one needs to have had both knowledge of and participation in the criminal act.43 In
other words, the principal and the accomplice must have acted in conjunction and directed their efforts to the same
end.44 Thus, it is essential that both were united in their criminal design.45

In the case before us, appellant did not concur in or lend support to the nefarious intent of Tolentino.46 The mere
fact that the former had prior knowledge of the latter's criminal design did not automatically make him an
accomplice.47 This circumstance, by itself, did not show his concurrence in the principal's criminal intent.48

That appellant helped Tolentino carry the victim from the house to the creek did not necessarily demonstrate
concurrence of wills or unity of purpose or action.49 Quite the contrary, the former's attempt to dissuade the latter
from killing Sagario was attested to by the prosecution witness.50 With the nominal role appellant played in the
drama that had been thrust upon him, we cannot declare that he was an accomplice in the crime charged.51

Not an Accessory Either

Appellant cannot be convicted as an accessory either. Article 19 of the Revised Penal Code defines an accessory as
one who had knowledge of the commission of the crime and did not participate in its commission as principal or
accomplice, yet took part subsequent to its commission by any of three modes: (1) profiting oneself or assisting the
offender to profit by the effects of the crime; (2) concealing or destroying the body of the crime, or the effects or
instruments thereof, in order to prevent its discovery; and (3) harboring, concealing, or assisting in the escape of the
principals of the crime, provided the accessory acts with abuse of his public functions or when the offender is guilty
of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty
of some other crime. To convict an accused as an accessory, the following elements must be proven: (1) knowledge
of the commission of the crime and (2) subsequent participation in it by any of the three above-cited modes.52

Under paragraph 2 of said codal provision, the concealment or the destruction of the body of the crime or of the
effects or the instruments thereof must have been done in order to prevent the discovery of the crime.53 That,
precisely, is wanting in the present case.54

In his testimony,55 appellant stated that because he was afraid his co-accused would hurt him if he refused, he
agreed to assist the latter in carrying the victim towards the river. The fact that appellant left thereafter likewise
indicated his innocence of the charge.56 Verily, he adequately explained his conduct prior to the stabbing incident as
one born of fear for his own life.57 It is not incredible for an eyewitness to a crime, especially if unarmed, to desist
from assisting the victim if to do so would put the former's life in peril.58

Thus, in People v. Verzola,59 we explained as follows:

"x x x. It must be noted that Josefina testified that she helped her co-appellant bring the body of the deceased down the
stairs because of fear. Even if she assisted her co-appellant without duress, simply assisting Verzola in bringing the
body down the house to the foot of the stairs and leaving said body for anyone to see, cannot be classified as an attempt
to conceal or destroy the body of the crime, the effects or instruments thereof, must be done to prevent the discovery of
the crime."60

The presumption of innocence in favor of appellant has not been overcome by proof beyond reasonable doubt.61 Thus, he must
be acquitted.62

WHEREFORE, the appeal is GRANTED and the assailed Decision SET ASIDE. Appellant is ACQUITTED on reasonable
doubt. He is ordered RELEASED from custody immediately, unless legally held for another cause. In this regard, the director of
the Bureau of Corrections is directed to report to this Court his compliance with this Decision within five (5) days from receipt
hereof.

SO ORDERED.

Melo, Sandoval-Gutierrez, and Carpio, JJ., concur.

Vitug, J., abroad on official business.

110
Colinares vs People GR No. 182748, December 13, 2011

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 182748               December 13, 2011

ARNEL COLINARES, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

ABAD, J.:

This case is about a) the need, when invoking self-defense, to prove all that it takes; b) what distinguishes frustrated
homicide from attempted homicide; and c) when an accused who appeals may still apply for probation on remand of
the case to the trial court.

The Facts and the Case

The public prosecutor of Camarines Sur charged the accused Arnel Colinares (Arnel) with frustrated homicide
before the Regional Trial Court (RTC) of San Jose, Camarines Sur, in Criminal Case T-2213.1

Complainant Rufino P. Buena (Rufino) testified that at around 7:00 in the evening on June 25, 2000, he and Jesus
Paulite (Jesus) went out to buy cigarettes at a nearby store. On their way, Jesus took a leak by the roadside with
Rufino waiting nearby. From nowhere, Arnel sneaked behind and struck Rufino twice on the head with a huge stone,
about 15 ½ inches in diameter. Rufino fell unconscious as Jesus fled.

Ananias Jallores (Ananias) testified that he was walking home when he saw Rufino lying by the roadside. Ananias
tried to help but someone struck him with something hard on the right temple, knocking him out. He later learned
that Arnel had hit him.

Paciano Alano (Paciano) testified that he saw the whole incident since he happened to be smoking outside his house.
He sought the help of a barangay tanod and they brought Rufino to the hospital.

Dr. Albert Belleza issued a Medico-Legal Certificate2 showing that Rufino suffered two lacerated wounds on the
forehead, along the hairline area. The doctor testified that these injuries were serious and potentially fatal but Rufino
chose to go home after initial treatment.

The defense presented Arnel and Diomedes Paulite (Diomedes). Arnel claimed self-defense. He testified that he was
on his way home that evening when he met Rufino, Jesus, and Ananias who were all quite drunk. Arnel asked
Rufino where he supposed the Mayor of Tigaon was but, rather than reply, Rufino pushed him, causing his fall.
Jesus and Ananias then boxed Arnel several times on the back. Rufino tried to stab Arnel but missed. The latter
picked up a stone and, defending himself, struck Rufino on the head with it. When Ananias saw this, he charged
towards Arnel and tried to stab him with a gaff. Arnel was able to avoid the attack and hit Ananias with the same
stone. Arnel then fled and hid in his sister’s house. On September 4, 2000, he voluntarily surrendered at the Tigaon
Municipal Police Station.

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Diomedes testified that he, Rufino, Jesus, and Ananias attended a pre-wedding party on the night of the incident. His
three companions were all drunk. On his way home, Diomedes saw the three engaged in heated argument with
Arnel.

On July 1, 2005 the RTC rendered judgment, finding Arnel guilty beyond reasonable doubt of frustrated homicide
and sentenced him to suffer imprisonment from two years and four months of prision correccional, as minimum, to
six years and one day of prision mayor, as maximum. Since the maximum probationable imprisonment under the
law was only up to six years, Arnel did not qualify for probation.

Arnel appealed to the Court of Appeals (CA), invoking self-defense and, alternatively, seeking conviction for the
lesser crime of attempted homicide with the consequent reduction of the penalty imposed on him. The CA entirely
affirmed the RTC decision but deleted the award for lost income in the absence of evidence to support it. 3 Not
satisfied, Arnel comes to this Court on petition for review.

In the course of its deliberation on the case, the Court required Arnel and the Solicitor General to submit their
respective positions on whether or not, assuming Arnel committed only the lesser crime of attempted homicide with
its imposable penalty of imprisonment of four months of arresto mayor, as minimum, to two years and four months
of prision correccional, as maximum, he could still apply for probation upon remand of the case to the trial court.

