G.R. No.
111709            August 30, 2001 On March 30, 1991, "M/T Tabangao" returned to the same area and completed the
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROGER P. TULIN, VIRGILIO I. LOYOLA, CECILIO O. CHANGCO, ANDRES C.
INFANTE, CHEONG SAN HIONG, and JOHN DOES, accused-appellants.
MELO, J.:
This is one of the older cases which unfortunately has remained in docket of the
Court for sometime. It was reassigned, together with other similar cases, to
undersigned ponente in pursuance of A.M. No. 00-9-03-SC dated February 27, 2001.
In the evening of March 2, 1991, "M/T Tabangao," a cargo vessel owned by the
PNOC Shipping and Transport Corporation, loaded with 2,000 barrels of kerosene,
2,600 barrels of regular gasoline, and 40,000 barrels of diesel oil, with a total value of
P40,426,793,87, was sailing off the coast of Mindoro near Silonay Island.
The vessel, manned by 21 crew members, including Captain Edilberto Libo-on,
Second Mate Christian Torralba, and Operator Isaias Ervas, was suddenly boarded,
with the use of an aluminum ladder, by seven fully armed pirates led by Emilio
Changco, older brother of accused-appellant Cecilio Changco. The pirates, including
accused-appellants Tulin, Loyola, and Infante, Jr. were armed with M-16 rifles, .45
and .38 caliber handguns, and bolos. They detained the crew and took complete
control of the vessel. Thereafter, accused-appellant Loyola ordered three crew
members to paint over, using black paint, the name "M/T Tabangao" on the front and
rear portions of the vessel, as well as the PNOC logo on the chimney of the vessel.
The vessel was then painted with the name "Galilee," with registry at San Lorenzo,
Honduras. The crew was forced to sail to Singapore, all the while sending misleading
radio messages to PNOC that the ship was undergoing repairs.
PNOC, after losing radio contact with the vessel, reported the disappearance of the
vessel to the Philippine Coast Guard and secured the assistance of the Philippine Air
Force and the Philippine Navy. However, search and rescue operations yielded
negative results. On March 9, 1991, the ship arrived in the vicinity of Singapore and
cruised around the area presumably to await another vessel which, however, failed to
arrive. The pirates were thus forced to return to the Philippines on March 14, 1991,
arriving at Calatagan, Batangas on March 20, 1991 where it remained at sea.
On March 28, 1991, the "M/T Tabangao" again sailed to and anchored about 10 to 18
nautical miles from Singapore's shoreline where another vessel called "Navi Pride"
anchored beside it. Emilio Changco ordered the crew of "M/T Tabangao" to transfer
the vessel's cargo to the hold of "Navi Pride". Accused-appellant Cheong San Hiong
supervised the crew of "Navi Pride" in receiving the cargo. The transfer, after an
interruption, with both vessels leaving the area, was completed on March 30, 1991.
transfer of cargo to "Navi Pride."
On April 8, 1991, "M/T Tabangao" arrived at Calatagan, Batangas, but the vessel
remained at sea. On April 10, 1991, the members of the crew were released in three
batches with the stern warning not to report the incident to government authorities for
a period of two days or until April 12, 1991, otherwise they would be killed. The first
batch was fetched from the shoreline by a newly painted passenger jeep driven by
accused-appellant Cecilio Changco, brother of Emilio Changco, who brought them to
Imus, Cavite and gave P20,000.00 to Captain Libo-on for fare of the crew in
proceeding to their respective homes. The second batch was fetched by accused-
appellant Changco at midnight of April 10, 1991 and were brought to different places
in Metro Manila.
On April 12, 1991, the Chief Engineer, accompanied by the members of the crew,
called the PNOC Shipping and Transport Corporation office to report the incident. The
crew members were brought to the Coast Guard Office for investigation. The incident
was also reported to the National Bureau of Investigation where the officers and
members of the crew executed sworn statements regarding the incident.
A series of arrests was thereafter effected as follows:
a. On May 19, 1991, the NBI received verified information that the pirates were
present at U.K. Beach, Balibago, Calatagan, Batangas. After three days of
surveillance, accused-appellant Tulin was arrested and brought to the NBI
headquarters in Manila.
b. Accused-appellants Infante, Jr. and Loyola were arrested by chance at Aguinaldo
Hi-way by NBI agents as the latter were pursuing the mastermind, who managed to
evade arrest.
c. On May 20, 1991, accused-appellants Hiong and Changco were arrested at the
lobby of Alpha Hotel in Batangas City.
On October 24, 1991, an Information charging qualified piracy or violation of
Presidential Decree No. 532 (Piracy in Philippine Waters) was filed against accused-
appellants, as follows:
The undersigned State Prosecutor accuses ROGER P. TULIN, VIRGILIO I.
LOYOLA, CECILIO O. CHANGCO, ANDRES C. INFANTE, and CHEONG
SAN HIONG, and nine (9) other JOHN DOES of qualified piracy (Violation of
P.D. No. 532), committed as follows:
That on or about and during the period from March 2 to April 10,
1991, both dates inclusive, and for sometime prior and subsequent
1 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
 thereto, and within the jurisdiction of this Honorable Court, the said
accused, then manning a motor launch and armed with high
powered guns, conspiring and confederating together and mutually
helping one another, did then and there, wilfully, unlawfully and
feloniously fire upon, board and seize while in the Philippine waters
M/T PNOC TABANGCO loaded with petroleum products, together
with the complement and crew members, employing violence
against or intimidation of persons or force upon things, then direct
the vessel to proceed to Singapore where the cargoes were
unloaded and thereafter returned to the Philippines on April 10,
1991, in violation of the aforesaid law.
CONTRARY TO LAW.
(pp. 119-20, Rollo.)
This was docketed as Criminal Case No. 91-94896 before Branch 49 of the Regional
Trial Court of the National Capital Judicial Region stationed in Manila. Upon
arraignment, accused-appellants pleaded not guilty to the charge. Trial thereupon
ensued.
Accused-appellants Tulin, Infante, Jr., and Loyola, notwithstanding some
inconsistencies in their testimony as to where they were on March 1, 1991,
maintained the defense of denial, and disputed the charge, as well as the transfer of
any cargo from "M/T Tabangao" to the "Navi Pride." All of them claimed having their
own respective sources of livelihood. Their story is to the effect that on March 2,
1991, while they were conversing by the beach, a red speedboat with Captain
Edilberto Liboon and Second Mate Christian Torralba on board, approached the
seashore. Captain Liboon inquired from the three if they wanted to work in a vessel.
They were told that the work was light and that each worker was to be paid P3,000.00
a month with additional compensation if they worked beyond that period. They agreed
even though they had no sea-going experience. On board, they cooked, cleaned the
vessel, prepared coffee, and ran errands for the officers. They denied having gone to
Singapore, claiming that the vessel only went to Batangas. Upon arrival thereat in the
morning of March 21, 1991, they were paid P1,000.00 each as salary for nineteen
days of work, and were told that the balance would be remitted to their addresses.
There was neither receipt nor contracts of employment signed by the parties.
Accused-appellant Changco categorically denied the charge, averring that he was at
home sleeping on April 10, 1991. He testified that he is the younger brother of Emilio
Changco, Jr.
Accused-appellant Cheong San Hiong, also known as Ramzan Ali, adduced evidence
that he studied in Sydney, Australia, obtaining the "Certificate" as Chief Officer, and
later completed the course as a "Master" of a vessel, working as such for two years
on board a vessel. He was employed at Navi Marine Services, Pte., Ltd. as Port
Captain. The company was engaged in the business of trading petroleum, including
shipoil, bunker lube oil, and petroleum to domestic and international markets. It
owned four vessels, one of which was "Navi Pride."
On March 2, 1991, the day before "M/T Tabangao" was seized by Emilio Changco
and his cohorts, Hiong's name was listed in the company's letter to the Mercantile
Section of the Maritime Department of the Singapore government as the radio
telephone operator on board the vessel "Ching Ma."
The company was then dealing for the first time with Paul Gan, a Singaporean broker,
who offered to sell to the former bunker oil for the amount of 300,000.00 Singapore
dollars. After the company paid over one-half of the aforesaid amount to Paul Gan,
the latter, together with Joseph Ng, Operations Superintendent of the firm, proceeded
to the high seas on board "Navi Pride" but failed to locate the contact vessel.
The transaction with Paul Gan finally pushed through on March 27, 1991. Hiong,
upon his return on board the vessel "Ching Ma," was assigned to supervise a ship-to-
ship transfer of diesel oil off the port of Singapore, the contact vessel to be
designated by Paul Gan. Hiong was ordered to ascertain the quantity and quality of
the oil and was given the amount of 300,000.00 Singapore Dollars for the purchase.
Hiong, together with Paul Gan, and the surveyor William Yao, on board "Navi Pride"
sailed toward a vessel called "M/T Galilee". Hiong was told that "M/T Galilee" would
be making the transfer. Although no inspection of "Navi Pride" was made by the port
authorities before departure, Navi Marine Services, Pte., Ltd. was able to procure a
port clearance upon submission of General Declaration and crew list. Hiong, Paul
Gan, and the brokers were not in the crew list submitted and did not pass through the
immigration. The General Declaration falsely reflected that the vessel carried 11,900
tons.
On March 28, 1991, "Navi Pride" reached the location of "M/T Galilee". The brokers
then told the Captain of the vessel to ship-side with "M/T Galilee" and then transfer of
the oil transpired. Hiong and the surveyor William Yao met the Captain of "M/T
Galilee," called "Captain Bobby" (who later turned out to be Emilio Changco). Hiong
claimed that he did not ask for the full name of Changco nor did he ask for the latter's
personal card.
Upon completion of the transfer, Hiong took the soundings of the tanks in the "Navi
Pride" and took samples of the cargo. The surveyor prepared the survey report which
"Captain Bobby" signed under the name "Roberto Castillo." Hiong then handed the
payment to Paul Gan and William Yao. Upon arrival at Singapore in the morning of
March 29, 1991, Hiong reported the quantity and quality of the cargo to the company.
Thereafter, Hiong was again asked to supervise another transfer of oil purchased by
the firm " from "M/T Galilee" to "Navi Pride." The same procedure as in the first
transfer was observed. This time, Hiong was told that that there were food and drinks,
2 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
including beer, purchased by the company for the crew of "M/T Galilee. The transfer
took ten hours and was completed on March 30, 1991. Paul Gan was paid in full for
the transfer.
On April 29 or 30, 1991, Emilio Changco intimated to Hiong that he had four vessels
and wanted to offer its cargo to cargo operators. Hiong was asked to act as a broker
or ship agent for the sale of the cargo in Singapore. Hiong went to the Philippines to
discuss the matter with Emilio Changco, who laid out the details of the new transfer,
this time with "M/T Polaris" as contact vessel. Hiong was told that the vessel was
scheduled to arrive at the port of Batangas that weekend. After being billeted at Alpha
Hotel in Batangas City, where Hiong checked in under the name "SONNY CSH." A
person by the name of "KEVIN OCAMPO," who later turned out to be Emilio Changco
himself, also checked in at Alpha Hotel. From accused-appellant Cecilio Changco,
Hiong found out that the vessel was not arriving. Hiong was thereafter arrested by
NBI agents.
After trial, a 95-page decision was rendered convicting accused-appellants of the
crime charged. The dispositive portion of said decision reads:
WHEREFORE, in the light of the foregoing considerations, judgment is
hereby rendered by this Court finding the accused Roger Tulin, Virgilio
Loyola, Andres Infante, Jr. and Cecilio Changco guilty beyond reasonable
doubt, as principals, of the crime of piracy in Philippine Waters defined in
Section 2(d) of Presidential Decree No. 532 and the accused Cheong San
Hiong, as accomplice, to said crime. Under Section 3(a) of the said law, the
penalty for the principals of said crime is mandatory death. However,
considering that, under the 1987 Constitution, the Court cannot impose the
death penalty, the accused Roger Tulin, Virgilio Loyola, Andres Infante, Jr.,
and Cecilio Changco are hereby each meted the penalty of RECLUSION
PERPETUA, with all the accessory penalties of the law. The accused
Cheong San Hiong is hereby meted the penalty of RECLUSION
PERPETUA, pursuant to Article 52 of the Revised Penal Code in relation to
Section 5 of PD 532. The accused Roger Tulin, Virgilio Loyola, Andres
Infante, Jr. and Cecilio Changco are hereby ordered to return to the PNOC
Shipping and Transport Corporation the "M/T Tabangao" or if the accused
can no longer return the same, the said accused are hereby ordered to
remit, jointly and severally, to said corporation the value thereof in the
amount of P11,240,000.00, Philippine Currency, with interests thereon, at
the rate of 6% per annum from March 2, 1991 until the said amount is paid in
full. All the accused including Cheong San Hiong are hereby ordered to
return to the Caltex Philippines, Inc. the cargo of the "M/T Tabangao", or if
the accused can no longer return the said cargo to said corporation, all the
accused are hereby condemned to pay, jointly and severally, to the Caltex
Refinery, Inc., the value of said cargo in the amount of P40,426,793.87,
Philippine Currency plus interests until said amount is paid in full. After the
accused Cheong San Hiong has served his sentence, he shall be deported
to Singapore.
All the accused shall be credited for the full period of their detention at the
National Bureau of Investigation and the City Jail of Manila during the
pendency of this case provided that they agreed in writing to abide by and
comply strictly with the rules and regulations of the City Jail of Manila and
the National Bureau of Investigation. With costs against all the accused.
SO ORDERED.
(pp. 149-150, Rollo.)
The matter was then elevated to this Court. The arguments of accused-appellants
may be summarized as follows:
Roger P. Tulin, Virgilio I. Loyola, Andres C. Infante, Jr., and Cecilio O. Changco
Accused-appellants Tulin, Loyola, Infante, Jr., and Cecilio Changco assert that the
trial court erred in allowing them to adopt the proceedings taken during the time they
were being represented by Mr. Tomas Posadas, a non-lawyer, thereby depriving
them of their constitutional right to procedural due process.
In this regard, said accused-appellants narrate that Mr. Posadas entered his
appearance as counsel for all of them. However, in the course of the proceedings, or
on February 11, 1992, the trial court discovered that Mr. Posadas was not a member
of the Philippine Bar. This was after Mr. Posadas had presented and examined seven
witnesses for the accused.
Further, accused-appellants Tulin, Loyola, Infante, Cecilio, Changco uniformly
contend that during the custodial investigation, they were subjected to physical
violence; were forced to sign statements without being given the opportunity to read
the contents of the same; were denied assistance of counsel, and were not informed
of their rights, in violation of their constitutional rights.
Said accused-appellants also argue that the trial court erred in finding that the
prosecution proved beyond reasonable doubt that they committed the crime of
qualified piracy. They allege that the pirates were outnumbered by the crew who
totaled 22 and who were not guarded at all times. The crew, so these accused-
appellants conclude, could have overpowered the alleged pirates.
Cheong San Hiong
In his brief, Cheong argues that: (1) Republic Act No. 7659 in effect obliterated the
crime committed by him; (2) the trial court erred in declaring that the burden is lodged
on him to prove by clear and convincing evidence that he had no knowledge that
Emilio Changco and his cohorts attacked and seized the "M/T Tabangao" and/or that
3 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
the cargo of the vessel was stolen or the subject of theft or robbery or piracy; (3) the
trial court erred in finding him guilty as an accomplice to the crime of qualified piracy
under Section 4 of Presidential Decree No. 532 (Anti-Piracy and Anti-Robbery Law of
1974); (4) the trial court erred in convicting and punishing him as an accomplice when
the acts allegedly committed by him were done or executed outside of Philippine
waters and territory, stripping the Philippine courts of jurisdiction to hold him for trial,
to convict, and sentence; (5) the trial court erred in making factual conclusions without
evidence on record to prove the same and which in fact are contrary to the evidence
adduced during trial; (6) the trial court erred in convicting him as an accomplice under
Section 4 of Presidential Decree No. 532 when he was charged as a principal by
direct participation under said decree, thus violating his constitutional right to be
informed of the nature and cause of the accusation against him.
Cheong also posits that the evidence against the other accused-appellants do not
prove any participation on his part in the commission of the crime of qualified piracy.
He further argues that he had not in any way participated in the seajacking of "M/T
Tabangao" and in committing the crime of qualified piracy, and that he was not aware
that the vessel and its cargo were pirated.
As legal basis for his appeal, he explains that he was charged under the information
with qualified piracy as principal under Section 2 of Presidential Decree No. 532
which refers to Philippine waters. In the case at bar, he argues that he was convicted
for acts done outside Philippine waters or territory. For the State to have criminal
jurisdiction, the act must have been committed within its territory.
We affirm the conviction of all the accused-appellants.
The issues of the instant case may be summarized as follows: (1) what are the legal
effects and implications of the fact that a non-lawyer represented accused-appellants
during the trial?; (2) what are the legal effects and implications of the absence of
counsel during the custodial investigation?; (3) did the trial court err in finding that the
prosecution was able to prove beyond reasonable doubt that accused-appellants
committed the crime of qualified piracy?; (4) did Republic Act No. 7659 obliterate the
crime committed by accused-appellant Cheong?; and (5) can accused-appellant
Cheong be convicted as accomplice when he was not charged as such and when the
acts allegedly committed by him were done or executed outside Philippine waters and
territory?
On the first issue, the record reveals that a manifestation (Exhibit "20", Record) was
executed by accused-appellants Tulin, Loyola, Changco, and Infante, Jr. on February
11, 1991, stating that they were adopting the evidence adduced when they were
represented by a non-lawyer. Such waiver of the right to sufficient representation
during the trial as covered by the due process clause shall only be valid if made with
the full assistance of a bona fide lawyer. During the trial, accused-appellants, as
represented by Atty. Abdul Basar, made a categorical manifestation that said
accused-appellants were apprised of the nature and legal consequences of the
subject manifestation, and that they voluntarily and intelligently executed the same.
They also affirmed the truthfulness of its contents when asked in open court (tsn,
February 11, 1992, pp. 7-59).
It is true that an accused person shall be entitled to be present and to defend himself
in person and by counsel at every stage of the proceedings, from arraignment to
promulgation of judgment (Section 1, Rule 115, Revised Rules of Criminal
Procedure). This is hinged on the fact that a layman is not versed on the technicalities
of trial. However, it is also provided by law that "[r]ights may be waived, unless the
waiver is contrary to law, public order, public policy, morals, or good customs or
prejudicial to a third person with right recognized by law." (Article 6, Civil Code of the
Philippines). Thus, the same section of Rule 115 adds that "[u]pon motion, the
accused may be allowed to defend himself in person when it sufficiently appears to
the court that he can properly protect his rights without the assistance of counsel." By
analogy, but without prejudice to the sanctions imposed by law for the illegal practice
of law, it is amply shown that the rights of accused-appellants were sufficiently and
properly protected by the appearance of Mr. Tomas Posadas. An examination of the
record will show that he knew the technical rules of procedure. Hence, we rule that
there was a valid waiver of the right to sufficient representation during the trial,
considering that it was unequivocally, knowingly, and intelligently made and with the
full assistance of a bona fide lawyer, Atty. Abdul Basar. Accordingly, denial of due
process cannot be successfully invoked where a valid waiver of rights has been made
(People vs. Serzo, 274 SCRA 553 [1997]; Sayson vs. People, 166 SCRA 680 [1988]).
However, we must quickly add that the right to counsel during custodial investigation
may not be waived except in writing and in the presence of counsel.
Section 12, Article III of the Constitution reads:
SECTION 12. (1) Any person under investigation for the commission of an
offense shall have the right to be informed of his right to remain silent and to
have competent and independent counsel preferably of his own choice. If
the person cannot afford the services of counsel, he must be provided with
one. These rights cannot be waived except in writing and in the presence of
counsel.
(2) No torture, force, violence, threat, intimidation, or any other means which
vitiate the free will shall be used against him. Secret detention places,
solitary, incommunicado, or other similar forms of detention are prohibited.
(3) Any confession or admission obtained in violation of this or Section 17
hereof shall be inadmissible in evidence against him.
4 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
 (4) The law shall provide for penal and civil sanctions for violations of this
section as well as compensation to and rehabilitation of victims of torture or
similar practices, and their families.
Such rights originated from Miranda v. Arizona (384 U.S. 436 [1966]) which gave birth
to the so-called Miranda doctrine which is to the effect that prior to any questioning
during custodial investigation, the person must be warned that he has a right to
remain silent, that any statement he gives may be used as evidence against him, and
that he has the right to the presence of an attorney, either retained or appointed. The
defendant may waive effectuation of these rights, provided the waiver is made
voluntarily, knowingly, and intelligently. The Constitution even adds the more stringent
requirement that the waiver must be in writing and made in the presence of counsel.
Saliently, the absence of counsel during the execution of the so-called confessions of
the accused-appellants make them invalid. In fact, the very basic reading of the
Miranda rights was not even shown in the case at bar. Paragraph [3] of the
aforestated Section 12 sets forth the so-called "fruit from the poisonous tree doctrine,"
a phrase minted by Mr. Justice Felix Frankfurter in the celebrated case of Nardone
vs. United States (308 U.S. 388 [1939]). According to this rule, once the primary
source (the "tree") is shown to have been unlawfully obtained, any secondary or
derivative evidence (the "fruit") derived from it is also inadmissible. The rule is based
on the principle that evidence illegally obtained by the State should not be used to
gain other evidence because the originally illegally obtained evidence taints all
evidence subsequently obtained (People vs. Alicando, 251 SCRA 293 [1995]). Thus,
in this case, the uncounselled extrajudicial confessions of accused-appellants, without
a valid waiver of the right to counsel, are inadmissible and whatever information is
derived therefrom shall be regarded as likewise inadmissible in evidence against
them.
However, regardless of the inadmissibility of the subject confessions, there is
sufficient evidence to convict accused-appellants with moral certainty. We agree with
the sound deduction of the trial court that indeed, Emilio Changco (Exhibits "U" and
"UU") and accused-appellants Tulin, Loyola, and Infante, Jr. did conspire and
confederate to commit the crime charged. In the words of then trial judge, now Justice
Romeo J. Callejo of the Court of Appeals —
. . . The Prosecution presented to the Court an array of witnesses, officers
and members of the crew of the "M/T Tabangao" no less, who identified and
pointed to the said Accused as among those who attacked and seized, the
"M/T Tabangao" on March 2, 1991, at about 6:30 o'clock in the afternoon, off
Lubang Island, Mindoro, with its cargo, and brought the said vessel, with its
cargo, and the officers and crew of the vessel, in the vicinity of Horsebough
Lighthouse, about sixty-six nautical miles off the shoreline of Singapore and
sold its cargo to the Accused Cheong San Hiong upon which the cargo was
discharged from the "M/T Tabangao" to the "Navi Pride" for the price of
about $500,000.00 (American Dollars) on March 29, and 30, 1991. . .
xxx           xxx           xxx
The Master, the officers and members of the crew of the "M/T Tabangao"
were on board the vessel with the Accused and their cohorts from March 2,
1991 up to April 10, 1991 or for more than one (1) month. There can be no
scintilla of doubt in the mind of the Court that the officers and crew of the
vessel could and did see and identify the seajackers and their leader. In fact,
immediately after the Accused were taken into custody by the operatives of
the National Bureau of Investigation, Benjamin Suyo, Norberto Senosa,
Christian Torralba and Isaias Wervas executed their "Joint Affidavit" (Exhibit
"B") and pointed to and identified the said Accused as some of the pirates.
xxx           xxx           xxx
Indeed, when they testified before this Court on their defense, the three (3)
Accused admitted to the Court that they, in fact, boarded the said vessel in
the evening of March 2, 1991 and remained on board when the vessel sailed
to its destination, which turned out to be off the port of Singapore.
(pp. 106-112, Rollo.)
We also agree with the trial court's finding that accused-appellants' defense of denial
is not supported by any hard evidence but their bare testimony. Greater weight is
given to the categorical identification of the accused by the prosecution witnesses
than to the accused's plain denial of participation in the commission of the crime
(People v. Baccay, 284 SCRA 296 [1998]). Instead, accused-appellants Tulin, Loyola,
and Infante, Jr. narrated a patently desperate tale that they were hired by three
complete strangers (allegedly Captain Edilberto Liboon, Second Mate Christian
Torralba, and their companion) while said accused-appellants were conversing with
one another along the seashore at Aplaya, Balibago, Calatagan, Batangas, to work
on board the "M/T Tabangao" which was then anchored off-shore. And readily, said
accused-appellants agreed to work as cooks and handymen for an indefinite period of
time without even saying goodbye to their families, without even knowing their
destination or the details of their voyage, without the personal effects needed for a
long voyage at sea. Such evidence is incredible and clearly not in accord with human
experience. As pointed out by the trial court, it is incredible that Captain Liboon,
Second Mate Torralba, and their companion "had to leave the vessel at 9:30 o'clock
in the evening and venture in a completely unfamiliar place merely to recruit five (5)
cooks or handymen (p. 113, Rollo)."
Anent accused-appellant Changco's defense of denial with the alibi that on May 14
and 17, he was at his place of work and that on April 10, 1991, he was in his house in
Bacoor, Cavite, sleeping, suffice it to state that alibi is fundamentally and inherently a
weak defense, much more so when uncorroborated by other witnesses (People v.
Adora, 275 SCRA 441 [1997]) considering that it is easy to fabricate and concoct, and
5 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
difficult to disprove. Accused-appellant must adduce clear and convincing evidence
that, at about midnight on April 10, 1991, it was physically impossible for him to have
been in Calatagan, Batangas. Changco not only failed to do this, he was likewise
unable to prove that he was in his place of work on the dates aforestated.
It is doctrinal that the trial court's evaluation of the credibility of a testimony is
accorded the highest respect, for trial courts have an untrammeled opportunity to
observe directly the demeanor of witnesses and, thus, to determine whether a certain
witness is telling the truth (People v. Obello, 284 SCRA 79 [1998]).
We likewise uphold the trial court's finding of conspiracy. A conspiracy exists when
two or more persons come to an agreement concerning the commission of a felony
and decide to commit it (Article 8, Revised Penal Code). To be a conspirator, one
need not participate in every detail of execution; he need not even take part in every
act or need not even know the exact part to be performed by the others in the
execution of the conspiracy. As noted by the trial court, there are times when
conspirators are assigned separate and different tasks which may appear unrelated
to one another, but in fact, constitute a whole and collective effort to achieve a
common criminal design.
We affirm the trial court's finding that Emilio Changco, accused-appellants Tulin,
Loyola, and Infante, Jr. and others, were the ones assigned to attack and seize the
"M/T Tabangao" off Lubang, Mindoro, while accused-appellant Cecilio Changco was
to fetch the master and the members of the crew from the shoreline of Calatagan,
Batangas after the transfer, and bring them to Imus, Cavite, and to provide the crew
and the officers of the vessel with money for their fare and food provisions on their
way home. These acts had to be well-coordinated. Accused-appellant Cecilio
Changco need not be present at the time of the attack and seizure of "M/T Tabangao"
since he performed his task in view of an objective common to all other accused-
appellants.
Of notable importance is the connection of accused-appellants to one another.
Accused-appellant Cecilio Changco is the younger brother of Emilio Changco (aka
Captain Bobby/Captain Roberto Castillo/Kevin Ocampo), owner of Phil-Asia Shipping
Lines. Cecilio worked for his brother in said corporation. Their residences are
approximately six or seven kilometers away from each other. Their families are close.
Accused-appellant Tulin, on the other hand, has known Cecilio since their parents
were neighbors in Aplaya, Balibago, Calatagan, Batangas. Accused-appellant
Loyola's wife is a relative of the Changco brothers by affinity. Besides, Loyola and
Emilio Changco had both been accused in a seajacking case regarding "M/T Isla
Luzon" and its cargo of steel coils and plates off Cebu and Bohol in 1989. Emilio
Changco (aka Kevin Ocampo) was convicted of the crime while Loyola at that time
remained at large.
As for accused-appellant Hiong, he ratiocinates that he can no longer be convicted of
piracy in Philippine waters as defined and penalized in Sections 2[d] and 3[a],
respectively of Presidential Decree No. 532 because Republic Act No. 7659 (effective
January 1, 1994), which amended Article 122 of the Revised Penal Code, has
impliedly superseded Presidential Decree No. 532. He reasons out that Presidential
Decree No. 532 has been rendered "superfluous or duplicitous" because both Article
122 of the Revised Penal Code, as amended, and Presidential Decree No. 532
punish piracy committed in Philippine waters. He maintains that in order to reconcile
the two laws, the word "any person" mentioned in Section 1 [d] of Presidential Decree
No. 532 must be omitted such that Presidential Decree No. 532 shall only apply to
offenders who are members of the complement or to passengers of the vessel,
whereas Republic Act No. 7659 shall apply to offenders who are neither members of
the complement or passengers of the vessel, hence, excluding him from the coverage
of the law.
Article 122 of the Revised Penal Code, used to provide:
ARTICLE 122. Piracy in general and mutiny on the high seas. — The penalty
of reclusion temporal shall be inflicted upon any person who, on the high
seas, shall attack or seize a vessel or, not being a member of its
complement nor a passenger, shall seize the whole or part of the cargo of
said vessel, its equipment, or personal belongings of its complement or
passengers.
(Italics supplied.)
Article 122, as amended by Republic Act No. 7659 (January 1, 1994), reads:
ARTICLE 122. Piracy in general and mutiny on the high seas or in Philippine
waters. — The penalty of reclusion perpetua shall be inflicted upon any
person who, on the high seas, or in Philippine waters, shall attack or seize a
vessel or, not being a member of its complement nor a passenger, shall
seize the whole or part of the cargo of said vessel, its equipment, or personal
belongings of its complement or passengers.
(Italics ours)
On the other hand, Section 2 of Presidential Decree No. 532 provides:
SECTION 2. Definition of Terms. — The following shall mean and be
understood, as follows:
d. Piracy. — Any attack upon or seizure of any vessel or the taking away of
the whole or part thereof or its cargo, equipment, or the personal belongings
of its complement or passengers, irrespective of the value thereof, by means
of violence against or intimidation of persons or force upon things, committed
6 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
 by any person, including a passenger or member of the complement of said
vessel in Philippine waters, shall be considered as piracy. The offenders
shall be considered as pirates and punished as hereinafter provided (Italics
supplied).
To summarize, Article 122 of the Revised Penal Code, before its amendment,
provided that piracy must be committed on the high seas by any person not a
member of its complement nor a passenger thereof. Upon its amendment by Republic
Act No. 7659, the coverage of the pertinent provision was widened to include
offenses committed "in Philippine waters." On the other hand, under Presidential
Decree No. 532 (issued in 1974), the coverage of the law on piracy embraces any
person including "a passenger or member of the complement of said vessel in
Philippine waters." Hence, passenger or not, a member of the complement or not, any
person is covered by the law.
Republic Act No. 7659 neither superseded nor amended the provisions on piracy
under Presidential Decree No. 532. There is no contradiction between the two laws.
There is likewise no ambiguity and hence, there is no need to construe or interpret
the law. All the presidential decree did was to widen the coverage of the law, in
keeping with the intent to protect the citizenry as well as neighboring states from
crimes against the law of nations. As expressed in one of the "whereas" clauses of
Presidential Decree No. 532, piracy is "among the highest forms of lawlessness
condemned by the penal statutes of all countries." For this reason, piracy under the
Article 122, as amended, and piracy under Presidential Decree No. 532 exist
harmoniously as separate laws.
As regards the contention that the trial court did not acquire jurisdiction over the
person of accused-appellant Hiong since the crime was committed outside Philippine
waters, suffice it to state that unquestionably, the attack on and seizure of "M/T
Tabangao" (renamed "M/T Galilee" by the pirates) and its cargo were committed in
Philippine waters, although the captive vessel was later brought by the pirates to
Singapore where its cargo was off-loaded, transferred, and sold. And such transfer
was done under accused-appellant Hiong's direct supervision. Although Presidential
Decree No. 532 requires that the attack and seizure of the vessel and its cargo be
committed in Philippine waters, the disposition by the pirates of the vessel and its
cargo is still deemed part of the act of piracy, hence, the same need not be committed
in Philippine waters.
Moreover, piracy falls under Title One of Book Two of the Revised Penal Code. As
such, it is an exception to the rule on territoriality in criminal law. The same principle
applies even if Hiong, in the instant case, were charged, not with a violation of
qualified piracy under the penal code but under a special law, Presidential Decree No.
532 which penalizes piracy in Philippine waters. Verily, Presidential Decree No. 532
should be applied with more force here since its purpose is precisely to discourage
and prevent piracy in Philippine waters (People v. Catantan, 278 SCRA 761 [1997]). It
is likewise, well-settled that regardless of the law penalizing the same, piracy is a
reprehensible crime against the whole world (People v. Lol-lo, 43 Phil. 19 [1922]).
However, does this constitute a violation of accused-appellant's constitutional right to
be informed of the nature and cause of the accusation against him on the ground that
he was convicted as an accomplice under Section 4 of Presidential Decree No. 532
even though he was charged as a principal by direct participation under Section 2 of
said law?
The trial court found that there was insufficiency of evidence showing:
(a) that accused-appellant Hiong directly participated in the attack and seizure of "M/T
Tabangao" and its cargo; (b) that he induced Emilio Changco and his group in the
attack and seizure of "M/T Tabangao" and its cargo; (c) and that his act was
indispensable in the attack on and seizure of "M/T Tabangao" and its cargo.
Nevertheless, the trial court found that accused-appellant Hiong's participation was
indisputably one which aided or abetted Emilio Changco and his band of pirates in the
disposition of the stolen cargo under Section 4 of Presidential Decree No. 532 which
provides:
SECTION 4. Aiding pirates or highway robbers/brigands or abetting piracy or
highway robbery brigandage. — Any person who knowingly and in any
manner aids or protects pirates or highway robbers/brigands, such as giving
them information about the movement of police or other peace officers of the
government, or acquires or receives property taken by such pirates or
brigands or in any manner derives any benefit therefrom; or any person who
directly or indirectly abets the commission of piracy or highway robbery or
brigandage, shall be considered as an accomplice of the principal officers
and be punished in accordance with Rules prescribed by the Revised Penal
Code.
It shall be presumed that any person who does any of the acts provided in
this Section has performed them knowingly, unless the contrary is proven.
The ruling of the trial court is within well-settled jurisprudence that if there is lack of
complete evidence of conspiracy, the liability is that of an accomplice and not as
principal (People v. Tolentino, 40 SCRA 514 [1971]). Any doubt as to the participation
of an individual in the commission of the crime is always resolved in favor of lesser
responsibility (People v. Corbes, 270 SCRA 465 [1997]; People vs. Elfano, Jr., 125
SCRA 792 [1983]; People v. Pastores, 40 SCRA 498 [1971]).
Emphasis must also be placed on the last paragraph of Section 4 of Presidential
Decree No. 532 which presumes that any person who does any of the acts provided
in said section has performed them knowingly, unless the contrary is proven. In the
case at bar, accused-appellant Hiong had failed to overcome the legal presumption
7 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
that he knowingly abetted or aided in the commission of piracy, received property
taken by such pirates and derived benefit therefrom.
The record discloses that accused-appellant Hiong aided the pirates in disposing of
the stolen cargo by personally directing its transfer from "M/T Galilee" to "M/T Navi
Pride". He profited therefrom by buying the hijacked cargo for Navi Marine Services,
Pte., Ltd. (tsn, June 3, 1992, pp. 15-23). He even tested the quality and verified the
quantity of the petroleum products, connived with Navi Marine Services personnel in
falsifying the General Declarations and Crew List to ensure that the illegal transfer
went through, undetected by Singapore Port Authorities, and supplied, the pirates
with food, beer, and other provisions for their maintenance while in port (tsn, June 3,
1992, pp. 133-134).
We believe that the falsification of the General Declaration (Arrival and Departure)
and Crew List was accomplished and utilized by accused-appellant Hiong and Navi
Marine Services personnel in the execution of their scheme to avert detection by
Singapore Port Authorities. Hence, had accused-appellant Hiong not falsified said
entries, the Singapore Port Authorities could have easily discovered the illegal
activities that took place and this would have resulted in his arrest and prosecution in
Singapore. Moreover, the transfer of the stolen cargo from "M/T Galilee" to "Navi
Pride" could not have been effected.
We completely uphold the factual findings of the trial court showing in detail accused-
appellant Hiong's role in the disposition of the pirated goods summarized as follows:
that on March 27, 1991, Hiong with Captain Biddy Santos boarded the "Navi Pride,"
one of the vessels of the Navi Marine, to rendezvous with the "M/T Galilee"; that the
firm submitted the crew list of the vessel (Exhibit "8-CSH", Record) to the port
authorities, excluding the name of Hiong; that the "General Declaration" (for
departure) of the "Navi Pride" for its voyage off port of Singapore (Exhibits "HH" and
"8-A CSH", Record) falsely stated that the vessel was scheduled to depart at 2200
(10 o'clock in the evening), that there were no passengers on board, and the purpose
of the voyage was for "cargo operation" and that the vessel was to unload and
transfer 1,900 tons of cargo; that after the transfer of the fuel from "M/T Galilee" with
Emilio Changco a. k. a. Captain Bobby a. k. a. Roberto Castillo at the helm, the
surveyor prepared the "Quantity Certificate" (Exhibit "11-C CSH, Record) stating that
the cargo transferred to the "Navi Pride" was 2,406 gross cubic meters; that although
Hiong was not the Master of the vessel, he affixed his signature on the "Certificate"
above the word "Master" (Exhibit "11-C-2 CSH", Record); that he then paid
P150,000.00 but did not require any receipt for the amount; that Emilio Changco also
did not issue one; and that in the requisite "General Declaration" upon its arrival at
Singapore on March 29, 1991, at 7 o'clock in the evening, (Exhibits "JJ" and "13-A
CSH", Record), it was made to falsely appear that the "Navi Pride" unloaded 1,700
tons of cargo on the high seas during said voyage when in fact it acquired from the
"M/T Galilee" 2,000 metric tons of diesel oil. The second transfer transpired with the
same irregularities as discussed above. It was likewise supervised by accused-
appellant Cheong from his end while Emilio Changco supervised the transfer from his
end.
Accused-appellant Hiong maintains that he was merely following the orders of his
superiors and that he has no knowledge of the illegality of the source of the cargo.
First and foremost, accused-appellant Hiong cannot deny knowledge of the source
and nature of the cargo since he himself received the same from "M/T Tabangao".
Second, considering that he is a highly educated mariner, he should have avoided
any participation in the cargo transfer given the very suspicious circumstances under
which it was acquired. He failed to show a single piece of deed or bill of sale or even
a purchase order or any contract of sale for the purchase by the firm; he never
bothered to ask for and scrutinize the papers and documentation relative to the "M/T
Galilee"; he did not even verify the identity of Captain Robert Castillo whom he met
for the first time nor did he check the source of the cargo; he knew that the transfer
took place 66 nautical miles off Singapore in the dead of the night which a marine
vessel of his firm did not ordinarily do; it was also the first time Navi Marine transacted
with Paul Gan involving a large sum of money without any receipt issued therefor; he
was not even aware if Paul Gan was a Singaporean national and thus safe to deal
with. It should also be noted that the value of the cargo was P40,426,793.87 or
roughly more than US$1,000,000.00 (computed at P30.00 to $1, the exchange rate at
that time). Manifestly, the cargo was sold for less than one-half of its value. Accused-
appellant Hiong should have been aware of this irregularity. Nobody in his right mind
would go to far away Singapore, spend much time and money for transportation —
only to sell at the aforestated price if it were legitimate sale involved. This, in addition
to the act of falsifying records, clearly shows that accused-appellant Hiong was well
aware that the cargo that his firm was acquiring was purloined.
Lastly, it cannot be correctly said that accused-appellant was "merely following the
orders of his superiors." An individual is justified in performing an act in obedience to
an order issued by a superior if such order, is for some lawful purpose and that the
means used by the subordinate to carry out said order is lawful (Reyes, Revised
Penal Code, Vol. 1, 1981 ed., p. 212). Notably, the alleged order of Hiong's superior
Chua Kim Leng Timothy, is a patent violation not only of Philippine, but of
international law. Such violation was committed on board a Philippine-operated
vessel. Moreover, the means used by Hiong in carrying out said order was equally
unlawful. He misled port and immigration authorities, falsified records, using a mere
clerk, Frankie Loh, to consummate said acts. During the trial, Hiong presented
himself, and the trial court was convinced, that he was an intelligent and articulate
Port Captain. These circumstances show that he must have realized the nature and
the implications of the order of Chua Kim Leng Timothy. Thereafter, he could have
refused to follow orders to conclude the deal and to effect the transfer of the cargo to
the "Navi Pride." He did not do so, for which reason, he must now suffer the
consequences of his actions.
WHEREFORE, finding the conviction of accused-appellants justified by the evidence
on record, the Court hereby AFFIRMS the judgment of the trial court in toto.
SO ORDERED.
8 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
G.R. No. L-5272             March 19, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
AH CHONG, defendant-appellant.