Both complied with Arnel taking the position that he should be entitled to apply for probation in case the Court
metes out a new penalty on him that makes his offense probationable. The language and spirit of the probation law
warrants such a stand. The Solicitor General, on the other hand, argues that under the Probation Law no application
for probation can be entertained once the accused has perfected his appeal from the judgment of conviction.

The Issues Presented

The case essentially presents three issues:

1. Whether or not Arnel acted in self-defense when he struck Rufino on the head with a stone;

2. Assuming he did not act in self-defense, whether or not Arnel is guilty of frustrated homicide; and

3. Given a finding that Arnel is entitled to conviction for a lower offense and a reduced probationable
penalty, whether or not he may still apply for probation on remand of the case to the trial court.

The Court’s Rulings

One. Arnel claims that Rufino, Jesus, and Ananias attacked him first and that he merely acted in self-defense when
he hit Rufino back with a stone.

When the accused invokes self-defense, he bears the burden of showing that he was legally justified in killing the
victim or inflicting injury to him. The accused must establish the elements of self-defense by clear and convincing
evidence. When successful, the otherwise felonious deed would be excused, mainly predicated on the lack of
criminal intent of the accused.4

In homicide, whether consummated, frustrated, or attempted, self-defense requires (1) that the person whom the
offender killed or injured committed unlawful aggression; (2) that the offender employed means that is reasonably
necessary to prevent or repel the unlawful aggression; and (3) that the person defending himself did not act with
sufficient provocation.5

If the victim did not commit unlawful aggression against the accused, the latter has nothing to prevent or repel and
the other two requisites of self-defense would have no basis for being appreciated. Unlawful aggression

112
contemplates an actual, sudden, and unexpected attack or an imminent danger of such attack. A mere threatening or
intimidating attitude is not enough. The victim must attack the accused with actual physical force or with a weapon. 6

Here, the lower courts found that Arnel failed to prove the element of unlawful aggression. He alone testified that
Jesus and Ananias rained fist blows on him and that Rufino and Ananias tried to stab him. No one corroborated
Arnel’s testimony that it was Rufino who started it. Arnel’s only other witness, Diomedes, merely testified that he
saw those involved having a heated argument in the middle of the street. Arnel did not submit any medical
certificate to prove his point that he suffered injuries in the hands of Rufino and his companions.7

In contrast, the three witnesses—Jesus, Paciano, and Ananias—testified that Arnel was the aggressor. Although their
versions were mottled with inconsistencies, these do not detract from their core story. The witnesses were one in
what Arnel did and when and how he did it. Compared to Arnel’s testimony, the prosecution’s version is more
believable and consistent with reality, hence deserving credence.8

Two. But given that Arnel, the accused, was indeed the aggressor, would he be liable for frustrated homicide when
the wounds he inflicted on Rufino, his victim, were not fatal and could not have resulted in death as in fact it did
not?

The main element of attempted or frustrated homicide is the accused’s intent to take his victim’s life. The
prosecution has to prove this clearly and convincingly to exclude every possible doubt regarding homicidal intent. 9
And the intent to kill is often inferred from, among other things, the means the offender used and the nature,
location, and number of wounds he inflicted on his victim.10

Here, Arnel struck Rufino on the head with a huge stone. The blow was so forceful that it knocked Rufino out.
Considering the great size of his weapon, the impact it produced, and the location of the wounds that Arnel inflicted
on his victim, the Court is convinced that he intended to kill him.

The Court is inclined, however, to hold Arnel guilty only of attempted, not frustrated, homicide. In Palaganas v.
People,11 we ruled that when the accused intended to kill his victim, as shown by his use of a deadly weapon and the
wounds he inflicted, but the victim did not die because of timely medical assistance, the crime is frustrated murder
or frustrated homicide. If the victim’s wounds are not fatal, the crime is only attempted murder or attempted
homicide.

Thus, the prosecution must establish with certainty the nature, extent, depth, and severity of the victim’s wounds.
While Dr. Belleza testified that "head injuries are always very serious,"12 he could not categorically say that Rufino’s
wounds in this case were "fatal." Thus:

Q: Doctor, all the injuries in the head are fatal?

A: No, all traumatic injuries are potentially treated.

Q: But in the case of the victim when you treated him the wounds actually are not fatal on that very day?

A: I could not say, with the treatment we did, prevent from becoming fatal. But on that case the patient
preferred to go home at that time.

Q: The findings also indicated in the medical certificate only refers to the length of the wound not the depth
of the wound?

A: When you say lacerated wound, the entire length of the layer of scalp.

Q: So you could not find out any abrasion?

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A: It is different laceration and abrasion so once the skin is broken up the label of the frontal lo[b]e, we
always call it lacerated wound, but in that kind of wound, we did not measure the depth.13

Indeed, Rufino had two lacerations on his forehead but there was no indication that his skull incurred fracture or that
he bled internally as a result of the pounding of his head. The wounds were not so deep, they merely required
suturing, and were estimated to heal in seven or eight days. Dr. Belleza further testified:

Q: So, in the medical certificate the wounds will not require surgery?

A: Yes, Madam.

Q: The injuries are slight?

A: 7 to 8 days long, what we are looking is not much, we give antibiotics and antit[e]tanus – the problem the
contusion that occurred in the brain.

xxxx

Q: What medical intervention that you undertake?

A: We give antibiotics, Your Honor, antit[e]tanus and suturing the wounds.

Q: For how many days did he stay in the hospital?

A: Head injury at least be observed within 24 hours, but some of them would rather go home and then come
back.

Q: So the patient did not stay 24 hours in the hospital?

A: No, Your Honor.

Q: Did he come back to you after 24 hours?

A: I am not sure when he came back for follow-up.14

Taken in its entirety, there is a dearth of medical evidence on record to support the prosecution’s claim that Rufino
would have died without timely medical intervention. Thus, the Court finds Arnel liable only for attempted
homicide and entitled to the mitigating circumstance of voluntary surrender.

Three. Ordinarily, Arnel would no longer be entitled to apply for probation, he having appealed from the judgment
of the RTC convicting him for frustrated homicide.

But, the Court finds Arnel guilty only of the lesser crime of attempted homicide and holds that the maximum of the
penalty imposed on him should be lowered to imprisonment of four months of arresto mayor, as minimum, to two
years and four months of prision correccional, as maximum. With this new penalty, it would be but fair to allow him
the right to apply for probation upon remand of the case to the RTC.

Some in the Court disagrees. They contend that probation is a mere privilege granted by the state only to qualified
convicted offenders. Section 4 of the probation law (PD 968) provides: "That no application for probation shall be
entertained or granted if the defendant has perfected the appeal from the judgment of conviction."15 Since Arnel
appealed his conviction for frustrated homicide, he should be deemed permanently disqualified from applying for
probation.

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But, firstly, while it is true that probation is a mere privilege, the point is not that Arnel has the right to such
privilege; he certainly does not have. What he has is the right to apply for that privilege. The Court finds that his
maximum jail term should only be 2 years and 4 months. If the Court allows him to apply for probation because of
the lowered penalty, it is still up to the trial judge to decide whether or not to grant him the privilege of probation,
taking into account the full circumstances of his case.

Secondly, it is true that under the probation law the accused who appeals "from the judgment of conviction" is
disqualified from availing himself of the benefits of probation. But, as it happens, two judgments of conviction have
been meted out to Arnel: one, a conviction for frustrated homicide by the regional trial court, now set aside; and,
two, a conviction for attempted homicide by the Supreme Court.

If the Court chooses to go by the dissenting opinion’s hard position, it will apply the probation law on Arnel based
on the trial court’s annulled judgment against him. He will not be entitled to probation because of the severe penalty
that such judgment imposed on him. More, the Supreme Court’s judgment of conviction for a lesser offense and a
lighter penalty will also have to bend over to the trial court’s judgment—even if this has been found in error. And,
worse, Arnel will now also be made to pay for the trial court’s erroneous judgment with the forfeiture of his right to
apply for probation. Ang kabayo ang nagkasala, ang hagupit ay sa kalabaw (the horse errs, the carabao gets the
whip). Where is justice there?

The dissenting opinion also expresses apprehension that allowing Arnel to apply for probation would dilute the
ruling of this Court in Francisco v. Court of Appeals16 that the probation law requires that an accused must not have
appealed his conviction before he can avail himself of probation. But there is a huge difference between Francisco
and this case.

In Francisco, the Metropolitan Trial Court (MeTC) of Makati found the accused guilty of grave oral defamation and
sentenced him to a prison term of one year and one day to one year and eight months of prision correccional, a
clearly probationable penalty. Probation was his to ask! Still, he chose to appeal, seeking an acquittal, hence clearly
waiving his right to apply for probation. When the acquittal did not come, he wanted probation. The Court would
not of course let him. It served him right that he wanted to save his cake and eat it too. He certainly could not have
both appeal and probation.

The Probation Law, said the Court in Francisco, requires that an accused must not have appealed his conviction
before he can avail himself of probation. This requirement "outlaws the element of speculation on the part of the
accused—to wager on the result of his appeal—that when his conviction is finally affirmed on appeal, the moment
of truth well-nigh at hand, and the service of his sentence inevitable, he now applies for probation as an ‘escape
hatch’ thus rendering nugatory the appellate court’s affirmance of his conviction."17

Here, however, Arnel did not appeal from a judgment that would have allowed him to apply for probation. He did
not have a choice between appeal and probation. He was not in a position to say, "By taking this appeal, I choose not
to apply for probation." The stiff penalty that the trial court imposed on him denied him that choice. Thus, a ruling
that would allow Arnel to now seek probation under this Court’s greatly diminished penalty will not dilute the sound
ruling in Francisco. It remains that those who will appeal from judgments of conviction, when they have the option
to try for probation, forfeit their right to apply for that privilege.

Besides, in appealing his case, Arnel raised the issue of correctness of the penalty imposed on him. He claimed that
the evidence at best warranted his conviction only for attempted, not frustrated, homicide, which crime called for a
probationable penalty. In a way, therefore, Arnel sought from the beginning to bring down the penalty to the level
where the law would allow him to apply for probation.

In a real sense, the Court’s finding that Arnel was guilty, not of frustrated homicide, but only of attempted homicide,
is an original conviction that for the first time imposes on him a probationable penalty. Had the RTC done him right
from the start, it would have found him guilty of the correct offense and imposed on him the right penalty of two
years and four months maximum.lavvphil This would have afforded Arnel the right to apply for probation.

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The Probation Law never intended to deny an accused his right to probation through no fault of his. The underlying
philosophy of probation is one of liberality towards the accused. Such philosophy is not served by a harsh and
stringent interpretation of the statutory provisions.18 As Justice Vicente V. Mendoza said in his dissent in Francisco,
the Probation Law must not be regarded as a mere privilege to be given to the accused only where it clearly appears
he comes within its letter; to do so would be to disregard the teaching in many cases that the Probation Law should
be applied in favor of the accused not because it is a criminal law but to achieve its beneficent purpose. 19

One of those who dissent from this decision points out that allowing Arnel to apply for probation after he appealed
from the trial court’s judgment of conviction would not be consistent with the provision of Section 2 that the
probation law should be interpreted to "provide an opportunity for the reformation of a penitent offender." An
accused like Arnel who appeals from a judgment convicting him, it is claimed, shows no penitence.

This may be true if the trial court meted out to Arnel a correct judgment of conviction. Here, however, it convicted
Arnel of the wrong crime, frustrated homicide, that carried a penalty in excess of 6 years. How can the Court expect
him to feel penitent over a crime, which as the Court now finds, he did not commit? He only committed attempted
homicide with its maximum penalty of 2 years and 4 months.

Ironically, if the Court denies Arnel the right to apply for probation under the reduced penalty, it would be sending
him straight behind bars. It would be robbing him of the chance to instead undergo reformation as a penitent
offender, defeating the very purpose of the probation law.

At any rate, what is clear is that, had the RTC done what was right and imposed on Arnel the correct penalty of two
years and four months maximum, he would have had the right to apply for probation. No one could say with
certainty that he would have availed himself of the right had the RTC done right by him. The idea may not even
have crossed his mind precisely since the penalty he got was not probationable.

The question in this case is ultimately one of fairness. Is it fair to deny Arnel the right to apply for probation when
the new penalty that the Court imposes on him is, unlike the one erroneously imposed by the trial court, subject to
probation?

WHEREFORE, the Court PARTIALLY GRANTS the petition, MODIFIES the Decision dated July 31, 2007 of
the Court of Appeals in CA-G.R. CR 29639, FINDS petitioner Arnel Colinares GUILTY beyond reasonable doubt
of attempted homicide, and SENTENCES him to suffer an indeterminate penalty from four months of arresto
mayor, as minimum, to two years and four months of prision correccional, as maximum, and to pay Rufino P. Buena
the amount of ₱20,000.00 as moral damages, without prejudice to petitioner applying for probation within 15 days
from notice that the record of the case has been remanded for execution to the Regional Trial Court of San Jose,
Camarines Sur, in Criminal Case T-2213.

SO ORDERED.

ROBERTO A. ABAD
Associate Justice

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Estipona Jr. vs.Hon.Lobrigo GR No. 226679, August 15, 2017

EN BANC

August 15, 2017

G.R. No. 226679

SALVADOR ESTIPONA, JR. y ASUELA, Petitioner,

vs.
HON. FRANK E. LOBRIGO, Presiding Judge of the Regional Trial Court, Branch 3, Legazpi City, Albay,
and PEOPLE OF THE PHILIPPINES, Respondents.