Gibb & Gale, for appellant.

Attorney-General Villamor, for appellee.

CARSON, J.:

The evidence as to many of the essential and vital facts in this case is limited to the
testimony of the accused himself, because from the very nature of these facts and
from the circumstances surrounding the incident upon which these proceedings rest,
no other evidence as to these facts was available either to the prosecution or to the
defense. We think, however, that, giving the accused the benefit of the doubt as to
the weight of the evidence touching those details of the incident as to which there can
be said to be any doubt, the following statement of the material facts disclose by the
record may be taken to be substantially correct:

The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27,"
Fort Mc Kinley, Rizal Province, and at the same place Pascual Gualberto, deceased,
was employed as a house boy or muchacho. "Officers' quarters No. 27" as a
detached house situates some 40 meters from the nearest building, and in August,
19087, was occupied solely as an officers' mess or club. No one slept in the house
except the two servants, who jointly occupied a small room toward the rear of the
building, the door of which opened upon a narrow porch running along the side of the
building, by which communication was had with the other part of the house. This
porch was covered by a heavy growth of vines for its entire length and height. The
door of the room was not furnished with a permanent bolt or lock, and occupants, as
a measure of security, had attached a small hook or catch on the inside of the door,
and were in the habit of reinforcing this somewhat insecure means of fastening the
door by placing against it a chair. In the room there was but one small window, which,
like the door, opened on the porch. Aside from the door and window, there were no
other openings of any kind in the room.