DECISION

PERALTA, J.:

Challenged in this petition for certiorari and prohibition1 is the constitutionality of Section 23 of Republic Act
(R.A.) No. 9165, or the "Comprehensive Dangerous Drugs Act of 2002, "2 which provides:

SEC 23. Plea-Bargaining Provision. - Any person charged under any provision of this Act regardless of the
imposable penalty shall not be allowed to avail of the provision on plea-bargaining.3

The facts are not in dispute.

Petitioner Salvador A. Estipona, Jr. (Estipona) is the accused in Criminal Case No. 13586 for violation of Section
11, Article II of R.A. No. 9165 (Possession of Dangerous Drugs). The Information alleged:

That on or about the 21st day of March, 2016, in the City of Legazpi, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, not being lawfully authorized to possess or otherwise use any regulated
drug and without the corresponding license or prescription, did then and there, willfully, unlawfully and feloniously
have, in his possession and under his control and custody, one (1) piece heat-sealed transparent plastic sachet
marked as VOP 03/21/16- l G containing 0.084 [gram] of white crystalline substance, which when examined were
found to be positive for Methamphetamine Hydrocloride (Shabu), a dangerous drug.

CONTRARY TO LAW.4

On June 15, 2016, Estipona filed a Motion to Allow the Accused to Enter into a Plea Bargaining Agreement,5
praying to withdraw his not guilty plea and, instead, to enter a plea of guilty for violation of Section 12, Article II of
R.A. No. 9165 (Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs)
with a penalty of rehabilitation in view of his being a first-time offender and the minimal quantity of the dangerous
drug seized in his possession. He argued that Section 23 of R.A. No. 9165 violates: (1) the intent of the law
expressed in paragraph 3, Section 2 thereof; (2) the rule-making authority of the Supreme Court under Section 5(5),

117
Article VIII of the 1987 Constitution; and (3) the principle of separation of powers among the three equal branches
of the government.

In its Comment or Opposition6 dated June 27, 2016, the prosecution moved for the denial of the motion for being
contrary to Section 23 of R.A. No. 9165, which is said to be justified by the Congress' prerogative to choose which
offense it would allow plea bargaining. Later, in a Comment or Opposition7 dated June 29, 2016, it manifested that
it "is open to the Motion of the accused to enter into plea bargaining to give life to the intent of the law as provided
in paragraph 3, Section 2 of [R.A. No.] 9165, however, with the express mandate of Section 23 of [R.A. No.] 9165
prohibiting plea bargaining, [it] is left without any choice but to reject the proposal of the accused."

On July 12, 2016, respondent Judge Frank E. Lobrigo of the Regional Trial Court (RTC), Branch 3, Legazpi City,
Albay, issued an Order denying Estipona's motion. It was opined:

The accused posited in his motion that Sec. 23 of RA No. 9165, which prohibits plea bargaining, encroaches on the
exclusive constitutional power of the Supreme Court to promulgate rules of procedure because plea bargaining is a
"rule of procedure." Indeed, plea bargaining forms part of the Rules on Criminal Procedure, particularly under Rule
118, the rule on pre-trial conference. It is only the Rules of Court promulgated by the Supreme Court pursuant to its
constitutional rule-making power that breathes life to plea bargaining. It cannot be found in any statute.

Without saying so, the accused implies that Sec. 23 of Republic Act No. 9165 is unconstitutional because it, in
effect, suspends the operation of Rule 118 of the Rules of Court insofar as it allows plea bargaining as part of the
mandatory pre-trial conference in criminal cases.

The Court sees merit in the argument of the accused that it is also the intendment of the law, R.A. No. 9165, to
rehabilitate an accused of a drug offense. Rehabilitation is thus only possible in cases of use of illegal drugs because
plea bargaining is disallowed. However, by case law, the Supreme Court allowed rehabilitation for accused charged
with possession of paraphernalia with traces of dangerous drugs, as held in People v. Martinez, G.R. No. 191366, 13
December 2010. The ruling of the Supreme Court in this case manifested the relaxation of an otherwise stringent
application of Republic Act No. 9165 in order to serve an intent for the enactment of the law, that is, to rehabilitate
the offender.

Within the spirit of the disquisition in People v. Martinez, there might be plausible basis for the declaration of Sec.
23 of R.A. No. 9165, which bars plea bargaining as unconstitutional because indeed the inclusion of the provision in
the law encroaches on the exclusive constitutional power of the Supreme Court.

While basic is the precept that lower courts are not precluded from resolving, whenever warranted, constitutional
questions, the Court is not unaware of the admonition of the Supreme Court that lower courts must observe a
becoming modesty in examining constitutional questions. Upon which admonition, it is thus not for this lower court
to declare Sec. 23 of R.A. No. 9165 unconstitutional given the potential ramifications that such declaration might
have on the prosecution of illegal drug cases pending before this judicial station.8

Estipona filed a motion for reconsideration, but it was denied in an Order9 dated July 26, 2016; hence, this petition
raising the issues as follows:

I.

WHETHER SECTION 23 OF REPUBLIC ACT NO. 9165, WHICH PROHIBITS PLEA BARGAINING IN ALL
VIOLATIONS OF THE SAID LAW, IS UNCONSTITUTIONAL FOR BEING VIOLATIVE OF THE
CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF THE LAW.

II.

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WHETHER SECTION 23 OF REPUBLIC ACT NO. 9165 IS UNCONSTITUTIONAL AS IT ENCROACHED
UPON THE POWER OF THE SUPREME COURT TO PROMULGATE RULES OF PROCEDURE.

III.

WHETHER THE REGIONAL TRIAL COURT, AS PRESIDED BY HON. FRANK E. LOBRIGO, COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT
REFUSED TO DECLARE SECTION 23 OF REPUBLIC ACT NO. 9165 AS UNCONSTITUTIONAL.10

We grant the petition.

PROCEDURAL MATTERS

The People of the Philippines, through the Office of the Solicitor General (OSG), contends that the petition should
be dismissed outright for being procedurally defective on the grounds that: (1) the Congress should have been
impleaded as an indispensable party; (2) the constitutionality of Section 23 of R.A. No. 9165 cannot be attacked
collaterally; and (3) the proper recourse should have been a petition for declaratory relief before this Court or a
petition for certiorari before the RTC. Moreover, the OSG argues that the petition fails to satisfy the requisites of
judicial review because: (1) Estipona lacks legal standing to sue for failure to show direct injury; (2) there is no
actual case or controversy; and (3) the constitutionality of Section 23 of R.A. No. 9165 is not the lis mota of the
case.

On matters of technicality, some points raised by the OSG maybe correct.1âwphi1 Nonetheless, without much
further ado, it must be underscored that it is within this Court's power to make exceptions to the rules of court.
Under proper conditions, We may permit the full and exhaustive ventilation of the parties' arguments and positions
despite the supposed technical infirmities of a petition or its alleged procedural flaws. In discharging its solemn duty
as the final arbiter of constitutional issues, the Court shall not shirk from its obligation to determine novel issues, or
issues of first impression, with far-reaching implications.11

Likewise, matters of procedure and technicalities normally take a backseat when issues of substantial and
transcendental importance are present.12 We have acknowledged that the Philippines' problem on illegal drugs has
reached "epidemic," "monstrous," and "harrowing" proportions,13 and that its disastrously harmful social,
economic, and spiritual effects have broken the lives, shattered the hopes, and destroyed the future of thousands
especially our young citizens.14 At the same time, We have equally noted that "as urgent as the campaign against
the drug problem must be, so must we as urgently, if not more so, be vigilant in the protection of the rights of the
accused as mandated by the Constitution x x x who, because of excessive zeal on the part of the law enforcers, may
be unjustly accused and convicted."15 Fully aware of the gravity of the drug menace that has beset our country and
its direct link to certain crimes, the Court, within its sphere, must do its part to assist in the all-out effort to lessen, if
not totally eradicate, the continued presence of drug lords, pushers and users.16

Bearing in mind the very important and pivotal issues raised in this petition, technical matters should not deter Us
from having to make the final and definitive pronouncement that everyone else depends for enlightenment and
guidance.17 When public interest requires, the Court may brush aside procedural rules in order to resolve a
constitutional issue.18

x x x [T]he Court is invested with the power to suspend the application of the rules of procedure as a necessary
complement of its power to promulgate the same. Barnes v. Hon. Quijano Padilla discussed the rationale for this
tenet, viz. :

Let it be emphasized that the rules of procedure should be viewed as mere tools designed to facilitate the attainment
of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than
promote substantial justice, must always be eschewed. Even the Rules of Court reflect this principle. The power to

119
suspend or even disregard rules can be so pervasive and compelling as to alter even that which this Court itself has
already declared to be final, x x x.

The emerging trend in the rulings of this Court is to afford every party litigant the amplest opportunity for the
proper and just determination of his cause, free from the constraints of technicalities. Time and again, this Court
has consistently held that rules must not be applied rigidly so as not to override substantial justice. 19

SUBSTANTIVE ISSUES

Rule-making power of the Supreme

Court under the 1987 Constitution

Section 5(5), A1iicle VIII of the 1987 Constitution explicitly provides:

Sec. 5. The Supreme Court shall have the following powers:

xxxx

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and
procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the
underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases,
shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights.
Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the
Supreme Court.

The power to promulgate rules of pleading, practice and procedure is now Our exclusive domain and no longer
shared with the Executive and Legislative departments.20 In Echegaray v. Secretary of Justice, 21 then Associate
Justice (later Chief Justice) Reynato S. Puno traced the history of the Court's rule-making power and highlighted its
evolution and development.

x x x It should be stressed that the power to promulgate rules of pleading, practice and procedure was granted by
our Constitutions to this Court to enhance its independence, for in the words of Justice Isagani Cruz "without
independence and integrity, courts will lose that popular trust so essential to the maintenance of their vigor as
champions of justice." Hence, our Constitutions continuously vested this power to this Court for it enhances its
independence. Under the 1935 Constitution, the power of this Court to promulgate rules concerning pleading,
practice and procedure was granted but it appeared to be co-existent with legislative power for it was subject to the
power of Congress to repeal, alter or supplement. Thus, its Section 13, Article VIII provides:

"Sec. 13. The Supreme Court shall have the power to promulgate rules concerning pleading, practice and procedure
in all courts, and the admission to the practice of law. Said rules shall be uniform for all courts of the same grade and
shall not diminish, increase, or modify substantive rights. The existing laws on pleading, practice and procedure are
hereby repealed as statutes, and are declared Rules of Court, subject to the power of the Supreme Court to alter and
modify the same. The Congress shall have the power to repeal, alter or supplement the rules concerning pleading,
practice and procedure, and the admission to the practice of law in the Philippines."

The said power of Congress, however, is not as absolute as it may appear on its surface. In In re: Cunanan Congress
in the exercise of its power to amend rules of the Supreme Court regarding admission to the practice of law, enacted
the Bar Flunkers Act of 1953 which considered as a passing grade, the average of 70% in the bar examinations after
July 4, 1946 up to August 1951 and 71 % in the 1952 bar examinations. This Court struck down the law as
unconstitutional. In his ponencia, Mr. Justice Diokno held that "x x x the disputed law is not a legislation; it is a
judgment - a judgment promulgated by this Court during the aforecited years affecting the bar candidates concerned;
and although this Court certainly can revoke these judgments even now, for justifiable reasons, it is no less certain
that only this Court, and not the legislative nor executive department, that may do so. Any attempt on the part of

120
these departments would be a clear usurpation of its function, as is the case with the law in question." The venerable
jurist further ruled: "It is obvious, therefore, that the ultimate power to grant license for the practice of law belongs
exclusively to this Court, and the law passed by Congress on the matter is of permissive character, or as other
authorities say, merely to fix the minimum conditions for the license." By its ruling, this Court qualified the
absolutist tone of the power of Congress to "repeal, alter or supplement the rules concerning pleading, practice and
procedure, and the admission to the practice of law in the Philippines.

The ruling of this Court in In re Cunanan was not changed by the 1973 Constitution. For the 1973 Constitution
reiterated the power of this Court "to promulgate rules concerning pleading, practice and procedure in all courts, x x
x which, however, may be repealed, altered or supplemented by the Batasang Pambansa x x x." More completely,
Section 5(2)5 of its Article X provided:

xxxx

"Sec. 5. The Supreme Court shall have the following powers.

xxxx

(5) Promulgate rules concerning pleading, practice, and procedure in all courts, the admission to the practice of law,
and the integration of the Bar, which, however, may be repealed, altered, or supplemented by the Batasang
Pambansa. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall
be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights."

Well worth noting is that the 1973 Constitution further strengthened the independence of the judiciary by giving to
it the additional power to promulgate rules governing the integration of the Bar.

The 1987 Constitution molded an even stronger and more independent judiciary. Among others, it enhanced the
rule making power of this Court. Its Section 5(5), Article VIII provides:

xxxx

"Section 5. The Supreme Court shall have the following powers:

xxx

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and
procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the
underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases,
shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights.
Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the
Supreme Court. "

The rule making power of this Court was expanded. This Court for the first time was given the power to promulgate
rules concerning the protection and enforcement of constitutional rights. The Court was also granted for the .first
time the power to disapprove rules of procedure of special courts and quasi-judicial bodies. But most importantly,
the 1987 Constitution took away the power of Congress to repeal, alter, or supplement rules concerning pleading,
practice and procedure. In fine, the power to promulgate rules of pleading, practice and procedure is no longer
shared by this Court with Congress, more so with the Executive. x x x.22

Just recently, Carpio-Morales v. Court of Appeals (Sixth Division)23 further elucidated:

While the power to define, prescribe, and apportion the jurisdiction of the various courts is, by constitutional design,
vested unto Congress, the power to promulgate rules concerning the protection and enforcement of

121
constitutional rights, pleading, practice, and procedure in all courts belongs exclusively to this Court. Section
5 (5), Article VIII of the 1987 Constitution reads:

xxxx

In Echegaray v. Secretary of Justice (Echegaray), the Court traced the evolution of its rule-making authority, which,
under the 1935 and 1973 Constitutions, had been priorly subjected to a power-sharing scheme with Congress. As it
now stands, the 1987 Constitution textually altered the old provisions by deleting the concurrent power of
Congress to amend the rules, thus solidifying in one body the Court's rule-making powers, in line with the
Framers' vision of institutionalizing a " [ s] tronger and more independent judiciary."