On the night of August 14, 1908, at about 10 o'clock, the defendant, who had
received for the night, was suddenly awakened by some trying to force open the door
of the room. He sat up in bed and called out twice, "Who is there?" He heard no
9 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
answer and was convinced by the noise at the door that it was being pushed open by
someone bent upon forcing his way into the room. Due to the heavy growth of vines
along the front of the porch, the room was very dark, and the defendant, fearing that
the intruder was a robber or a thief, leaped to his feet and called out. "If you enter the
room, I will kill you." At that moment he was struck just above the knee by the edge of
the chair which had been placed against the door. In the darkness and confusion the
defendant thought that the blow had been inflicted by the person who had forced the
door open, whom he supposed to be a burglar, though in the light of after events, it is
probable that the chair was merely thrown back into the room by the sudden opening
of the door against which it rested. Seizing a common kitchen knife which he kept
under his pillow, the defendant struck out wildly at the intruder who, it afterwards
turned out, was his roommate, Pascual. Pascual ran out upon the porch and fell down
on the steps in a desperately wounded condition, followed by the defendant, who
immediately recognized him in the moonlight. Seeing that Pascual was wounded, he
called to his employers who slept in the next house, No. 28, and ran back to his room
to secure bandages to bind up Pascual's wounds.
There had been several robberies in Fort McKinley not long prior to the date of the
incident just described, one of which took place in a house in which the defendant
was employed as cook; and as defendant alleges, it was because of these repeated
robberies he kept a knife under his pillow for his personal protection.
The deceased and the accused, who roomed together and who appear to have on
friendly and amicable terms prior to the fatal incident, had an understanding that
when either returned at night, he should knock at the door and acquiant his
companion with his identity. Pascual had left the house early in the evening and gone
for a walk with his friends, Celestino Quiambao and Mariano Ibañez, servants
employed at officers' quarters No. 28, the nearest house to the mess hall. The three
returned from their walk at about 10 o'clock, and Celestino and Mariano stopped at
their room at No. 28, Pascual going on to his room at No. 27. A few moments after the
party separated, Celestino and Mariano heard cries for assistance and upon returning
to No. 27 found Pascual sitting on the back steps fatally wounded in the stomach,
whereupon one of them ran back to No. 28 and called Liuetenants Jacobs and Healy,
who immediately went to the aid of the wounded man.
The defendant then and there admitted that he had stabbed his roommate, but said
that he did it under the impression that Pascual was "a ladron" because he forced
open the door of their sleeping room, despite defendant's warnings.
No reasonable explanation of the remarkable conduct on the part of Pascuals
suggests itself, unless it be that the boy in a spirit of mischief was playing a trick on
his Chinese roommate, and sought to frightened him by forcing his way into the room,
refusing to give his name or say who he was, in order to make Ah Chong believe that
he was being attacked by a robber.
Defendant was placed under arrest forthwith, and Pascual was conveyed to the
military hospital, where he died from the effects of the wound on the following day.
The defendant was charged with the crime of assassination, tried, and found guilty by
the trial court of simple homicide, with extenuating circumstances, and sentenced to
six years and one day  presidio mayor, the minimum penalty prescribed by law.
At the trial in the court below the defendant admitted that he killed his roommate,
Pascual Gualberto, but insisted that he struck the fatal blow without any intent to do a
wrongful act, in the exercise of his lawful right of self-defense.
Article 8 of the Penal Code provides that —
The following are not delinquent and are therefore exempt from criminal
liability:
xxx             xxx             xxx
4 He who acts in defense of his person or rights, provided there are the
following attendant circumstances:
(1) Illegal aggression.
(2) Reasonable necessity of the means employed to prevent or repel it.
(3) Lack of sufficient provocation on the part of the person defending himself.
Under these provisions we think that there can be no doubt that defendant would be
entitle to complete exception from criminal liability for the death of the victim of his
fatal blow, if the intruder who forced open the door of his room had been in fact a
dangerous thief or "ladron," as the defendant believed him to be. No one, under such
circumstances, would doubt the right of the defendant to resist and repel such an
intrusion, and the thief having forced open the door notwithstanding defendant's
thrice-repeated warning to desist, and his threat that he would kill the intruder if he
persisted in his attempt, it will not be questioned that in the darkness of the night, in a
small room, with no means of escape, with the thief advancing upon him despite his
warnings defendant would have been wholly justified in using any available weapon
to defend himself from such an assault, and in striking promptly, without waiting for
the thief to discover his whereabouts and deliver the first blow.
But the evidence clearly discloses that the intruder was not a thief or a "ladron." That
neither the defendant nor his property nor any of the property under his charge was in
real danger at the time when he struck the fatal blow. That there was no such
"unlawful aggression" on the part of a thief or "ladron" as defendant believed he was
10 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
repelling and resisting, and that there was no real "necessity" for the use of the knife
to defend his person or his property or the property under his charge.
The question then squarely presents it self, whether in this jurisdiction one can be
held criminally responsible who, by reason of a mistake as to the facts, does an act
for which he would be exempt from criminal liability if the facts were as he supposed
them to be, but which would constitute the crime of homicide or assassination if the
actor had known the true state of the facts at the time when he committed the act. To
this question we think there can be but one answer, and we hold that under such
circumstances there is no criminal liability, provided always that the alleged ignorance
or mistake or fact was not due to negligence or bad faith.
In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is
sufficient to negative a particular intent which under the law is a necessary ingredient
of the offense charged (e.g., in larcerny, animus furendi; in murder, malice; in crimes
intent) "cancels the presumption of intent," and works an acquittal; except in those
cases where the circumstances demand a conviction under the penal provisions
touching criminal negligence; and in cases where, under the provisions of article 1 of
the Penal Code one voluntarily committing a crime or misdeamor incurs criminal
liability for any wrongful act committed by him, even though it be different from that
which he intended to commit. (Wharton's Criminal Law, sec. 87 and cases cited;
McClain's Crim. Law, sec. 133 and cases cited; Pettit vs. S., 28 Tex. Ap., 240;
Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32 N.Y., 509;
Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.)
The general proposition thus stated hardly admits of discussion, and the only
question worthy of consideration is whether malice or criminal intent is an essential
element or ingredient of the crimes of homicide and assassination as defined and
penalized in the Penal Code. It has been said that since the definitions there given of
these as well as most other crimes and offense therein defined, do not specifically
and expressly declare that the acts constituting the crime or offense must be
committed with malice or with criminal intent in order that the actor may be held
criminally liable, the commission of the acts set out in the various definitions subjects
the actor to the penalties described therein, unless it appears that he is exempted
from liability under one or other of the express provisions of article 8 of the code,
which treats of exemption. But while it is true that contrary to the general rule of
legislative enactment in the United States, the definitions of crimes and offenses as
set out in the Penal Code rarely contain provisions expressly declaring that malice or
criminal intent is an essential ingredient of the crime, nevertheless, the general
provisions of article 1 of the code clearly indicate that malice, or criminal intent in
some form, is an essential requisite of all crimes and offense therein defined, in the
absence of express provisions modifying the general rule, such as are those touching
liability resulting from acts negligently or imprudently committed, and acts done by
one voluntarily committing a crime or misdemeanor, where the act committed is
different from that which he intended to commit. And it is to be observed that even
these exceptions are more apparent than real, for "There is little distinction, except in
degree, between a will to do a wrongful thing and indifference whether it is done or
not. Therefore carelessness is criminal, and within limits supplies the place of the
affirmative criminal intent" (Bishop's New Criminal Law, vol. 1, s. 313); and, again,
"There is so little difference between a disposition to do a great harm and a
disposition to do harm that one of them may very well be looked upon as the measure
of the other. Since, therefore, the guilt of a crime consists in the disposition to do
harm, which the criminal shows by committing it, and since this disposition is greater
or less in proportion to the harm which is done by the crime, the consequence is that
the guilt of the crime follows the same proportion; it is greater or less according as the
crime in its own nature does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it
has been otherwise stated, the thing done, having proceeded from a corrupt mid, is to
be viewed the same whether the corruption was of one particular form or another.
Article 1 of the Penal Code is as follows:
Crimes or misdemeanors are voluntary acts and ommissions punished by
law.
Acts and omissions punished by law are always presumed to be voluntarily
unless the contrary shall appear.
An person voluntarily committing a crime or misdemeanor shall incur criminal
liability, even though the wrongful act committed be different from that which
he had intended to commit.
The celebrated Spanish jurist Pacheco, discussing the meaning of the word
"voluntary" as used in this article, say that a voluntary act is a  free, intelligent,
and intentional  act, and roundly asserts that without intention (intention to do wrong or
criminal intention) there can be no crime; and that the word "voluntary" implies and
includes the words "con malicia," which were expressly set out in the definition of the
word "crime" in the code of 1822, but omitted from the code of 1870, because, as
Pacheco insists, their use in the former code was redundant, being implied and
included in the word "voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)
Viada, while insisting that the absence of intention to commit the crime can only be
said to exempt from criminal responsibility when the act which was actually intended
to be done was in itself a lawful one, and in the absence of negligence or imprudence,
nevertheless admits and recognizes in his discussion of the provisions of this article
of the code that in general without intention there can be no crime. (Viada, vol. 1, p.
16.) And, as we have shown above, the exceptions insisted upon by Viada are more
apparent than real.
Silvela, in discussing the doctrine herein laid down, says:
In fact, it is sufficient to remember the first article, which declared that where
there is no intention there is no crime . . . in order to affirm, without fear of
11 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
 mistake, that under our code there can be no crime if there is no act, an act
which must fall within the sphere of ethics if there is no moral injury. (Vol. 2,
the Criminal Law, folio 169.)
And to the same effect are various decisions of the supreme court of Spain, as, for
example in its sentence of May 31, 1882, in which it made use of the following
language:
It is necessary that this act, in order to constitute a crime, involve all the
malice which is supposed from the operation of the will and an intent to
cause the injury which may be the object of the crime.
And again in its sentence of March 16, 1892, wherein it held that "considering that,
whatever may be the civil effects of the inscription of his three sons, made by the
appellant in the civil registry and in the parochial church, there can be no crime
because of the lack of the necessary element or criminal intention, which
characterizes every action or ommission punished by law; nor is he guilty of criminal
negligence."
And to the same effect in its sentence of December 30, 1896, it made use of the
following language:
. . . Considering that the moral element of the crime, that is, intent or malice
or their absence in the commission of an act defined and punished by law as
criminal, is not a necessary question of fact submitted to the exclusive
judgment and decision of the trial court.
That the author of the Penal Code deemed criminal intent or malice to be an essential
element of the various crimes and misdemeanors therein defined becomes clear also
from an examination of the provisions of article 568, which are as follows:
He who shall execute through reckless negligence an act that, if done with
malice, would constitute a grave crime, shall be punished with the penalty
of arresto mayor in its maximum degree, to prision correccional in its
minimum degrees if it shall constitute a less grave crime.
He who in violation of the regulations shall commit a crime through simple
imprudence or negligence shall incur the penalty of arresto mayor in its
medium and maximum degrees.
In the application of these penalties the courts shall proceed according to
their discretion, without being subject to the rules prescribed in article 81.
The provisions of this article shall not be applicable if the penalty prescribed
for the crime is equal to or less than those contained in the first paragraph
thereof, in which case the courts shall apply the next one thereto in the
degree which they may consider proper.
The word "malice" in this article is manifestly substantially equivalent to the words
"criminal intent," and the direct inference from its provisions is that the commission of
the acts contemplated therein, in the absence of malice (criminal intent), negligence,
and imprudence, does not impose any criminal liability on the actor.
The word "voluntary" as used in article 1 of the Penal Code would seem to
approximate in meaning the word "willful" as used in English and American statute to
designate a form of criminal intent. It has been said that while the word "willful"
sometimes means little more than intentionally or designedly, yet it is more frequently
understood to extent a little further and approximate the idea of the milder kind of
legal malice; that is, it signifies an evil intent without justifiable excuse. In one case it
was said to mean, as employed in a statute in contemplation, "wantonly" or
"causelessly;" in another, "without reasonable grounds to believe the thing lawful."
And Shaw, C. J., once said that ordinarily in a statute it means "not merely
`voluntarily' but with a bad purpose; in other words, corruptly." In English and the
American statutes defining crimes "malice," "malicious," "maliciously," and "malice
aforethought" are words indicating intent, more purely technical than "willful" or
willfully," but "the difference between them is not great;" the word "malice" not often
being understood to require general malevolence toward a particular individual, and
signifying rather the intent from our legal justification. (Bishop's New Criminal Law,
vol. 1, secs. 428 and 429, and cases cited.)
But even in the absence of express words in a statute, setting out a condition in the
definition of a crime that it be committed "voluntarily," willfully," "maliciously" "with
malice aforethought," or in one of the various modes generally construed to imply a
criminal intent, we think that reasoning from general principles it will always be found
that with the rare exceptions hereinafter mentioned, to constitute a crime evil intent
must combine with an act. Mr. Bishop, who supports his position with numerous
citations from the decided cases, thus forcely present this doctrine:
In no one thing does criminal jurisprudence differ more from civil than in the
rule as to the intent. In controversies between private parties the quo
animo with which a thing was done is sometimes important, not always; but
crime proceeds only from a criminal mind. So that —
There can be no crime, large or small, without an evil mind. In other words,
punishment is the sentence of wickedness, without which it can not be. And
neither in philosophical speculation nor in religious or mortal sentiment would
any people in any age allow that a man should be deemed guilty unless his
mind was so. It is therefore a principle of our legal system, as probably it is
12 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
 of every other, that the essence of an offense is the wrongful intent, without
which it can not exists. We find this doctrine confirmed by —
Legal maxims. — The ancient wisdom of the law, equally with the modern, is
distinct on this subject. It consequently has supplied to us such maxims
as Actus non facit reum nisi mens sit rea, "the act itself does not make man
guilty unless his intention were so;" Actus me incito factus non est meus
actus, "an act done by me against my will is not my act;" and others of the
like sort. In this, as just said, criminal jurisprudence differs from civil. So also
— the principles of abstract justice. On the contrary, the maxim here is Ignorantia facti
Moral science and moral sentiment  teach the same thing. "By reference to
the intention, we inculpate or exculpate others or ourselves without any
respect to the happiness or misery actually produced. Let the result of an
action be what it may, we hold a man guilty simply on the ground of
intention; or, on the dame ground, we hold him innocent." The calm
judgment of mankind keeps this doctrine among its jewels. In times of
excitement, when vengeance takes the place of justice, every guard around
the innocent is cast down. But with the return of reason comes the public
voice that where the mind is pure, he who differs in act from his neighbors
does not offend. And —
In the spontaneous judgment which springs from the nature given by God to
man, no one deems another to deserve punishment for what he did from an
upright mind, destitute of every form of evil. And whenever a person is made
to suffer a punishment which the community deems not his due, so far from
its placing an evil mark upon him, it elevates him to the seat of the martyr.
Even infancy itself spontaneously pleads the want of bad intent in
justification of what has the appearance of wrong, with the utmost
confidence that the plea, if its truth is credited, will be accepted as good.
Now these facts are only the voice of nature uttering one of her immutable
truths. It is, then, the doctrine of the law, superior to all other doctrines,
because first in nature from which the law itself proceeds, that no man is to
be punished as a criminal unless his intent is wrong. (Bishop's New Criminal
Law, vol. 1, secs. 286 to 290.)
Compelled by necessity, "the great master of all things," an apparent departure from
this doctrine of abstract justice result from the adoption of the arbitrary rule
that Ignorantia juris non excusat  ("Ignorance of the law excuses no man"), without
which justice could not be administered in our tribunals; and compelled also by the
same doctrine of necessity, the courts have recognized the power of the legislature to
forbid, in a limited class of cases, the doing of certain acts, and to make their
commission criminal without regard to the intent of the doer. Without discussing these
exceptional cases at length, it is sufficient here to say that the courts have always
held that unless the intention of the lawmaker to make the commission of certain acts
criminal without regard to the intent of the doer is clear and beyond question the
statute will not be so construed (cases cited in Cyc., vol. 12, p. 158, notes 76 and 77);
and the rule that ignorance of the law excuses no man has been said not to be a real
departure from the law's fundamental principle that crime exists only where the mind
is at fault, because "the evil purpose need not be to break the law, and if suffices if it
is simply to do the thing which the law in fact forbids." (Bishop's New Criminal Law,
sec. 300, and cases cited.)
But, however this may be, there is no technical rule, and no pressing necessity
therefore, requiring mistake in fact to be dealt with otherwise that in strict accord with
excusat ("Ignorance or mistake in point of fact is, in all cases of supposed offense, a
sufficient excuse"). (Brown's Leg. Max., 2d ed., 190.)
Since evil intent is in general an inseparable element in every crime, any such
mistake of fact as shows the act committed to have proceeded from no sort of evil in
the mind necessarily relieves the actor from criminal liability provided always there is
no fault or negligence on his part; and as laid down by Baron Parke, "The guilt of the
accused must depend on the circumstances as they appear to him."
(Reg. vs. Thurborn, 1 Den. C., 387; P. vs.  Anderson, 44 Cal.., 65; P. vs. Lamb, 54
Barb., 342; Yates  vs. P., 32 N. Y., 509; Patterson vs. P., 46 Barb., 625;
Reg. vs. Cohen, 8 Cox C. C., 41; P.  vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28
Tex. Ap., 387.) That is to say, the question as to whether he honestly, in good faith,
and without fault or negligence fell into the mistake is to be determined by the
circumstances as they appeared to him at the time when the mistake was made, and
the effect which the surrounding circumstances might reasonably be expected to
have on his mind, in forming the intent, criminal or other wise, upon which he acted.
If, in language not uncommon in the cases, one has reasonable cause to
believe the existence of facts which will justify a killing — or, in terms more
nicely in accord with the principles on which the rule is founded, if without
fault or carelessness he does believe them — he is legally guiltless of the
homicide; though he mistook the facts, and so the life of an innocent person
is unfortunately extinguished. In other words, and with reference to the right
of self-defense and the not quite harmonious authorities, it is the doctrine of
reason and sufficiently sustained in adjudication, that notwithstanding some
decisions apparently adverse, whenever a man undertakes self-defense, he
is justified in acting on the facts as they appear to him. If, without fault or
carelessness, he is misled concerning them, and defends himself correctly
according to what he thus supposes the facts to be the law will not punish
him though they are in truth otherwise, and he was really no occassion for
the extreme measures. (Bishop's New Criminal Law, sec. 305, and large
array of cases there cited.)
The common illustration in the American and English textbooks of the application of
this rule is the case where a man, masked and disguised as a footpad, at night and
on a lonely road, "holds up" his friends in a spirit of mischief, and with leveled pistol
13 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
demands his money or his life, but is killed by his friend under the mistaken belief that
the attack is a real one, that the pistol leveled at his head is loaded, and that his life
and property are in imminent danger at the hands of the aggressor. No one will doubt
that if the facts were such as the slayer believed them to be he would be innocent of
the commission of any crime and wholly exempt from criminal liability, although if he
knew the real state of the facts when he took the life of his friend he would
undoubtedly be guilty of the crime of homicide or assassination. Under such
circumstances, proof of his innocent mistake of the facts overcomes the presumption
of malice or criminal intent, and (since malice or criminal intent is a necessary
ingredient of the "act punished by law" in cases of homicide or assassination)
overcomes at the same time the presumption established in article 1 of the code, that
the "act punished by law" was committed "voluntarily."
Parson, C.J., in the Massachusetts court, once said:
If the party killing had reasonable grounds for believing that the person slain
had a felonious design against him, and under that supposition killed him,
although it should afterwards appear that there was no such design, it will
not be murder, but it will be either manslaughter or excusable homicide,
according to the degree of caution used and the probable grounds of such
belief. (Charge to the grand jury in Selfridge's case, Whart, Hom., 417, 418,
Lloyd's report of the case, p.7.)
In this case, Parker, J., charging the petit jury, enforced the doctrine as follows:
A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him,
with an outstretched arms and a pistol in his hand, and using violent
menaces against his life as he advances. Having approached near enough
in the same attitude, A, who has a club in his hand, strikes B over the head
before or at the instant the pistol is discharged; and of the wound B dies. It
turns out the pistol was loaded with powder only, and that the real design of
B was only to terrify A. Will any reasonable man say that A is more criminal
that he would have been if there had been a bullet in the pistol? Those who
hold such doctrine must require that a man so attacked must, before he
strikes the assailant, stop and ascertain how the pistol is loaded — a
doctrine which would entirely take away the essential right of self-defense.
And when it is considered that the jury who try the cause, and not the party
killing, are to judge of the reasonable grounds of his apprehension, no
danger can be supposed to flow from this principle. (Lloyd's Rep., p. 160.)
To the same effect are various decisions of the supreme court of Spain, cited by
Viada, a few of which are here set out in full because the facts are somewhat
analogous to those in the case at bar.
QUESTION III. When it is shown that the accused was sitting at his hearth,
at night, in company only of his wife, without other light than reflected from
14 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
the fire, and that the man with his back to the door was attending to the fire,
there suddenly entered a person whom he did not see or know, who struck
him one or two blows, producing a contusion on the shoulder, because of
which he turned, seized the person and took from his the stick with which he
had undoubtedly been struck, and gave the unknown person a blow,
knocking him to the floor, and afterwards striking him another blow on the
head, leaving the unknown lying on the floor, and left the house. It turned out
the unknown person was his father-in-law, to whom he rendered assistance
as soon as he learned his identity, and who died in about six days in
consequence of cerebral congestion resulting from the blow. The accused,
who confessed the facts, had always sustained pleasant relations with his
father-in-law, whom he visited during his sickness, demonstrating great grief
over the occurrence. Shall he be considered free from criminal responsibility,
as having acted in self-defense, with all the circumstances related in
paragraph 4, article 8, of the Penal Code? The criminal branch of
the Audiencia of Valladolid found that he was an illegal aggressor, without
sufficient provocation, and that there did not exists rational necessity for the
employment of the force used, and in accordance with articles 419 and 87 of
the Penal Code condemned him to twenty months of imprisonment, with
accessory penalty and costs. Upon appeal by the accused, he was acquitted
by the supreme court, under the following sentence: "Considering, from the
facts found by the sentence to have been proven, that the accused was
surprised from behind, at night, in his house beside his wife who was nursing
her child, was attacked, struck, and beaten, without being able to distinguish
with which they might have executed their criminal intent, because of the
there was no other than fire light in the room, and considering that in such a
situation and when the acts executed demonstrated that they might
endanger his existence, and possibly that of his wife and child, more
especially because his assailant was unknown, he should have defended
himself, and in doing so with the same stick with which he was attacked, he
did not exceed the limits of self-defense, nor did he use means which were
not rationally necessary, particularly because the instrument with which he
killed was the one which he took from his assailant, and was capable of
producing death, and in the darkness of the house and the consteration
which naturally resulted from such strong aggression, it was not given him to
known or distinguish whether there was one or more assailants, nor the
arms which they might bear, not that which they might accomplish, and
considering that the lower court did not find from the accepted facts that
there existed rational necessity for the means employed, and that it did not
apply paragraph 4 of article 8 of the Penal Code, it erred, etc." (Sentence of
supreme court of Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) .
QUESTION XIX. A person returning, at night, to his house, which was
situated in a retired part of the city, upon arriving at a point where there was
no light, heard the voice of a man, at a distance of some 8 paces, saying:
"Face down, hand over you money!" because of which, and almost at the
same money, he fired two shots from his pistol, distinguishing immediately
the voice of one of his friends (who had before simulated a different voice)
 saying, "Oh! they have killed me," and hastening to his assistance, finding
the body lying upon the ground, he cried, "Miguel, Miguel, speak, for God's
sake, or I am ruined," realizing that he had been the victim of a joke, and not
receiving a reply, and observing that his friend was a corpse, he retired from
the place. Shall he be declared exempt in toto from responsibility as the
author of this homicide, as having acted in just self-defense under the
circumstances defined in paragraph 4, article 8, Penal Code? The criminal
branch of the Audiencia of Malaga did not so find, but only found in favor of
the accused two of the requisites of said article, but not that of the
reasonableness of the means employed to repel the attack, and, therefore,
condemned the accused to eight years and one day of prison mayor, etc.
The supreme court acquitted the accused on his appeal from this sentence,
holding that the accused was acting under a justifiable and excusable
mistake of fact as to the identity of the person calling to him, and that under
the circumstances, the darkness and remoteness, etc., the means employed
were rational and the shooting justifiable. (Sentence supreme court, March
17, 1885.) (Viada, Vol. I, p. 136.)
QUESTION VI. The owner of a mill, situated in a remote spot, is awakened,
at night, by a large stone thrown against his window — at this, he puts his
head out of the window and inquires what is wanted, and is answered "the
delivery of all of his money, otherwise his house would be burned" —
because of which, and observing in an alley adjacent to the mill four
individuals, one of whom addressed him with blasphemy, he fired his pistol
at one the men, who, on the next morning was found dead on the same
spot. Shall this man be declared exempt from criminal responsibility as
having acted in just self-defense with all of the requisites of law? The
criminal branch of the requisites of law? The criminal branch of
the Audiencia of Zaragoza finds that there existed in favor of the accused a
majority of the requisites to exempt him from criminal responsibility, but not
that of reasonable necessity for the means, employed, and condemned the
accused to twelve months of prision correctional for the homicide committed.
Upon appeal, the supreme court acquitted the condemned, finding that the
accused, in firing at the malefactors, who attack his mill at night in a remote
spot by threatening robbery and incendiarism, was acting in just self-defense
of his person, property, and family. (Sentence of May 23, 1877). (I Viada, p.
128.)
A careful examination of the facts as disclosed in the case at bar convinces us that
the defendant Chinaman struck the fatal blow alleged in the information in the firm
belief that the intruder who forced open the door of his sleeping room was a thief,
from whose assault he was in imminent peril, both of his life and of his property and of
the property committed to his charge; that in view of all the circumstances, as they
must have presented themselves to the defendant at the time, he acted in good faith,
without malice, or criminal intent, in the belief that he was doing no more than
exercising his legitimate right of self-defense; that had the facts been as he believed
them to be he would have been wholly exempt from criminal liability on account of his
act; and that he can not be said to have been guilty of negligence or recklessness or
even carelessness in falling into his mistake as to the facts, or in the means adopted
by him to defend himself from the imminent danger which he believe threatened his
person and his property and the property under his charge.
The judgment of conviction and the sentence imposed by the trial court should be
reversed, and the defendant acquitted of the crime with which he is charged and his
bail bond exonerated, with the costs of both instance de oficio. So ordered.
Johnson Moreland and Elliott, JJ., concur.
Arellano, C.J., and Mapa, J., dissent.
Separate Opinions
TORRES, J.,  dissenting:
The writer, with due respect to the opinion of the majority of the court, believes that,
according to the merits of the case, the crime of homicide by reckless negligence,
defined and punishes in article 568 of the Penal Code, was committed, inasmuch as
the victim was wilfully (voluntariomente) killed, and while the act was done without
malice or criminal intent it was, however, executed with real negligence, for the acts
committed by the deceased could not warrant the aggression by the defendant under
the erroneous belief on the part of the accused that the person who assaulted him
was a malefactor; the defendant therefore incurred responsibility in attacking with a
knife the person who was accustomed to enter said room, without any justifiable
motive.
By reason of the nature of the crime committed, in the opinion of the undersigned the
accused should be sentenced to the penalty of one year and one month of prision
correctional, to suffer the accessory penalties provided in article 61, and to pay an
indemnify of P1,000 to the heirs of the deceased, with the costs of both instances,
thereby reversing the judgment appealed from.
G.R. No. L-35748         December 14, 1931
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
ROMANA SILVESTRE and MARTIN ATIENZA, defendants-appellants.
Teofilo Mendoza for appellants.
Attorney-General Jaranilla for appellee.
15 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
VILLA-REAL, J.:
Martin Atienza and Romana Silvestre appeal to this court from the judgment of the
Court of First Instance of Bulacan convicting them upon the information of the crime
of arson as follows: The former as principal by direct participation, sentenced to
fourteen years, eight months, and one day of cadena temporal, in accordance with
paragraph 2 of article 550, Penal Code; and the latter as accomplice, sentenced to six
years and one day of presidio mayor; and both are further sentenced to the
accessories of the law, and to pay each of the persons whose houses were destroyed
by the fire, jointly and severally, the amount set forth in the information, with costs.
Counsel appointed by the court to defend the accused- appellants de oficio, after
delivering his argument, prayed for the affirmance of the judgment with reference to
the appellant Martin Atienza, and makes the following assignments of error with
reference to Romana Silvestre, to wit:
1. The lower court erred in convincing Romana Silvestre as accomplice of
the crime charged in the information.
2. Finally, the court erred in not acquitting said defendant from the
information upon the ground of insufficient evidence, or at the least, of
reasonable doubt.
The following facts were proved at the hearing beyond a reasonable doubt:
Romana Silvestre, wife of Domingo Joaquin by her second marriage, cohabited with
her codefendant Martin Atienza from the month of March, 1930, in the barrio of
Masocol, municipality of Paombong, Province of Bulacan. On May 16, 1930, the
complaining husband, Domingo Joaquin, filed with the justice of the peace for that
municipality, a sworn complaint for adultery, supported by affidavits of Gerardo
Cabigao and Castor de la Cruz (Exhibit B). On the same date, May 16, 1930, the said
accused were arrested on a warrant issued by said justice of the peace. On the 20th
of the month, they were released on bail, each giving a personal bond of P6,000.
Pending the preliminary investigation of the case, the two defendants begged the
municipal president of Paombong, Francisco Suerte Felipe, to speak to the complaint,
Domingo Joaquin, urging him to withdraw the complaint, the two accused binding
themselves to discontinue cohabitation, and promising not to live again in the barrio of
Masocol; Martin Atienza voluntarily signed the promise (Exhibit A). The municipal
president transmitted the defendants' petition to the complaining husband, lending it
his support. Domingo Joaquin acceded to it, and on May 20, 1930, filed a motion for
the dismissal of his complaint. In consideration of this petition, the justice of the peace
of Paombong dismissed the adultery case commenced against the accused, and
cancelled the bonds given by them, with the costs against the complainant.
The accused then left the barrio of Masocol and went to live in that of Santo Niño, in
the same municipality of Paombong.
About November 20, 1930, the accused Romana Silvestre met her son by her former
marriage, Nicolas de la Cruz, in the barrio of Santo Niño, and under pretext of asking
him for some nipa leaves, followed him home to the village of Masocol, and remained
there. The accused, Martin Atienza, who had continued to cohabit with said Romana
Silvestre, followed her and lived in the home of Nicolas de la Cruz. On the night of
November 25, 1930, while Nicolas de la Cruz and his wife, Antonia de la Cruz, were
gathered together with the appellants herein after supper, Martin Atienza told said
couple to take their furniture out of the house because he was going to set fire to it.
Upon being asked by Nicolas and Antonia why he wanted to set fire to the house, he
answered that that was the only way he could be revenged upon the people of
Masocol who, he said, had instigated the charge of adultery against him and his
codefendant, Romana Silvestre. As Martin Atienza was at that time armed with a
pistol, no one dared say anything to him, not even Romana Silvestre, who was about
a meter away from her codefendant. Alarmed at what Martin Atienza had said, the
couple left the house at once to communicate with the barrio lieutenant,
Buenaventura Ania, as to what they had just heard Martin Atienza say; but they had
hardly gone a hundred arms' length when they heard cries of "Fire! Fire!" Turning
back they saw their home in flames, and ran back to it; but seeing that the fire had
assumed considerable proportions, Antonia took refuge in the schoolhouse with her 1
year old babe in her arms, while Nicolas went to the home of his parents-in-law, took
up the furniture he had deposited there, and carried it to the schoolhouse. The fire
destroyed about forty-eight houses. Tomas Santiago coming from the barrio artesian
well, and Tomas Gonzalez, teacher at the barrio school of Masocol, and Felipe
Clemente, an old man 61 years of age, coming from their homes, to the house on fire,
saw Martin Atienza going away from the house where the fire started, and Romana
Silvestre leaving it.lawphil.net
As stated in the beginning, counsel appointed by this court to defend the accused-
appellant de oficio, prays for the affirmance of the judgment appealed from with
reference to defendant Martin Atienza. The facts related heretofore, proved beyond a
reasonable doubt at the hearing, justify this petition of the de oficio counsel, and
establish beyond a reasonable doubt said defendant's guilt of arson as charged, as
principal by direct participation.
With respect to the accused-appellant Romana Silvestre, the only evidence of record
against her are: That, being married, she lived adulterously with her codefendant
Martin Atienza, a married man; that both were denounced for adultery by Domingo
Joaquin, Romana Silvestre's second husband; that in view of the petition of the
accused, who promised to discontinue their life together, and to leave the barrio of
Masocol, and through the good offices of the municipal president of Paombong, the
complaining husband asked for the dismissal of the complaint; that in pursuance of
their promise, both of the accused went to lived in the barrio of Santo Niño, in the
same municipality; that under pretext for some nipa leaves from her son by her former
marriage, Nicolas de la Cruz, who had gone to the barrio of Santo Niño, Romana
16 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
Silvestre followed him to his house in the barrio of Masocol on November 23, 1930,
and remained there; that her codefendant, Martin Atienza followed her, and stayed
with his coaccused in the same house; that on the night of November 25, 1930, at
about 8 o'clock, while all were gathered together at home after supper, Martin Atienza
expressed his intention of burning the house as the only means of taking his revenge
on the Masocol resident, who had instigated Domingo Joaquin to file the complaint for
adultery against them, which compelled them to leave the barrio of Masocol; that
Romana Silvestre listened to her codefendant's threat without raising a protest, and
did not give the alarm when the latter set fire to the house. Upon the strength of these
facts, the court below found her guilty of arson as accomplice.
Article 14 of the Penal Code, considered in connection with article 13, defines an
accomplice to be one who does not take a direct part in the commission of the act,
who does not force or induce other to commit it, nor cooperates in the commission of
the act by another act without which it would not have been accomplished, yet
cooperates in the execution of the act by previous or simultaneous actions.
Now then, which previous or simultaneous acts complicate Romana Silvestre in the
crime of arson committed by her codefendant Martin Atienza? Is it her silence when
he told the spouses, Nicolas de la Cruz and Antonia de la Cruz, to take away their
furniture because he was going to set fire to their house as the only means of
revenging himself on the barrio residents, her passive presence when Martin Atienza
set fire to the house, where there is no evidence of conspiracy or cooperation, and
her failure to give the alarm when the house was already on fire?
The complicity which is penalized requires a certain degree of cooperation, whether
moral, through advice, encouragement, or agreement, or material, through external
acts. In the case of the accused-appellant Romana Silvestre, there is no evidence of
moral or material cooperation, and none of an agreement to commit the crime in
question. Her mere presence and silence while they are simultaneous acts, do not
constitute cooperation, for it does not appear that they encouraged or nerved Martin
Atienza to commit the crime of arson; and as for her failure to give the alarm, that
being a subsequent act it does not make her liable as an accomplice.
The trial court found the accused-appellant Martin Atienza guilty of arson, defined and
penalized in article 550, paragraph 2, of the Penal Code, which reads as follows:
ART. 550. The penalty of cadena temporal shall be imposed upon:
x x x           x x x          x x x
2. Any person who shall set fire to any inhabited house or any building in
which people are accustomed to meet together, without knowing whether or
not such building or house was occupied at the time, or any freight train in
motion, if the damage caused in such cases shall exceed six thousand two
hundred and fifty  pesetas.
While the defendant indeed knew that besides himself and his codefendant, Romana
Silvestre, there was nobody in De la Cruz's house at the moment of setting fire to it,
he cannot be convicted merely arson less serious than what the trial court sentenced
him for, inasmuch as that house was the means of destroying the others, and he did
not know whether these were occupied at the time or not. If the greater seriousness
of setting fire to an inhabited house, when the incendiary does not know whether
there are people in it at the time, depends upon the danger to which the inmates are
exposed, not less serious is the arson committed by setting fire to inhabited houses
by means of another inhabited house which the firebrand knew to be empty at the
moment of committing the act, if he did not know whether there were people or not in
the others, inasmuch as the same danger exists.
With the evidence produced at the trial, the accused-appellant Martin Atienza might
have been convicted of the crime of arson in the most serious degree provided for in
article 549 of the Penal Code, if the information had alleged that at the time of setting
fire to the house, the defendant knew that the other houses were occupied, taking into
account that barrio residents are accustomed to retire at the tolling of the bell for the
souls in purgatory, i.e., at 8 o'clock at night.
For all the foregoing considerations, we are of the opinion and so hold, that: (1) Mere
passive presence at the scene of another's crime, mere silence and failure to give the
alarm, without evidence of agreement or conspiracy, do not constitute the cooperation
required by article 14 of the Penal Code for complicity in the commission of the crime
witnessed passively, or with regard to which one has kept silent; and (2) he who
desiring to burn the houses in a barrio, without knowing whether there are people in
them or not, sets fire to one known to be vacant at the time, which results in
destroying the rest, commits the crime of arson, defined and penalized in article 550,
paragraph 2, Penal Code.
By virtue wherefore, the judgment appealed from is modified as follows: It is affirmed
with reference to the accused-appellant Martin Atienza, and reversed with reference
to the accused-appellant Romana Silvestre, who is hereby acquitted with
one-half of the costs de oficio. So ordered.
G.R. No. 166326             January 25, 2006
ESMERALDO RIVERA, ISMAEL RIVERA, EDGARDO RIVERA, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
17 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
CALLEJO, SR., J.:
This is a petition for review of the Decision1 of the Court of Appeals (CA) in CA-G.R.
CR No. 27215 affirming, with modification, the Decision2 of the Regional Trial Court
(RTC) of Cavite, Branch 90, in Criminal Case No. 6962-99, entitled People of the
Philippines. v. Esmeraldo Rivera, et al.
On April 12, 1999, an Information was filed in the RTC of Imus, Cavite, charging
Esmeraldo, Ismael and Edgardo, all surnamed Rivera, of attempted murder. The
accusatory portion of the Information reads:
That on or about the 3rd day of May 1998, in the Municipality of Dasmariñas,
Province of Cavite, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and mutually helping one another,
with intent to kill, with treachery and evident premeditation, did then and there, wilfully,
unlawfully, and feloniously attack, assault and hit with a piece of hollow block, one
RUBEN RODIL who thereby sustained a non-mortal injury on his head and on the
different parts of his body, the accused thus commenced the commission of the felony
directly by overt acts, but failed to perform all the acts of execution which would
produce the crime of Murder by reason of some causes other than their own
spontaneous desistance, that is, the said Ruben Rodil was able to ran (sic) away and
the timely response of the policemen, to his damage and prejudice.
CONTRARY TO LAW.3
Ruben Rodil testified that he used to work as a taxi driver. He stopped driving in April
1998 after a would-be rapist threatened his life. He was even given a citation as
a Bayaning Pilipino by the television network ABS-CBN for saving the would-be
victim. His wife eked out a living as a manicurist. They and their three children resided
in Barangay San Isidro Labrador II, Dasmariñas, Cavite, near the house of Esmeraldo
Rivera and his brothers Ismael and Edgardo.
At noon of May 2, 1998, Ruben went to a nearby store to buy food. Edgardo mocked
him for being jobless and dependent on his wife for support. Ruben resented the
rebuke and hurled invectives at Edgardo. A heated exchange of words ensued.
At about 7:30 p.m. the next day, a Sunday, Ruben went to the store to buy food and
to look for his wife. His three-year-old daughter was with him. Momentarily,
Esmeraldo and his two brothers, Ismael and Edgardo, emerged from their house and
ganged up on Ruben. Esmeraldo and Ismael mauled Ruben with fist blows and he fell
to the ground. In that helpless position, Edgardo hit Ruben three times with a hollow
block on the parietal area. Esmeraldo and Ismael continued mauling Ruben. People
who saw the incident shouted: "Awatin sila! Awatin sila!" Ruben felt dizzy but
managed to stand up. Ismael threw a stone at him, hitting him at the back. When
policemen on board a mobile car arrived, Esmeraldo, Ismael and Edgardo fled to their
house.
Ruben was brought to the hospital. His attending physician, Dr. Lamberto Cagingin,
Jr., signed a medical certificate in which he declared that Ruben sustained lacerated
wounds on the parietal area, cerebral concussion or contusion, hematoma on the left
upper buttocks, multiple abrasions on the left shoulder and hematoma periorbital
left.4 The doctor declared that the lacerated wound in the parietal area was slight and
superficial and would heal from one to seven days. 5 The doctor prescribed medicine
for Ruben’s back pain, which he had to take for one month.6
Esmeraldo testified that at around 1:00 p.m. on May 3, 1998, Ruben arrived at his
house and banged the gate. Ruben challenged him and his brothers to come out and
fight. When he went out of the house and talked to Ruben, the latter punched him.
They wrestled with each other. He fell to the ground. Edgardo arrived and pushed
Ruben aside. His wife arrived, and he was pulled away and brought to their house.
For his part, Ismael testified that he tried to pacify Ruben and his brother Esmeraldo,
but Ruben grabbed him by the hair. He managed to free himself from Ruben and the
latter fled. He went home afterwards. He did not see his brother Edgardo at the
scene.
Edgardo declared that at about 1:00 p.m. on May 3, 1998, he was throwing garbage
in front of their house. Ruben arrived and he went inside the house to avoid a
confrontation. Ruben banged the gate and ordered him to get out of their house and
even threatened to shoot him. His brother Esmeraldo went out of their house and
asked Ruben what the problem was. A fist fight ensued. Edgardo rushed out of the
house and pushed Ruben aside. Ruben fell to the ground. When he stood up, he
pulled at Edgardo’s shirt and hair, and, in the process, Ruben’s head hit the lamp
post.7
On August 30, 2002, the trial court rendered judgment finding all the accused guilty
beyond reasonable doubt of frustrated murder. The dispositive portion of the decision
reads:
WHEREFORE, premises considered, all the accused are found GUILTY beyond
reasonable doubt and are sentenced to an imprisonment of six (6) years and one (1)
day to eight (8) years of prision mayor as the prosecution has proved beyond
reasonable doubt the culpability of the accused. Likewise, the accused are to pay,
jointly and severally, civil indemnity to the private complainant in the amount
of P30,000.00.
SO ORDERED.8
18 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
The trial court gave no credence to the collective testimonies of the accused and their
witnesses. The accused appealed to the CA, which rendered judgment on June 8,
2004 affirming, with modification, the appealed decision. The dispositive portion of the
CA decision reads:
WHEREFORE, the Decision of the Regional Trial Court of Imus, Cavite, Branch 90, is
MODIFIED in that the appellants are convicted of ATTEMPTED MURDER and
sentenced to an indeterminate penalty of 2 years of prision correccional as minimum
to 6 years and 1 day of prision mayor as maximum. In all other respects, the decision
appealed from is AFFIRMED.
SO ORDERED.9
The accused, now petitioners, filed the instant petition for review on certiorari, alleging
that the CA erred in affirming the RTC decision. They insist that the prosecution failed
to prove that they had the intention to kill Ruben when they mauled and hit him with a
hollow block. Petitioners aver that, based on the testimony of Dr. Cagingin, Ruben