The records of the deliberations of the Constitutional Commission would show that the Framers debated on whether
or not the Court's rulemaking powers should be shared with Congress. There was an initial suggestion to insert the
sentence "The National Assembly may repeal, alter, or supplement the said rules with the advice and concurrence of
the Supreme Court," right after the phrase "Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the
integrated bar, and legal assistance to the underprivileged[,]" in the enumeration of powers of the Supreme Court.
Later, Commissioner Felicitas S. Aquino proposed to delete the former sentence and, instead, after the word
"[under]privileged," place a comma(,) to be followed by "the phrase with the concurrence of the National
Assembly." Eventually, a compromise formulation was reached wherein (a) the Committee members agreed to
Commissioner Aquino's proposal to delete the phrase "the National Assembly may repeal, alter, or supplement the
said rules with the advice and concurrence of the Supreme Court" and (b) in turn, Commissioner Aquino agreed to
withdraw his proposal to add "the phrase with the concurrence of the National Assembly." The changes were
approved, thereby leading to the present lack of textual reference to any form of Congressional participation
in Section 5 (5), Article VIII, supra. Theprevailing consideration was that "both bodies, the Supreme Court
and the Legislature, have their inherent powers."

Thus, as it now stands, Congress has no authority to repeal, alter, or supplement rules concerning pleading, practice,
and procedure.x x x.24

The separation of powers among the three co-equal branches of our government has erected an impregnable wall
that keeps the power to promulgate rules of pleading, practice and procedure within the sole province of this
Court.25 The other branches trespass upon this prerogative if they enact laws or issue orders that effectively repeal,
alter or modify any of the procedural rules promulgated by the Court.26 Viewed from this perspective, We have
rejected previous attempts on the part of the Congress, in the exercise of its legislative power, to amend the Rules of
Court (Rules), to wit:

1. Fabian v. Desierto27 -Appeal from the decision of the Office of the Ombudsman in an administrative disciplinary
case should be taken to the Court of Appeals under the provisions of Rule 43 of the Rules instead of appeal by
certiorari under Rule 45 as provided in Section 27 of R.A. No. 6770.

2. Cathay Metal Corporation v. Laguna West Multi-Purpose Cooperative, Inc. 28 - The Cooperative Code
provisions on notices cannot replace the rules on summons under Rule 14 of the Rules.

3. RE: Petition for Recognition of the Exemption of the GSIS from Payment of Legal Fees; 29 Baguio Market
Vendors Multi-Purpose Cooperative (BAMARVEMPCO) v. Hon. Judge Cabato-Cortes;30 In Re: Exemption of the
National Power Corporation from Payment of Filing/Docket Fees; 31 and Rep. of the Phils. v. Hon. Mangotara, et
al. 32 - Despite statutory provisions, the GSIS, BAMARVEMPCO, and NPC are not exempt from the payment of
legal fees imposed by Rule 141 of the Rules.

4. Carpio-Morales v. Court of Appeals (Sixth Division)33 - The first paragraph of Section 14 of R.A. No. 6770,
which prohibits courts except the Supreme Court from issuing temporary restraining order and/or writ of preliminary
injunction to enjoin an investigation conducted by the Ombudsman, is unconstitutional as it contravenes Rule 58 of
the Rules.

122
Considering that the aforesaid laws effectively modified the Rules, this Court asserted its discretion to amend, repeal
or even establish new rules of procedure, to the exclusion of the legislative and executive branches of government.
To reiterate, the Court's authority to promulgate rules on pleading, practice, and procedure is exclusive and one of
the safeguards of Our institutional independence.34

Plea bargaining in criminal cases

Plea bargaining, as a rule and a practice, has been existing in our jurisdiction since July 1, 1940, when the 1940
Rules took effect. Section 4, Rule 114 (Pleas) of which stated:

SEC. 4. Plea of guilty of lesser offense. - The defendant, with the consent of the court and of the fiscal, may plead
guilty of any lesser offense than that charged which is necessarily included in the offense charged in the complaint
or information.

When the 1964 Rules became effective on January 1, 1964, the same provision was retained under Rule 118
(Pleas).1âwphi1 Subsequently, with the effectivity of the 1985 Rules on January 1, 1985, the provision on plea of
guilty to a lesser offense was amended. Section 2, Rule 116 provided:

SEC. 2. Plea of guilty to a lesser offense. - The accused with the consent of the offended party and the fiscal, may be
allowed by the trial court to plead guilty to a lesser offense, regardless of whether or not it is necessarily included in
the crime charged, or is cognizable by a court of lesser jurisdiction than the trial court. No amendment of the
complaint or information is necessary. (4a, R-118)

As well, the term "plea bargaining" was first mentioned and expressly required during pre-trial. Section 2, Rule 118
mandated:

SEC. 2. Pre-trial conference; subjects. - The pre-trial conference shall consider the following:

(a) Plea bargaining;

(b) Stipulation of facts;

(c) Marking for identification of evidence of the parties;

(d) Waiver of objections to admissibility of evidence; and

(e) Such other matters as will promote a fair and expeditious trial. (n)

The 1985 Rules was later amended. While the wordings of Section 2, Rule 118 was retained, Section 2, Rule 116
was modified in 1987. A second paragraph was added, stating that "[a] conviction under this plea shall be equivalent
to a conviction of the offense charged for purposes of double jeopardy."

When R.A. No. 8493 ("Speedy Trial Act of 1998 ') was enacted,35 Section 2, Rule 118 of the Rules was
substantially adopted. Section 2 of the law required that plea bargaining and other matters36 that will promote a fair
and expeditious trial are to be considered during pre-trial conference in all criminal cases cognizable by the
Municipal Trial Court, Municipal Circuit Trial Court, Metropolitan Trial Court, Regional Trial Court, and the
Sandiganbayan.

Currently, the pertinent rules on plea bargaining under the 2000 Rules37 are quoted below:

RULE 116 (Arraignment and Plea):

123
SEC. 2. Plea of guilty to a lesser offense. - At arraignment, the accused, with the consent of the offended party and
the prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in
the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser
offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary. (Sec.
4, Cir. 38-98)

RULE 118 (Pre-trial):

SEC. 1. Pre-trial; mandatory in criminal cases. - In all criminal cases cognizable by the Sandiganbayan, Regional
Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court and Municipal Circuit
Trial Court, the court shall, after arraignment and within thirty (30) days from the date the court acquires jurisdiction
over the person of the accused, unless a shorter period is provided for in special laws or circulars of the Supreme
Court, order a pre-trial conference to consider the following:

(a) plea bargaining;

(b) stipulation of facts;

(c) marking for identification of evidence of the parties;

(d) waiver of objections to admissibility of evidence;

(e) modification of the order of trial if the accused admits the charge but interposes a lawful defense; and

(f) such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case. (Sec. 2 & 3,
Cir. 38-98)

Plea bargaining is a rule of procedure

The Supreme Court's sole prerogative to issue, amend, or repeal procedural rules is limited to the preservation of
substantive rights, i.e., the former should not diminish, increase or modify the latter.38 "Substantive law is that part
of the law which creates, defines and regulates rights, or which regulates the right and duties which give rise to a
cause of action; that part of the law which courts are established to administer; as opposed to adjective or remedial
law, which prescribes the method of enforcing rights or obtain redress for their invasions."39 Fabian v. Hon.
Desierto40 laid down the test for determining whether a rule is substantive or procedural in nature.

It will be noted that no definitive line can be drawn between those rules or statutes which are procedural, hence
within the scope of this Court's rule-making power, and those which are substantive. In fact, a particular rule may be
procedural in one context and substantive in another. It is admitted that what is procedural and what is substantive is
frequently a question of great difficulty. It is not, however, an insurmountable problem if a rational and pragmatic
approach is taken within the context of our own procedural and jurisdictional system.

In determining whether a rule prescribed by the Supreme Court, for the practice and procedure of the lower courts,
abridges, enlarges, or modifies any substantive right, the test is whether the rule really regulates procedure, that is,
the judicial process for enforcing rights and duties recognized by substantive law and for justly administering
remedy and redress for a disregard or infraction of them. If the rule takes away a vested right, it is not procedural. If
the rule creates a right such as the right to appeal, it may be classified as a substantive matter; but if it operates as a
means of implementing an existing right then the rule deals merely with procedure.41

In several occasions, We dismissed the argument that a procedural rule violates substantive rights. For example, in
People v. Lacson, 42 Section 8, Rule 117 of the Rules on provisional dismissal was held as a special procedural
limitation qualifying the right of the State to prosecute, making the time-bar an essence of the given right or as an

124
inherent part thereof, so that its expiration operates to extinguish the right of the State to prosecute the accused.43
Speaking through then Associate Justice Romeo J. Callejo, Sr., the Court opined:

In the new rule in question, as now construed by the Court, it has fixed a time-bar of one year or two years for the
revival of criminal cases provisionally dismissed with the express consent of the accused and with a priori notice to
the offended party. The time-bar may appear, on first impression, unreasonable compared to the periods under
Article 90 of the Revised Penal Code. However, in fixing the time-bar, the Court balanced the societal interests and
those of the accused for the orderly and speedy disposition of criminal cases with minimum prejudice to the State
and the accused. It took into account the substantial rights of both the State and of the accused to due process. The
Court believed that the time limit is a reasonable period for the State to revive provisionally dismissed cases with the
consent of the accused and notice to the offended parties. The time-bar fixed by the Court must be respected unless
it is shown that the period is manifestly short or insufficient that the rule becomes a denial of justice. The petitioners
failed to show a manifest shortness or insufficiency of the time-bar.

The new rule was conceptualized by the Committee on the Revision of the Rules and approved by the Court en banc
primarily to enhance the administration of the criminal justice system and the rights to due process of the State and
the accused by eliminating the deleterious practice of trial courts of provisionally dismissing criminal cases on
motion of either the prosecution or the accused or jointly, either with no time-bar for the revival thereof or with a
specific or definite period for such revival by the public prosecutor. There were times when such criminal cases
were no longer revived or refiled due to causes beyond the control of the public prosecutor or because of the
indolence, apathy or the lackadaisical attitude of public prosecutors to the prejudice of the State and the accused
despite the mandate to public prosecutors and trial judges to expedite criminal proceedings.

It is almost a universal experience that the accused welcomes delay as it usually operates in his favor, especially if
he greatly fears the consequences of his trial and conviction. He is hesitant to disturb the hushed inaction by which
dominant cases have been known to expire.

The inordinate delay in the revival or refiling of criminal cases may impair or reduce the capacity of the State to
prove its case with the disappearance or nonavailability of its witnesses. Physical evidence may have been lost.
Memories of witnesses may have grown dim or have faded. Passage of time makes proof of any fact more difficult.
The accused may become a fugitive from justice or commit another crime. The longer the lapse of time from the
dismissal of the case to the revival thereof, the more difficult it is to prove the crime.

On the other side of the fulcrum, a mere provisional dismissal of a criminal case does not terminate a criminal case.
The possibility that the case may be revived at any time may disrupt or reduce, if not derail, the chances of the
accused for employment, curtail his association, subject him to public obloquy and create anxiety in him and his
family. He is unable to lead a normal life because of community suspicion and his own anxiety. He continues to
suffer those penalties and disabilities incompatible with the presumption of innocence. He may also lose his
witnesses or their memories may fade with the passage of time. In the long run, it may diminish his capacity to
defend himself and thus eschew the fairness of the entire criminal justice system.

The time-bar under the new rule was fixed by the Court to excise the malaise that plagued the administration of the
criminal justice system for the benefit of the State and the accused; not for the accused only.44

Also, We said in Jaylo, et al. v. Sandiganbayan, et al. 45 that Section 6, Rule 120 of the Rules, which provides that
an accused who failed to appear at the promulgation of the judgment of conviction shall lose the remedies available
against the judgment, does not take away substantive rights but merely provides the manner through which an
existing right may be implemented.

Section 6, Rule 120, of the Rules of Court, does not take away per se the right of the convicted accused to avail of
the remedies under the Rules. It is the failure of the accused to appear without justifiable cause on the scheduled date
of promulgation of the judgment of conviction that forfeits their right to avail themselves of the remedies against the
judgment.