sustained only a superficial wound in the parietal area; hence, they should be held
criminally liable for physical injuries only. Even if petitioners had the intent to kill
Ruben, the prosecution failed to prove treachery; hence, they should be held guilty
only of attempted homicide.
On the other hand, the CA held that the prosecution was able to prove petitioners’
intent to kill Ruben:
On the first assigned error, intent to kill may be deduced from the nature of the wound
inflicted and the kind of weapon used. Intent to kill was established by victim Ruben
Rodil in his testimony as follows:
Q: And while you were being boxed by Esmeraldo and Bong, what happened next?
A: When I was already lying [down] xxx, Dagol Rivera showed up with a piece of
hollow block xxx and hit me thrice on the head, Sir.
Q: And what about the two (2), what were they doing when you were hit with a hollow
block by Dagol?
A: I was already lying on the ground and they kept on boxing me while Dagol was
hitting, Sir.
As earlier stated by Dr. Cagingin, appellants could have killed the victim had the
hollow block directly hit his head, and had the police not promptly intervened so that
the brothers scampered away. When a wound is not sufficient to cause death, but
intent to kill is evident, the crime is attempted. Intent to kill was shown by the fact that
the (3) brothers helped each other maul the defenseless victim, and even after he had
already fallen to the ground; that one of them even picked up a cement hollow block
and proceeded to hit the victim on the head with it three times; and that it was only
the arrival of the policemen that made the appellants desist from their concerted act
of trying to kill Ruben Rodil.10
The Office of the Solicitor General (OSG), for its part, asserts that the decision of the
CA is correct, thus:
The evidence and testimonies of the prosecution witnesses defeat the presumption of
innocence raised by petitioners. The crime has been clearly established with
petitioners as the perpetrators. Their intent to kill is very evident and was established
beyond reasonable doubt.
Eyewitnesses to the crime, Alicia Vera Cruz and Lucita Villejo clearly and
categorically declared that the victim Ruben Rodil was walking along St. Peter
Avenue when he was suddenly boxed by Esmeraldo "Baby" Rivera. They further
narrated that, soon thereafter, his two brothers Ismael and Edgardo "Dagul" Rivera,
coming from St. Peter II, ganged up on the victim. Both Alicia Vera Cruz and Lucita
Villejo recounted that they saw Edgardo "Dagul" Rivera pick up a hollow block and hit
Ruben Rodil with it three (3) times. A careful review of their testimonies revealed the
suddenness and unexpectedness of the attack of petitioners. In this case, the victim
did not even have the slightest warning of the danger that lay ahead as he was
carrying his three-year old daughter. He was caught off-guard by the assault of
Esmeraldo "Baby" Rivera and the simultaneous attack of the two other petitioners. It
was also established that the victim was hit by Edgardo "Dagul" Rivera, while he was
lying on the ground and being mauled by the other petitioners. Petitioners could have
killed the victim had he not managed to escape and had the police not promptly
intervened.
Petitioners also draw attention to the fact that the injury sustained by the victim was
superficial and, thus, not life threatening. The nature of the injury does not negate the
intent to kill. The Court of Appeals held:
As earlier stated by Dr. Cagingin, appellants could have killed the victim had the
hollow block directly hit his head, and had the police not promptly intervened so that
the brothers scampered away. When a wound is not sufficient to cause death, but
intent to kill is evident, the crime is attempted. Intent to kill was shown by the fact that
the three (3) brothers helped each other maul the defenseless victim, and even after
he had already fallen to the ground; that one of them picked up a cement hollow block
and proceeded to hit the victim on the head with it three times; and that it was only
the arrival of the policemen that made the appellants desist from their concerted act
of trying to kill Ruben Rodil.11
The petition is denied for lack of merit.
19 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
An essential element of murder and homicide, whether in their consummated,
frustrated or attempted stage, is intent of the offenders to kill the victim immediately
before or simultaneously with the infliction of injuries. Intent to kill is a specific intent
which the prosecution must prove by direct or circumstantial evidence, while general
criminal intent is presumed from the commission of a felony by dolo.
In People v. Delim,12 the Court declared that evidence to prove intent to kill in crimes
against persons may consist, inter alia, in the means used by the malefactors, the
nature, location and number of wounds sustained by the victim, the conduct of the
malefactors before, at the time, or immediately after the killing of the victim, the
circumstances under which the crime was committed and the motives of the accused.
If the victim dies as a result of a deliberate act of the malefactors, intent to kill is
presumed.
In the present case, the prosecution mustered the requisite quantum of evidence to
prove the intent of petitioners to kill Ruben. Esmeraldo and Ismael pummeled the
victim with fist blows. Even as Ruben fell to the ground, unable to defend himself
against the sudden and sustained assault of petitioners, Edgardo hit him three times
with a hollow block. Edgardo tried to hit Ruben on the head, missed, but still managed
to hit the victim only in the parietal area, resulting in a lacerated wound and cerebral
contusions.
That the head wounds sustained by the victim were merely superficial and could not
have produced his death does not negate petitioners’ criminal liability for attempted
murder. Even if Edgardo did not hit the victim squarely on the head, petitioners are
still criminally liable for attempted murder.
The last paragraph of Article 6 of the Revised Penal Code defines an attempt to
commit a felony, thus:
There is an attempt when the offender commences the commission of a felony
directly by overt acts, and does not perform all the acts of execution which should
produce the felony by reason of some cause or accident other than his own
spontaneous desistance.
The essential elements of an attempted felony are as follows:
1. The offender commences the commission of the felony directly by overt
acts;
2. He does not perform all the acts of execution which should produce the
felony;
3. The offender’s act be not stopped by his own spontaneous desistance;
4. The non-performance of all acts of execution was due to cause or
accident other than his spontaneous desistance.13
The first requisite of an attempted felony consists of two elements, namely:
(1) That there be external acts;
(2) Such external acts have direct connection with the crime intended to be
committed.14
The Court in People v. Lizada15 elaborated on the concept of an overt or external act,
thus:
An overt or external act is defined as some physical activity or deed, indicating the
intention to commit a particular crime, more than a mere planning or preparation,
which if carried out to its complete termination following its natural course, without
being frustrated by external obstacles nor by the spontaneous desistance of the
perpetrator, will logically and necessarily ripen into a concrete offense. The raison
d’etre for the law requiring a direct overt act is that, in a majority of cases, the conduct
of the accused consisting merely of acts of preparation has never ceased to be
equivocal; and this is necessarily so, irrespective of his declared intent. It is that
quality of being equivocal that must be lacking before the act becomes one which
may be said to be a commencement of the commission of the crime, or an overt act
or before any fragment of the crime itself has been committed, and this is so for the
reason that so long as the equivocal quality remains, no one can say with certainty
what the intent of the accused is. It is necessary that the overt act should have been
the ultimate step towards the consummation of the design. It is sufficient if it was the
"first or some subsequent step in a direct movement towards the commission of the
offense after the preparations are made." The act done need not constitute the last
proximate one for completion. It is necessary, however, that the attempt must have a
causal relation to the intended crime. In the words of Viada, the overt acts must have
an immediate and necessary relation to the offense.16
In the case at bar, petitioners, who acted in concert, commenced the felony of murder
by mauling the victim and hitting him three times with a hollow block; they narrowly
missed hitting the middle portion of his head. If Edgardo had done so, Ruben would
surely have died.
We reject petitioners’ contention that the prosecution failed to prove treachery in the
commission of the felony. Petitioners attacked the victim in a sudden and unexpected
manner as Ruben was walking with his three-year-old daughter, impervious of the
imminent peril to his life. He had no chance to defend himself and retaliate. He was
overwhelmed by the synchronized assault of the three siblings. The essence of
treachery is the sudden and unexpected attack on the victim.17 Even if the attack is
frontal but is sudden and unexpected, giving no opportunity for the victim to repel it or
20 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
defend himself, there would be treachery.18 Obviously, petitioners assaulted the victim
because of the altercation between him and petitioner Edgardo Rivera a day before.
There being conspiracy by and among petitioners, treachery is considered against all
of them.19
The appellate court sentenced petitioners to suffer an indeterminate penalty of two (2)
years of prision correccional in its minimum period, as minimum, to six years and one
day of prision mayor in its maximum period, as maximum. This is erroneous. Under
Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, the
penalty for murder is reclusion perpetua to death. Since petitioners are guilty only of
attempted murder, the penalty should be reduced by two degrees, conformably to
Article 51 of the Revised Penal Code. Under paragraph 2 of Article 61, in relation to
Article 71 of the Revised Penal Code, such a penalty is prision mayor. In the absence
of any modifying circumstance in the commission of the felony (other than the
qualifying circumstance of treachery), the maximum of the indeterminate penalty shall
be taken from the medium period of prision mayor which has a range of from eight (8)
years and one (1) day to ten (10) years. To determine the minimum of the
indeterminate penalty, the penalty of prision mayor should be reduced by one
degree, prision correccional, which has a range of six (6) months and one (1) day to
six (6) years.
Hence, petitioners should be sentenced to suffer an indeterminate penalty of from two
(2) years of prision correccional in its minimum period, as minimum, to nine (9) years
and four (4) months of prision mayor in its medium period, as maximum.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The
Decision of the Court of Appeals is AFFIRMED WITH THE MODIFICATION that
petitioners are sentenced to suffer an indeterminate penalty of from two (2) years
of prision correccional in its minimum period, as minimum, to nine (9) years and four
(4) months of prision mayor in its medium period, as maximum. No costs.
SO ORDERED.
G.R. No. 152644             February 10, 2006
JOHN ERIC LONEY, STEVEN PAUL REID and PEDRO B.
HERNANDEZ, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
CARPIO, J.:
The Case
This is a petition for review1 of the Decision2 dated 5 November 2001 and the
Resolution dated 14 March 2002 of the Court of Appeals. The 5 November 2001
Decision affirmed the ruling of the Regional Trial Court, Boac, Marinduque, Branch
94, in a suit to quash Informations filed against petitioners John Eric Loney, Steven
Paul Reid, and Pedro B. Hernandez ("petitioners"). The 14 March 2002 Resolution
denied petitioners’ motion for reconsideration.
The Facts
Petitioners John Eric Loney, Steven Paul Reid, and Pedro B. Hernandez are the
President and Chief Executive Officer, Senior Manager, and Resident Manager for
Mining Operations, respectively, of Marcopper Mining Corporation ("Marcopper"), a
corporation engaged in mining in the province of Marinduque.
Marcopper had been storing tailings3 from its operations in a pit in Mt. Tapian,
Marinduque. At the base of the pit ran a drainage tunnel leading to the Boac and
Makalupnit rivers. It appears that Marcopper had placed a concrete plug at the
tunnel’s end. On 24 March 1994, tailings gushed out of or near the tunnel’s end. In a
few days, the Mt. Tapian pit had discharged millions of tons of tailings into the Boac
and Makalupnit rivers.
In August 1996, the Department of Justice separately charged petitioners in the
Municipal Trial Court of Boac, Marinduque ("MTC") with violation of Article
91(B),4 sub-paragraphs 5 and 6 of Presidential Decree No. 1067 or the Water Code of
the Philippines ("PD 1067"),5 Section 86 of Presidential Decree No. 984 or the
National Pollution Control Decree of 1976 ("PD 984"),7 Section 1088 of Republic Act
No. 7942 or the Philippine Mining Act of 1995 ("RA 7942"), 9 and Article 36510 of the
Revised Penal Code ("RPC") for Reckless Imprudence Resulting in Damage to
Property.11
Petitioners moved to quash the Informations on the following grounds: (1) the
Informations were "duplicitous" as the Department of Justice charged more than one
offense for a single act; (2) petitioners John Eric Loney and Steven Paul Reid were
not yet officers of Marcopper when the incident subject of the Informations took place;
and (3) the Informations contain allegations which constitute legal excuse or
justification.
The Ruling of the MTC
In its Joint Order of 16 January 1997 ("Joint Order"), the MTC 12 initially deferred ruling
on petitioners’ motion for lack of "indubitable ground for the quashing of the
[I]nformations x x x." The MTC scheduled petitioners’ arraignment in February 1997.
However, on petitioners’ motion, the MTC issued a Consolidated Order on 28 April
1997 ("Consolidated Order"), granting partial reconsideration to its Joint Order and
21 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
quashing the Informations for violation of PD 1067 and PD 984. The MTC maintained
the Informations for violation of RA 7942 and Article 365 of the RPC. The MTC held:
[T]he 12 Informations have common allegations of pollutants pointing to "mine
tailings" which were precipitately discharged into the Makulapnit and Boac Rivers due
to breach caused on the Tapian drainage/tunnel due to negligence or failure to
institute adequate measures to prevent pollution and siltation of the Makulapnit and
Boac River systems, the very term and condition required to be undertaken under the
Environmental Compliance Certificate issued on April 1, 1990.
The allegations in the informations point to same set [sic] of evidence required to
prove the single fact of pollution constituting violation of the Water Code and the
Pollution Law which are the same set of evidence necessary to prove the same single
fact of pollution, in proving the elements constituting violation of the conditions of
ECC, issued pursuant to the Philippine Mining Act. In both instances, the terms and
conditions of the Environmental Compliance Certificate were allegedly violated. In
other words, the same set of evidence is required in proving violations of the three (3)
special laws.
After carefully analyzing and weighing the contending arguments of the parties and
after taking into consideration the applicable laws and jurisprudence, the Court is
convinced that as far as the three (3) aforesaid laws are concerned, only the
Information for [v]iolation of Philippine Mining Act should be maintained. In other
words, the Informations for [v]iolation of Anti-Pollution Law (PD 984) and the Water
Code (PD 1067) should be dismissed/quashed because the elements constituting the
aforesaid violations are absorbed by the same elements which constitute violation of
the Philippine Mining Act (RA 7942).
Therefore, x x x Criminal Case[] Nos. 96-44, 96-45 and 96-46 for [v]iolation of the
Water Code; and Criminal Case[] Nos. 96-47, 96-48 and 96-49 for [v]iolation of the
Anti-Pollution Law x x x are hereby DISMISSED or QUASHED and Criminal Case[]
Nos. 96-50, 96-51 and 96-52 for [v]iolation of the Philippine Mining Act are hereby
retained to be tried on the merits.
The Information for [v]iolation of Article 365 of the Revised Penal Code should also be
maintained and heard in a full blown trial because the common accusation therein is
reckless imprudence resulting to [sic] damage to property. It is the damage to
property which the law punishes not the negligent act of polluting the water system.
The prosecution for the [v]iolation of Philippine Mining Act is not a bar to the
prosecution for reckless imprudence resulting to [sic] damage to property.13
The MTC re-scheduled petitioners’ arraignment on the remaining charges on 28 and
29 May 1997. In the hearing of 28 May 1997, petitioners manifested that they were
willing to be arraigned on the charge for violation of Article 365 of the RPC but not on
the charge for violation of RA 7942 as they intended to appeal the Consolidated
Order in so far as it maintained the Informations for that offense. After making of
record petitioners’ manifestation, the MTC proceeded with the arraignment and
ordered the entry of "not guilty" pleas on the charges for violation of RA 7942 and
Article 365 of the RPC.
Petitioners subsequently filed a petition for certiorari with the Regional Trial Court,
Boac, Marinduque, assailing that portion of the Consolidated Order maintaining the
Informations for violation of RA 7942. Petitioners’ petition was raffled to Branch 94.
For its part, public respondent filed an ordinary appeal with the same court assailing
that portion of the Consolidated Order quashing the Informations for violation of PD
1067 and PD 984. Public respondent’s appeal was raffled to Branch 38. On public
respondent’s motion, Branch 38 ordered public respondent’s appeal consolidated with
petitioners’ petition in Branch 94.
The Ruling of Branch 94
In its Resolution14 of 20 March 1998, Branch 94 granted public respondent’s appeal
but denied petitioners’ petition. Branch 94 set aside the Consolidated Order in so far
as it quashed the Informations for violation of PD 1067 and PD 984 and ordered
those charges reinstated. Branch 94 affirmed the Consolidated Order in all other
respects. Branch 94 held:
After a careful perusal of the laws concerned, this court is of the opinion that there
can be no absorption by one offense of the three other offenses, as [the] acts
penalized by these laws are separate and distinct from each other. The elements of
proving each violation are not the same with each other. Concededly, the single act of
dumping mine tailings which resulted in the pollution of the Makulapnit and Boac
rivers was the basis for the information[s] filed against the accused each charging a
distinct offense. But it is also a well-established rule in this jurisdiction that –
"A single act may offend against two or more entirely distinct and unrelated provisions
of law, and if one provision requires proof of an additional fact or element which the
other does not, an acquittal or conviction or a dismissal of the information under one
does not bar prosecution under the other. x x x."
xxxx
[T]he different laws involve cannot absorb one another as the elements of each crime
are different from one another. Each of these laws require [sic] proof of an additional
fact or element which the other does not although they stemmed from a single act.15
Petitioners filed a petition for certiorari with the Court of Appeals alleging that Branch
94 acted with grave abuse of discretion because (1) the Informations for violation of
PD 1067, PD 984, RA 7942 and the Article 365 of the RPC "proceed from and are
based on a single act or incident of polluting the Boac and Makalupnit rivers thru
dumping of mine tailings" and (2) the duplicitous nature of the Informations
22 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
contravenes the ruling in People v. Relova.16 Petitioners further contended that since
the acts complained of in the charges for violation of PD 1067, PD 984, and RA 7942
are "the very same acts complained of" in the charge for violation of Article 365 of the
RPC, the latter absorbs the former. Hence, petitioners should only be prosecuted for
violation of Article 365 of the RPC.17
The Ruling of the Court of Appeals
In its Decision of 5 November 2001, the Court of Appeals affirmed Branch 94’s ruling.
The appellate court held:
The records of the case disclose that petitioners filed a motion to quash the
aforementioned Informations for being duplicitous in nature. Section 3 of Rule 117 of
the Revised Rules of Court specifically provides the grounds upon which an
information may be quashed. x x x
xxxx
[D]uplicity of Informations is not among those included in x x x [Section 3, Rule 117].
xxxx
We now go to petitioners’ claim that the resolution of the public respondent
contravened the doctrine laid down in People vs. Relova for being violative of their
right against multiple prosecutions.
In the said case, the Supreme Court found the People’s argument with respect to the
variances in the mens rea of the two offenses being charged to be correct. The Court,
however, decided the case in the context of the second sentence of Article IV (22) of
the 1973 Constitution (now under Section 21 of Article III of the 1987 Constitution),
rather than the first sentence of the same section. x x x
xxxx
[T]he doctrine laid down in the Relova case does not squarely apply to the case at
Bench since the Informations filed against the petitioners are for violation of four
separate and distinct laws which are national in character.
xxxx
This Court firmly agrees in the public respondent’s understanding that the laws by
which the petitioners have been [charged] could not possibly absorb one another as
the elements of each crime are different. Each of these laws require [sic] proof of an
additional fact or element which the other does not, although they stemmed from a
single act. x x x
xxxx
[T]his Court finds that there is not even the slightest indicia of evidence that would
give rise to any suspicion that public respondent acted with grave abuse of discretion
amounting to excess or lack of jurisdiction in reversing the Municipal Trial Court’s
quashal of the Informations against the petitioners for violation of P.D. 1067 and P.D.
984. This Court equally finds no error in the trial court’s denial of the petitioner’s
motion to quash R.A. 7942 and Article 365 of the Revised Penal Code.18
Petitioners sought reconsideration but the Court of Appeals denied their motion in its
Resolution of 14 March 2002.
Petitioners raise the following alleged errors of the Court of Appeals:
I. THE COURT OF APPEALS COMMITTED A R[E]VERSIBLE ERROR IN
MAINTAINING THE CHARGES FOR VIOLATION OF THE PHILIPPINE
MINING ACT (R.A. 7942) AND REINSTATING THE CHARGES FOR
VIOLATION OF THE WATER CODE (P.D. 1067) AND POLLUTION
CONTROL LAW (P.D. 984), CONSIDERING THAT:
A. THE INFORMATIONS FOR VIOLATION OF THE WATER
CODE (P.D. 1067), THE POLLUTION CONTROL LAW (P.D. 984),
THE PHILIPPINE MINING ACT (R.A. 7942) AND ARTICLE 365 OF
THE REVISED PENAL CODE PROCEED FROM AND ARE
BASED ON A SINGLE ACT OR INCIDENT OF POLLUTING THE
BOAC AND MAKULAPNIT RIVERS THRU DUMPING OF MINE
TAILINGS.
B. THE PROSECUTION OF PETITIONERS FOR DUPLICITOUS
AND MULTIPLE CHARGES CONTRAVENES THE DOCTRINE
LAID DOWN IN PEOPLE VS. RELOVA, 148 SCRA 292 [1986
THAT "AN ACCUSED SHOULD NOT BE HARASSED BY
MULTIPLE PROSECUTIONS FOR OFFENSES WHICH THOUGH
DIFFERENT FROM ONE ANOTHER ARE NONETHELESS EACH
CONSTITUTED BY A COMMON SET OR OVERLAPPING SETS
OF TECHNICAL ELEMENTS."
II. THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN
RULING THAT THE ELEMENT OF LACK OF NECESSARY OR
ADEQUATE PRECAUTION, NEGLIGENCE, RECKLESSNESS AND
IMPRUDENCE UNDER ARTICLE 356 [sic] OF THE REVISED PENAL
CODE DOES NOT FALL WITHIN THE AMBIT OF ANY OF THE
23 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
 ELEMENTS OF THE PERTINENT PROVISIONS OF THE WATER CODE,
POLLUTION CONTROL LAW AND PHILIPPINE MINING ACT CHARGED
AGAINST PETITIONERS[.]19
The Issues
The petition raises these issues:
(1) Whether all the charges filed against petitioners except one should be
quashed for duplicity of charges and only the charge for Reckless
Imprudence Resulting in Damage to Property should stand; and
(2) Whether Branch 94’s ruling, as affirmed by the Court of Appeals,
contravenes People v. Relova.
The Ruling of the Court
The petition has no merit.
No Duplicity of Charges in the Present Case
Duplicity of charges simply means a single complaint or information charges more
than one offense, as Section 13 of Rule 110 20 of the 1985 Rules of Criminal
Procedure clearly states:
Duplicity of offense. – A complaint or information must charge but one offense, except
only in those cases in which existing laws prescribe a single punishment for various
offenses.
In short, there is duplicity (or multiplicity) of charges when a single Information
charges more than one offense.21
Under Section 3(e), Rule 11722 of the 1985 Rules of Criminal Procedure, duplicity of
offenses in a single information is a ground to quash the Information. The Rules
prohibit the filing of such Information to avoid confusing the accused in preparing his
defense.23 Here, however, the prosecution charged each petitioner with four offenses,
with each Information charging only one offense. Thus, petitioners erroneously invoke
duplicity of charges as a ground to quash the Informations. On this score alone, the
petition deserves outright denial.
The Filing of Several Charges is Proper
Petitioners contend that they should be charged with one offense only — Reckless
Imprudence Resulting in Damage to Property — because (1) all the charges filed
against them "proceed from and are based on a single act or incident of polluting the
Boac and Makalupnit rivers thru dumping of mine tailings" and (2) the charge for
violation of Article 365 of the RPC "absorbs" the other charges since the element of
"lack of necessary or adequate protection, negligence, recklessness and imprudence"
is common among them.
The contention has no merit.
As early as the start of the last century, this Court had ruled that a single act or
incident might offend against two or more entirely distinct and unrelated provisions of
law thus justifying the prosecution of the accused for more than one offense. 24 The
only limit to this rule is the Constitutional prohibition that no person shall be twice put
in jeopardy of punishment for "the same offense."25 In People v. Doriquez,26 we held
that two (or more) offenses arising from the same act are not "the same" —
x x x if one provision [of law] requires proof of an additional fact or element which the
other does not, x x x. Phrased elsewise, where two different laws (or articles of the
same code) define two crimes, prior jeopardy as to one of them is no obstacle to a
prosecution of the other, although both offenses arise from the same facts, if each
crime involves some important act which is not an essential element of the
other.27 (Emphasis supplied)
Here, double jeopardy is not at issue because not all of its elements are
present.28 However, for the limited purpose of controverting petitioners’ claim that they
should be charged with one offense only, we quote with approval Branch 94’s
comparative analysis of PD 1067, PD 984, RA 7942, and Article 365 of the RPC
showing that in each of these laws on which petitioners were charged, there is one
essential element not required of the others, thus:
In P.D. 1067 (Philippines Water Code), the additional element to be established is the
dumping of mine tailings into the Makulapnit River and the entire Boac River System
without prior permit from the authorities concerned. The gravamen of the offense here
is the absence of the proper permit to dump said mine tailings. This element is not
indispensable in the prosecution for violation of PD 984 (Anti-Pollution Law), [RA]
7942 (Philippine Mining Act) and Art. 365 of the Revised Penal Code. One can be
validly prosecuted for violating the Water Code even in the absence of actual
pollution, or even [if] it has complied with the terms of its Environmental Compliance
Certificate, or further, even [if] it did take the necessary precautions to prevent
damage to property.
In P.D. 984 (Anti-Pollution Law), the additional fact that must be proved is the
existence of actual pollution. The gravamen is the pollution itself. In the absence of
any pollution, the accused must be exonerated under this law although there was
24 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
unauthorized dumping of mine tailings or lack of precaution on its part to prevent
damage to property.
In R.A. 7942 (Philippine Mining Act), the additional fact that must be established is the
willful violation and gross neglect on the part of the accused to abide by the terms and
conditions of the Environmental Compliance Certificate, particularly that the
Marcopper should ensure the containment of run-off and silt materials from reaching
the Mogpog and Boac Rivers. If there was no violation or neglect, and that the
accused satisfactorily proved [sic] that Marcopper had done everything to ensure
containment of the run-off and silt materials, they will not be liable. It does not follow,
however, that they cannot be prosecuted under the Water Code, Anti-Pollution Law
and the Revised Penal Code because violation of the Environmental Compliance
Certificate is not an essential element of these laws.
On the other hand, the additional element that must be established in Art. 365 of the
Revised Penal Code is the lack of necessary or adequate precaution, negligence,
recklessness and imprudence on the part of the accused to prevent damage to
property. This element is not required under the previous laws. Unquestionably, it is
different from dumping of mine tailings without permit, or causing pollution to the Boac
river system, much more from violation or neglect to abide by the terms of the
Environmental Compliance Certificate. Moreover, the offenses punished by special
law are mal[a] prohibita in contrast with those punished by the Revised Penal Code
which are mala in se.29
Consequently, the filing of the multiple charges against petitioners, although based on
the same incident, is consistent with settled doctrine.
On petitioners’ claim that the charge for violation of Article 365 of the RPC "absorbs"
the charges for violation of PD 1067, PD 984, and RA 7942, suffice it to say that a
mala in se felony (such as Reckless Imprudence Resulting in Damage to Property)
cannot absorb mala prohibita crimes (such as those violating PD 1067, PD 984, and
RA 7942). What makes the former a felony is criminal intent (dolo) or negligence
(culpa); what makes the latter crimes are the special laws enacting them.
People v. Relova not in Point
Petitioners reiterate their contention in the Court of Appeals that their prosecution
contravenes this Court’s ruling in People v. Relova. In particular, petitioners cite the
Court’s statement in Relova that the law seeks to prevent harassment of the accused
by "multiple prosecutions for offenses which though different from one another are
nonetheless each constituted by a common set or overlapping sets of technical
elements."
This contention is also without merit.1avvphil.net
The issue in Relova is whether the act of the Batangas Acting City Fiscal in charging
one Manuel Opulencia ("Opulencia") with theft of electric power under the RPC, after
the latter had been acquitted of violating a City Ordinance penalizing the unauthorized
installation of electrical wiring, violated Opulencia’s right against double jeopardy. We
held that it did, not because the offenses punished by those two laws were the same
but because the act giving rise to the charges was punished by an ordinance and a
national statute, thus falling within the proscription against multiple prosecutions for
the same act under the second sentence in Section 22, Article IV of the 1973
Constitution, now Section 21, Article III of the 1987 Constitution. We held:
The petitioner concludes that:
"The unauthorized installation punished by the ordinance [of Batangas City] is not the
same  as theft of electricity [under the Revised Penal Code]; that the second offense
is not an attempt to commit the first or a frustration thereof and that the second
offense is not necessarily included in the offense charged in the first information."
The above argument[ ] made by the petitioner [is] of course correct. This is clear both
from the express terms of the constitutional provision involved – which reads as
follows:
"No person shall be twice put in jeopardy of punishment for the same offense. If an
act is punished by a law and an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act." x x x
and from our case law on this point. The basic difficulty with the petitioner’s position is
that it must be examined, not under the terms of the first sentence of Article IV (22) of
the 1973 Constitution, but rather under the second sentence of the same section. The
first sentence of Article IV (22) sets forth the general rule: the constitutional protection
against double jeopardy is not available where the second prosecution is for an
offense that is different from the offense charged in the first or prior prosecution,
although both the first and second offenses may be based upon the same act or set
of acts. The second sentence of Article IV (22) embodies an exception to the general
proposition: the constitutional protection, against double jeopardy is available
although the prior offense charged under an ordinance be different from the offense
charged subsequently under a national statute such as the Revised Penal Code,
provided that both offenses spring from the same act or set of acts. x x
x30 (Italicization in the original; boldfacing supplied)
Thus, Relova is no authority for petitioners’ claim against multiple prosecutions based
on a single act not only because the question of double jeopardy is not at issue here,
but also because, as the Court of Appeals held, petitioners are being prosecuted for
an act or incident punished by four national statutes and not by an ordinance and a
national statute. In short, petitioners, if ever, fall under the first sentence of Section
21, Article III which prohibits multiple prosecution for the same offense, and not, as in
Relova, for offenses arising from the same incident.
25 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 5 November
2001 and the Resolution dated 14 March 2002 of the Court of Appeals.
SO ORDERED.
G.R. No. 157221             March 30, 2007
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
CESAR GALVEZ, Appellant.
DECISION
AUSTRIA-MARTINEZ, J.:
For review before this Court is the Decision1 of the Court of Appeals (CA) in CA-G.R.
CR No. 18255 dated March 30, 2001, which affirmed the Decision 2 of the Regional
Trial Court (RTC) Isabela, Basilan finding the accused-appellant Cesar Galvez
(Galvez), guilty of Murder, but modifying the penalty of the RTC from a sentence of
"seventeen (17) years, four (4) months and one (1) day as minimum to twenty (20)
years as maximum" to reclusion perpetua.
The facts are as follows:
At around 11 o’clock in the evening of July 27, 1991, Danilo Perez, Rosalio Enojarda,
Noel Cugal, Ricardo Francisco and Wilfredo Rellios, took a break from making copra
to eat leftover dinner inside the copra kiln in the farm of Perez in Matarling, Lantawan,
Basilan. When Enojarda stood up from the circle where they were eating to drink
water, shots rang out and Enojarda fell to the ground shouting "Dan ya tupa comigo"
(Dan, I am hit). The rest of the group took cover, crawling to different directions. After
the attack, Rellios reported the incident to the barangay captain and they brought
Enojarda’s dead body to his family.3
On May 28, 1992, an Information was filed against Cesar Galvez (Galvez), a member
of the Philippine National Police (PNP) for Murder, which reads:
That on or about the 27th day of July, 1991, and within the jurisdiction of this
Honorable Court, viz. at Matarling, Municipality of Lantawan, Province of Basilan,
Philippines, the above named accused, armed with an M16 armalite rifle, with
treachery and evident premeditation, and with intent to kill, did then and there willfully,
unlawfully and feloniously assault, attack and shoot one Rosalio Enojarda with the
said M16 armalite rifle, thereby inflicting gunshot wound on the body of the latter
which caused his death.4
The prosecution presented evidence showing that: after Enojarda fell, the rest of the
group took cover and Rellios while in a crawling position, saw Galvez about 5 meters
away holding an armalite rifle and firing at their direction; Rellios also saw that Galvez
had companions but did not recognize them as well as the firearms they carried
because they were approximately nine meters away;5 Perez, also crawled and hid in
the bushes about 5 meters away; when the firing stopped, one of the attackers
passed by about two meters from where Perez was hiding and because the moon
was bright, he recognized Galvez, his cousin, who was wearing a fatigue uniform and
armed with an armalite rifle; he also saw that Galvez had three armed companions
but did not recognize them nor the firearms they were carrying because they were
about nine meters from Galvez.6
Galvez put up denial and alibi as his defenses. He testified that he was staying at his
father-in-law’s house on July 27, 1991 and drank tuba at around 10:30 p.m. at a
nearby store. He went home and slept with his wife soon after.7 To corroborate his
testimony, he presented SPO2 Danilo Ramillano, a visitor at his father-in-law’s house
and Wilhelmina Espinosa, a sari-sari store owner. 8 He also presented Athena Elisa
Anderson, Document Examiner and Forensic Analyst of the PNP Crime Laboratory of
Region 9, Zamboanga City, who testified that the paraffin test conducted on both his
hands showed that there was no nitrate present; 9 and Police Inspector Lemuel Caser,
Ballistic Examiner, who testified that the shells found at the scene of the crime were
not fired from the firearm issued to Galvez.10
After trial, the RTC rendered its Decision dated February 27, 1995 with the following
findings:
From the foregoing facts as well as from the records of this case, this Court finds the
following facts to be undisputable, to wit:
1) That at the late night of July 27, 1991, Rosalio Enojarda, while making
copra in the coconut land of Danilo Perez at Matarling, Lantawan, Basilan,
was shot to death by one of the four (4) men. How many gunshot wounds he
suffered and what part of his body was hit by the gunfire, the evidence is
found wanting.
2) That a day before the incident and on the date of the incident which was
July 27, 1991, the accused Cesar Galvez has not fired any firearms.
xxx
3) That the five (5) empty shells of armalite rifle…allegedly found by
Barangay Captain Inocente Manicap from the scene of the crime and later
turned over to PFC Samuel Omoso, the Police Investigator of this case, did
not come from the M16 armalite rifle with Serial No. 117460, the gun issued
to the accused Cesar Galvez. (citations omitted).11
26 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
Further, the trial court found that the testimonies of the prosecution witnesses, Rellios
and Perez, were credible and trustworthy as there was no motive to perjure
themselves; that the testimony of defense witness SPO2 Ramillano was full of
loopholes; and that the testimony of the store owner was insufficient to disprove the
presence of the accused at the scene of the crime.12
The RTC concluded:
xxx since this accused, Cesar Galvez, has not fired his M16 armalite rifle on that night
of July 27, 1991, and those five (5) empty shells were not fired from his armalite,
then xxx the bullet that hit and instantly killed Rosalio Enojarda on that night of
July 27, 1991 at the copra kiln of Danilo Perez came from the gun fired by any of
the three (3) unidentified persons who were the companions of the
accused, Cesar Galvez at the night of the incident xxx.13 (emphasis supplied)
Despite the fact that the Information failed to allege conspiracy and the aggravating
circumstances of nocturnity and armed band, the RTC still convicted Galvez of
murder based on conspiracy since Galvez was seen by two witnesses at the scene of
the crime carrying a firearm together with his unidentified armed companions. 14 The
trial court also held that the offer of Galvez to have the case settled out of court is an
indication of his guilt.15
The RTC then disposed of the case as follows:
WHEREFORE, all factual and circumstantial matters surrounding the commission of
the crime, being carefully and meticulously examined and studied, this Court finds the
accused SPO2 Cesar Galvez, a member of the Philippine National Police GUILTY
beyond reasonable doubt as principal in committing the crime of Murder as alleged in
the Information and which crime is defined and penalized under Art. 248 of the
Revised Penal Code, but considering his good military records after the commission
of the crime, hereby sentences him to suffer an imprisonment of SEVENTEEN (17)
YEARS, FOUR (4) MONTHS and ONE (1) DAY as minimum, to TWENTY (20)
YEARS as maximum, which is the minimum period of Reclusion Temporal in its
maximum period to death. And to indemnify the heirs of the late Rosalio Enojarda, the
amount of P50,000.00 as moral damages and to pay the Court the amount of
P500.00 as judicial costs and other accessory penalties attached to the penalty of
Reclusion Temporal.
And further this accused is hereby stripped of all the military ranks he now hold [sic] in
the Armed Forces of the Philippines.
And upon the promulgation of this decision, the accused shall immediately be
committed to the Provincial Jail where the Provincial Warden is directed to
immediately transfer him to the National Penitentiary at San Ramon Penal Colony at
Zamboanga City for commitment thereat.
And the property bail bond he has posted for his provisional liberty is hereby ordered
cancelled and its pertinent papers returned, upon receipt to the bondsman.16
Galvez appealed the case to the CA, docketed as CA-G.R. CR No. 18255, which
rendered its Decision on March 30, 2001 affirming his guilt but modifying the penalty
to be imposed, thus:
WHEREFORE, with the MODIFICATION that appellant CESAR GALVEZ is hereby
sentenced to reclusion perpetua, the decision appealed from is hereby AFFIRMED  in
all other respects.17
The CA held that the RTC erred in holding Galvez criminally liable based on
conspiracy when such fact was not alleged in the Information. However, it still found
Galvez guilty of Murder.18 The CA reasoned that: the negative results of the paraffin
and ballistic tests do not negate the possibility that Galvez used another gun in
shooting the victim; the eyewitnesses of the prosecution identified Galvez as the
perpetrator if not one of the perpetrators of the crime; alibi, which was offered by
Galvez, is the weakest of all defenses and cannot prevail over positive identification;
the offer of Galvez to the wife of the victim to have the case settled is also a strong
indication of Galvez’s culpability; and treachery was adequately established as the
attack was sudden, unexpected and did not accord the victim an opportunity to
defend himself.19 The CA further held that since there was no mitigating circumstance,
the proper penalty should be reclusion perpetua.20
Galvez filed a Motion for Reconsideration21 which the CA denied in its Resolution
dated August 21, 2001, stating that it was a mere rehash of the arguments already
addressed in the decision.22
The entire records of the case were forwarded to this Court pursuant to Section 13,
Rule 124 of the Rules of Criminal Procedure. On April 8, 2003, the Court issued a
Resolution23 accepting the case; committing the accused to the Davao Prison and
Penal Farm; and informing the accused and the Solicitor General that they may file
additional briefs with this Court.24
In his Appellant’s Brief, Galvez argued that the trial court erred:
I
… IN HOLDING THAT (HE) THE ACCUSED-APPELLANT IS LIABLE FOR MURDER
FOR THE DEATH OF ROSALIO ENOJARDA ON JULY 27, 1991 DESPITE ITS
EXPRESS FINDINGS THAT THE ACCUSED-APPELLANT DID NOT FIRE HIS
RIFLE ON THAT FATAL NIGHT AND THAT THE BULLET THAT HIT AND KILLED
ROSALIO ENOJARDA COULD HAVE BEEN FIRED FROM ANY OF THE GUNS OR
RIFLES BELONGING TO ANY OF THE THREE UNIDENTIFIED PERSONS WHO
27 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
WERE NOT CHARGED NOR INDICTED TOGETHER WITH THE ACCUSED IN THE
SAME CRIMINAL INFORMATION IN QUESTION.
II
… IN HOLDING THAT DANILO PEREZ AND WILFREDO RELLIOS, WHILE IN
CRAWLING POSITION WHOSE CHESTS WERE ALMOST TOUCHING THE
GROUND AND UNDER CONDITIONS DESCRIBED BY THEM, HAD SEEN THE
ACCUSED-APPELLANT ARMED WITH M16 ARMALITE RIFLE IN THE NIGHTIME,
OF 27 JULY 1991 DESPITE DANILO PEREZ’ [sic] POSITIVE ASSERTION THAT IT
WAS IMPOSSIBLE OF HIS (SIC) TO IDENTIFY THE ACCUSED WHEN ASKED TO
DEMONSTRATE IN OPEN COURT IN THE MANNER AND CIRCUMSTANCE
NARRATED BY HIM.25
In his Supplemental Appellant’s Brief, Galvez further claims that it was seriously
erroneous:
I.
…TO CONCLUDE THAT THERE WAS CONSPIRACY BETWEEN ACCUSED-
APPELLANT AND THE OTHER MALEFACTORS NOT INCLUDED IN THE
PRESENT CASE.
II.
…TO BE SELECTIVE IN APPRECIATING MATTERS NOT INCLUDED IN THE
INFORMATION, MORE SO THE THEORY OF CONSPIRACY AGAINST ACCUSED-
APPELLANT, THERE BEING NO OTHER PERSONS CHARGED IN THE PRESENT
CASE.
III.
…TO FIND THE ACCUSED-APPELLANT GUILTY OF MURDER UNDER
CIRCUMSTANCES FAR DIFFERENT FROM THE INFORMATION, IN EFFECT
DENYING ACCUSED-APPELLANT [THE] RIGHT TO BE INFORMED OF THE
NATURE AND CAUSE OF ACCUSATION AGAINST HIM.
IV.
…TO GIVE CREDENCE TO THE TESTIMONIES OF THE TWO ALLEGED EYE
WITNESSES WHOSE DECLARATIONS WERE CLEARLY BELIED DURING THEIR
CROSS EXAMINATION.
V.
…NOT TO CONSIDER THE DEFENSE OF ALIBI OF ACCUSED-APPELLANT.
VI.
…TO MAKE UNSUBSTANTIATED, BASELESS PRESUMPTIONS AND
CONCLUSIONS IN A CRIMINAL CASE WHERE THE INNOCENCE OF THE
ACCUSED IS PRESUMED.26
Galvez also filed an Addendum to Supplemental Appellant’s Brief adding that:
VII
THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN DISREGARDING
THE RESULTS OF THE PARAFFIN AND BALLISTIC TESTS AND IN ASSUMING
THAT THE ACCUSED-APPELLANT SHOT THE DECEASED USING AN M16 RIFLE
OTHER THAN THE ONE ISSUED TO HIM.27
Galvez contends that: the degree of proof required in criminal cases is proof beyond
reasonable doubt because an accused is always presumed to be innocent unless
proven otherwise;28 when circumstances yield two or more inferences, one of which is
consistent with the presumption of innocence and the other compatible with the
finding of guilt, the court must side with that which will acquit the accused; in this
case, the RTC found undisputed the fact that he did not shoot the victim on the night
of July 27, 1991 and the firearm that was used in killing the victim was owned and
possessed by another man, as shown by the negative results of the paraffin and
ballistic tests; the statement of Danilo Perez that he saw the accused on the night of
July 27, 1991 is not credible since Perez was in a crawling position with his chest
almost touching the ground at the time he allegedly saw the accused; Judge
Memoracion, who penned the decision could not have assessed the demeanor of the
prosecution witnesses while testifying as it was another judge who heard and
received their testimonies;29 the two defense witnesses, who corroborated his
(Galvez’s) alibi are unbiased and unrelated to him; while alibi is the weakest defense,
it is the only defense if it is the truth and it assumes importance where the prosecution
evidence is weak; the statement of the trial court that the offer of the accused to have
the case extra-judicially settled is a tacit admission of guilt is also unsubstantiated as
there is nothing in the records that shows that the accused made an offer to settle the
case out of court.30
For the plaintiff-appellee, the Solicitor General argued that: the paraffin test and the
ballistic examination are not conclusive proof that Galvez did not fire a gun during the
incident; in this case, the paraffin test was conducted on Galvez two days from the
date of the incident; Galvez was also positively identified by the prosecution
witnesses as one of four armed men who attacked them during the incident; Perez
clarified that while he was in a crawling position, he was looking upward, thus, he was
able to identify Galvez; between Galvez’s alibi and the positive declarations of
28 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
witnesses whose testimonies have not been assailed nor discredited by improper
motive, the latter deserves greater credence; the trial court correctly convicted Galvez
of murder as there was treachery since the victim was not in a position to defend
himself from the attack of the accused; the proper penalty should be reclusion
perpetua under Art. 248 of the Revised Penal Code as there was no mitigating
circumstance;31 Galvez is also liable for temperate damages of ₱25,000.00 since
pecuniary loss has been suffered although its exact amount could not be determined,
and exemplary damages of ₱25,000.00 due to the presence of the qualifying
circumstance of treachery; the amount of ₱50,000.00 as civil indemnity should also
be awarded to the heirs of the victim together with the ₱50,000.00 awarded by the
trial court for moral damages.32
After reviewing the entire records of the case, the Court resolves to acquit Galvez.
Conspiracy must be alleged in the information in order that an accused may be held
liable for the acts of his co-accused. In the absence of any averment of conspiracy in
the information, an accused can only be made liable for the acts committed by him
alone and such criminal responsibility is individual and not collective.33
As explained in People v. Tampis,34
The rule is that conspiracy must be alleged, not merely inferred, in the information.
Absence of a particular statement in the accusatory portion of the charge sheet
concerning any definitive act constituting conspiracy renders the indictment
insufficient to hold one accused liable for the individual acts of his co-accused. Thus,
each of them would be held accountable only for their respective participation in the
commission of the offense.35
The rationale for this rule has long been settled. In People v. Quitlong, the Court
explained:
Overwhelming, such as it may have been thought of by the trial court, evidence of
conspiracy is not enough for an accused to bear and respond to all its grave legal
consequences; it is equally essential that such accused has been apprised when the
charge is made conformably with prevailing substantive and procedural requirements.
Article III, Section 14, of the 1987 Constitution, in particular, mandates that no person
shall be held answerable for a criminal offense without due process of law and that in
all criminal prosecutions the accused shall first be informed of the nature and cause
of the accusation against him. The right to be informed of any such indictment is
likewise explicit in procedural rules. x x x
xxx
x x x Quite unlike the omission of an ordinary recital of fact which, if not excepted from
or objected to during trial, may be corrected or supplied by competent proof, an
allegation, however, of conspiracy, or one that would impute criminal liability to an
accused for the act of another or others, is indispensable in order to hold such
person, regardless of the nature and extent of his own participation, equally guilty with
the other or others in the commission of the crime. Where conspiracy exists and can
rightly be appreciated, the individual acts done to perpetrate the felony becomes of
secondary importance, the act of one being imputable to all the others. Verily, an
accused must know from the information whether he faces a criminal responsibility
not only for his acts but also for the acts of his co-accused as well.36
Since conspiracy was not alleged in the Information in this case, it is imperative that
the prosecution prove Galvez’s direct participation in the killing of the victim. This, the
prosecution failed to do.
The CA, in holding Galvez guilty of Murder, gave weight to the testimonies of the
prosecution witnesses Rellios and Perez that they saw Galvez fire an armalite rifle in
their direction on the night in question. The positive identification of these witnesses,
the CA ruled, has more weight than the negative results of the paraffin and ballistic
tests.37
We disagree.
The prosecution witnesses never actually saw Galvez shoot the victim. While this
Court does not ordinarily interfere with the findings of the lower courts on the
trustworthiness of witnesses, when there appears on the records, however, facts and
circumstances of real weight which might have been overlooked or misapprehended,
this Court cannot shirk from its duty to render the law and apply justice.38
During his direct examination, Perez testified as follows:
Q: While you were eating your merienda at about 11:00 o’clock in the evening on July
27, 1991 what happened?
A: Suddenly we heard shots and we could not determine where it came from
and one of our companion was hit.
Q: Do you know who was that companion of yours who was hit?
A: Yes, Rosalio Enojarda.
xxx
Q: After you heard the gun fire which hit your companion Rosalio Enojarda, what did
you do?
29 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
A: I dropped and crawled, sir. A: No, Your Honor. 39 (Emphasis supplied)

xxx During his cross-examination, Perez further testified:

Q: And then did the gunfire stop after you hid yourself among the grasses? Q: So, when you said the explosions came from different directions, was not true?

A: Yes sir. A: We heard shots but we do not know where it came from, what we did was to
drop and crawl.
Q: What happened after the firings stopped, when you were already hiding among the
grasses? COURT: (To the witness)

A: I recognized the culprit sir because he passed by where I was hiding about two You did not see the one firing?
meters from me.
Yes, your Honor, because I crawled.
Q: You said you recognized the culprit when he passed by where you were hiding,
who was that culprit? Q: And how many minutes after you heard firings you saw this accused and
companions pass by?
A: Cesar Galvez, sir.
A: I am not sure Your Honor about the exact time but I think it has about 20 to 25
xxx minutes.40

COURT: xxx

After you heard the shots how long after you saw him passed by? Q: Mr. Perez, you did not see the accused shot at Mr. Enojarda?

xxx A: No sir.41 (Emphasis supplied).

Q: Was it 30 minutes after? Rellios also admitted during his cross-examination the following:

xxx Q: You did not actually see Mr. Galvez shoot at Mr. Enojarda?

A: In my own estimate about 20 to 25 minutes. A: No sir.

Q: In other words more or less you saw him (accused) passed by together with his COURT: (To the witness)
companions around 20 to 25 minutes after you heard the shots, is that what you want
to impress this Court? In other words you were only presuming that it was him.

A: Yes, Your Honor. A: No, Your Honor, I saw him.

xxx ATTY. MARTIN: (Continuing)

Q: Did you see him really shoot?