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It is not correct to say that Section 6, Rule 120, of the Rules of Court diminishes or modifies the substantive rights of
petitioners. It only works in pursuance of the power of the Supreme Court to "provide a simplified and inexpensive
procedure for the speedy disposition of cases." This provision protects the courts from delay in the speedy
disposition of criminal cases - delay arising from the simple expediency of nonappearance of the accused on the
scheduled promulgation of the judgment of conviction.46

By the same token, it is towards the provision of a simplified and inexpensive procedure for the speedy disposition
of cases in all courts47 that the rules on plea bargaining was introduced. As a way of disposing criminal charges by
agreement of the parties, plea bargaining is considered to be an "important," "essential," "highly desirable," and
"legitimate" component of the administration of justice.48 Some of its salutary effects include:

x x x For a defendant who sees slight possibility of acquittal, the advantages of pleading guilty and limiting the
probable penalty are obvious - his exposure is reduced, the correctional processes can begin immediately, and the
practical burdens of a trial are eliminated. For the State there are also advantages - the more promptly imposed
punishment after an admission of guilt may more effectively attain the objectives of punishment; and with the
avoidance of trial, scarce judicial and prosecutorial resources are conserved for those cases in which there is a
substantial issue of the defendant's guilt or in which there is substantial doubt that the State can sustain its burden of
proof. (Brady v. United States, 397 U.S. 742, 752 [1970])

Disposition of charges after plea discussions x x x leads to prompt and largely final disposition of most criminal
cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are
denied release pending trial; it protects the public from those accused persons who are prone to continue criminal
conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances
whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. (Santobello v. New
York, 404 U.S. 257, 261 [1971])

The defendant avoids extended pretrial incarceration and the anxieties and uncertainties of a trial; he gains a speedy
disposition of his case, the chance to acknowledge his guilt, and a prompt start in realizing whatever potential there
may be for rehabilitation. Judges and prosecutors conserve vital and scarce resources. The public is protected from
the risks posed by those charged with criminal offenses who are at large on bail while awaiting completion of
criminal proceedings. (Blackledge v. Allison, 431 U.S. 63, 71 [1977])

In this jurisdiction, plea bargaining has been defined as "a process whereby the accused and the prosecution work
out a mutually satisfactory disposition of the case subject to court approval."49 There is give-and-take negotiation
common in plea bargaining.50 The essence of the agreement is that both the prosecution and the defense make
concessions to avoid potential losses.51 Properly administered, plea bargaining is to be encouraged because the
chief virtues of the system - speed, economy, and finality - can benefit the accused, the offended party, the
prosecution, and the court.52

Considering the presence of mutuality of advantage,53 the rules on plea bargaining neither create a right nor take
away a vested right. Instead, it operates as a means to implement an existing right by regulating the judicial process
for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for a
disregard or infraction of them.

The decision to plead guilty is often heavily influenced by the defendant's appraisal of the prosecution's case against
him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted.54 In any case,
whether it be to the offense charged or to a lesser crime, a guilty plea is a "serious and sobering occasion" inasmuch
as it constitutes a waiver of the fundamental rights to be presumed innocent until the contrary is proved, to be heard
by himself and counsel, to meet the witnesses face to face, to bail (except those charged with offenses punishable by
reclusion perpetua when evidence of guilt is strong), to be convicted by proof beyond reasonable doubt, and not to
be compelled to be a witness against himself.55

Yet a defendant has no constitutional right to plea bargain. No basic rights are infringed by trying him rather than
accepting a plea of guilty; the prosecutor need not do so if he prefers to go to trial.56 Under the present Rules, the

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acceptance of an offer to plead guilty is not a demandable right but depends on the consent of the offended party57
and the prosecutor, which is a condition precedent to a valid plea of guilty to a lesser offense that is necessarily
included in the offense charged.58 The reason for this is that the prosecutor has full control of the prosecution of
criminal actions; his duty is to always prosecute the proper offense, not any lesser or graver one, based on what the
evidence on hand can sustain.59

[Courts] normally must defer to prosecutorial decisions as to whom to prosecute. The reasons for judicial deference
are well known. Prosecutorial charging decisions are rarely simple. In addition to assessing the strength and
importance of a case, prosecutors also must consider other tangible and intangible factors, such as government
enforcement priorities. Finally, they also must decide how best to allocate the scarce resources of a criminal justice
system that simply cannot accommodate the litigation of every serious criminal charge. Because these decisions "are
not readily susceptible to the kind of analysis the courts are competent to undertake," we have been "properly
hesitant to examine the decision whether to prosecute. "60

The plea is further addressed to the sound discretion of the trial court, which may allow the accused to plead guilty
to a lesser offense which is necessarily included in the offense charged. The word may denotes an exercise of
discretion upon the trial court on whether to allow the accused to make such plea.61 Trial courts are exhorted to
keep in mind that a plea of guilty for a lighter offense than that actually charged is not supposed to be allowed as a
matter of bargaining or compromise for the convenience of the accused.62

Plea bargaining is allowed during the arraignment, the pre-trial, or even up to the point when the prosecution already
rested its case.63 As regards plea bargaining during the pre-trial stage, the trial court's exercise of discretion should
not amount to a grave abuse thereof.64 "Grave abuse of discretion" is a capricious and whimsical exercise of
judgment so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty
enjoined by law, as where the power is exercised in an arbitrary and despotic manner because of passion or hostility;
it arises when a court or tribunal violates the Constitution, the law or existing jurisprudence.65

If the accused moved to plead guilty to a lesser offense subsequent to a bail hearing or after the prosecution rested its
case, the rules allow such a plea only when the prosecution does not have sufficient evidence to establish the guilt of
the crime charged.66 The only basis on which the prosecutor and the court could rightfully act in allowing change in
the former plea of not guilty could be nothing more and nothing less than the evidence on record. As soon as the
prosecutor has submitted a comment whether for or against said motion, it behooves the trial court to assiduously
study the prosecution's evidence as well as all the circumstances upon which the accused made his change of plea to
the end that the interests of justice and of the public will be served.67 The ruling on the motion must disclose the
strength or weakness of the prosecution's evidence.68 Absent any finding on the weight of the evidence on hand, the
judge's acceptance of the defendant's change of plea is improper and irregular.69

On whether Section 23 of R.A. No.

9165 violates the equal protection
clause

At this point, We shall not resolve the issue of whether Section 23 of R.A. No. 9165 is contrary to the constitutional
right to equal protection of the law in order not to preempt any future discussion by the Court on the policy
considerations behind Section 23 of R.A. No. 9165. Pending deliberation on whether or not to adopt the statutory
provision in toto or a qualified version thereof, We deem it proper to declare as invalid the prohibition against plea
bargaining on drug cases until and unless it is made part of the rules of procedure through an administrative circular
duly issued for the purpose.

WHEREFORE, the petition for certiorari and prohibition is GRANTED. Section 23 of Republic Act No. 9165 is
declared unconstitutional for being contrary to the rule-making authority of the Supreme Court under Section 5(5),
Article VIII of the 1987 Constitution.

SO ORDERED.

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DIOSDADO M. PERALTA
Associate Justice

13. PP vs Paras, GR No. 192912, October 22, 2014

14. Diaz vs, Davao Light andPower Co., GR No. 160959 April 4. 2007

15. People vs Garcia, GR No. 177740, April 5, 2010

16. PP vs Dalisay, GR No. 188106, November 25, 2009

17. Seguritan vs. People , GR No. 172896, April 19, 2010

PP vs. Timbol, August 4, 1944

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