30 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
Did you understand the question when you were asked by the Court. Since you
did not actually see Mr. Galvez shoot at the victim, and reportedly you saw him
only five minutes thereafter, you only presume Mr. Galvez to have shoot Mr.
Enojarda?
42
A: Yes sir.  (Emphasis supplied)
Based on the above testimonies, the following circumstances appear to have been
established: (1) at around 11 p.m., Enojarda, Rellios, Perez, and their two
companions were eating merienda near the copra kiln when they were sprayed with
gunfire; (2) Enojarda was fatally hit and fell on the ground; (3) Rellios, Perez and their
two companions ducked and crawled to seek cover; (4) about five minutes after the
first burst of gunfire, Galvez, armed with an M16 armalite rifle, was seen firing at
Rellios, Perez and their two companions as well as in the direction of the copra kiln;
and (5) about 20 to 25 minutes after the first burst of gunfire, Galvez was again seen
clad in fatigue uniform and carrying an M16 armalite rifle along with three armed
companions, after which, their group left the scene of the crime.
However, these circumstances are not sufficient to establish the guilt of Galvez
beyond reasonable doubt.
It is well to emphasize the four basic guidelines that must be observed in assaying the
probative value of circumstantial evidence:
x x x (a) It should be acted upon with caution; (b) All the essential facts must be
consistent with the hypothesis of guilt; (c) The facts must exclude every other theory
but that of guilt of the accused; and, (d) The facts must establish with certainty the
guilt of the accused as to convince beyond reasonable doubt that he was the
perpetrator of the offense. The peculiarity of circumstantial evidence is that the series
of events pointing to the commission of a felony is appreciated not singly but
collectively. The guilt of the accused cannot be deduced from scrutinizing just one (1)
particular piece of evidence. It is more like a puzzle which when put together reveals
a convincing picture pointing to the conclusion that the accused is the author of the
crime.43
as well as the doctrines enunciated by the Court that the prosecution must establish
beyond reasonable doubt every circumstance essential to the guilt of the
accused;44 and that every circumstance or doubt favoring the innocence of the
accused must be duly taken into account.45
The "incriminating circumstances" enumerated above are mainly based on the
testimonies of prosecution witnesses Perez and Rellios. A perusal of said testimonies
reveals, however, other circumstances that should be appreciated in favor of Galvez,
to wit:
(a) Both Perez and Rellios testified that they saw Galvez with three other
armed companions minutes after Enojarda was shot but they did not testify
that they saw him in the vicinity before the shooting of Enojarda.46
(b) Perez testified that only one shot hit Enojarda.47
(c) Perez testified that he did not see Galvez shoot at Enojarda and that he
merely assumed that Galvez was the one who shot the victim when the latter
passed by him.48 Rellios testified that he only presumed that Galvez shot at
Enojarda.49
(d) Perez testified that he had no misunderstanding with Galvez 50 and that
he does not know any motive why Enojarda was killed.51
In considering both favorable and "incriminating" circumstances for or against Galvez,
the following must always be borne in mind: that the Information charged Galvez as
the sole perpetrator of the crime of Murder; that the three other armed men were not
included as John Does; and that there was no allegation of conspiracy in the
Information.
Consequently, it was incumbent upon the prosecution to prove that Galvez was the
sole author of the shot that killed Enojarda. The "incriminating circumstances" do not
point to Galvez as the sole perpetrator of the crime. The presence of the three armed
men raises the probability that any one of those men inflicted the fatal shot. It must be
stressed that the prosecution witnesses merely presumed that it was Galvez who shot
Enojarda.
Moreover, the fact that Galvez was seen minutes after Enojarda was shot does not
sufficiently establish that Galvez was the one who shot Enojarda. There is no
evidence that Galvez was seen or was together with the three other armed men when
Enojarda was hit. There is a missing link that precludes the Court from concluding
that it was Galvez who shot Enojarda.52 It cannot be said therefore that there was
positive identification of Galvez through circumstantial evidence.
In People v. Comendador,53 the Court held:
While no general rule can be laid down as to the quantity of circumstantial evidence
which will suffice in a given case, all the circumstances proved must be consistent
with each other, consistent with the hypothesis that the accused is guilty, and at
the same time inconsistent with the hypothesis that he is innocent, and with
every other rational hypothesis except that of guilt. The circumstances proved
should constitute an unbroken chain which leads to one fair and reasonable
conclusion which points to the accused, to the exclusion of all others as the guilty
person.54 (Emphasis supplied)
31 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
And in Dela Cruz v. People,55 the Court stressed, thus:
To emphasize, the foundation of the ruling of acquittal is reasonable doubt, which
simply means that the prosecution’s evidence was not sufficient to sustain the guilt of
the accused-petitioner beyond the point of moral certainty – certainty that convinces
and satisfies the reason and the conscience of those who are to act upon it. It is such
proof to the satisfaction of the court, keeping in mind the presumption of innocence,
as precludes every reasonable hypothesis except that which it is given to support
it. An acquittal based on reasonable doubt will prosper even though the
accused’s innocence may be doubted, for a criminal conviction rests on the
strength of the evidence of the prosecution and not on the weakness of the
defense. And, if the inculpatory facts and circumstances are capable of two or
more explanations, one of which is consistent with the innocence of the
accused and the other consistent with his guilt, then the evidence does not
fulfill the test of moral certainty and is not sufficient to support a conviction,
and, thus, that which is favorable to the accused should be
considered.56 (Emphasis supplied).
And when the evidence on the commission of the crime is purely circumstantial or
inconclusive, motive is vital. As held in Crisostomo v. Sandiganbayan,57
Motive is generally held to be immaterial because it is not an element of the crime.
However, motive becomes important when the evidence on the commission of the
crime is purely circumstantial or inconclusive. Motive is thus vital in this case.58
In this case, prosecution witness Perez testified that he did not know of any motive on
the part of Galvez to kill Enojarda.59 This is a circumstance that should be taken in
favor of Galvez.
In line with the ruling of the Court in Torralba v. People,60 to wit:
Time and again, this Court has faithfully observed and given effect to the
constitutional presumption of innocence which can only be overcome by contrary
proof beyond reasonable doubt – one which requires moral certainty, a certainty that
convinces and satisfies the reason and conscience of those who are to act upon it. As
we have so stated in the past –
Accusation is not, according to the fundamental law, synonymous with guilt, the
prosecution must overthrow the presumption of innocence with proof of guilt beyond
reasonable doubt. To meet this standard, there is need for the most careful scrutiny of
the testimony of the State, both oral and documentary, independently of whatever
defense is offered by the accused. Only if the judge below and the appellate
tribunal could arrive at a conclusion that the crime had been committed
precisely by the person on trial under such an exacting test should the
sentence be one of conviction. It is thus required that every circumstance
favoring innocence be duly taken into account. The proof against him must
survive the test of reason; the strongest suspicion must not be permitted to
sway judgment.61 (Emphasis supplied)
There could not be any doubt that the facts, as established by the circumstantial
evidence, failed to exclude the possibility that another person shot Enojarda. There
were three other armed men, any one of whom could be the culprit.
When a crime is committed, it is the duty of the prosecution to prove the identity of the
perpetrator of the crime beyond reasonable doubt for there can be no conviction even
if the commission of the crime is established.62 Indeed, the State, aside from showing
the existence of a crime, has the burden of correctly identifying the author of such
crime.63 Both facts must be proved by the State beyond reasonable doubt on the
strength of its evidence and without solace from the weakness of the defense.64
Galvez correctly pointed out in his supplemental brief before this Court that it was
erroneous for the CA to have affirmed the RTC ruling that Galvez’s offer to the
victim’s wife to settle the case is a tacit admission of guilt.65
While the Court agrees that in criminal cases, an offer of compromise by the accused
may be received in evidence as an implied admission of guilt, 66 such principle is not
applicable in this case.
The only basis of the RTC in concluding that Galvez made on offer of
compromise,67 is the March 3, 1993 Order of the RTC which reads as follows:
Considering that the accused as well as his Counsel, Atty. Bienvenido G. Martin
appeared in Court together with Rosaflor Enojarda, the wife of the victim, and
manifested that there is a possibility of understanding and settlement between the
parties, the above-entitled case is hereby reset for new assignment.68
Galvez’s supposed offer of compromise was not formally offered and admitted as
evidence during the trial. The victim’s widow or any prosecution witness did not testify
on any offer of compromise made by Galvez. We have held that when the evidence
on the alleged offer of compromise is amorphous, the same shall not benefit the
prosecution in its case against the accused.69
The Court also recognizes that there may be instances when an offer of compromise
will not amount to an admission of guilt. Thus, in People v. Godoy,70 the Court
pronounced that:
…In criminal cases, an offer of compromise is generally admissible as evidence
against the party making it. It is a legal maxim, which assuredly constitutes one of the
bases of the right to penalize, that in the matter of public crimes which directly affect
the public interest, no compromise whatever may be entered into as regards the
32 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
penal action. It has long been held, however, that in such cases the accused is
permitted to show that the offer was not made under a consciousness of guilt,
but merely to avoid the inconvenience of imprisonment or for some other
reason which would justify a claim by the accused that the offer to compromise
was not in truth an admission of guilt or an attempt to avoid the legal
consequences which would ordinarily ensue therefrom.71 (Emphasis supplied).
As the alleged offer of compromise was not presented in court, it was not shown that
Galvez indeed made such an offer under the consciousness of guilt. Galvez was not
given the opportunity to explain that it was given for some other reason that would
justify a claim that it was not an admission of guilt or an attempt to avoid its legal
consequences.
In this case, the presumption of innocence of Galvez prevails over the alleged implied
admission of guilt. In Godoy, the Court, in acquitting the accused, explained that:
It frequently happens that in a particular case two or more presumptions are involved.
Sometimes the presumptions conflict, one tending to demonstrate the guilt of the
accused and the other his innocence. In such case, it is necessary to examine the
basis for each presumption and determine what logical or social basis exists for each
presumption, and then determine which should be regarded as the more important
and entitled to prevail over the other. It must, however, be remembered that the
existence of a presumption indicating his guilt does not in itself destroy the
presumption against innocence unless the inculpating presumption, together with all
the evidence, or the lack of any evidence or explanation, is sufficient to overcome the
presumption of innocence by proving the defendant’s guilt beyond a reasonable
doubt. Until the defendant’s guilt is shown in this manner, the presumption of
innocence continues.72
xxx
The presumption of innocence, x x x is founded upon the first principles of justice, and
is not a mere form but a substantial part of the law. It is not overcome by mere
suspicion or conjecture; a probability that the defendant committed the crime; nor by
the fact that he had the opportunity to do so. Its purpose is to balance the scales in
what would otherwise be an uneven contest between the lone individual pitted against
the People and all the resources at their command. Its inexorable mandate is that, for
all the authority and influence of the prosecution, the accused must be acquitted and
set free if his guilt cannot be proved beyond the whisper of a doubt. This is in
consonance with the rule that conflicts in evidence must be resolved upon the theory
of innocence rather than upon a theory of guilt when it is possible to do so.73
Thus, taking into account all the circumstances in favor of Galvez, there could not be
a moral certainty as to the guilt of Galvez. The prosecution has not proven the guilt of
Galvez beyond reasonable doubt.
It may be pointed out that the following circumstances support the conviction of
Galvez as charged:
(a) the negative findings of the paraffin and ballistic tests do not prove that
Galvez did not fire a gun;
(b) Galvez was a police officer who could have justified his presence at the
scene of the crime with a lawful purpose, yet he put up alibi which is
inherently weak;
(c) Galvez did not present his wife and father-in-law as witnesses to
corroborate his story that he was at their house on the night in question; and
(d) Galvez refused three times to give a statement to the investigating police
officer.
These circumstances do not help the prosecution in the discharge of its duty to prove
the guilt of Galvez beyond reasonable doubt.
It is true that a negative finding in a paraffin test is not a conclusive proof that one has
not fired a gun, as held by this Court in People v. Pagal74 and People v.
Teehankee75 which were cited by the CA in its Decision, since it is possible for a
person to fire a gun and yet bear no traces of nitrate or gunpowder as when the
hands are bathed in perspiration or washed afterwards. 76 Such principle, however,
has no bearing in the present case. In the Pagal and Teehankee cases, the Court
concluded that a negative finding does not prove that the accused therein had not
fired a gun because the accused were positively identified by witnesses as having
shot their victims, unlike in the case at hand where Galvez is not positively identified
by direct or circumstantial evidence that he shot Enojarda. If the principle should be
given any weight at all, it should be in favor of Galvez, that is, considering that he is
not positively identified, then, the negative results of the paraffin test bolster his claim
that he did not shoot Enojarda, and not the other way around.
The argument that the negative result of the ballistic examination does not prove that
Galvez did not fire a gun during the incident as it was possible that he used another
gun, should also be struck down. It is the prosecution which has the burden of
showing that Galvez used a firearm other than the one issued to him and that such
firearm, which Galvez used, was the one that killed the victim. It is not for Galvez to
prove the opposite of the possibility adverted to by the prosecution as it is the
prosecution which must prove his guilt beyond reasonable doubt and not for him to
prove his innocence.
Thus, while it is true that the negative results of the paraffin and ballistic tests do not
conclusively prove that Galvez did not shoot the victim, the same negative results
cannot be used as circumstantial evidence against Galvez to prove that he shot
33 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
Enojarda. To do otherwise would violate the basic precepts of criminal law which
presumes the innocence of the accused. Every circumstance favoring an accused’s
innocence must be duly taken into account, the proof against him must survive the
test of reason, and the strongest suspicion must not be permitted to sway judgment.77
That Galvez was a police officer who could have justified his presence at the scene of
the crime with a lawful purpose, yet he put up an alibi which is inherently weak; and
that Galvez did not present his wife and father-in-law as witnesses to corroborate his
story that he was at their house on the night in question, pertain to the weakness of
Galvez’s alibi which may cast doubt on his innocence. However, these circumstances
do not prove beyond reasonable doubt Galvez’s guilt. Although an accused must
satisfactorily prove his alibi, the burden in criminal cases still rests on the prosecution
to prove the accused’s guilt. The prosecution evidence must stand or fall on its own
weight and cannot draw strength from the weakness of the defense. Unless the
prosecution overturns the constitutional presumption of innocence of an accused by
competent and credible evidence proving his guilt beyond reasonable doubt, the
presumption remains.78 Courts must judge the guilt or innocence of the accused
based on facts and not on mere conjectures, presumptions, or suspicions.79
That Galvez refused three times to give a statement to the investigating police officer
is a prerogative given to the accused and should not be given evidentiary value to
establish his guilt. In People v. Saavedra,80 the Court held that an accused has the
right to remain silent and his silence should not be construed as an admission of guilt.
Even if the defense of the appellant may be weak, the same is inconsequential if, in
the first place, the prosecution failed to discharge the onus of his identity and
culpability.81 Conviction must be based on the strength of the prosecution and not on
the weakness of the defense, i.e., the obligation is upon the shoulders of the
prosecution to prove the guilt of the accused and not the accused to prove his
innocence.82 The prosecution’s job is to prove that the accused is guilty beyond
reasonable doubt.83 Thus, when the evidence for the prosecution is insufficient to
sustain a conviction, it must be rejected and the accused absolved and released at
once.84
Time and again, the Court has pronounced that the great goal of our criminal law and
procedure is not to send people to jail but to render justice.85 Under our criminal
justice system, the overriding consideration is not whether the court doubts the
innocence of the accused, but whether it entertains reasonable doubt as to his guilt.86
It is indeed lamentable that because of the lapses of the Prosecution, justice could
not be rendered in this case for the untimely death of Enojarda. Justice, however,
would also not be served with the conviction of the herein accused. It is well to quote
Justice Josue N. Bellosillo:
In fine, we are not unmindful of the gravity of the crime charged; but justice
must be dispensed with an even hand. Regardless of how much we want to
punish the perpetrators of this ghastly crime and give justice to the victim and
her family, the protection provided by the Bill of Rights  is bestowed upon all
individuals, without exception, regardless of race, color, creed, gender or
political persuasion – whether privileged or less privileged – to be invoked
without fear or favor. Hence, the accused deserves no less than an acquittal;
ergo, he is not called upon to disprove what the prosecution has not
proved.87 (Emphasis supplied)
As the prosecution in this case failed to discharge its burden of proving Galvez’s guilt
beyond reasonable doubt, the Court has no choice but to acquit him.
WHEREFORE, the Decision of the Regional Trial Court, Isabela, Basilan, Branch 1 in
Criminal Case No. 1816 dated February 2, 1995 and the Decision of the Court of
Appeals in CA-G.R. CR No. 18255 dated March 30, 2001 are REVERSED and SET
ASIDE. The accused-appellant Cesar Galvez is hereby ACQUITTED on the ground
that his guilt was not proven beyond reasonable doubt. The Director of the Bureau of
Corrections is ordered to cause the immediate release of Cesar Galvez unless he is
being lawfully held for another crime and to inform this Court accordingly within ten
(10) days from notice.
SO ORDERED.
G.R. No. 166479             February 28, 2006
RODOLFO C. VELASCO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
CHICO-NAZARIO, J.:
Before Us is a petition for review on certiorari which seeks to set aside the
decision1 of the Court of Appeals in CA-G.R. CR No. 23366 dated 30 July 2004 which
affirmed the decision2 of Branch 41 of the Regional Trial Court (RTC) of Dagupan City
in Criminal Case No. 98-02175-D dated 29 June 1999, finding accused-petitioner
Rodolfo C. Velasco guilty of Attempted Murder, and its Resolution3 dated 21
December 2004 denying petitioner’s motion for reconsideration.
An Information4 dated 20 April 1998 charged petitioner with the crime of Attempted
Murder committed as follows:
That on or about the 19th day of April, 1998, in the City of Dagupan, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, SN I
34 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
RODOLFO C. VELASCO, being then armed with a gun, with treachery and with intent
to kill one FREDERICK MARAMBA, did then and there, wilfully, unlawfully and
criminally, attack, assault and use personal violence upon the latter by shooting him,
hitting him on the left upper arm, the said accused having thus commenced a felony
directly by overt acts but did not perform all the acts of execution which could have
produced the crime of murder, by reason of some cause or accident other than his
own spontaneous desistance, to the damage and prejudice of said FREDERICK
MARAMBA.
When arraigned, petitioner, with the assistance of counsel de oficio, pleaded not
guilty to the crime charged.5
On 29 September 1998, the Hon. Luis M. Fontanilla, Executive Judge of RTC of
Dagupan City, ordered the release of petitioner after a surety bond was posted by the
Mega Pacific Insurance Corporation in the amount of ₱120,000.00.6
The evidence is summarized by the trial court as follows:
The evidence of the prosecution tends to show that on April 19, 1998, at about 7:30
o’clock in the morning, private complainant Frederick Maramba was cleaning and
washing his owner type jeep in front of his house at Lasip Grande, Dagupan City
when a motorized tricycle stopped near him. Accused Rodolfo Velasco dashed out of
the tricycle, approached the complainant and fired at him several times with a .45
caliber pistol. The accused missed with his first shot but the second one hit the
complainant at the upper arm, causing him to stumble on the ground. The
complainant stood up and ran, while the accused continued firing at him but missed.
The shooting incident was reported to the police sub-station in Malued District by
Barangay Captain Dacasin of Lasip Grande, describing the suspect as wearing a vest
or a "chaleco." The police, composed of SPO4 Romulo Villamil, PO3 Rolando
Alvendo, and SPO1 Soliven respondent and pursued the accused who proceeded on
board a motorized tricycle to the highway going to Barangay Banaoang in Calasiao
town.
The police caught up with the tricycle and brought the accused to the police sub-
station. A firearm (Exhibit "A") protruding from the waistline of the accused, three (3)
magazines (Exhibit "B", "B-1" & "B-2") and fourteen (14) live ammunitions (Exhibits
‘C" to "C-13") were confiscated from the possession of the accused. The police also
recovered seven (7) spent ammunitions (Exhibits "D" to "D-6") at the crime scene. At
the City Jail in Dagupan City where the accused was subsequently brought, the
private complainant Frederick Maramba identified and pointed to the accused as the
one who fired at him, hitting him on the upper left arm. Complainant identified the
affidavit which he executed naming the accused as his assailant (Exhibit "H") and
who shot him on the morning of April 19, 1998 in front of his residence at Lasip
Grande.
Private complainant further testified that he was hospitalized and treated at the
Region 1 Medical Center, Dagupan City by Dr. Arturo de Vera, Jr. who issued a
Medico-Legal Certificate stating that the victim sustained, "Gunshot wound point of
entry: 1.5 cm lateral aspect distal, 3rd arm left" and; "Gunshot wound point of exit: 4
cm lateral aspect posterior, 3rd arm left" (Exhibit "I"). By reason of his wounds,
complainant incurred expenses for hospitalization and medicines in the total amount
of ₱2,696.06 (Exhibit "J" to "J-14").
Armando Maramba, the driver of the tricycle in which the accused rode, testified that
he picked up the accused who was wearing a chaleco, at the intersection of Pogo-
Lasip Road. Upon reaching the parked jeep which was being washed by the private
complainant, the accused ordered him to stop. The accused alighted and fired several
shots at the victim. Then the accused went back to the tricycle and ordered him to
proceed to Calasiao. The accused alighted at the intersection of the De Venecia
Highway and Malued Road and took another tricycle. Witness executed an affidavit
before the Police Headquarters in Dagupan City (Exhibit "G") and identified the
accused as the one who shot the private complainant.
The accused, on the other hand, interposed the defense of alibi. He said that on April
18, 1998, he went to a friend’s house in Lingayen, Pangasinan and spent the night
there. The following morning, April 19, 1998, between 6:00 to 7:00 o’clock, he left
Lingayen riding in the Volkswagen car of Berting Soriano. He alighted at the corner of
Banaoang diversion road. From there he took a tricycle and told the driver to bring
him at the foot of the bridge going to Bayambang. While on his way to Calasiao, he
heard a jeep behind him blowing its horn and when he looked back he saw three men
on board pointing their guns at him. He told the tricycle driver to stop and thereupon
the three men approached him and introduced themselves as policemen. They
confiscated his gun and then brought him to the police station for interrogation.
Thereafter, the police lodged him in the City Jail of Dagupan.
Accused testified that he did not know personally the complaining witness and denied
having fired at him. He further said that his .45 caliber pistol which was seized from
him by the police is licensed (Exhibit "2").7
In its decision dated 29 June 1999, the RTC of Dagupan City, Branch 41, found
petitioner guilty of the crime charged, disposing of the case in this wise:
WHEREFORE, finding accused Rodolfo C. Velasco guilty beyond reasonable doubt
of the crime of attempted murder, defined and penalized under Article 248, in relation
to the 3rd par. of Arts. 6 and 51 of the Revised Penal Code, he is hereby sentenced
to suffer the indeterminate penalty of Four (4) years of prision correccional, as
minimum to Eight (8) years and One (1) day of prision mayor, as maximum.
Accused is further ordered to indemnify the complaining witness the amount of
₱2,696.00, as actual damages.8
35 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
The trial court gave credence to the testimonies of the private complainant Frederick
Maramba and Armando Maramba when they identified petitioner as the assailant. It
rejected petitioner’s defense of alibi saying it was not impossible for him to be at the
crime scene when the crime was committed because the place where he allegedly
alighted from the car of a certain Berting Soriano was only about ten minutes away. It
concluded that his defense cannot prevail over the positive identification made by the
prosecution witnesses.
On 1 July 1999, petitioner filed a Notice of Appeal signifying his intention to appeal to
the Court of Appeals.9
Pending appeal with the Court of Appeals, petitioner, after filing a Motion to Bail, was
allowed to post bail in the amount of ₱160,000.00. 10 To obviate the possibility of flight,
the Bureau of Immigration and Deportation (BID) was directed to include petitioner in
its hold departure list.11
On 30 July 2004, the Court of Appeals dismissed the appeal and affirmed the
decision of the RTC. The decretal portion of the decision reads:
WHEREFORE, for lack of merit, the appeal is DISMISSED. The assailed Decision
dated June 29, 1999 of the Regional Trial Court, Branch 41 of Dagupan City, in
Criminal Case No. 98-02175-D, is hereby AFFIRMED. Costs against accused-
appellant.12
Petitioner moved for a reconsideration of the decision which motion was denied per
resolution13 dated 21 December 2004.
Petitioner is now before us via petition for review on certiorari, raising the following
grounds:
I On 17 October 2005, the Court gave due course to the petition and required the
THE COURT OF APPEALS GRAVELY ERRED WHEN IT AFFIRMED THE
DECISION OF THE REGIONAL TRIAL COURT.
II
THE COURT OF APPEALS GRAVELY ERRED WHEN IT DENIED THE
MOTION FOR RECONSIDERATION PER THE RESOLUTION DATED
DECEMBER 21, 2004.14
Petitioner invokes the defenses of denial and alibi. He denies having shot the victim.
He alleges that the prosecution was not able to sufficiently establish the identity of the
assailant because the Barangay Chairman, who reported the incident to the
policemen, identified the assailant as one wearing a "chaleco," was not presented to
corroborate the testimony of petitioner. He contends that had the Barangay Chairman
been presented, the latter’s testimony would have been adverse to the prosecution.
Instead, he points out that the prosecution presented police officers who were not
eyewitnesses. He adds that he had no motive to harm, much less kill, the victim, the
latter being a total stranger. He explains that since the identity of the assailant is in
doubt, motive becomes important and his alibi gains weight and value.15
In a resolution dated 6 April 2005, the Court, without giving due course to the petition,
required respondent to file a Comment.16
In its Comment17 dated 8 September 2005, respondent People of the Philippines,
through the Office of the Solicitor General (OSG), argues that the factual findings of
the Court of Appeals cannot be reviewed since the issue (i.e., positive identification)
petitioner is raising involves the credibility of witnesses and the weighing of evidence.
It asserts that since the same deals with a question of fact and there being no
instance present to take the case out of the general rule that factual findings of the
Court of Appeals may be reviewed, a review thereof cannot be made because only a
question of law can be re-examined if a petition for review on certiorari under Rule 45
of the Rules of Court has been filed. It adds that even if the case is to be decided on
the merits, the petition likewise will fail.
In his Reply,18 petitioner submits that a review of the facts of the case is justified on
the ground that the Court of Appeals sanctioned substantial and jurisprudential
departures committed by the trial court. He maintains that (1) the trial court
precipitately observed that alibi is a weak defense; (2) the trial court did not consider
that the prosecution had no evidence proving his intention to kill; (3) the trial court did
not consider the fact that victim did not know him and vice-versa; (4) it was impossible
for him, a navy man – a protector of the people – to have failed to fatally hit the victim
after firing seven shots; and (5) the instant case is a frame up.
parties to submit their respective memoranda.19
In his memorandum, petitioner further argues that the findings of fact in this case
should be reviewed because the Court of Appeals erroneously restated the factual
findings of the trial court when it purposely omitted and added words changing the
tenor of the shooting incident as found by the trial court. He adds that the findings of
fact of the trial court do not support a conviction of attempted murder but only
attempted homicide as there was no treachery since private complainant was still able
to focus his eyes on the gunman until he was fired upon. Further, he points out that
the Court of Appeals made different findings as to where the seven spent shells were
recovered. He maintains there was suppression of evidence when the prosecution
failed to present a ballistic report on the seven empty shells that would show the
identity of the assailant. In addition, he claims that since there was suppression of
36 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
evidence on the part of the prosecution, the testimony of Armando Maramba is not
credible, he being a relative of the victim.
Petitioner primarily invokes the defenses of denial and alibi. It is his claim that the
prosecution failed to conclusively establish the identity of the assailant and that he
was merely framed-up.
At the outset, it must be stressed that the instant petition for review on certiorari was
filed pursuant to Rule 45 of the Rules of Court where a review is not a matter of right
but of sound judicial discretion and will be granted only when there are special and
important reasons therefor. It is not the function of this Court to re-examine the
evidence submitted by the parties unless the findings of fact of the Court of Appeals
are not supported by evidence on record or the judgment is based on a
misapprehension of facts. This Court is limited to the review or revision of errors of
law and not to analyze or weigh the evidence all over again.20
We agree with the OSG that as ruled by this Court, no questions of facts may be
raised in this Court under Rule 45 of the Rules of Court, unless, among other
grounds, there is clear and convincing proof that the judgment of the Court of Appeals
is based on a misapprehension of facts or when the Court of Appeals failed to notice
and appreciate certain relevant facts of substance which if properly considered would
justify a different conclusion, and when there is a grave abuse of discretion in the
appreciation of facts in the light of the evidence on record. Anything less will not
suffice to overturn the decision of the Court of Appeals affirming on appeal the
decision of the trial court. It bears stressing that the findings of facts of the trial court,
its calibration of the testimonial evidence of the parties and the assessment of the
credibility and probative weight of the evidence of the parties and its conclusion
anchored on its findings are given high respect if not conclusive effect by this Court,
especially if affirmed by the Court of Appeals because of the unique advantage of the
trial court of observing and monitoring the demeanor, conduct and deportment of the
witnesses as they regale the court with their testimonies. The exception to this rule is
when the trial court ignored, overlooked, misconstrued or misappreciated cogent facts
and circumstances of substance which if considered would alter the outcome of the
case.21 After scrutinizing the records of the case and thoroughly evaluating all the
evidence proffered, we find no reason to deviate from the findings of facts of the trial
court as affirmed by the Court of Appeals.
In the case at bar, the testimonies of private complainant Frederick Maramba and
Armando Maramba were given credence and full probative weight and credence by
the trial court in the identification of petitioner as the assailant. Private complainant
saw petitioner alight from the tricycle of Armando Maramba before he successively
shot at him at a distance of about four meters while chasing him for 25 to 30
meters.22 Armando Maramba witnessed the shooting because he was the driver of the
tricycle in which petitioner rode in going to the house of private complainant and in
leaving the crime scene.23 After the shooting incident, private complainant went to the
City Jail and identified petitioner as the person who shot him.24 At the Dagupan City
Police Station, Armando Maramba pointed to petitioner as the assailant not because
he saw a man wearing a chaleco, but because it was he whom he saw shoot the
private complainant.25
Petitioner asks that the findings of fact of the case should be reviewed because the
Court of Appeals erroneously restated the factual findings of the trial court when it
purposely omitted and added words changing the tenor of the shooting incident as
found by the trial court. Petitioner said the Court of Appeals purposely added the word
"suddenly" and replaced the phrase "near him" with "in front of." He adds that the
Court of Appeals added the phrase "without any warning" and removed the phrase
"approached the complainant." He even claims that the Court of Appeals changed the
manner how private complainant was shot, when he was hit, and how he stumbled
and how he was able to stand up and continue running. He further states that the
Court of Appeals made a different finding as to where the seven spent shells were
recovered. He points out that the Court said the seven spent shells were recovered
from the accused while the trial court found that the same were found in the crime
scene.
As above discussed, the findings of the trial court on its assessment of the credibility
of the witnesses and their testimonies and the probative weight thereof, are accorded
by the appellate court high respect if not conclusive effect, unless the trial court
ignored, misconstrued or misinterpreted facts and circumstances, which if considered,
would alter the outcome of the case.26 In the case at bar, the addition or omission of
these words, and the difference between the findings of the trial court and the Court
of Appeals as to where the seven spent shells were found, are too minor and
inconsequential to affect the outcome of this case. These, even if considered, would
not overturn the established fact that petitioner was identified as the assailant.
Nothing in the record shows that there was any inconsistency as regards the identity
of the assailant. Both private complainant and Armando Maramba were one in
pointing to petitioner as the culprit.
Petitioner interposes the defenses of denial and alibi. He denies participation in the
crime claiming that he was aboard a tricycle on his way to Calasiao, Pangasinan,
when policemen arrested him and brought him to the Dagupan Police Station. On the
other hand, the victim himself identified petitioner as his attacker which statement was
corroborated by Armando Maramba.
To be believed, denial must be buttressed by strong evidence of non-culpability.
Otherwise, it is purely self-serving and without merit.27 Settled is the rule that the
defense of alibi is inherently weak and crumbles in the light of positive declarations of
truthful witnesses who testified on affirmative matters.28 Greater weight is given to the
categorical identification of the accused by the prosecution witnesses than to the
accused's plain denial of participation in the commission of the crime.29 There being
no strong and credible evidence adduced to overcome the testimonies of private
complainant and Armando Maramba pointing to him as the culprit, no weight can be
given petitioner’s denial.
37 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
Petitioner’s defense of alibi likewise fails. As against positive identification by
prosecution witnesses, the accused’s alibi is worthless.30 Having been identified by
two credible witnesses, petitioner cannot escape liability. Moreover, for alibi to
prosper, it must be proven that during the commission of the crime, the accused was
in another place and that it was physically impossible for him to be at the locus
criminis.31 Courts view the defense of alibi with suspicion and caution not only
because it is inherently weak and unreliable, but also it can be fabricated easily. 32 As
found by the trial court, it was not physically impossible for petitioner to be at the
crime scene when the crime was committed since it only takes a ten-minute ride from
the place where he allegedly alighted from the car of one Berting Soriano to the crime
scene. We have held that:
Alibi, the plea of having been elsewhere than at the scene of the crime at the time of
the commission of the felony, is a plausible excuse for the accused. Let there be no
mistake about it. Contrary to the common notion, alibi is in fact a good defense. But to
be valid for purposes of exoneration from a criminal charge, the defense of alibi must
be such that it would have been physically impossible for the person charged with the
crime to be at the locus criminis at the time of its commission, the reason being that
no person can be in two places at the same time. The excuse must be so airtight that
it would admit of no exception. Where there is the least possibility of accused’s
presence at the crime scene, the alibi will not hold water.33
Petitioner contends there was suppression of evidence when the prosecution did not
place on the witness stand Barangay Captain Dacasain of Lasip Grande and when it
failed to present a ballistic report on the seven empty shells because both are vital
evidence to prove the identity of the assailant.
We find such contention untenable.
As to the non-presentation of Barangay Captain Dacasin, the same does not
constitute suppression of evidence. Barangay Captain Dacasin was not an
eyewitness to the shooting incident contrary to the claim of petitioner. Although he
was the one who reported the incident to the police station, he was merely informed
by Armando Maramba that the person who shot private complainant wore a "chaleko"
or vest.34 Thus, not being an eyewitness, his testimony, even if taken, would have
nothing to do with the identification of the assailant. If he really wanted to have
Barangay Captain Dacasin take the witness stand, he could have asked the trial court
for a subpoena ad testificandum. This, he did not do.
As regards the failure of the police to present a ballistic report on the seven spent
shells recovered from the crime scene, the same does not constitute suppression of
evidence. A ballistic report serves only as a guide for the courts in considering the
ultimate facts of the case.35 It would be indispensable if there are no credible
eyewitnesses to the crime inasmuch as it is corroborative in nature. 36 The
presentation of weapons or the slugs and bullets used and ballistic examination are
not prerequisites for conviction. The corpus delicti and the positive identification of
accused-appellant as the perpetrator of the crime are more than enough to sustain
his conviction.37 Even without a ballistic report, the positive identification by
prosecution witnesses is more than sufficient to prove accused’s guilt beyond
reasonable doubt. 38 In the instant case, since the identity of the assailant has been
sufficiently established, a ballistic report on the slugs can be dispensed with in
proving petitioner’s guilt beyond reasonable doubt.
Petitioner’s asseveration that it is unthinkable for him to shoot private complainant
because he has no motive to harm, much less kill the latter, he being a total stranger,
deserves scant consideration. It must be stressed that motive is a state of (one’s)
mind which others cannot discern. It is not an element of the crime, and as such does
not have to be proved. In fact, lack of motive for committing a crime does not preclude
conviction. It is judicial knowledge that persons have been killed or assaulted for no
reason at all.39 Even in the absence of a known motive, the time-honored rule is that
motive is not essential to convict when there is no doubt as to the identity of the
culprit.40 Motive assumes significance only where there is no showing of who the
perpetrator of the crime was.41 In the case at bar, since petitioner has been positively
identified as the assailant, the lack of motive is no longer of consequence.
Petitioner argues that the testimony of prosecution witness Armando Maramba should
not be given weight because the same is biased and incredible on the ground that he
is the uncle of the private complainant.
This argument does not inspire belief. The blood relationship of Armando Maramba
and private complainant would not render the former’s testimony unworthy of belief.
On the contrary, relationship could strengthen the witnesses’ credibility, for it is
unnatural for an aggrieved relative to falsely accuse someone other than the actual
culprit. Their natural interest in securing the conviction of the guilty would deter them
from implicating a person other than the true offender.42 It is settled that where there
is no evidence and nothing to indicate that the principal witnesses for the prosecution
were actuated by improper motive, the presumption is that they were not so actuated
and their testimonies are entitled to full faith and credit. 43 The weight of the testimony
of witnesses is not impaired nor in anyway affected by their relationship to the victim
when there is no showing of improper motive on their part.44 Jurisprudence likewise
holds that if an accused had really nothing to do with a crime, it would be against the
natural order of events and of human nature, and against the presumption of good
faith, that a prosecution witness would falsely testify against him. 45 In the case before
us, aside from petitioner’s claim that he was framed-up, there is nothing in the records
that shows that Armando Maramba had ulterior motives in testifying against him.
Necessarily, the testimony of Armando Maramba must be given full credit.
Petitioner claims that as a navy man who is trained to kill enemies of the state, a
"protector of the people," he could not have acted in the manner which the
prosecution pointed out. He said it is against human experience to attempt to kill a
person in the presence of a witness and in broad daylight, and that it is preposterous
38 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
that after firing seven shots at close range, he failed to fatally hit the private
complainant. All these, he said, only point to a different assailant.
We are not convinced. The records show that the shooting happened at around 7:30
a.m. The fact that the shooting occurred in broad daylight does not render its
commission impossible.46 This Court takes notice that it is not unusual that killings are
perpetrated in front of witnesses. In the instant case, the attempted killing was
witnessed by Armando Maramba, the driver of the tricycle which petitioner rode in
going to, and in leaving, the crime scene.
Petitioner argues that he could not have been the assailant because it was simply
impossible for him, being a navy man, not to fatally hit private complainant after firing
seven shots at close range. In effect, what he is saying is that the bungled killing
cannot be the handiwork of an experienced soldier like him. Such an argument does
not hold water. In the case of People v. Mamarion,47 we brushed aside the very same
argument raised by the accused therein who was an experienced military man. We
ruled that an accused is not entitled to an acquittal simply because of his previous, or
even present, good moral character and exemplary conduct. The fact that petitioner
was a navy man -- a protector of the people -- does not mean that he is innocent of
the crime charged or that he is incapable of doing it. This argument fails in light of the
identification made by the victim himself and by Armando Maramba that it was
petitioner who was the assailant.
Finally, petitioner submits that if ever he committed a crime, he merely committed
attempted homicide. He maintains there was no sudden firing because the victim
testified he was observing the alleged gunman for a period of ten seconds before the
latter finally drew his .45 caliber pistol and fired at him. After the first shot, the victim
was able to run away.
The lower court was correct in appreciating treachery in the commission of the crime.
There is treachery when the following essential elements are present, viz: (a) at the
time of the attack, the victim was not in a position to defend himself; and (b) the
accused consciously and deliberately adopted the particular means, methods or
forms of attack employed by him.48 The essence of treachery is the swift and
unexpected attack on an unarmed victim without the slightest provocation on the part
of the victim.49 It was clearly established that private complainant, while washing his
jeep, was suddenly fired upon by petitioner for no reason at all. The suddenness of
the shooting and the fact that he was unarmed left private complainant with no option
but to run for his life. It is likewise apparent that petitioner consciously and deliberately
adopted his mode of attack making sure that private complainant will have no chance
to defend himself by reason of the surprise attack. Petitioner’s claim that the shooting
was not sudden because private complainant was observing him from the time he
alighted from the tricycle is belied by the fact that private complainant was not able to
run when he was first fired upon. Though private complainant was looking at him, the
former was not forewarned by any outward sign that an attack was forthcoming. It
was only after the first shot that he felt his life was in danger.
Having commenced the criminal act by overt acts but failing to perform all acts of
execution as to produce the felony by reason of some cause other than his own
desistance, petitioner committed an attempted felony. Petitioner already commenced
his attack with a manifest intent to kill by shooting private complainant seven times,
but failed to perform all the acts of execution by reason of causes independent of his
will, that is, poor aim and the swiftness of the latter. Private complainant sustained a
wound on the left arm that is not sufficient to cause his death. The settled rule is that
where the wound inflicted on the victim is not sufficient to cause his death, the crime
is only attempted murder, since the accused did not perform all the acts of execution
that would have brought about death.50
The penalty imposed by the trial court is correct. Under Article 51 of the Revised
Penal Code, the penalty lower than two degrees than that prescribed by law for the
consummated felony shall be imposed upon the principal in an attempted felony.
Under Article 248 of the Revised Penal Code, the penalty for murder is reclusion
perpertua to death. The penalty two degrees lower is prision mayor. Applying the
Indeterminate Sentence Law, and there being no aggravating or mitigating
circumstances, the minimum of the penalty to be imposed should be within the range
of prision correccional, and the maximum of the penalty to be imposed should be
within the range of prision mayor in its medium period.
WHEREFORE, in view of the foregoing, the petition is DENIED. Costs against
petitioner.
SO ORDERED.
G.R. No. 142773             January 28, 2003
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARLON DELIM, LEON DELIM, MANUEL DELIM alias "BONG" (At Large),
ROBERT DELIM (At Large), and RONALD DELIM alias "BONG", accused-
appellants.
CALLEJO, SR., J.:
Before the Court on automatic review is the Decision,1 dated January 14, 2000, of the
Regional Trial Court, Branch 46, Urdaneta City, finding accused appellants Marlon
Delim, Leon Delim and Ronald Delim guilty beyond reasonable doubt of the crime of
murder and sentencing them to suffer the supreme penalty of death. The court also
ordered accused-appellants to pay, jointly and severally, the heirs of the victim the
sums of P75,000.00 as moral damages and P25,000.00 as exemplary damages.
39 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
Accused-appellants Marlon, Ronald and Leon, together with Manuel alias "Bong" and
Robert, all surnamed Delim, were indicted for murder under an Information dated May
4, 1999 which reads:
"That on or about January 23, 1999, in the evening at Brgy. Bila, Sison,
Pangasinan, and within the jurisdiction of this Honorable Court, the above-
named accused, armed with short firearms barged-in and entered the house
of Modesto Delim and once inside with intent to kill, treachery, evident
premedidation (sic), conspiring with one another, did then and there, wilfully,
unlawfully and feloniously grab, hold, hogtie, gag with a piece of cloth,
brought out and abduct Modesto Delim, accused Leon Delim and Manuel
Delim stayed in the house guarded and prevented the wife and son of
Modesto Delim from helping the latter, thereafter with abuse of superior
strength stabbed and killed said Modesto Delim, to the damage and
prejudice of his heirs.
CONTRARY to Article 248 of the Revised Penal Code, as amended by
Republic Act No. 7659."2
Only accused-appellants Marlon (Bongbong), Leon and Ronald, all surnamed Delim,
were apprehended. Accused Robert and Manuel remain at-large.
At their arraignment, Marlon, Ronald and Leon, with the assistance of their counsel,
pleaded not guilty to the charge.
At the trial, the prosecution established the following relevant facts3 —
Marlon, Manuel and Robert Delim are brothers. They are the uncles of Leon Delim
and Ronald Delim. Modesto Manalo Bantas, the victim, was an Igorot and a
carpenter. He took the surname Delim after he was "adopted" by the father of Marlon,
Manuel and Robert. However, Modesto's wife, Rita, an illiterate, and their 16-year old
son, Randy, continued using Manalo Bantas as their surname. Modesto, Rita and
Randy considered Marlon, Robert, Ronald, Manuel and Leon as their relatives.
Manuel and Leon were the neighbors of Modesto. Marlon, Robert and Ronald used to
visit Modesto and his family. Modesto and his family and the Delim kins resided in
Barangay Bila, Sison, Pangasinan.
On January 23, 1999, at around 6:30 in the evening, Modesto, Rita and Randy were
preparing to have their supper in their home. Joining them were Modesto and Rita's
two young grandchildren, aged 5 and 7 years old. They were about to eat their dinner
when Marlon, Robert and Ronald suddenly barged into the house and closed the
door. Each of the three intruders was armed with a short handgun. Marlon poked his
gun at Modesto while Robert and Ronald simultaneously grabbed and hog-tied the
victim. A piece of cloth was placed in the mouth of Modesto. 4 Marlon, Robert and
Ronald herded Modesto out of the house on their way towards the direction of Paldit,
Sison, Pangasinan. Rita and Randy were warned by the intruders not to leave the
house. Leon and Manuel, who were also armed with short handguns, stayed put by
the door to the house of Modesto and ordered Rita and Randy to stay where they
were. Leon and Manuel left the house of Modesto only at around 7:00 a.m. the
following day, January 24, 1999.
As soon as Leon and Manuel had left, Randy rushed to the house of his uncle,
Darwin Niño, at Sitio Labayog, informed the latter of the incident the night before and
sought his help for the retrieval of Modesto. Randy was advised to report the matter to
the police authorities. However, Randy opted to first look for his father. He and his
other relatives scoured the vicinity to locate Modesto to no avail. They proceeded to
Paldit, Sison, Pangasinan, around 200 meters away from Modesto's house, to locate
Modesto but failed to find him there. On January 25, 1999, Randy and his relatives
returned to the housing project in Paldit, Sison, Pangasinan to locate Modesto but
again failed to find him there. On January 26, 1999, Randy reported the incident to
the police authorities.
At around 3:00 in the afternoon of January 27, 1999, Randy, in the company of his
relatives, Nida Pucal, Pepito Pucal, Bernard Osias and Daniel Delim, returned to the
housing project in Paldit, Sison, Pangasinan and this time they found Modesto under
thick bushes in a grassy area. He was already dead. The cadaver was bloated and in
the state of decomposition. It exuded a bad odor. Tiny white worms swarmed over
and feasted on the cadaver. Randy and his relatives immediately rushed to the police
station to report the incident and to seek assistance.
When informed of the discovery of Modesto's cadaver, the local chief of police and
SPO2 Jovencio Fajarito and other policemen rushed to the scene and saw the
cadaver under the thick bushes. Pictures were taken of the cadaver.5 Rita and Randy
divulged to the police investigators the names and addresses of Marlon, Ronald,
Robert, Leon and Manuel, whom they claimed were responsible for the death of
Modesto. Rita and Randy were at a loss why the five malefactors seized Modesto and
killed him. Rita and Randy gave their respective sworn statements to the police
investigators.6 Police authorities proceeded to arrest Marlon, Ronald, Robert, Manuel
and Leon but failed to find them in their respective houses. The police officers
scoured the mountainous parts of Barangays Immalog and Labayog to no avail.
The cadaver was autopsied by Dr. Maria Fe L. De Guzman who prepared her autopsy
report, which reads:
"SIGNIFICANT EXTERNAL FINDINGS:
 Body  both upper extremities are flexed
 both lower extremities are flexed
 (+) body decomposition
 (+) worms coming out from injuries
40 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
  10 x 10 ml. GSW, pre-auricular area, right
 20 x 20 ml. GSW, mandibular areas, right
 10 x 10 ml. GSW, maxillary area, right
 10 x 10 ml. GSW, below middle nose, directed upward (POE)
 30 x 40 ml. GSW, mid parieto — occipital area (POEx)
 2 x 1 cms. lacerated wound, right cheek
 1 x 1 cm. stabbed wound, axillary area, left
 1 x 1 cm. stabbed wound, lateral aspect M/3rd left arm
 1 x 1 cm. stabbed wound, lateral aspect D/3rd, left arm
 1 x 1 cm. stabbed wound, medial aspect M/3rd, left arm
 1 x 1 cm. stabbed wound medial aspect D/3rd, left arm
 #3; 1 x 1 cm. in line with each other, stabbed would, medial aspect, M/3rd, left forearm
 1 x 1 cm. stabbed wound, medial aspect, D/3rd, left forearm
 10 x 6 cms. Inflamed scrotum
 penis inflamed
SIGNIFICANT INTERNAL FINDINGS:
 no significant internal findings
CAUSE OF DEATH:
 GUN SHOT WOUND, HEAD."7
The stab wounds sustained by Modesto on his left arm and forearm were defensive
wounds. The police investigators were able to confirm that Marlon, Ronald, Robert,
Leon and Manuel had no licenses for their firearms.8
Records of the PNP Criminal Investigation and Detection Group in Baguio City show
that Marlon had pending cases for robbery in the Regional Trial Court of Baguio City
in Criminal Case No. 16193-R, and for robbery in band in Criminal Cases Nos. 9801
and 9802 pending with the Regional Trial Court in Urdaneta, Pangasinan.9
To exculpate themselves, Marlon, Ronald and Leon interposed denial and alibi. 10
Ronald claimed that on January 23, 1999, he, his wife and children, his mother, his
brothers and sisters were in their house at Asan Norte, Sison, Pangasinan about two
kilometers away from Modesto's house.
He denied having been in the house of Modesto on January 23, 1999 and of
abducting and killing him. He theorized that Rita and Randy falsely implicated him
upon the coaching of Melchor Javier who allegedly had a quarrel with him concerning
politics.
Leon for his part averred that on January 23, 1999, he was in the house of his sister,
Hermelita Estabillo at No. 55-B, Salet, Laoag City, Ilocos Norte where he had been
living since 1997 after leaving Asan Norte, Sison, Pangasinan. Since then, he had
been working for Sally Asuncion at a hollow-block factory in that city where he was a
stay-in worker.
Sally Asuncion corroborated Leon's alibi. She testified that Leon Delim never went
home to his hometown in Pangasinan during his employment. His sister, Hermelita
Estabillo, likewise averred that on January 23, 1999, his brother was at her house to
give her his laundry. She claimed that the distance between Laoag City and Bila,
Sison, Pangasinan can be traversed in six hours by bus. Leon presented a Barangay
Certificate to prove that he was a resident of Laoag City from January 1998 up to
February 1999.11
Marlon asserted that he was on vacation in Dumaguete City from December 26, 1998
up to January 29, 1999. During his stay there, he lived with his sister, Francisca
Delim. Upon his return to Manila on January 29, 1999, he immediately proceeded to
Baguio to visit his cousin. Marlon denied setting foot in Bila, Sison, Pangasinan after
his sojourn in Dumaguete City.
The trial court rendered judgment finding accused-appellants guilty of murder. The
dispositive portion of the trial court's decision reads:
"WHEREFORE, JUDGMENT OF CONVICTION beyond reasonable doubt is
hereby rendered against Ronald Delim, Marlon Delim and Leon Delim (for)
the commission of Aggravated Murder, an offense defined and penalized
under Article 248 of the Revised Penal Code, as amended by R.A. 7659 and
the Court sentences Marlon Delim, Ronald Delim and Leon Delim to suffer
the penalty of DEATH, to be implemented in the manner as provided for by
law; the Court likewise orders the accused, jointly and solidarily, to indemnify
the heirs of Modesto Delim the sum of P75,000.00 as moral damages, plus
the amount of P25,000.00 as exemplary damages.
The Branch Clerk of Court is hereby ordered to transmit the entire records of
this case to the Honorable Supreme Court, and to prepare the mittimus
fifteen (15) days from date of promulgation.
The Jail Warden, Bureau of Jail Management and Penology, Urdaneta
District Jail, Urdaneta City is hereby ordered to transmit the persons of
Marlon, Ronald and Leon, all surnamed Delim to the New Bilibid Prisons,
Muntinlupa City, fifteen days from receipt of this decision.
41 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
 SO ORDERED."12
The trial court appreciated treachery as a qualifying circumstance and of taking
advantage of superior strength, nighttime and use of unlicensed firearms as separate
of aggravating circumstances in the commission of the crime. Marlon, Ronald and
Leon, in their appeal brief, assail the decision alleging that:
"I
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANTS
GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER.
II
THE COURT A QUO GRAVELY ERRED IN FINDING THAT CONSPIRACY
EXISTED IN THE CASE AT BAR.
III
THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT AND
CREDENCE TO ACCUSED-APPELLANTS' DEFENSE OF ALIBI."13
Before resolving the merits of the case at bar, we first resolve the matter of whether
the crime charged in the Information is murder or kidnapping. During the deliberation,
some distinguished members of the Court opined that under the Information, Marlon,
Ronald and Leon are charged with kidnapping under Article 267 of the Revised Penal
Code and not with murder in its aggravated form in light of the allegation therein that
the accused "willfully, unlawfully and feloniously grab(bed), h(e)ld, hog-tie(d),
gag(ged), with a piece of cloth, brought out and abduct(ed) Modesto Delim (while)
Leon Delim and Manuel Delim stayed in the house (and) guarded and prevented the
wife and son of Modesto Delim from helping the latter." They submit that the
foregoing allegation constitutes the act of deprivation of liberty of the victim, the
gravamen in the crime of kidnapping. They contend that the fact that the Information
went further to charge accused with the killing of the victim should be of no moment,
the real nature of the criminal charge being determined not from the caption or the
preamble of the Information nor from the specification of the law alleged to have been
violated — these being conclusions of law — but by the actual recital of facts in the
complaint or information. They further submit that since the prosecution failed to
prove motive on the part of Marlon, Ronald and Leon to kill Modesto, they are not
criminally liable for the death of the victim but only for kidnapping the victim.
It bears stressing that in determining what crime is charged in an information, the
material inculpatory facts recited therein describing the crime charged in relation to
the penal law violated are controlling. Where the specific intent of the malefactor is
determinative of the crime charged such specific intent must be alleged in the
information and proved by the prosecution. A decade ago, this Court held in People v.
Isabelo Puno, et al.,14 that for kidnapping to exist, there must be indubitable proof that
the actual specific intent of the malefactor is to deprive the offended party of his liberty
and not where such restraint of his freedom of action is merely an incident in the
commission of another offense primarily intended by the malefactor. This Court
further held:
"x x x Hence, as early as United States vs. Ancheta, and consistently
reiterated thereafter, it has been held that the detention and/or forcible taking
away of the victims by the accused, even for an appreciable period of time
but for the primary and ultimate purpose of killing them, holds the offenders
liable for taking their lives or such other offenses they committed in relation
thereto, but the incidental deprivation of the victims' liberty does not
constitute kidnapping or serious illegal detention."15
If the primary and ultimate purpose of the accused is to kill the victim, the incidental
deprivation of the victim's liberty does not constitute the felony of kidnapping but is
merely a preparatory act to the killing, and hence, is merged into, or absorbed by, the
killing of the victim.16 The crime committed would either be homicide or murder.
What is primordial then is the specific intent of the malefactors as disclosed in the
information or criminal complaint that is determinative of what crime the accused is
charged with — that of murder or kidnapping.
Philippine and American penal laws have a common thread on the concept of specific
intent as an essential element of specific intent crimes. Specific intent is used to
describe a state of mind which exists where circumstances indicate that an offender
actively desired certain criminal consequences or objectively desired a specific result
to follow his act or failure to act.17 Specific intent involves a state of the mind. It is the
particular purpose or specific intention in doing the prohibited act. Specific intent must
be alleged in the Information and proved by the state in a prosecution for a crime
requiring specific intent.18 Kidnapping and murder are specific intent crimes.
Specific intent may be proved by direct evidence or by circumstantial evidence. It may
be inferred from the circumstances of the actions of the accused as established by
the evidence on record.19
Specific intent is not synonymous with motive. Motive generally is referred to as the
reason which prompts the accused to engage in a particular criminal activity. Motive is
not an essential element of a crime and hence the prosecution need not prove the
same. As a general rule, proof of motive for the commission of the offense charged
does not show guilt and absence of proof of such motive does not establish the
innocence of accused for the crime charged such as murder. 20 The history of crimes
shows that murders are generally committed from motives comparatively
trivial.21 Crime is rarely rational. In murder, the specific intent is to kill the victim. In
kidnapping, the specific intent is to deprive the victim of his/her liberty. If there is no
42 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
motive for the crime, the accused cannot be convicted for kidnapping. 22 In kidnapping
for ransom, the motive is ransom. Where accused kills the victim to avenge the death
of a loved one, the motive is revenge.
In this case, it is evident on the face of the Information that the specific intent of the
malefactors in barging into the house of Modesto was to kill him and that he was
seized precisely to kill him with the attendant modifying circumstances. The act of the
malefactors of abducting Modesto was merely incidental to their primary purpose of
killing him. Moreover, there is no specific allegation in the information that the primary
intent of the malefactors was to deprive Modesto of his freedom or liberty and that
killing him was merely incidental to kidnapping.23 Irrefragably then, the crime charged
in the Information is Murder under Article 248 of the Revised Penal Code and not
Kidnapping under Article 268 thereof.
The threshold issue that now comes to fore is whether or not the prosecution
mustered the requisite quantum of evidence to prove that Marlon, Ronald and Leon
are guilty of murder.
In criminal prosecutions, the prosecution is burdened to prove the guilt of the accused
beyond cavil of doubt. The prosecution must rely on the strength of its own evidence
and not on the weakness of the evidence of the accused. The proof against the
accused must survive the test of reason; the strongest suspicion must not be
permitted to sway judgment.24
In the case at bar, the prosecution was burdened to prove the corpus delicti which
consists of two things: first, the criminal act and second, defendant's agency in the
commission of the act.25 Wharton says that corpus delicti includes two things: first, the
objective; second, the subjective element of crimes.26 In homicide (by dolo) and in
murder cases, the prosecution is burdened to prove: (a) the death of the party alleged
to be dead; (b) that the death was produced by the criminal act of some other than
the deceased and was not the result of accident, natural cause or suicide; and (c) that
defendant committed the criminal act or was in some way criminally responsible for
the act which produced the death.27 To prove the felony of homicide or murder, there
must be incontrovertible evidence, direct or circumstantial, that the victim was
deliberately killed (with malice); in other words, that there was intent to kill. Such
evidence may consist inter alia in the use of weapons by the malefactors, the nature,
location and number of wounds sustained by the victim and the words uttered by the
malefactors before, at the time or immediately after the killing of the victim. If the
victim dies because of a deliberate act of the malefactor, intent to kill is conclusively
presumed.
The prosecution is burdened to prove corpus delicti beyond reasonable doubt either
by direct evidence or by circumstantial or presumptive evidence.28
In the case at bar, the prosecution adduced the requisite quantum of proof of corpus
delicti. Modesto sustained five (5) gunshot wounds. He also sustained seven (7) stab
wounds,29 defensive in nature. The use by the malefactors of deadly weapons, more
specifically handguns and knives, in the killing of the victim as well as the nature,
number and location of the wounds sustained by said victim are evidence of the intent
by the malefactors to kill the victim with all the consequences flowing therefrom.30 As
the State Supreme Court of Wisconsin held in Cupps v. State:31
"This rule, that every person is presumed to contemplate the ordinary and
natural consequences of his own acts, is applied even in capital cases.
Because men generally act deliberately and by the determination of their
own will, and not from the impulse of blind passion, the law presumes that
every man always thus acts, until the contrary appears. Therefore, when one
man is found to have killed another, if the circumstances of the homicide do
not of themselves show that it was not intended, but was accidental, it is
presumed that the death of the deceased was designed by the slayer; and
the burden of proof is on him to show that it was otherwise."
The prosecution did not present direct evidence to prove the authors of the killing of
Modesto. It relied on circumstantial evidence to discharge its burden of proving the
guilt of accused-appellants of murder. Circumstantial evidence consists of proof of
collateral facts and circumstances from which the existence of the main fact may be
inferred according to reason and common experience.32 What was once a rule of
account respectability is now entombed in Section 4, Rule 133 of the Revised Rules
of Evidence which states that circumstantial evidence, sometimes referred to as
indirect or presumptive evidence, is sufficient as anchor for a judgment of conviction if
the following requisites concur:
"x x x if (a) there is more than one circumstance; (b) the facts from which the
inferences are derived have been established; and (c) the combination of all
the circumstances is such as to warrant a finding of guilt beyond reasonable
doubt."33
The prosecution is burdened to prove the essential events which constitute a compact
mass of circumstantial evidence, and the proof of each being confirmed by the proof
of the other, and all without exception leading by mutual support to but one
conclusion: the guilt of accused for the offense charged.34 For circumstantial evidence
to be sufficient to support a conviction, all the circumstances must be consistent with
each other, consistent with the hypothesis that accused is guilty and at the same time
inconsistent with the hypothesis that he is innocent, and with every other rational
hypothesis except that of guilt.35 If the prosecution adduced the requisite
circumstantial evidence to prove the guilt of accused beyond reasonable doubt, the
burden of evidence shifts to the accused to controvert the evidence of the
prosecution.
In the present case, the prosecution mustered the requisite quantum of circumstantial
evidence to prove that accused-appellants, in confabulation with their co-accused,
conspired to kill and did kill Modesto:
43 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
1. Randy Bantas testified that Marlon and Ronald barged into the house of Modesto,
each armed with a handgun. Marlon poked his gun on Modesto while Ronald hog-tied
Modesto. They then seized Modesto and herded him out of his house:
"FISCAL TOMBOC: What were you doing then at that time in your house?
A         We were eating, sir.
Q         You said we, who were your companions eating then at that time?
A         My father, my mother and the two children and myself, sir.
Q         While taking your supper that time, do you recall if there was
anything unusual that happened at that time?
A         When we were about to start to eat three armed men entered our
house.
Q         Do you know these three armed men who entered your house?
A         Yes, sir.
Q         Who are they, name them one by one?
A         Marlon Delim, Robert Delim and Ronald Delim.
Q         Are these three persons inside the courtroom now?
A         Two of them, sir.
Q         Who are these two who are inside the courtroom?
A         Marlon and Ronald, sir.
Q         Will you please stand up and point to them?
A         (Witness is pointing to a person seated on the bench inside the
courtroom, who, when his name was asked answered Marlon Delim.
Likewise, witness is pointing unto a person seated on the bench inside the
courtroom, who, when his name was asked he answered Ronald Delim).
44 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
Q         You said that these two armed persons entered your house, what
kind of arm were they carrying at that time?
A         Short handgun, sir.
Q         When these three armed persons whom you have mentioned, armed
with short firearms, what did they do then when they entered your house?
A         They took my father, sir.
Q         Who took your father?
A         Marlon Delim, Robert Delim and Ronald Delim, sir.
Q         When these three persons took your father, what did you do then?
A         None, sir.
COURT: How did they get your father?
A         They poked a gun and brought him outside the house, sir.
FISCAL TOMBOC: Who poked a gun?
A         Marlon Delim, sir.
Q         Again, Mr. Witness, will you point to the person who poked a gun?
A         (Witness is pointing to Malon (sic) Delim, one of the accused).
Q         After bringing your father out from your house, what transpired next?
A         Manuel Delim and Leon Delim said, 'Stay in your house,' and
guarded us.
COURT: You said your father was taken out, who?
A         Marlon, Robert and Ronald, sir.
FISCAL TOMBOC: Where did these three persons bring your father?
 A         I do not know where they brought my father, sir.
COURT: Was your father taken inside your house or outside?
A         Inside our house, sir.
Q         You said that Marlon poked a gun at your father, is that correct?
A         Yes, sir.
Q         What did Ronald and Robert do while Marlon was poking his gun to
your father?
A         Ronald and Robert were the ones who pulled my father out, sir."36
Randy's account of the incident was corroborated by his mother, Rita, who testified:
"PROSECUTION TOMBOC: You said during the last hearing that on
January 23, 1999 at around 6:30 in the evening while preparing for your
supper three (3) armed men entered inside your house, who were these
three (3) men who entered your house?
A         I know, Marlon, Bongbong and Robert, sir.
ATTY. FLORENDO: We just make of record that the witness is taking her
time to answer, Your Honor.
PROSECUTOR TOMBOC: You said that Marlon Delim, Robert Delim and
Bongbong entered your house, are these three (3) persons who entered
your house in Court now?
A         They are here except the other one, sir.
Q         Will you please step down and point to the persons who entered your
house?
A         Witness is pointing to Marlon Delim, Robert Delim is not in Court and
Bongbong is Ronald Delim.
Q         After these three (3) armed men entered your house, what happened
then?
A         My husband was brought out, sir.
Q         What is the name of your husband?
A         Modesto Delim, sir."37
2. Randy said that when Marlon and Ronald barged into their house, Leon, armed
with a handgun, acted as a lookout when he stood guard by the door of the house of
Modesto and remained thereat until 7:00 a.m. of the next day:
"FISCAL TOMBOC: When your father was pulled out from your house by
these three persons, what did you and your mother do while these three
persons were taking out of your house?
A         We did not do anything because Manuel and Leon Delim guarded us.
COURT: Where, in your house?
A         Yes, sir.
FISCAL TOMBOC: From that very time that your father was pulled out by
these three persons Marlon, Robert and Ronal (sic), where were Leon and
Manuel then?
A         They were at the door, sir.
COURT: Why do you know that they were guarding you?
A         Because they were at the door, sir.
FISCAL TOMBOC: What was their appearance that time when these two
persons were guarding you, these Leon and Manuel?
A         They were armed, sir.
Q         What do you mean by armed?
A         They have gun, sir.
Q         What kind of firearm?
A         Short firearm, sir.
45 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
 Q         By the way, where are these Leon and Manuel now, if you know? Q         What is the name of your Aunt?

A         Leon is here, sir. A         Nida Pucal, sir.

Q         About Manuel? Q         Who else?

A         None, sir. A         Pepito Pucal, Bernard Osias and Daniel Delim, sir.

Q         Will you please stand up and point at Leon, Mr. Witness? COURT: When you found your father, what was his condition?

A         (Witness pointed to a person seated on the bench inside the A         He was dead, sir.
courtroom, who when his name was asked, answered, Leon Delim)."38
COURT: Go ahead.
3. Rita and Randy were ordered by Leon not to leave the house as Ronald and
Marlon left the house with Modesto in tow. Rita and Randy were detained in their FISCAL TOMBOC: You said that he was already dead, what was his
house up to 7:00 a.m. of January 24, 1999 to prevent them from seeking help from appearance then when you saw him dead?
their relatives and police authorities.
A         He has bad odor, sir, in the state of decompsition (sic)."39
4. Randy likewise testified that on January 27, 1999, at about 3:00 p.m., the cadaver
of Modesto was found under the thick bushes in a grassy area in the housing project
located about 200 meters away from the house of Modesto. The cadaver exuded bad The testimony of Randy was corroborated by Dr. de Guzman who testified that the
odor and was already in the state of decomposition: cadaver of Modesto was in a state of decomposition, with tiny white worms crawling
from his wounds, and that his penis and scrotum were inflamed. The victim sustained
five gunshot wounds and defensive wounds on the left arm and forearm:
"Q         So what did you do then on January 27, where did you look for your
father?
"PROS. TOMBOC:
A         The same place and at 3:00 o'clock P.M., we were able to find my
father. Q         Will you please tell the Honorable Court your findings, Doctora?

COURT: Where? WITNESS:

A         At the housing project at Paldit, Sison, Pangasinan, sir. A         First finding: Upon seeing the cadaver, this is the position of the body,
both upper extremities are flexed and both lower extremities are flexed
(Nakakukot).
FISCAL TOMBOC: Do you have companions at that time when you were
able to look for your father on January 27, 1999 at 3:00 o'clock P.M.?
Q         How many days had already elapsed when you autopsied the
cadaver of the victim, Doctora?
A         Yes, sir.
A         Four (4) days upon the recovery of the body, sir.
Q         Who?
Q         And what was your findings Doctora?
A         My Aunt, sir.

46 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL

A         The body was already under the state of decomposition, sir, with foul
odor and there were so many worms coming out from the injuries, there
were tiny white worms, sir.
Q         What else did you observe Doctora?
A         Upon seeing the cadaver I asked the relative to refer it to the NBI sir.
Actually the victim was an igorot (sic) and they have tradition that they will
bury immediately. Whether they like it or not I should do it, sir.
Q         What else Doctora?
A         And the penis was inflammed (sic), the scrotum was also inflammed
(sic), sir.
And for the head injuries there was 10 x 10 ml. GSW pre-auricular area,
right; there was also 20 ml x 20 ml. GSW, mandibular area, right; I cannot
also determine the exit.
Q         So there were two (2) gunshot wounds (GSW) Doctora?
A         Yes sir.
And there was also 10 x 10 ml. GSW, maxillary area, right; there was also 10
x 10 ml. GSW, below middle nose, directed upward (POE); and there was
also 30 x 40 ml. GSW, mid parieto-occipital area (POEx).
Q         How many all in all are the gunshot wound?
A         Five (5) sir.
And also there was 2 x 1 cms. Lacerated wound, right cheek; 1 x 1
cm. stabbed wound, axillary area, left; 1 x 1 cm. stabbed wound,
lateral aspect M/3rd, left arm; 1 x 1 cm. stabbed wound lateral
aspect D/3rd, left arm; 1 x 1 cm. stabbed wound, medial aspect
M/3rd, left arm; 1 x 1 cm. stabbed wound, medial aspect D/3rd, left
arm; and #3; 1 x 1 cm. in line with each other, stabbed wound,
medial aspect, M/3rd, left forearm.
Q         How many stabbed wound are there Doctora?
A         There were seven (7) stabbed wounds, sir.
Q         Those stabbed wounds were defensive wounds, Doctora?
A         Yes sir."40
The state of decomposition of the cadaver, with tiny white worms swarming and
feasting on it and the distention of his scrotum and penis are evidence that the
cadaver was in the stage of putrefaction and that the victim had been dead for a
period ranging from three to six days.41 Admittedly, there are variant factors
determinative of the exact death of the victim. An equally persuasive authority states:
"Chronological Sequence of Putrefactive Changes Occurring in Tropical Region:
Time Since Death Condition of the Body
48 hours Ova of flies seen. Trunk bloated. Face discolored and swollen. B
present. Moving maggots seen
72 hours Whole body grossly swollen and disfigured. Hair and nails
Tissues soft and discolored."42
The lapse of two or three to four days from the seizure of the victim in the evening of
January 23, 1999 to the discovery of his cadaver which was already in the state of
putrefaction in the afternoon of January 27, 1999, about 200 meters away from his
house, is consistent with and confirmatory of the contention of the prosecution that
the victim was killed precisely by the very malefactors who seized him on January 23,
1999.
5. When police authorities went to the residences of all the malefactors, the latter had
flown the coop and were nowhere to be found:
"COURT: In connection with this case, you investigated the wife and son of
Modesto Delim?
A         Yes, sir.
Q         In the course of the investigation did you come to know who were the
suspects?
A         Yes, sir, she elaborated that the suspects were their neighbors,
Marlon Delim and his brothers, sir.
Q         What are the names of the brothers?
A         Manuel Delim, Leon Delim I cannot remember the others, sir.
47 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
 Q         By reason of that information were you able to apprehend any of Q         Why do you know Manuel and Leon prior to January 23, 1999?
them for investigation?
A         They are my neighbors, sir.
A         No, sir.
Q         How about Marlon, Robert and Bongbong do you know them before
Q         Why? January 23, 1999?

A         Because when we were dispatched by the Chief of Police no Delim A         I know them, sir.
brothers could be found, they all left the place, sir.
Q         Why do you know them?
Q         In what place did you look for the brothers Delim?
A         They used to go to our house, sir.
A         Within the vicinity, sir.
Q         I noticed that Marlon, Bongbong, Robert, Manuel and Leon are all
Q         In what place? Delims and your husband's name is Modesto Delim are they related with
each other?
A         Brgy. Bila and the place where the crime was committed in Brgy. Bila
and the place where the cadaver was found in Paldit, sir. A         Yes, sir."44

Q         Where did you look for the Delim brothers?
A         Nearby barangays, Immalog, sir.
Q         Wherelse (sic)?
The sudden disappearance of Marlon, Ronald and Leon from their houses in
Barangay Bila, Sison is strong circumstantial evidence of their guilt for the death of
Modesto. Although flight after the commission of an offense does not create a legal
presumption of guilt, nevertheless, the same is admissible in evidence against them
and if not satisfactorily explained in a manner consistent with their innocence, will
tend to show that they, in fact, killed Modesto.45

A         Labayog, Sison, sir. It is true that the prosecution failed to prove motive on the part of the malefactors to
abduct and kill Modesto. Indeed, Randy and Rita testified that they were not aware of
Q         Wherelse? any misunderstanding or grudge between Modesto on the one hand and Marlon,
Ronald and Leon and their co-accused on the other before the incident, or any
A         In mountainous part of Immalog, part of Tuba Benguet, sir. motivation on the part of the three malefactors to cause harm to Modesto.
Nonetheless, it cannot thereby be concluded that a person or persons other than
Marlon, Ronald and Leon were criminally responsible for the death of the victim. It is a
Q         What was the result? matter of judicial notice that nowadays persons have killed or committed serious
crimes for no reason at all.46 In this case, the inscrutable facts are that Marlon and
A         Negative result, sir."43 Ronald, each of whom was armed with a handgun, forcibly took Modesto from his
house at the gunpoint, hog-tied, put a piece of cloth in his mouth and after Ronald
and Marlon had left the house with Modesto in tow, Rita heard three gunshots or so
6. Leon was the neighbor of Modesto and Rita while Marlon and Ronald used to go to
and the cadaver of Modesto was found concealed under the bushes and already in a
the house of Modesto and Rita:
state of putrefaction in the afternoon of January 27, 1999. Modesto sustained several
gunshot wounds and died because of a gunshot wound on the head. The criminal
"COURT: These Leon and Manuel Delim are they known to you prior to that acts and the connection of Marlon, Ronald and Leon with said acts having been
day, January 23, 1999? proved by the prosecution beyond reasonable doubt, the act itself furnishes the
evidence, that to its perpetration there was some causes or influences moving the
A         Yes, sir, I know them.
48 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
mind.47 The remarkable tapestry intricately woven by the prosecution should not be
trashed simply because the malefactors had no motive to kill Modesto.
Ranged against the evidence of the prosecution, the burden of evidence shifted on
Marlon, Ronald and Leon to rebut the same and explain what happened to the victim
after taking him from his house in the evening of January 23, 1999. They may have
freed the victim shortly after taking him, or the victim may have been able to escape
and that thereafter a person or some other persons may have killed him. However,
Marlon, Ronald and Leon failed to give any explanation. Instead, they merely denied
having seized and killed the victim and interposed alibi as their defense.
Leon is equally guilty for the death of Modesto because the evidence on record
shows that he conspired with accused-appellants Marlon and Ronald and accused
Robert and Manuel in killing the victim.
There is conspiracy when two or more persons agree to commit a felony and decide
to commit it.48 Conspiracy must be proven with the same quantum of evidence as the
felony itself, more specifically by proof beyond reasonable doubt. Conspiracy is not
presumed. It may be proved by direct evidence or by circumstantial evidence.
Conspiracy is deducible from the acts of the malefactors before, during and after the
commission of the crime which are indicative of a joint purpose, concerted action and
concurrence of sentiment.49 To establish conspiracy, it is not essential that there be
proof as to the existence of a previous agreement to commit a crime. 50 It is sufficient
if, at the time of the commission of the crime, the accused had the same purpose and
were united in its execution. If conspiracy is established, the act of one is deemed the
act of all. It matters not who among the accused actually shot and killed the
victim.51 This is based on the theory of a joint or mutual agency ad hoc for the
prosecution of the common plan:
"x x x The acts and declarations of an agent, within the scope of his
authority, are considered and treated as the acts and declarations of his
principal. 'What is so done by an agent, is done by the principal, through
him, as his mere instrument.' Franklin Bank of Baltimore v. Pennsylvania D.
& M. Steam Navigation Co., 11 G. & J. 28, 33 (1839). 'If the conspiracy be
proved to have existed, or rather if evidence be given to the jury of its
existence, the acts of one in furtherance of the common design are the acts
of all; and whatever one does in furtherance of the common design, he does
as the agent of the co-conspirators.' R. v. O'Connell, 5 St.Tr. (N.S.) 1, 710."52
In the eyes of the law, conspirators are one man, they breathe one breath, they speak
one voice, they wield one arm and the law says that the acts, words and declaration
of each, while in the pursuit of the common design, are the acts, words and
declarations of all.53
In the case at bar, Marlon, Ronald and Leon arrived together in the house of
Modesto, each armed with a handgun. Marlon and Ronald barged into said house
while Leon stood guard by the door thereof. After Marlon and Ronald had left with
Modesto in tow, Leon stood by the door and warned Randy and Rita not to leave the
house. Leon stood guard by the door of the house until 7:00 a.m. of January 24, 1999
when he left the house. The overt acts of all the malefactors were so synchronized
and executed with precision evincing a preconceived plan or design of all the
malefactors to achieve a common purpose, namely the killing of Modesto.
Irrefragably, the tasks assigned to Leon in the commission of the crime were — (a) to
act as a lookout; (b) to ensure that Rita and Randy remain in their house to prevent
them from seeking assistance from police authorities and their relatives before their
mission to kill Modesto shall have been a fait accompli as well as the escape of
Marlon and Ronald.54 Patently, Leon, a lookout for the group, is guilty of the killing of
Modesto.55 Leon may not have been at the situs criminis when Modesto was killed by
Marlon and Ronald nevertheless he is a principal by direct participation. 56 If part of a
crime has been committed in one place and part in another, each person concerned
in the commission of either part is liable as principal. No matter how wide may be the
separation of the conspirators, if they are all engaged in a common plan for the
execution of a felony and all take their part in furtherance of the common design, all
are liable as principals. Actual presence is not necessary if there is a direct
connection between the actor and the crime.57
Ronald, Marlon and Leon, however, assail the testimonies of Randy and Rita alleging
that the same were marred by inconsistencies.
1. Randy initially stated that he did not know where the assailants brought
his father. Later however, Randy claimed that the malefactors proceeded to
the direction of Paldit, Sison, Pangasinan;
2. Rita on the other hand identified Leon, Marlon and Ronald as those who
barged into their house. She later changed her testimony and declared that it
was Robert, together with Marlon and Ronald who barged into the house;
3. Rita likewise testified that two men stood outside the house guarding
them. Later, she testified that after the three men brought out the victim, the
two other accused entered the house and guarded them there;
4. Rita claimed that she went out to look for her husband the next day, or on
January 25, 1999, and she was accompanied by her son Randy. However,
Randy testified that he was alone when he looked for his father from January
24 to 26, 1999.58
We do not agree with Marlon, Ronald and Leon. Case law has it that the findings of
facts of the trial court, its calibration of the collective testimonies of witnesses and its
assessment of the probative weight thereof and its conclusions culled from its findings
are accorded by the appellate court great respect, if not conclusive effect, because of
its unique advantage of observing at close range the demeanor, deportment and
conduct of the witnesses as they give their testimonies before the court.
49 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
In the present case, the trial court gave credence and full probative weight to the
testimonies of the witnesses of the prosecution. Moreover, there is no evidence on
record that Randy and Rita were moved by any improper or ill motive in testifying
against the malefactors and the other accused; hence, their testimonies must be
given full credit and probative weight.59 The inconsistencies in the testimonies of Rita
and Randy do not render them incredible or their testimonies barren of probative
weight. It must be borne in mind that human memory is not as unerring as a
photograph and a person's sense of observation is impaired by many factors
including the shocking effect of a crime. A truth-telling witness is not always expected
to give an error-free testimony considering the lapse of time and the treachery of
human memory. What is primordial is that the mass of testimony jibes on material
points, the slight clashing of statements dilute neither the witnesses' credibility nor the
veracity of his testimony.60 Variations on the testimony of witnesses on the same side
with respect to minor, collateral or incidental matters do not impair the weight of their
united testimony to the prominent facts.61 Inconsistencies on minor and trivial matters
only serve to strengthen rather than weaken the credibility of witnesses for they erase
the suspicion of rehearsed testimony. 62
Moreover, the testimony of a witness should be construed in its entirety and not in
truncated terms and the true meaning of answers to isolated questions propounded to
a witness is to be ascertained by due consideration of all the questions propounded to
the witness and his answers thereto.63
Randy's testimony that he did know where the malefactors brought his father is not
inconsistent with his testimony that Ronald and Marlon brought his father towards the
direction of Paldit, Sison, Pangasinan. Randy may not have known the destination of
accused-appellants but he saw the direction to which they went. While it may be true
that when asked to identify the three who barged into their house, Rita pointed to
Leon as one of them, however, Rita had been consistent throughout her testimony
that those who barged into their house were Ronald and Marlon. Leon's counsel
never cross-examined Rita and impeached her testimony on her identification of Leon
as one of those who barged into their house to give her an opportunity to explain her
perceived inconsistency conformably with Rule 132, Section 13, of the Revised Rules
of Evidence which reads:
"Before a witness can be impeached by evidence that he has made at other
times statements inconsistent with his present testimony, the statements
must be related to him, with the circumstances of the times and places and
the persons present, and he must be asked whether he made such
statements, and if so, allowed to explain them. If the statements be in writing
they must be shown to the witness before any question is put to him
concerning them."64
Hence, the presentation of the inconsistent statements made by Rita is insufficient for
the desired impeachment of her.65 As to whether Rita and Randy were together in
looking for Modesto or Leon merely stood guard by the door of the house or entered
the house are inconsequential. The fact is that Leon stood guard throughout the night
to prevent Rita and Randy from seeking assistance for the seizure and killing of
Modesto.
This Court is convinced, as the trial court was, that the respective testimonies of
Randy and Rita bear the earmarks of truth and sincerity. Despite intense and grueling
cross-examination, they responded with consistency upon material details that could
only come from a firsthand knowledge of the shocking events which unfolded before
their eyes. The Court thus finds no cogent reason to disregard the findings of the trial
court regarding their credibility.
Marlon, Ronald and Leon contend that the trial court committed a reversible error in
not giving credence and probative weight to their evidence to prove their defense of
alibi. They aver that their collective evidence to prove their defense is strong.
We do not agree. Case law has it that the defense of alibi is one of the weakest of
defenses in criminal prosecution because the same is easy to concoct between
relatives, friends and even those not related to the offender. 66 It is hard for the
prosecution to disprove. For alibi to merit approbation by the trial court and this Court,
Marlon, Ronald and Leon are burdened to prove with clear and convincing evidence
that they were in a place other than the situs criminis at the time of the commission of
the crime; that it was physically impossible for them to have committed the said
crime.67 They failed to discharge their burden. Moreover, Rita and Randy positively
and spontaneously identified Marlon, Ronald and Leon as the culprits. The house of
Ronald, where he claimed he was when the crime was committed, was only two
kilometers away from the house of Modesto and can be negotiated by a tricycle. Leon
failed to adduce any documentary evidence to prove his employment by Sally
Asuncion. The barefaced fact that he was a resident of Laoag City does not constitute
proof that he was in Laoag City on the day of the commission of the crime. With
respect to Marlon, he failed to adduce evidence aside from his self-serving testimony
that he resided in, left Dumaguete City and arrived in Manila on January 29, 1999.
The trial court convicted Marlon, Ronald and Leon of murder with the qualifying
circumstance of treachery in the killing of Modesto. The trial court likewise
appreciated nighttime and abuse of superior strength and the use of unlicensed
firearms as separate aggravating circumstances. The Office of the Solicitor General
contends that indeed treachery was attendant in the killing of Modesto. Hence,
Marlon, Ronald and Leon are guilty of murder defined in and penalized by Article 248
of the Revised Penal Code.
The Court however finds that Marlon, Ronald and Leon are guilty only of homicide
defined in and penalized by Article 248 of the Revised Penal Code.
Qualifying circumstances such as treachery and abuse of superior strength must be
alleged and proved clearly and conclusively as the crime itself. Mere conjectures,
suppositions or presumptions are utterly insufficient and cannot produce the effect of
50 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
qualifying the crime.68 As this Court held: "No matter how truthful these suppositions There being no modifying circumstances in the commission of homicide, Marlon,
or presumptions may seem, they must not and cannot produce the effect of Ronald and Leon should be meted an indeterminate penalty, the minimum of which
aggravating the condition of defendant."69 Article 14, paragraph 16 of the Revised shall be taken from the entirety of prision mayor, ranging from 6 years and one day to
Penal Code provides that there is treachery when the offender commits any of the 12 years and the maximum period of which shall be taken from the medium period
crimes against the person, employing means, methods or forms in the execution of reclusion temporal, ranging from 14 years, 8 months and one day to 17 years and
thereof which tend directly and especially to insure its execution, without risk to 4 months.
himself arising from the defense which the offended party might make. For treachery
to be appreciated as a qualifying circumstance, the prosecution is burdened to prove Consequently, the award for damages in favor of the heirs of the victim should be
the following elements: (a) the employment of means of execution which gives the modified. The sum of P75,000.00 awarded as moral damages should be reduced to
person attacked no opportunity to defend himself or retaliate; (b) the means of P50,000.00 in accordance with prevailing jurisprudence.79 The amount of P25,000.00
execution is deliberately or consciously adopted.70 Although the victim may have been as exemplary damages is in order.80 In addition, civil indemnity in the amount of
defenseless at the time he was seized but there is no evidence as to the particulars of P50,000.00 should be awarded without need of proof, likewise in consonance with
how he was assaulted and killed, treachery cannot be appreciated against the prevailing jurisprudence.81
accused.71 In this case, the victim was defenseless when seized by Marlon and
Ronald. However, the prosecution failed to present any witness or conclusive
evidence that Modesto was defenseless immediately before and when he was IN LIGHT OF ALL THE FOREGOING, the decision of the trial court is AFFIRMED
attacked and killed. It cannot be presumed that although he was defenseless when he with MODIFICATION. Accused-appellants Marlon Delim, Ronald Delim and Leon
was seized the victim was in the same situation when he was attacked, shot and Delim are hereby found guilty beyond reasonable doubt of the felony of Homicide
stabbed by the malefactors. To take advantage of superior strength means to defined in and penalized by Article 249 of the Revised Penal Code. There being no
purposely use force that is out of proportion to the means of defense available to the modifying circumstances in the commission of the crime, each of accused-appellants
person attacked.72 What is primordial, this Court held in People v. Rogelio is hereby meted an indeterminate penalty of from ten (10) years and one (1) day of
Francisco73 is that the assailants deliberately took advantage of their combined prision mayor in its maximum period as minimum to fourteen (14) years, eight (8)
strength in order to consummate the crime. It is necessary to show that the months and one (1) day of reclusion temporal in its medium period as maximum.
malefactors cooperated in such a way as to secure advantage from their superiority in Accused-appellants are hereby ordered to pay, jointly and severally, to the heirs of
strength.74 In this case, the prosecution failed to adduce evidence that Marlon and the victim the amount of P50,000.00 by way of civil indemnity, the amount of
Ronald deliberately took advantage of their numerical superiority when Modesto was P50,000.00 by way of moral damages and the amount of P25,000.00 by way of
killed. The barefaced facts that the malefactors outnumbered Modesto and were exemplary damages.
armed while Modesto was not does not constitute proof that the three took advantage
of their numerical superiority and their handguns when Modesto was shot and SO ORDERED.
stabbed.75
Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Quisumbing, Carpio,
In sum then, we believe that Marlon, Ronald and Leon are guilty only of Homicide Austria-Martinez, Corona, Carpio-Morales and Azcuna, JJ., concur.
defined in and penalized by Article 249 of the Revised Penal Code with reclusion Vitug, J., see separate opinion.
temporal in its full period. Ynares-Santiago, J., joins the dissenting opinion of J. Vitug.
Gutierrez, J., joins Justice Vitug in his dissenting opinion.
Although the special aggravating circumstance of the use of unlicensed firearms was
proven during the trial, there is no allegation in the Information that Marlon, Ronald G.R. Nos. 120744-46               June 25, 2012
and Leon had no license to possess the firearm. Lack of license to possess a firearm
is an essential element of the crime of violation of PD 1866 as amended by Republic SALVADOR YAPYUCO y ENRIQUEZ, Petitioner,
Act No. 8294, or as a special aggravating circumstance in the felony of homicide or vs.
murder.76 Neither can dwelling, although proven, aggravate the crime because said HONORABLE SANDIGANBAYAN and THE PEOPLE OF THE
circumstance was not alleged in the Information as required by Rule 110, Section 8, PHILIPPINES, Respondents.
of the Revised Rules of Court.77 Although this rule took effect on December 1, 2000,
after the commission of the offense in this case, nonetheless it had been given
retroactive effect considering that the rule is favorable to the accused.78 x-----------------------x

G.R. No. 122677

51 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL

MARIO D. REYES, ANDRES S. REYES and VIRGILIO A.
MANGUERRA, Petitioners,
vs.
HONORABLE SANDIGANBAYAN and THE PEOPLE OF THE
PHILIPPINES, Respondents.
x-----------------------x
G.R. No. 122776
GERVACIO B. CUNANAN, JR. and ERNESTO PUNO, Petitioners,
vs.
HONORABLE SANDIGANBAYAN and PEOPLE OF THE
PHILIPPINES, Respondents.
DECISION
PERALTA, J.:
Law enforcers thrust their lives in unimaginable zones of peril. Yet resort to wanton
violence is never justified when their duty could be performed otherwise. A "shoot
first, think later" disposition occupies no decent place in a civilized society. Never has
homicide or murder been a function of law enforcement. The public peace is never
predicated on the cost of human life.
These are petitions for review on certiorari under Rule 45 of the Rules of Court
assailing the June 30, 1995 Decision1 of the Sandiganbayan in Criminal Case Nos.
16612, 16613 and 16614 – cases for murder, frustrated murder and multiple counts of
attempted murder, respectively. The cases are predicated on a shooting incident on
April 5, 1988 in Barangay Quebiawan, San Fernando, Pampanga which caused the
death of Leodevince Licup (Licup) and injured Noel Villanueva (Villanueva). Accused
were petitioners Salvador Yapyuco, Jr. (Yapyuco) and Generoso Cunanan, Jr.
(Cunanan) and Ernesto Puno (Puno) who were members of the Integrated National
Police (INP)2 stationed at the Sindalan Substation in San Fernando, Pampanga; Jose
Pamintuan (Pamintuan) and Mario Reyes, who were barangay captains of
Quebiawan and Del Carmen, respectively; Ernesto Puno, Andres Reyes and Virgilio
Manguerra (Manguerra), Carlos David, Ruben Lugtu, Moises Lacson (Lacson),
Renato Yu, Jaime Pabalan (Pabalan) and Carlos David (David), who were either
members of the Civil Home Defense Force (CHDF) or civilian volunteer officers in
Barangays Quebiawan, Del Carmen and Telebastagan. They were all charged with
murder, multiple attempted murder and frustrated murder in three Informations, the
inculpatory portions of which read:
Criminal Case No. 16612:
That on or about the 5th day of April 1988, in Barangay Quebiawan, San Fernando,
Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, all public officers, being then policemen, Brgy. Captains, Brgy.
Tanod and members of the Civil Home Defense Force (CHDF), respectively,
confederating and mutually helping one another, and while responding to information
about the presence of armed men in said barangay and conducting surveillance
thereof, thus committing the offense in relation to their office, did then and there, with
treachery and evident premeditation, willfully, unlawfully and feloniously, and with
deliberate intent to take the life of Leodevince S. Licup, attack the latter with
automatic weapons by firing directly at the green Toyota Tamaraw jitney ridden by
Leodevince S. Licup and inflicting multiple gunshot wounds which are necessarily
mortal on the different parts of the body, thereby causing the direct and immediate
death of the latter.
CONTRARY TO LAW.3
Criminal Case No. 16613:
That on or about the 5th day of April 1988, in Barangay Quebiawan, San Fernando,
Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, all public officers, being then policemen, Brgy. Captains, Brgy.
Tanod and members of the Civil Home Defense Force (CHDF), respectively,
confederating and mutually helping one another, and while responding to information
about the presence of armed men in said barangay and conducting surveillance
thereof, thus committing the offense in relation to their office, did then and there, with
treachery and evident premeditation, willfully, unlawfully and feloniously, and with
intent to kill, attack Eduardo S. Flores, Alejandro R. de Vera, Restituto G. Calma and
Raul V. Panlican with automatic weapons by firing directly at the green Toyota
Tamaraw jitney ridden by said Eduardo S. Flores, Alejandro R. de Vera, Restituto G.
Calma and Raul V. Panlican, having commenced the commission of murder directly
by overt acts of execution which should produce the murder by reason of some cause
or accident other than their own spontaneous desistance.
CONTRARY TO LAW.4
Criminal Case No. 16614:
That on or about the 5th day of April 1988, in Barangay Quebiawan, San Fernando,
Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, all public officers, being then policemen, Brgy. Captains, Brgy.
Tanod and members of the Civil Home Defense Force (CHDF), respectively,
confederating and mutually helping one another, and while responding to information
about the presence of armed men in said barangay and conducting surveillance
thereof, thus committing the offense in relation to their office, did then and there, with
treachery and evident premeditation, willfully, unlawfully and feloniously, and with
intent of taking the life of Noel C. Villanueva, attack the latter with automatic weapons
52 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
by firing directly at the green Toyota Tamaraw jitney driven by said Noel C. Villanueva
and inflicting multiple gunshot wounds which are necessarily mortal and having
performed all the acts which would have produced the crime of murder, but which did
not, by reason of causes independent of the defendants’ will, namely, the able and
timely medical assistance given to said Noel C. Villanueva, which prevented his
death.
CONTRARY TO LAW.5
Hailed to court on April 30, 1991 after having voluntarily surrendered to the
authorities,6 the accused – except Pabalan who died earlier on June 12, 1990,7 and
Yapyuco who was then allegedly indisposed8 – entered individual pleas of not
guilty.9 A month later, Yapyuco voluntarily surrendered to the authorities, and at his
arraignment likewise entered a negative plea.10 In the meantime, Mario Reyes, Andres
Reyes, David, Lugtu, Lacson, Yu and Manguerra jointly filed a Motion for Bail relative
to Criminal Case No. 16612.11 Said motion was heard on the premise, as previously
agreed upon by both the prosecution and the defense, that these cases would be
jointly tried and that the evidence adduced at said hearing would automatically
constitute evidence at the trial on the merits.12 On May 10, 1991, the Sandiganbayan
granted bail in Criminal Case No. 16612.13 Yapyuco likewise applied for bail on May
15, 1991 and the same was also granted on May 21, 1991. 14 Pamintuan died on
November 21, 1992,15 and accordingly, the charges against him were dismissed.
At the July 4, 1991 pre-trial conference, the remaining accused waived the pre-trial
inquest. 16 Hence, joint trial on the merits ensued and picked up from where the
presentation of evidence left off at the hearing on the bail applications.
The prosecution established that in the evening of April 5, 1988, Villanueva, Flores,
Calma, De Vera, Panlican and Licup were at the residence of Salangsang as guests
at the barrio fiesta celebrations between 5:00 and 7:30 p.m.. The company decided to
leave at around 7:30 p.m., shortly after the religious procession had passed. As they
were all inebriated, Salangsang reminded Villanueva, who was on the wheel, to drive
carefully and watch out for potholes and open canals on the road. With Licup in the
passenger seat and the rest of his companions at the back of his Tamaraw jeepney,
Villanueva allegedly proceeded at 5-10 kph with headlights dimmed. Suddenly, as
they were approaching a curve on the road, they met a burst of gunfire and instantly,
Villanueva and Licup were both wounded and bleeding profusely.17
Both Flores and Villanueva, contrary to what the defense would claim, allegedly did
not see any one on the road flag them down. 18 In open court, Flores executed a
sketch19 depicting the relative location of the Tamaraw jeepney on the road, the
residence of Salangsang where they had come from and the house situated on the
right side of the road right after the curve where the jeepney had taken a left turn; he
identified said house to be that of a certain Lenlen Naron where the gunmen allegedly
took post and opened fire at him and his companions. He could not tell how many
firearms were used. He recounted that after the shooting, he, unaware that Licup and
Villanueva were wounded, jumped out of the jeepney when he saw from behind them
Pamintuan emerging from the yard of Naron’s house. Frantic and shaken, he
instantaneously introduced himself and his companions to be employees of San
Miguel Corporation but instead, Pamintuan reproved them for not stopping when
flagged. At this point, he was distracted when Villanueva cried out and told him to
summon Salangsang for help as he (Villanueva) and Licup were wounded. He
dashed back to Salangsang’s house as instructed and, returning to the scene, he
observed that petitioner Yu was also there, and Villanueva and Licup were being
loaded into a Sarao jeepney to be taken to the hospital.20 This was corroborated by
Villanueva who stated that as soon as the firing had ceased, two armed men,
together with Pamintuan, approached them and transferred him and Licup to another
jeepney and taken to the nearby St. Francis Hospital.21
Flores remembered that there were two sudden bursts of gunfire which very rapidly
succeeded each other, and that they were given no warning shot at all contrary to
what the defense would say.22 He professed that he, together with his co-passengers,
were also aboard the Sarao jeepney on its way to the hospital and inside it he
observed two men, each holding long firearms, seated beside the driver. He
continued that as soon as he and his companions had been dropped off at the
hospital, the driver of the Sarao jeepney immediately drove off together with his two
armed companions.23 He further narrated that the day after the shooting, he brought
Licup to the Makati Medical Center where the latter expired on April 7, 1988.24 He
claimed that all the accused in the case had not been known to him prior to the
incident, except for Pamintuan whom he identified to be his wife’s uncle and with
whom he denied having had any rift nor with the other accused for that matter, which
would have otherwise inspired ill motives. 25 He claimed the bullet holes on the
Tamaraw jeepney were on the passenger side and that there were no other bullet
holes at the back or in any other portion of the vehicle.26
Salangsang, also an electrician at the San Miguel Corporation plant, affirmed the
presence of his companions at his residence on the subject date and time, and
corroborated Villanueva’s and Flores’ narration of the events immediately preceding
the shooting. He recounted that after seeing off his guests shortly after the procession
had passed his house and reminding them to proceed carefully on the pothole-
studded roads, he was alarmed when moments later, he heard a volley of gunfire
from a distance which was shortly followed by Flores’ frantic call for help. He
immediately proceeded to the scene on his bicycle and saw Pamintuan by the
lamppost just outside the gate of Naron’s house where, inside, he noticed a
congregation of more or less six people whom he could not recognize. 27 At this point,
he witnessed Licup and Villanueva being loaded into another jeepney occupied by
three men who appeared to be in uniform. He then retrieved the keys of the Tamaraw
jeepney from Villanueva and decided to deliver it to his mother’s house, but before
driving off, he allegedly caught a glance of Mario Reyes on the wheel of an owner-
type jeepney idling in front of the ill-fated Tamaraw; it was the same jeepney which he
remembered to be that frequently used by Yapyuco in patrolling the barangay. He
claimed he spent the night at his mother’s house and in the morning, a policeman
came looking for him with whom, however, he was not able to talk.28
53 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
Salangsang observed that the scene of the incident was dark because the electric
post in front of Naron’s house was strangely not lit when he arrived, and that none of
the neighboring houses was illuminated. He admitted his uncertainty as to whether it
was Yapyuco’s group or the group of Pamintuan that brought his injured companions
to the hospital, but he could tell with certainty that it was the Sarao jeepney previously
identified by Villanueva and Flores that brought his injured companions to the
hospital.29
Daisy Dabor, forensic chemist at the Philippine National Police Crime Laboratory in
Camp Olivas, affirmed that she had previously examined the firearms suspected to
have been used by petitioners in the shooting and found them positive for gunpowder
residue. She could not, however, determine exactly when the firearms were
discharged; neither could she tell how many firearms were discharged that night nor
the relative positions of the gunmen. She admitted having declined to administer
paraffin test on petitioners and on the other accused because the opportunity therefor
came only 72 hours after the incident. She affirmed having also examined the
Tamaraw jeepney and found eleven (11) bullet holes on it, most of which had
punctured the door at the passenger side of the vehicle at oblique and perpendicular
directions. She explained, rather inconclusively, that the bullets that hit at an angle
might have been fired while the jeepney was either at a standstill or moving forward in
a straight line, or gradually making a turn at the curve on the road. 30 Additionally,
Silvestre Lapitan, administrative and supply officer of the INP-Pampanga Provincial
Command tasked with the issuance of firearms and ammunitions to members of the
local police force and CHDF and CVO members, identified in court the memorandum
receipts for the firearms he had issued to Mario Reyes, Andres Reyes, Manguerra,
Pabalan and Yapyuco.31
Dr. Pedro Solis, Jr., medico-legal consultant at the Makati Medical Center, examined
the injuries of Villanueva and Licup on April 6, 1988. He recovered multiple metal
shrapnel from the occipital region of Villanueva’s head as well as from the posterior
aspect of his chest; he noted nothing serious in these wounds in that the incapacity
would last between 10 and 30 days only. He also located a bullet wound on the front
lateral portion of the right thigh, and he theorized that this wound would be caused by
a firearm discharged in front of the victim, assuming the assailant and the victim were
both standing upright on the ground and the firearm was fired from the level of the
assailant’s waist; but if the victim was seated, the position of his thigh must be
horizontal so that with the shot coming from his front, the trajectory of the bullet would
be upward. He hypothesized that if the shot would come behind Villanueva, the bullet
would enter the thigh of the seated victim and exit at a lower level.32
With respect to Licup, Dr. Solis declared he was still alive when examined. On the
patient, he noted a lacerated wound at the right temporal region of the head – one
consistent with being hit by a hard and blunt object and not a bullet. He noted three
(3) gunshot wounds the locations of which suggested that Licup was upright when
fired upon from the front: one is a through-and-through wound in the middle lateral
aspect of the middle portion of the right leg; another, through-and-through wound at
the middle portion of the right forearm; and third one, a wound in the abdomen which
critically and fatally involved the stomach and the intestines. He hypothesized that if
Licup was seated in the passenger seat as claimed, his right leg must have been
exposed and the assailant must have been in front of him holding the gun slightly
higher than the level of the bullet entry in the leg. He found that the wound in the
abdomen had entered from the left side and crossed over to and exited at the right,
which suggested that the gunman must have been positioned at Licup’s left side. He
explained that if this wound had been inflicted ahead of that in the forearm, then the
former must have been fired after Licup had changed his position as a reaction to the
first bullet that hit him. He said that the wound on the leg must have been caused by a
bullet fired at the victim’s back and hit the jeepney at a downward angle without hitting
any hard surface prior.33
Dr. Solis believed that the wound on Licup’s right forearm must have been caused by
a bullet fired from the front but slightly obliquely to the right of the victim.
Hypothesizing, he held the improbability of Licup being hit on the abdomen,
considering that he might have changed position following the infliction of the other
wounds, unless there was more than one assailant who fired multiple shots from
either side of the Tamaraw jeepney; however, he proceeded to rule out the possibility
of Licup having changed position especially if the gunfire was delivered very rapidly.
He could not tell which of Licup’s three wounds was first inflicted, yet it could be that
the bullet to the abdomen was delivered ahead of the others because it would have
caused Licup to lean forward and stoop down with his head lying low and steady.34
Finally, Atty. Victor Bartolome, hearing officer at the National Police Commission
(NAPOLCOM) affirmed that the accused police officers Yapyuco, Cunanan and Puno
had been administratively charged with and tried for gross misconduct as a
consequence of the subject shooting incident and that he had in fact conducted
investigations thereon sometime in 1989 and 1990 which culminated in their dismissal
from service.35 Dolly Porqueriño, stenographer at the NAPOLCOM, testified that at the
hearing of the administrative case, Yapyuco authenticated the report on the shooting
incident dated April 5, 1988 which he had previously prepared at his office. This,
according to her, together with the sketch showing the relative position of the
responding law enforcers and the Tamaraw jeepney at the scene of the incident, had
been forwarded to the NAPOLCOM Central Office for consideration.36 The
Sandiganbayan, in fact, subpoenaed these documents together with the joint counter-
affidavits which had been submitted in that case by Yapyuco, Cunanan and Puno.
Of all the accused, only Yapyuco took the stand for the defense. He identified himself
as the commander of the Sindalan Police Substation in San Fernando, Pampanga
and the superior officer of petitioners Cunanan and Puno and of the accused Yu
whose jurisdiction included Barangays Quebiawan and Telebastagan. He narrated
that in the afternoon of April 5, 1988, he and his men were investigating a physical
injuries case when Yu suddenly received a summon for police assistance from David,
who supposedly was instructed by Pamintuan, concerning a reported presence of
armed NPA members in Quebiawan. Yapyuco allegedly called on their main station in
San Fernando for reinforcement but at the time no additional men could be
54 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
dispatched. Hence, he decided to respond and instructed his men to put on their
uniforms and bring their M-16 rifles with them.37
Yapyuco continued that at the place appointed, he and his group met with Pamintuan
who told him that he had earlier spotted four (4) men carrying long firearms. As if
sizing up their collective strength, Pamintuan allegedly intimated that he and
barangay captain Mario Reyes of nearby Del Carmen had also brought in a number
of armed men and that there were likewise Cafgu members convened at the
residence of Naron. Moments later, Pamintuan announced the approach of his
suspects, hence Yapyuco, Cunanan and Puno took post in the middle of the road at
the curve where the Tamaraw jeepney conveying the victims would make an
inevitable turn. As the jeepney came much closer, Pamintuan announced that it was
the target vehicle, so he, with Cunanan and Puno behind him, allegedly flagged it
down and signaled for it to stop. He claimed that instead of stopping, the jeepney
accelerated and swerved to its left. This allegedly inspired him, and his fellow police
officers Cunanan and Puno,38 to fire warning shots but the jeepney continued pacing
forward, hence they were impelled to fire at the tires thereof and instantaneously,
gunshots allegedly came bursting from the direction of Naron’s house directly at the
subject jeepney.39
Yapyuco recalled that one of the occupants of the jeepney then alighted and
exclaimed at Pamintuan that they were San Miguel Corporation employees. Holding
their fire, Yapyuco and his men then immediately searched the vehicle but found no
firearms but instead, two injured passengers whom they loaded into his jeepney and
delivered to nearby St. Francis Hospital. From there he and his men returned to the
scene supposedly to investigate and look for the people who fired directly at the
jeepney. They found no one; the Tamaraw jeepney was likewise gone.40
Yapyuco explained that the peace and order situation in Barangay Quebiawan at the
time was in bad shape, as in fact there were several law enforcement officers in the
area who had been ambushed supposedly by rebel elements,41 and that he frequently
patrolled the barangay on account of reported sightings of unidentified armed men
therein.42 That night, he said, his group which responded to the scene were twelve
(12) in all, comprised of Cunanan and Puno from the Sindalan Police
Substation, 43 the team composed of Pamintuan and his men, as well as the team
headed by Captain Mario Reyes. He admitted that all of them, including himself, were
armed.44 He denied that they had committed an ambuscade because otherwise, all
the occupants of the Tamaraw jeepney would have been killed. 45 He said that the
shots which directly hit the passenger door of the jeepney did not come from him or
from his fellow police officers but rather from Cafgu members assembled in the
residence of Naron, inasmuch as said shots were fired only when the jeepney had
gone past the spot on the road where they were assembled.46
Furthermore, Yapyuco professed that he had not communicated with any one of the
accused after the incident because he was at the time very confused; yet he did know
that his co-accused had already been investigated by the main police station in San
Fernando, but the inquiries did not include himself, Cunanan and Puno.47 He admitted
an administrative case against him, Cunanan and Puno at the close of which they had
been ordered dismissed from service; yet on appeal, the decision was reversed and
they were exonerated. He likewise alluded to an investigation independently
conducted by their station commander, S/Supt. Rolando Cinco. 48
S/Supt Rolando Cinco, then Station Commander of the INP in San Fernando,
Pampanga acknowledged the volatility of the peace and order situation in his
jurisdiction, where members of the police force had fallen victims of ambuscade by
lawless elements. He said that he himself has actually conducted investigations on
the Pamintuan report that rebel elements had been trying to infiltrate the employment
force of San Miguel Corporation plant, and that he has accordingly conducted
"clearing operations" in sugarcane plantations in the barangay. He intimated that days
prior to the incident, Yapyuco’s team had already been alerted of the presence of
NPA members in the area. Corroborating Yapyuco’s declaration, he confessed having
investigated the shooting incident and making a report on it in which, curiously, was
supposedly attached Pamintuan’s statement referring to Flores as being "married to a
resident of Barangay Quebiawan" and found after surveillance to be "frequently
visited by NPA members." He affirmed having found that guns were indeed fired that
night and that the chief investigator was able to gather bullet shells from the scene. 49
Cunanan and Puno did not take the witness stand but adopted the testimony of
Yapyuco as well as the latter’s documentary evidence. 50 Mario Reyes, Andres Reyes,
Lugtu, Lacson, Yu and Manguera, waived their right to present evidence and
submitted their memorandum as told.51
The Sandiganbayan reduced the basic issue to whether the accused had acted in the
regular and lawful performance of their duties in the maintenance of peace and order
either as barangay officials and as members of the police and the CHDF, and hence,
could take shelter in the justifying circumstance provided in Article 11 (5) of the
Revised Penal Code; or whether they had deliberately ambushed the victims with the
intent of killing them.52 With the evidence in hand, it found Yapyuco, Cunanan, Puno,
Manguera and Mario and Andres Reyes guilty as co-principals in the separate
offense of homicide for the eventual death of Licup (instead of murder as charged in
Criminal Case No. 16612) and of attempted homicide for the injury sustained by
Villanueva (instead of frustrated murder as charged in Criminal Case No. 16614), and
acquitted the rest in those cases. It acquitted all of them of attempted murder charged
in Criminal Case No. 16613 in respect of Flores, Panlican, De Vera and Calma. The
dispositive portion of the June 30, 1995 Joint Decision reads:
WHEREFORE, judgment is hereby rendered as follows:
I. In Crim. Case No. 16612, accused Salvador Yapyuco y Enriquez,
Generoso Cunanan, Jr. y Basco, Ernesto Puno y Tungol, Mario Reyes y
David, Andres Reyes y Salangsang and Virgilio Manguerra y Adona are
hereby found GUILTY beyond reasonable doubt as co-principals in the
55 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
 offense of Homicide, as defined and penalized under Article 249 of the
Revised Penal Code, and crediting all of them with the mitigating
circumstance of voluntary surrender, without any aggravating circumstance
present or proven, each of said accused is hereby sentenced to suffer an
indeterminate penalty ranging from SIX (6) YEARS and ONE (1) DAY
of prision correccional, as the minimum, to TWELVE (12) YEARS and ONE
(1) DAY of reclusion temporal, as the maximum; to indemnify, jointly and
severally, the heirs of the deceased victim Leodevince Licup in the amounts
of ₱77,000.00 as actual damages and ₱600,000.00 as moral/exemplary
damages, and to pay their proportionate shares of the costs of said action.
II. In Crim. Case No. 16613, for insufficiency of evidence, all the accused
charged in the information, namely, Salvador Yapyuco y Enriquez, Generoso
Cunanan, Jr. y Basco, Ernesto Puno y Tungol, Mario Reyes y David, Carlos
David y Bañez, Ruben Lugtu y Lacson, Moises Lacson y Adona, Renato Yu
y Barrera, Andres Reyes y Salangsang and Virgilio Manguerra y Adona are
hereby acquitted of the offense of Multiple Attempted Murder charged
therein, with costs de oficio.
III. In Crim. Case No. 16614, accused Salvador Yapyuco y Enriquez,
Generoso Cunanan, Jr. y Basco, Ernesto Puno y Tungol, Mario Reyes y
David, Andres Reyes y Salangsang and Virgilio Manguerra y Adona are
hereby found GUILTY beyond reasonable doubt as co-principals in the
offense Attempted Homicide, as defined and penalized under Article 249, in
relation to Article 6, paragraph 3, both of the Revised Penal Code, and
crediting them with the mitigating circumstance of voluntary surrender,
without any aggravating circumstance present or proven, each of said
accused is hereby sentenced to suffer an indeterminate penalty ranging from
SIX (6) MONTHS and ONE (1) DAY of prision correccional as the minimum,
to SIX (6) YEARS and ONE (1) DAY of prision mayor as the maximum; to
indemnify, jointly and severally, the offended party Noel Villanueva in the
amount of ₱51,700.00 as actual and compensatory damages, plus
₱120,000.00 as moral/exemplary damages, and to pay their proportionate
share of the costs of said action.
SO ORDERED.53
The Sandiganbayan declared that the shootout which caused injuries to Villanueva
and which brought the eventual death of Licup has been committed by petitioners
herein willfully under the guise of maintaining peace and order;54 that the acts
performed by them preparatory to the shooting, which ensured the execution of their
evil plan without risk to themselves, demonstrate a clear intent to kill the occupants of
the subject vehicle; that the fact they had by collective action deliberately and
consciously intended to inflict harm and injury and had voluntarily performed those
acts negates their defense of lawful performance of official duty;55 that the theory of
mistaken belief could not likewise benefit petitioners because there was supposedly
no showing that they had sufficient basis or probable cause to rely fully on
Pamintuan’s report that the victims were armed NPA members, and they have not
been able by evidence to preclude ulterior motives or gross inexcusable negligence
when they acted as they did;56 that there was insufficient or total absence of factual
basis to assume that the occupants of the jeepney were members of the NPA or
criminals for that matter; and that the shooting incident could not have been the
product of a well-planned and well-coordinated police operation but was the result of
either a hidden agenda concocted by Barangay Captains Mario Reyes and
Pamintuan, or a hasty and amateurish attempt to gain commendation.57
These findings obtain context principally from the open court statements of
prosecution witnesses Villanueva, Flores and Salangsang, particularly on the
circumstances prior to the subject incident. The Sandiganbayan pointed out that the
Tamaraw jeepney would have indeed stopped if it had truly been flagged down as
claimed by Yapyuco especially since – as it turned out after the search of the vehicle
– they had no firearms with them, and hence, they had nothing to be scared of. 58 It
observed that while Salangsang and Flores had been bona fide residents of
Barangay Quebiawan, then it would be impossible for Pamintuan, barangay captain
no less, not to have known them and the location of their houses which were not far
from the scene of the incident; so much so that the presence of the victims and of the
Tamaraw jeepney in Salangsang’s house that evening could not have possibly
escaped his notice. In this regard, it noted that Pamintuan’s Sworn Statement dated
April 11, 1988 did not sufficiently explain his suspicions as to the identities of the
victims as well as his apparent certainty on the identity and whereabouts of the
subject Tamaraw jeepney. 59 It surmised how the defense, especially Yapyuco in his
testimony, could have failed to explain why a large group of armed men – which
allegedly included Cafgu members from neighboring barangays – were assembled at
the house of Naron that night, and how petitioners were able to identify the Tamaraw
jeepney to be the target vehicle. From this, it inferred that petitioners had already
known that their suspect vehicle would be coming from the direction of Salangsang’s
house – such knowledge is supposedly evident first, in the manner by which they
advantageously positioned themselves at the scene to afford a direct line of fire at the
target vehicle, and second, in the fact that the house of Naron, the neighboring
houses and the electric post referred to by prosecution witnesses were deliberately
not lit that night.60
The Sandiganbayan also drew information from Flores’ sketch depicting the position
of the Tamaraw jeepney and the assailants on the road, and concluded that judging
by the bullet holes on the right side of the jeepney and by the declarations of Dr. Solis
respecting the trajectory of the bullets that hit Villanueva and Licup, the assailants
were inside the yard of Naron’s residence and the shots were fired at the jeepney
while it was slowly moving past them. It also gave weight to the testimony and the
report of Dabor telling that the service firearms of petitioners had been tested and
found to be positive of gunpowder residue, therefore indicating that they had indeed
been discharged.61
56 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
The Sandiganbayan summed up what it found to be overwhelming circumstantial
evidence pointing to the culpability of petitioners: the nature and location of the bullet
holes on the jeepney and the gunshot wounds on the victims, as well as the trajectory
of the bullets that caused such damage and injuries; particularly, the number, location
and trajectory of the bullets that hit the front passenger side of the jeepney; the
strategic placement of the accused on the right side of the street and inside the front
yard of Naron’s house; the deliberate shutting off of the lights in the nearby houses
and the lamp post; and the positive ballistic findings on the firearms of petitioners. 62
This evidentiary resumé, according to the Sandiganbayan, not only fortified
petitioners’ admission that they did discharge their firearms, but also provided a
predicate to its conclusion that petitioners conspired with one another to achieve a
common purpose, design and objective to harm the unarmed and innocent victims.
Thus, since there was no conclusive proof of who among the several accused had
actually fired the gunshots that injured Villanueva and fatally wounded Licup, the
Sandiganbayan imposed collective responsibility on all those who were shown to
have discharged their firearms that night – petitioners herein. 63 Interestingly, it was
speculated that the manner by which the accused collectively and individually acted
prior or subsequent to or contemporaneously with the shooting indicated that they
were either drunk or that some, if not all of them, had a grudge against the employees
of San Miguel Corporation;64 and that on the basis of the self-serving evidence
adduced by the defense, there could possibly have been a massive cover-up of the
incident by Philippine Constabulary and INP authorities in Pampanga as well as by
the NAPOLCOM.65 It likewise found very consequential the fact that the other accused
had chosen not to take the witness stand; this, supposedly because it was incumbent
upon them to individually explain their participation in the shooting in view of the
weight of the prosecution evidence, their invocation of the justifying circumstance of
lawful performance of official duty and the declaration of some of them in their
affidavits to the effect that they had been deployed that evening in the front yard of
Naron’s residence from which the volley of gunfire was discharged as admitted by
Yapyuco himself.66
As to the nature of the offenses committed, the Sandiganbayan found that the
qualifying circumstance of treachery has not been proved because first, it was
supposedly not shown how the aggression commenced and how the acts causing
injury to Villanueva and fatally injuring Licup began and developed, and second, this
circumstance must be supported by proof of a deliberate and conscious adoption of
the mode of attack and cannot be drawn from mere suppositions or from
circumstances immediately preceding the aggression. The same finding holds true for
evident premeditation because between the time Yapyuco received the summons for
assistance from Pamintuan through David and the time he and his men responded at
the scene, there was found to be no sufficient time to allow for the materialization of
all the elements of that circumstance.67
Finally as to damages, Villanueva had testified that his injury required leave from work
for 60 days which were all charged against his accumulated leave credits; 68 that he
was earning ₱8,350.00 monthly;69 and that he had spent ₱35,000.00 for the repair of
his Tamaraw jeepney.70 Also, Teodoro Licup had stated that his family had spent
₱18,000.00 for the funeral of his son, ₱28,000.00 during the wake, ₱11,000.00 for the
funeral plot and ₱20,000.00 in attorney’s fees for the prosecution of these cases. 71 He
also submitted a certification from San Miguel Corporation reflecting the income of his
deceased son.72 On these bases, the Sandiganbayan ordered petitioners, jointly and
severally, to indemnify (a) Villanueva ₱51,700.00 as actual and compensatory
damages and ₱120,000.00 as moral/exemplary damages, plus the proportionate
costs of the action, and (b) the heirs of deceased Licup in the amount of ₱77,000.00
as actual damages and ₱600,000.00 as moral/exemplary damages, plus the
proportionate costs of the action.
Petitioners’ motion for reconsideration was denied; hence, the present recourse.
In G.R. Nos. 120744-46, Yapyuco disputes the Sandiganbayan’s finding of
conspiracy and labels the same to be conjectural. He points out that the court a quo
has not clearly established that he had by positive acts intended to participate in any
criminal object in common with the other accused, and that his participation in a
supposed common criminal object has not been proved beyond reasonable doubt. He
believes the finding is belied by Flores and Villanueva, who saw him at the scene only
after the shooting incident when the wounded passengers were taken to the hospital
on his jeepney.73 He also points out the uncertainty in the Sandiganbayan’s
declaration that the incident could not have been the product of a well-planned police
operation, but rather was the result of either a hidden agenda concocted against the
victims by the barangay officials involved or an amateurish attempt on their part to
earn commendation. He theorizes that, if it were the latter alternative, then he could
hardly be found guilty of homicide or frustrated homicide but rather of reckless
imprudence resulting in homicide and frustrated homicide. 74 He laments that,
assuming arguendo that the injuries sustained by the victims were caused by his
warning shots, he must nevertheless be exonerated because he responded to the
scene of the incident as a bona fide member of the police force and, hence, his
presence at the scene of the incident was in line with the fulfillment of his duty as he
was in fact in the lawful performance thereof – a fact which has been affirmed by the
NAPOLCOM en banc when it dismissed on appeal the complaint for gross
misconduct against him, Cunanan and Puno.75 He also invokes the concept of
mistake of fact and attributes to Pamintuan the responsibility why he, as well as the
other accused in these cases, had entertained the belief that the suspects were
armed rebel elements.76
In G.R. No. 122677, petitioners Manguerra, Mario Reyes and Andres Reyes claim
that the Sandiganbayan has not proved their guilt beyond reasonable doubt, and the
assailed decision was based on acts the evidence for which has been adduced at a
separate trial but erroneously attributed to them. They explain that there were two
sets of accused, in the case: one, the police officers comprised of Yapyuco, Cunanan
and Puno and, two, the barangay officials and CHDFs comprised of David, Lugtu,
Lacson, Yu and themselves who had waived the presentation of evidence. They
question their conviction of the charges vis-a-vis the acquittal of David, Lugtu, Lacson
and Yu who, like them, were barangay officials and had waived their right to present
57 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
evidence in their behalf. They emphasize in this regard that all accused barangay
officials and CHDFs did not participate in the presentation of the evidence by the
accused police officers and, hence, the finding that they too had fired upon the
Tamaraw jeepney is hardly based on an established fact.77 Also, they believe that the
findings of fact by the Sandiganbayan were based on inadmissible evidence,
specifically on evidence rejected by the court itself and those presented in a separate
trial. They label the assailed decision to be speculative, conjectural and suspicious
and, hence, antithetical to the quantum of evidence required in a criminal
prosecution.78 Finally, they lament that the finding of conspiracy has no basis in
evidence and that the prosecution has not even shown that they were with the other
accused at the scene of the incident or that they were among those who fired at the
victims, and neither were they identified as among the perpetrators of the crime.79
In G.R. No. 122776, Cunanan and Puno likewise dispute the finding of conspiracy.
They claim that judging by the uncertainty in the conclusion of the Sandiganbayan as
to whether the incident was the result of a legitimate police operation or a careless
plot designed by the accused to obtain commendation, conspiracy has not been
proved beyond reasonable doubt. This, because they believe the prosecution has not,
as far as both of them are concerned, shown that they had ever been part of such
malicious design to commit an ambuscade as that alluded to in the assailed decision.
They advance that as police officers, they merely followed orders from their
commander, Yapyuco, but were not privy to the conversation among the latter, David
and Pamintuan, moments before the shooting. They posit they could hardly be
assumed to have had community of criminal design with the rest of the
accused.80 They affirm Yapyuco’s statement that they fired warning shots at the
subject jeepney,81 but only after it had passed the place where they were posted and
only after it failed to stop when flagged down as it then became apparent that it was
going to speed away – as supposedly shown by bullet holes on the chassis and not
on the rear portion of the jeepney. They also harp on the absence of proof of ill
motives that would have otherwise urged them to commit the crimes charged,
especially since none of the victims had been personally or even remotely known to
either of them. That they were not intending to commit a crime is, they believe, shown
by the fact that they did not directly aim their rifles at the passengers of the jeepney
and that in fact, they immediately held their fire when Flores identified themselves as
employees of San Miguel Corporation. They conceded that if killing was their intent,
then they could have easily fired at the victims directly.82
Commenting on these petitions, the Office of the Special Prosecutor stands by the
finding of conspiracy as established by the fact that all accused, some of them armed,
had assembled themselves and awaited the suspect vehicle as though having
previously known that it would be coming from Salangsang’s residence. It posits that
the manner by which the jeepney was fired upon demonstrates a community of
purpose and design to commit the crimes charged.83 It believes that criminal intent is
discernible from the posts the accused had chosen to take on the road that would
give them a direct line of fire at the target – as shown by the trajectories of the bullets
that hit the Tamaraw jeepney.84 This intent was supposedly realized when after the
volley of gunfire, both Flores and Licup were wounded and the latter died as a
supervening consequence.85 It refutes the invocation of lawful performance of duty,
mainly because there was no factual basis to support the belief of the accused that
the occupants were members of the NPA, as indeed they have not shown that they
had previously verified the whereabouts of the suspect vehicle. But while it recognizes
that the accused had merely responded to the call of duty when summoned by
Pamintuan through David, it is convinced that they had exceeded the performance
thereof when they fired upon the Tamaraw jeepney occupied, as it turned out, by
innocent individuals instead.86
As to the contention of Mario Reyes, Andres Reyes and Manguerra that the evidence
adduced before the Sandiganbayan as well the findings based thereon should not be
binding on them, the OSP explains that said petitioners, together with Pamintuan,
David, Lugtu, Lacson and Yu, had previously withdrawn their motion for separate trial
and as directed later on submitted the case for decision as to them with the filing of
their memorandum. It asserts there was no denial of due process to said petitioners in
view of their agreement for the reproduction of the evidence on the motion for bail at
the trial proper as well as by their manifestation to forego with the presentation of their
own evidence. The right to present witnesses is waivable. Also, where an accused is
jointly tried and testifies in court, the testimony binds the other accused, especially
where the latter has failed to register his objection thereto.87
The decision on review apparently is laden with conclusions and inferences that seem
to rest on loose predicates. Yet we have pored over the records of the case and
found that evidence nonetheless exists to support the penultimate finding of guilt
beyond reasonable doubt.
I.
It is as much undisputed as it is borne by the records that petitioners were at the situs
of the incident on the date and time alleged in the Informations. Yapyuco, in his
testimony – which was adopted by Cunanan and Puno – as well as Manguerra, Mario
Reyes and Andres Reyes in their affidavits which had been offered in evidence by the
prosecution,88 explained that their presence at the scene was in response to the
information relayed by Pamintuan through David that armed rebel elements on board
a vehicle described to be that occupied by the victims were reportedly spotted in
Barangay Quebiawan. It is on the basis of this suspicion that petitioners now appeal
to justification under Article 11 (5) of the Revised Penal Code and under the concept
of mistake of fact. Petitioners admit that it was not by accident or mistake but by
deliberation that the shooting transpired when it became apparent that the suspect
vehicle was attempting to flee, yet contention arises as to whether or not there was
intention to harm or even kill the passengers aboard, and who among them had
discharged the bullets that caused the eventual death of Licup and injured Villanueva.
The first duty of the prosecution is not to present the crime but to identify the
criminal.89 To this end, the prosecution in these cases offered in evidence the joint
counter-affidavit90 of Andres Reyes and Manguerra; the counter-affidavit91 of Mario
58 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
Reyes; the joint counter-affidavit92 of Cunanan and Puno; the counter-affidavit93 of
Yapyuco; and the joint counter-affidavit94 of Yapyuco, Cunanan and Puno executed
immediately after the incident in question. In brief, Cunanan and Puno stated therein
that "[their] team was forced to fire at the said vehicle" when it accelerated after
warning shots were fired in air and when it ignored Yapyuco’s signal for it to stop;95 in
their earlier affidavit they, together with Yapyuco, declared that they were
"constrained x x x to fire directly to (sic) the said fleeing vehicle." 96 Yapyuco’s open
court declaration, which was adopted by Cunanan and Puno, is that he twice
discharged his firearm: first, to give warning to the subject jeepney after it allegedly
failed to stop when flagged down and second, at the tires thereof when it came clear
that it was trying to escape.97 He suggested – substantiating the implication in his
affidavit that it was "the whole team [which fired] at the fleeing vehicle" 98 – that the
bullets which hit the passenger side of the ill-fated jeepney could have come only
from the CHDFs posted inside the yard of Naron where Manguerra, Mario Reyes and
Andres Reyes admitted having taken post while awaiting the arrival of the suspect
vehicle.99
Mario Reyes and Andres Reyes, relying on their affidavits, declared that it was only
Manguerra from their group who discharged a firearm but only into the air to give
warning shots,100 and that it was the "policemen [who] directly fired upon" the
jeepney.101 Manguerra himself shared this statement.102 Yet these accounts do not sit
well with the physical evidence found in the bullet holes on the passenger door of the
jeepney which Dabor, in both her report and testimony, described to have come from
bullets sprayed from perpendicular and oblique directions. This evidence in fact
supports Yapyuco’s claim that he, Cunanan and Puno did fire directly at the jeepney
after it had made a right turn and had already moved past them such that the line of
fire to the passengers thereof would be at an oblique angle from behind. It also
bolsters his claim that, almost simultaneously, gunshots came bursting after the
jeepney has passed the spot where he, Cunanan and Puno had taken post, and
when the vehicle was already right in front of the yard of Naron’s house sitting on the
right side of the road after the curve and where Manguerra, Mario Reyes and Andres
Reyes were positioned, such that the line of fire would be direct and perpendicular to
it.103
While Dabor’s ballistics findings are open to challenge for being inconclusive as to
who among the accused actually discharged their firearms that night, her report
pertaining to the examination of the ill-fated Tamaraw jeepney affirms the irreducible
fact that the CHDFs posted within the yard of Naron’s house had indeed sprayed
bullets at the said vehicle. Manguerra, Mario Reyes and Andres Reyes seek to
insulate themselves by arguing that such finding cannot be applied to them as it is
evidence adduced in a separate trial. But as the OSP noted, they may not evade the
effect of their having withdrawn their motion for separate trial, their agreement to a
joint trial of the cases, and the binding effect on them of the testimony of their co-
accused, Yapyuco.104
Indeed, the extrajudicial confession or admission of one accused is admissible only
against said accused, but is inadmissible against the other accused. But if the
declarant or admitter repeats in court his extrajudicial admission, as Yapyuco did in
this case, during the trial and the other accused is accorded the opportunity to cross-
examine the admitter, the admission is admissible against both accused because
then, it is transposed into a judicial admission.105 It is thus perplexing why, despite the
extrajudicial statements of Cunanan, Puno and Yapyuco, as well as the latter’s
testimony implicating them in the incident, they still had chosen to waive their right to
present evidence when, in fact, they could have shown detailed proof of their
participation or non-participation in the offenses charged. We, therefore, reject their
claim that they had been denied due process in this regard, as they opted not to
testify and be cross-examined by the prosecution as to the truthfulness in their
affidavits and, accordingly, disprove the inculpatory admissions of their co-accused.
II.
The availability of the justifying circumstance of fulfillment of duty or lawful exercise of
a right or office under Article 11 (5) of the Revised Penal Code rests on proof that (a)
the accused acted in the performance of his duty or in the lawful exercise of his right
or office, and (b) the injury caused or the offense committed is the necessary
consequence of the due performance of such duty or the lawful exercise of such right
or office.106 The justification is based on the complete absence of intent and
negligence on the part of the accused, inasmuch as guilt of a felony connotes that it
was committed with criminal intent or with fault or negligence.107 Where invoked, this
ground for non-liability amounts to an acknowledgment that the accused has caused
the injury or has committed the offense charged for which, however, he may not be
penalized because the resulting injury or offense is a necessary consequence of the
due performance of his duty or the lawful exercise of his right or office. Thus, it must
be shown that the acts of the accused relative to the crime charged were indeed
lawfully or duly performed; the burden necessarily shifts on him to prove such
hypothesis.
We find that the requisites for justification under Article 11 (5) of the Revised Penal
Code do not obtain in this case.
The undisputed presence of all the accused at the situs of the incident is a legitimate
law enforcement operation. No objection is strong enough to defeat the claim that all
of them – who were either police and barangay officers or CHDF members tasked
with the maintenance of peace and order – were bound to, as they did, respond to
information of a suspected rebel infiltration in the locality. Theirs, therefore, is the
specific duty to identify the occupants of their suspect vehicle and search for firearms
inside it to validate the information they had received; they may even effect a
bloodless arrest should they find cause to believe that their suspects had just
committed, were committing or were bound to commit a crime. While, it may certainly
be argued that rebellion is a continuing offense, it is interesting that nothing in the
evidence suggests that the accused were acting under an official order to open fire at
or kill the suspects under any and all circumstances. Even more telling is the absence
of reference to the victims having launched such aggression as would threaten the
59 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
safety of any one of the accused, or having exhibited such defiance of authority that
would have instigated the accused, particularly those armed, to embark on a violent
attack with their firearms in self-defense. In fact, no material evidence was presented
at the trial to show that the accused were placed in real mortal danger in the presence
of the victims, except maybe their bare suspicion that the suspects were armed and
were probably prepared to conduct hostilities.
But whether or not the passengers of the subject jeepney were NPA members and
whether or not they were at the time armed, are immaterial in the present inquiry
inasmuch as they do not stand as accused in the prosecution at hand. Besides, even
assuming that they were as the accused believed them to be, the actuations of these
responding law enforcers must inevitably be ranged against reasonable expectations
that arise in the legitimate course of performance of policing duties. The rules of
engagement, of which every law enforcer must be thoroughly knowledgeable and for
which he must always exercise the highest caution, do not require that he should
immediately draw or fire his weapon if the person to be accosted does not heed his
call. Pursuit without danger should be his next move, and not vengeance for personal
feelings or a damaged pride. Police work requires nothing more than the lawful
apprehension of suspects, since the completion of the process pertains to other
government officers or agencies.108
A law enforcer in the performance of duty is justified in using such force as is
reasonably necessary to secure and detain the offender, overcome his resistance,
prevent his escape, recapture him if he escapes, and protect himself from bodily
harm.109 United States v. Campo110 has laid down the rule that in the performance of
his duty, an agent of the authorities is not authorized to use force, except in an
extreme case when he is attacked or is the subject of resistance, and finds no other
means to comply with his duty or cause himself to be respected and obeyed by the
offender. In case injury or death results from the exercise of such force, the same
could be justified in inflicting the injury or causing the death of the offender if the
officer had used necessary force.111 He is, however, never justified in using
unnecessary force or in treating the offender with wanton violence, or in resorting to
dangerous means when the arrest could be effected otherwise.112 People v.
Ulep113 teaches that –
The right to kill an offender is not absolute, and may be used only as a last resort, and
under circumstances indicating that the offender cannot otherwise be taken without
bloodshed. The law does not clothe police officers with authority to arbitrarily judge
the necessity to kill. It may be true that police officers sometimes find themselves in a
dilemma when pressured by a situation where an immediate and decisive, but legal,
action is needed. However, it must be stressed that the judgment and discretion of
police officers in the performance of their duties must be exercised neither
capriciously nor oppressively, but within reasonable limits. In the absence of a clear
and legal provision to the contrary, they must act in conformity with the dictates of a
sound discretion, and within the spirit and purpose of the law. We cannot
countenance trigger-happy law enforcement officers who indiscriminately employ
force and violence upon the persons they are apprehending. They must always bear
in mind that although they are dealing with criminal elements against whom society
must be protected, these criminals are also human beings with human rights.114
Thus, in People v. Tabag,115 where members of the Davao CHDF had killed four
members of a family in their home because of suspicions that they were NPA
members, and the accused sought exoneration by invoking among others the
justifying circumstance in Article 11 (5) of the Revised Penal Code, the Court in
dismissing the claim and holding them liable for murder said, thus:
In no way can Sarenas claim the privileges under paragraphs 5 and 6, Article 11 of
the Revised Penal Code, for the massacre of the Magdasals can by no means be
considered as done in the fulfillment of a duty or in the lawful exercise of an office or
in obedience to an order issued by a superior for some lawful purpose. Other than
"suspicion," there is no evidence that Welbino Magdasal, Sr., his wife Wendelyn, and
their children were members of the NPA. And even if they were members of the NPA,
they were entitled to due process of law. On that fateful night, they were peacefully
resting in their humble home expecting for the dawn of another uncertain day. Clearly,
therefore, nothing justified the sudden and unprovoked attack, at nighttime, on the
Magdasals. The massacre was nothing but a merciless vigilante-style execution.116
Petitioners rationalize their election to aim their fire directly at the jeepney by claiming
that it failed to heed the first round of warning shots as well as the signal for it to stop
and instead tried to flee. While it is possible that the jeepney had been flagged down
but because it was pacing the dark road with its headlights dimmed missed
petitioners’ signal to stop, and compound to it the admitted fact that the passengers
thereof were drunk from the party they had just been to, 117 still, we find
incomprehensible petitioners’ quick resolve to use their firearms when in fact there
was at least one other vehicle at the scene – the Sarao jeepney owned by Yapyuco –
which they could actually have used to pursue their suspects whom they supposedly
perceived to be in flight.
Lawlessness is to be dealt with according to the law. Only absolute necessity justifies
the use of force, and it is incumbent on herein petitioners to prove such necessity. We
find, however, that petitioners failed in that respect. Although the employment of
powerful firearms does not necessarily connote unnecessary force, petitioners in this
case do not seem to have been confronted with the rational necessity to open fire at
the moving jeepney occupied by the victims. No explanation is offered why they, in
that instant, were inclined for a violent attack at their suspects except perhaps their
over-anxiety or impatience or simply their careless disposition to take no chances.
Clearly, they exceeded the fulfillment of police duties the moment they actualized
such resolve, thereby inflicting Licup with a mortal bullet wound, causing injury to
Villanueva and exposing the rest of the passengers of the jeepney to grave danger to
life and limb – all of which could not have been the necessary consequence of the
fulfillment of their duties.
III.
60 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
At this juncture, we find that the invocation of the concept of mistake of fact faces
certain failure. In the context of criminal law, a "mistake of fact" is a misapprehension
of a fact which, if true, would have justified the act or omission which is the subject of
the prosecution.118 Generally, a reasonable mistake of fact is a defense to a charge of
crime where it negates the intent component of the crime. 119 It may be a defense even
if the offense charged requires proof of only general intent. 120 The inquiry is into the
mistaken belief of the defendant,121 and it does not look at all to the belief or state of
mind of any other person.122 A proper invocation of this defense requires (a) that the
mistake be honest and reasonable;123 (b) that it be a matter of fact;124 and (c) that it
negate the culpability required to commit the crime125 or the existence of the mental
state which the statute prescribes with respect to an element of the offense.126
The leading authority in mistake of fact as ground for non-liability is found in United
States v. Ah Chong,127 but in that setting, the principle was treated as a function of
self-defense where the physical circumstances of the case had mentally manifested
to the accused an aggression which it was his instinct to repel. There, the accused,
fearful of bad elements, was woken by the sound of his bedroom door being broken
open and, receiving no response from the intruder after having demanded
identification, believed that a robber had broken in. He threatened to kill the intruder
but at that moment he was struck by a chair which he had placed against the door
and, perceiving that he was under attack, seized a knife and fatally stabbed the
intruder who turned out to be his roommate. Charged with homicide, he was acquitted
because of his honest mistake of fact. Finding that the accused had no evil intent to
commit the charge, the Court explained:
x x x The maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact
is, in all cases of supposed offense, a sufficient excuse").
Since evil intent is in general an inseparable element in every crime, any such
mistake of fact as shows the act committed to have proceeded from no sort of evil in
the mind necessarily relieves the actor from criminal liability, provided always there is
no fault or negligence on his part and as laid down by Baron Parke, "The guilt of the
accused must depend on the circumstances as they appear to him." x x x
If, in language not uncommon in the cases, one has reasonable cause to believe the
existence of facts which will justify a killing — or, in terms more nicely in accord with
the principles on which the rule is founded, if without fault or carelessness he does
not believe them — he is legally guiltless of homicide; though he mistook the facts,
and so the life of an innocent person is unfortunately extinguished. In other words,
and with reference to the right of self-defense and the not quite harmonious
authorities, it is the doctrine of reason, and sufficiently sustained in adjudication, that
notwithstanding some decisions apparently adverse, whenever a man undertakes
self-defense, he is justified in acting on the facts as they appear to him. If, without
fault or carelessness, he is misled concerning them, and defends himself correctly
according to what he thus supposes the facts to be, the law will not punish him
though they are in truth otherwise, and he has really no occasion for the extreme
measure. x x x 128
Besides, as held in People v. Oanis129 and Baxinela v. People,130 the justification of an
act, which is otherwise criminal on the basis of a mistake of fact, must preclude
negligence or bad faith on the part of the accused.131 Thus, Ah Chong further
explained that –
The question then squarely presents itself, whether in this jurisdiction one can be held
criminally responsible who, by reason of a mistake as to the facts, does an act for
which he would be exempt from criminal liability if the facts were as he supposed
them to be, but which would constitute the crime of homicide or assassination if the
actor had known the true state of the facts at the time when he committed the act. To
this question we think there can be but one answer, and we hold that under such
circumstances there is no criminal liability, provided always that the alleged ignorance
or mistake of fact was not due to negligence or bad faith.132
IV.
This brings us to whether the guilt of petitioners for homicide and frustrated homicide
has been established beyond cavil of doubt. The precept in all criminal cases is that
the prosecution is bound by the invariable requisite of establishing the guilt of the
accused beyond reasonable doubt. The prosecution must rely on the strength of its
own evidence and not on the evidence of the accused. The weakness of the defense
of the accused does not relieve the prosecution of its responsibility of proving guilt
beyond reasonable doubt.133 By reasonable doubt is meant that doubt engendered by
an investigation of the whole proof and an inability, after such investigation, to let the
mind rest easy upon the certainty of guilt.134 The overriding consideration is not
whether the court doubts the innocence of the accused, but whether it entertains
reasonable doubt as to his guilt.135
The prosecution is burdened to prove corpus delicti beyond reasonable doubt either
by direct evidence or by circumstantial or presumptive evidence. 136 Corpus delicti
consists of two things: first, the criminal act and second, defendant's agency in the
commission of the act.137 In homicide (by dolo) as well as in murder cases, the
prosecution must prove: (a) the death of the party alleged to be dead; (b) that the
death was produced by the criminal act of some other than the deceased and was not
the result of accident, natural cause or suicide; and (c) that defendant committed the
criminal act or was in some way criminally responsible for the act which produced the
death. In other words, proof of homicide or murder requires incontrovertible evidence,
direct or circumstantial, that the victim was deliberately killed (with malice), that is,
with intent to kill. Such evidence may consist in the use of weapons by the
malefactors, the nature, location and number of wounds sustained by the victim and
the words uttered by the malefactors before, at the time or immediately after the killing
of the victim. If the victim dies because of a deliberate act of the malefactors, intent to
kill is conclusively presumed.138 In such case, even if there is no intent to kill, the crime
61 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
is homicide because with respect to crimes of personal violence, the penal law looks
particularly to the material results following the unlawful act and holds the aggressor
responsible for all the consequences thereof. 139 Evidence of intent to kill is crucial
only to a finding of frustrated and attempted homicide, as the same is an essential
element of these offenses, and thus must be proved with the same degree of
certainty as that required of the other elements of said offenses.140
The records disclose no ill motives attributed to petitioners by the prosecution. It is
interesting that, in negating the allegation that they had by their acts intended to kill
the occupants of the jeepney, petitioners turn to their co-accused Pamintuan, whose
picture depicted in the defense evidence is certainly an ugly one: petitioners’ affidavits
as well as Yapyuco’s testimony are replete with suggestions that it was Pamintuan
alone who harbored the motive to ambush the suspects as it was he who their
(petitioners’) minds that which they later on conceded to be a mistaken belief as to
the identity of the suspects. Cinco, for one, stated in court that Pamintuan had once
reported to him that Flores, a relative of his (Pamintuan), was frequently meeting with
NPA members and that the San Miguel Corporation plant where the victims were
employed was being penetrated by NPA members. He also affirmed Yapyuco’s claim
that there had been a number of ambuscades launched against members of law
enforcement in Quebiawan and in the neighboring areas supposedly by NPA
members at around the time of the incident. But as the Sandiganbayan pointed out, it
is unfortunate that Pamintuan had died during the pendency of these cases even
before his opportunity to testify in court emerged.141
Yet whether such claims suffice to demonstrate ill motives evades relevance and
materiality. Motive is generally held to be immaterial inasmuch as it is not an element
of a crime. It gains significance when the commission of a crime is established by
evidence purely circumstantial or otherwise inconclusive.142 The question of motive is
important in cases where there is doubt as to whether the defendant is or is not the
person who committed the act, but when there is no doubt that the defendant was the
one who caused the death of the deceased, it is not so important to know the reason
for the deed.143
In the instant case, petitioners, without abandoning their claim that they did not intend
to kill anyone of the victims, admit having willfully discharged their service firearms;
and the manner by which the bullets concentrated on the passenger side of the
jeepney permits no other conclusion than that the shots were intended for the
persons lying along the line of fire. We do not doubt that instances abound where the
discharge of a firearm at another is not in itself  sufficient to sustain a finding of
intention to kill, and that there are instances where the attendant circumstances
conclusively establish that the discharge was not in fact animated by intent to kill. Yet
the rule is that in ascertaining the intention with which a specific act is committed, it is
always proper and necessary to look not merely to the act itself but to all the
attendant circumstances so far as they develop in the evidence.144
The firearms used by petitioners were either M16 rifle, .30 caliber garand rifle and .30
caliber carbine.145 While the use of these weapons does not always amount to
unnecessary force, they are nevertheless inherently lethal in nature. At the level the
bullets were fired and hit the jeepney, it is not difficult to imagine the possibility of the
passengers thereof being hit and even killed. It must be stressed that the subject
jeepney was fired upon while it was pacing the road and at that moment, it is not as
much too difficult to aim and target the tires thereof as it is to imagine the peril to
which its passengers would be exposed even assuming that the gunfire was aimed at
the tires – especially considering that petitioners do not appear to be mere rookie law
enforcers or unskilled neophytes in encounters with lawless elements in the streets.
Thus, judging by the location of the bullet holes on the subject jeepney and the
firearms employed, the likelihood of the passenger next to the driver – and in fact
even the driver himself – of being hit and injured or even killed is great to say the
least, certain to be precise. This, we find to be consistent with the uniform claim of
petitioners that the impulse to fire directly at the jeepney came when it occurred to
them that it was proceeding to evade their authority. And in instances like this, their
natural and logical impulse was to debilitate the vehicle by firing upon the tires
thereof, or to debilitate the driver and hence put the vehicle to a halt. The evidence
we found on the jeepney suggests that petitioners’ actuations leaned towards the
latter.
This demonstrates the clear intent of petitioners to bring forth death on Licup who was
seated on the passenger side and to Villanueva who was occupying the wheel,
together with all the consequences arising from their deed. The circumstances of the
shooting breed no other inference than that the firing was deliberate and not
attributable to sheer accident or mere lack of skill. Thus, Cupps v. State146 tells that:
This rule that every person is presumed to contemplate the ordinary and natural
consequences of his own acts, is applied even in capital cases. Because men
generally act deliberately and by the determination of their own will, and not from the
impulse of blind passion, the law presumes that every man always thus acts, until the
contrary appears. Therefore, when one man is found to have killed another, if the
circumstances of the homicide do not of themselves show that it was not intended,
but was accidental, it is presumed that the death of the deceased was designed by
the slayer; and the burden of proof is on him to show that it was otherwise.
V.
Verily, the shooting incident subject of these petitions was actualized with the
deliberate intent of killing Licup and Villanueva, hence we dismiss Yapyuco’s
alternative claim in G.R. No. 120744 that he and his co-petitioners must be found
guilty merely of reckless imprudence resulting in homicide and frustrated homicide.
Here is why:
62 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
First, the crimes committed in these cases are not merely criminal negligence, the
killing being intentional and not accidental. In criminal negligence, the injury caused to
another should be unintentional, it being the incident of another act performed without
malice.147 People v. Guillen148 and People v. Nanquil 149 declare that a deliberate intent
to do an unlawful act is essentially inconsistent with the idea of reckless imprudence.
And in People v. Castillo,150 we held that that there can be no frustrated homicide
through reckless negligence inasmuch as reckless negligence implies lack of intent to
kill, and without intent to kill the crime of frustrated homicide cannot exist.
Second, that petitioners by their acts exhibited conspiracy, as correctly found by the
Sandiganbayan, likewise militates against their claim of reckless imprudence.
Article 8 of the Revised Penal Code provides that there is conspiracy when two or
more persons agree to commit a felony and decide to commit it. Conspiracy need not
be proven by direct evidence. It may be inferred from the conduct of the accused
before, during and after the commission of the crime, showing that they had acted
with a common purpose and design. Conspiracy may be implied if it is proved that two
or more persons aimed by their acts towards the accomplishment of the same
unlawful object, each doing a part so that their combined acts, though apparently
independent of each other were, in fact, connected and cooperative, indicating a
closeness of personal association and a concurrence of sentiment. Conspiracy once
found, continues until the object of it has been accomplished and unless abandoned
or broken up. To hold an accused guilty as a co-principal by reason of conspiracy, he
must be shown to have performed an overt act in pursuance or furtherance of the
complicity. There must be intentional participation in the transaction with a view to the
furtherance of the common design and purpose.151
Conspiracy to exist does not require an agreement for an appreciable period prior to
the occurrence.1a\^/phi1 From the legal viewpoint, conspiracy exists if, at the time of
the commission of the offense, the accused had the same purpose and were united in
its execution.152 The instant case requires no proof of any previous agreement among
petitioners that they were really bent on a violent attack upon their suspects. While it
is far-fetched to conclude that conspiracy arose from the moment petitioners, or all of
the accused for that matter, had converged and strategically posted themselves at the
place appointed by Pamintuan, we nevertheless find that petitioners had been ignited
by the common impulse not to let their suspect jeepney flee and evade their authority
when it suddenly occurred to them that the vehicle was attempting to escape as it
supposedly accelerated despite the signal for it to stop and submit to them. As
aforesaid, at that point, petitioners were confronted with the convenient yet irrational
option to take no chances by preventing the jeepney’s supposed escape even if it
meant killing the driver thereof. It appears that such was their common purpose. And
by their concerted action of almost simultaneously opening fire at the jeepney from
the posts they had deliberately taken around the immediate environment of the
suspects, conveniently affording an opportunity to target the driver, they did achieve
their object as shown by the concentration of bullet entries on the passenger side of
the jeepney at angular and perpendicular trajectories. Indeed, there is no definitive
proof that tells which of all the accused had discharged their weapons that night and
which directly caused the injuries sustained by Villanueva and fatally wounded Licup,
yet we adopt the Sandiganbayan’s conclusion that since only herein petitioners were
shown to have been in possession of their service firearms that night and had fired
the same, they should be held collectively responsible for the consequences of the
subject law enforcement operation which had gone terribly wrong.153
VI.
The Sandiganbayan correctly found that petitioners are guilty as co-principals in the
crimes of homicide and attempted homicide only, respectively for the death of Licup
and for the non-fatal injuries sustained by Villanueva, and that they deserve an
acquittal together with the other accused, of the charge of attempted murder with
respect to the unharmed victims.154 The allegation of evident premeditation has not
been proved beyond reasonable doubt because the evidence is consistent with the
fact that the urge to kill had materialized in the minds of petitioners as instantaneously
as they perceived their suspects to be attempting flight and evading arrest. The same
is true with treachery, inasmuch as there is no clear and indubitable proof that the
mode of attack was consciously and deliberately adopted by petitioners.
Homicide, under Article 249 of the Revised Penal Code, is punished by reclusion
temporal whereas an attempt thereof, under Article 250 in relation to Article 51,
warrants a penalty lower by two degrees than that prescribed for principals in a
consummated homicide. Petitioners in these cases are entitled to the ordinary
mitigating circumstance of voluntary surrender, and there being no aggravating
circumstance proved and applying the Indeterminate Sentence Law, the
Sandiganbayan has properly fixed in Criminal Case No. 16612 the range of the
penalty from six (6) years and one (1) day, but should have denominated the same as
prision mayor, not prision correccional, to twelve (12) years and one (1) day of
reclusion temporal.
However, upon the finding that petitioners in Criminal Case No. 16614 had committed
attempted homicide, a modification of the penalty is in order. The penalty of
attempted homicide is two (2) degrees lower to that of a consummated homicide,
which is prision correccional. Taking into account the mitigating circumstance of
voluntary surrender, the maximum of the indeterminate sentence to be meted out on
petitioners is within the minimum period of prision correccional,  which is six (6)
months and one (1) day to two (2) years and four (4) months of prision
correccional, whereas the minimum of the sentence, which under the Indeterminate
Sentence Law must be within the range of the penalty next lower to that prescribed
for the offense, which is one (1) month and one (1) day to six (6) months of arresto
mayor.
We likewise modify the award of damages in these cases, in accordance with
prevailing jurisprudence, and order herein petitioners, jointly and severally, to
indemnify the heirs of Leodevince Licup in the amount of ₱77,000.00 as actual
damages and ₱50,000.00 in moral damages. With respect to Noel Villanueva,
63 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
petitioners are likewise bound to pay, jointly and severally, the amount of ₱51,700.00
as actual and compensatory damages and ₱20,000.00 as moral damages. The
award of exemplary damages should be deleted, there being no aggravating
circumstance that attended the commission of the crimes.
WHEREFORE, the instant petitions are DENIED. The joint decision of the
Sandiganbayan in Criminal Case Nos. 16612, 16613 and 16614, dated June 27,
1995, are hereby AFFIRMED with the following MODIFICATIONS:
(a) In Criminal Case No. 16612, petitioners are sentenced to suffer the
indeterminate penalty of six (6) years and one (1) day of prision mayor, as
the minimum, to twelve (12) years and one (1) day of reclusion temporal, as
the maximum; in Criminal Case No. 16614, the indeterminate sentence is
hereby modified to Two (2) years and four (4) months of prision correccional,
as the maximum, and Six (6) months of arresto mayor, as the minimum.
(b) Petitioners are DIRECTED to indemnify, jointly and severally, the heirs of
Leodevince Licup in the amount of ₱77,000.00 as actual damages,
₱50,000.00 in moral damages, as well as Noel Villanueva, in the amount of
₱51,700.00 as actual and compensatory damages, and ₱20,000.00 as
moral damages.
SO ORDERED.
G.R. No. 178512               November 26, 2014
ALFREDO DE GUZMAN, JR., Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:
Frustrated homicide requires intent to kill on the part of the offender. Without proof of
such intent, the felony may only be serious physical injuries. Intent to kill may be
established through the overt and external acts and conduct of the offender before,
during and after the assault, or by the nature, location and number of the wounds
inflicted on the victim.
The Case
Under review at the instance of the petitioner is the decision promulgated on
September 27, 2006,1 whereby the Court of Appeals (CA) affirmed his conviction for
frustrated homicide committed against Alexander Flojo under the judgment rendered
on September 10, 2003 by the Regional Trial Court (RTC), Branch 213, in
Mandaluyong City in Criminal Case No. 191-MD.2
Antecedents
The CA summarized the versions of the parties as follows:
x x x [O]n December 24, 1997, at aboutten o’clock in the evening, Alexander Flojo
(hereafter "Alexander") was fetching water below his rented house at 443 Aglipay
Street, Old Zaniga St., Mandaluyong City when suddenly Alfredo De Guzman
(hereafter "Alfredo"), the brother of his land lady, Lucila Bautista (hereafter "Lucila"),
hit him on the nape. Alexander informed Lucila about what Alfredo did to him. Lucila
apologized to Alexander by saying, "Pasensya ka na Mang Alex" and told the latter to
just go up. Alexander obliged and went upstairs. He took a rest for about two hours.
Thereafter, at around 12:00 to 12:15 A.M., Alexander went down and continued to
fetch water. While pouring water into a container, Alfredo suddenly appeared in front
of Alexander and stabbed him on his left face and chest.
Cirilino Bantaya, a son-in-law of Alexander, saw the latter bleeding on the left portion
of his body and begging for help. Alexander then told Cirilino that Alfredo stabbed
him. Cirilino immediately loaded Alexander into his motorcycle (backride) and brought
him to the Mandaluyong City Medical Center. Upon arrival at the hospital, the doctors
immediately rendered medical assistance to Alexander. Alexander stayed in the
emergency room of said hospital for about 30 to 40 minutes. Then, he was brought to
the second floor of the said hospital where he was confined for two days. Thereafter,
Alexander was transferred to the Polymedic General Hospital where he was
subjected for (sic) further medical examination.
Alexander sustained two stabbed (sic) wounds. (sic) One of which was on the
zygoma, left side, and aboutone (1) cm. long. The other is on his upper left chest
which penetrated the fourth intercostal space at the proximal clavicular line measuring
about two (2) cm. The second stabbed (sic) wound penetrated the thoracic wall and
left lung of the victim which resulted to blood air (sic) in the thoracic cavity thus
necessitating the insertion of a thoracostomy tube toremove the blood. According to
Dr. Francisco Obmerga, the physician who treated the victim at the Mandaluyong City
Medical Center, the second wound was fatal and could have caused Alexander’s
death without timely medical intervention. (Tsn, July 8, 1998, p.8).
On the other hand, Alfredo denied having stabbed Alexander. According to him, on
December 25,1997 at around midnight, he passed by Alexander who was, then, fixing
a motorcycle. At that point, he accidentally hit Alexander’s back, causing the latter to
throw invective words against him. He felt insulted, thus, a fistfight ensued between
them. They even rolled on the ground. Alfredo hit Alexander on the cheek causing
blood to ooze from the latter’s face.3
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The RTC convicted the petitioner, decreeing thusly:
PRESCINDING (sic) FROM THE FOREGOING
CONSIDERATIONS, the court finds accused Alfredo De Guzman y Agkis a.k.a.,
"JUNIOR," guilty beyond reasonable doubt for (sic) the crime of FRUSTRATED
HOMICIDE defined and penalized in Article 250 of the Revised Penal Code and in the
absence of any modifying circumstance, he is hereby sentenced to suffer the
indeterminate penalty of Six (6) Months and One (1) day of PRISION
CORR[R]ECCIONAL as MINIMUM to Six (6) Years and One (1) day of PRISION
MAYOR as MAXIMUM.
The accused is further ordered topay the private complainant compensatory damages
in the amount of ₱14,170.35 representing the actual pecuniary loss suffered by him
as he has duly proven.
SO ORDERED.4
On appeal, the petitioner contended that his guilt had not been proved beyond
reasonable doubt; that intent to kill, the critical element of the crime charged, was not
established; that the injuries sustained by Alexander were mere scuffmarks inflicted in
the heatof anger during the fist fight between them; that he did not inflict the
stabwounds, insisting that another person could have inflicted such wounds; and that
he had caused only slight physical injuries on Alexander, for which he should be
accordingly found guilty.
Nonetheless, the CA affirmedthe petitioner’s conviction, viz:
WHEREFORE, premises considered, the instant appeal is DISMISSED. The
September 10, 2003 Decision of the Regional Trial Court of Mandaluyong City,
Branch 213, is hereby AFFIRMED in toto.
SO ORDERED.5
The CA denied the petitioner’s motion for reconsideration on May 2, 2007.6
Issue
Was the petitioner properly found guilty beyond reasonable doubt of frustrated
homicide?
Ruling
The appeal lacks merit.
The elements of frustrated homicide are: (1) the accused intended to kill his victim, as
manifested by his use of a deadly weapon in his assault; (2) the victim sustained fatal
or mortal wound but did not die because of timely medical assistance; and (3) noneof
the qualifying circumstances for murder under Article 248 of the Revised Penal Code,
as amended, is present.7 Inasmuch as the trial and appellate courts found none of the
qualifying circumstances in murder under Article 248 to be present, we immediately
proceed to ascertain the presence of the two other elements.
The petitioner adamantly denies that intent to kill was present during the fistfight
between him and Alexander.1âwphi1 He claims that the heightened emotions during
the fistfight naturally emboldened both of them, but he maintains that he only inflicted
minor abrasions on Alexander, not the stab wounds that he appeared to have
sustained. Hence, he should be held liable only for serious physical injuries because
the intent to kill, the necessary element to characterize the crime as homicide, was
not sufficiently established. He avers that such intentto kill is the main element that
distinguishes the crime of physical injuries from the crime of homicide; and that the
crime is homicide only if the intent to kill is competently shown.
The essential element in frustrated or attempted homicide is the intent of the offender
to kill the victim immediately before or simultaneously with the infliction of injuries.
Intent to kill is a specific intent that the State must allege in the information, and then
prove by either direct or circumstantial evidence, as differentiated from a general
criminal intent, which is presumed from the commission of a felony by dolo. 8 Intent to
kill, being a state of mind, is discerned by the courts only through external
manifestations, i.e., the acts and conduct of the accused at the time of the assault
and immediately thereafter. In Rivera v. People,9 we considered the following factors
to determine the presence of intent to kill, namely: (1) the means used by the
malefactors; (2) the nature, location, and number of wounds sustained by the victim;
(3) the conduct of the malefactors before, during, or immediately after the killing of the
victim; and (4) the circumstances under which the crime was committed and the
motives of the accused. We have also considered as determinative factors the motive
of the offender and the words he uttered at the time of inflicting the injuries on the
victim.10
Here, both the trial and the appellate court agreed that intent to kill was present. We
concur with them. Contrary to the petitioner’s submission, the wounds sustained by
Alexander were not mere scuffmarks inflicted in the heat of anger or as the result ofa
fistfight between them. The petitioner
wielded and used a knife in his assault on Alexander. The medical records indicate,
indeed, that Alexander sustained two stab wounds, specifically, one on his upper left
chest and the other on the left side of his face. The petitioner’s attack was
unprovoked with the knife used therein causing such wounds, thereby belying his
submission, and firmly proving the presence of intent to kill. There is also to beno
65 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
doubt about the wound on Alexander’s chest being sufficient to result into his death
were it not for the timely medical intervention.
With the State having thereby shown that the petitioner already performed all the acts
of execution that should produce the felony of homicide as a consequence, but did
not produce it by reason of causes independent of his will, i.e., the timely medical
attention accorded to Alexander, he was properly found guilty of frustrated homicide.
We have no cogent reason to deviate from or to disregard the findings of the trial and
appellate courts on the credibility of Alexander’s testimony. It is not disputed that the
testimony of a single but credible and trustworthy witness sufficed to support the
conviction of the petitioner. This guideline finds more compelling application when the
lone witness is the victim himself whose direct and positive identification of his
assailant is almost always regarded with indubitable credibility, owing to the natural
tendency of the victim to seek justice for himself, and thus strive to remember the face
of his assailant and to recall the manner in which the latter committed the
crime.11 Moreover, it is significant that the petitioner’s mere denial of the deadly
manner of his attack was contradicted by the credible physical evidence corroborating
Alexander’s statements. Under the circumstances, we can only affirm the petitioner’s
conviction for frustrated homicide. The affirmance of the conviction notwithstanding,
we find the indeterminate penalty of "Six (6) Months and One (1) day of PRISION
CORR[R]ECCIONAL as MINIMUM to Six (6) Years and One (1) day of PRISION
MAYOR as MAXIMUM"12 fixed by the RTC erroneous despite the CA concurring with
the trial court thereon. Under Section 1 of the Indeterminate Sentence Law, an
indeterminate sentence is imposed on the offender consisting of a maximum term and
a minimum term.13 The maximum term is the penaltyproperly imposed under the
Revised Penal
Code after considering any attending modifying circumstances; while the minimum
term is within the range of the penalty next lower than that prescribed by the Revised
Penal Codefor the offense committed. Conformably with Article 50 of the Revised
Penal Code,14 frustrated homicide is punished by prision mayor, which is next lower to
reclusion temporal, the penalty for homicide under Article 249 of the Revised Penal
Code. There being no aggravating or mitigating circumstances present, however,
prision mayorin its medium period – from eight years and one day to 10 years – is
proper. As can be seen, the maximum of six years and one day of prision mayor as
fixed by the RTC and affirmed by the CA was not within the medium period of prision
mayor. Accordingly, the correct indeterminate sentence is four years of prision
correccional, as the minimum, to eight years and one day of prision mayor, as the
maximum.
The RTC and the CA also agreed on limiting the civil liability to the sum of ₱14,170.35
as compensatory damages "representing the actual pecuniary loss suffered by
[Alexander] as he has duly proven."15 We need to revise such civil liability in order to
conform to the law, the Rules of Court and relevant jurisprudence. In Bacolod v.
People,16 we emphatically declared to be "imperative that the courts prescribe the
proper penalties when convicting the accused, and determine the civil liability to be
imposed on the accused, unless there has been a reservation of the action to recover
civil liability or a waiver of its recovery." We explained why in the following manner:
It is not amiss to stress that both the RTC and the CA disregarded their express
mandate under Section 2, Rule 120 of the Rules of Courtto have the judgment, if it
was of conviction, state: "(1) the legal qualification of the offense constituted by the
acts committed by the accused and the aggravating or mitigating circumstances
which attended its commission; (2) the participation of the accused in the offense,
whether as principal, accomplice, or accessory after the fact; (3) the penalty imposed
upon the accused; and (4) the civil liability or damages caused by his wrongful act or
omission to be recovered from the accused by the offended party, if there is any,
unless the enforcement of the civil liability by a separate civil action has been
reserved or waived." Their disregard compels us to actas we now do lest the Court be
unreasonably seen as tolerant of their omission. That the Spouses Cogtas did not
themselves seek the correction of the omission by an appeal is no hindrance to this
action because the Court, as the final reviewing tribunal, has not only the authority but
also the duty to correct at any time a matter of law and justice.
We also pointedly remind all trial and appellate courts to avoid omitting reliefs that the
parties are properly entitled to by law or in equity under the established facts. Their
judgments will not be worthy of the name unless they thereby fully determine the
rights and obligations of the litigants. It cannot be otherwise, for only by a full
determination of such rights and obligations would they be true to the judicial office of
administering justice and equity for all. Courts should then be alert and cautious in
their rendition of judgments of conviction in criminal cases. They should prescribe the
legal penalties, which is what the Constitution and the law require and expect them to
do. Their prescription of the wrong penalties will be invalid and ineffectual for being
done without jurisdiction or in manifest grave abuse of discretion amounting to lack of
jurisdiction. They should also determine and set the civil liability ex delicto of the
accused, in order to do justice to the complaining victims who are always entitled to
them. The Rules of Court mandates them to do so unless the enforcement of the civil
liability by separate actions has been reserved or waived.17
Alexander as the victim in frustrated homicide suffered moral injuries because the
offender committed violence that nearly took away the victim’s life. "Moral damages
include physical suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation, and similar injury.
Though incapable of pecuniary computation, moral damages may be recovered if
they are the proximate result of the defendant's wrongful act for omission."18 Indeed,
Article 2219, (1), of the Civil Code expressly recognizes the right of the victim in
crimes resulting in physical injuries.19 Towards that end, the Court, upon its
appreciation of the records, decrees that ₱30,000.00 is a reasonable award of moral
damages.20 In addition, AAA was entitled to recover civil indemnity of
₱30,000.00.21 Both of these awards did not require allegation and proof.
66 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
In addition, the amounts awarded ascivil liability of the petitioner shall earn interest of
6% per annumreckoned from the finality of this decision until full payment by the
accused. WHEREFORE, the Court AFFIRMS the decision promulgated on
September 27, 2006 finding petitioner Alfredo De Guzman, Jr. GUILTY beyond
reasonable doubt of FRUSTRATED HOMICIDE, and SENTENCES him to suffer the
indeterminate penalty of four years of prision correccional, as the minimum, to eight
years and one day of prision mayor, as the maximum; ORDERS the petitioner to pay
to Alexander Flojo civil indemnity of ₱30,000.00; moral damages of ₱30,000.00; and
compensatory damages of Pl4,170.35, plus interest of 6% per annum on all such
awards from the finality of this decision until full payment; and DIRECTS the petitioner
to pay the costs of suit.

SO ORDERED.

67 ARTICLE 2 – 3 |CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL