Criminal Law Case Digest

G.R. No.
123485 August 31, 1998
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ROLUSAPE

SABALONES alias "Roling," ARTEMIO TIMOTEO BERONGA, TEODULO
ALEGARBES and EUFEMIO CABANERO, accused, ROLUSAPE
SABALONES alias "Roling" and ARTEMIO TIMOTEO BERONGA, Accused-
Appellants.
PANGANIBAN, J.:
Factual findings of trial courts which are affirmed by the Court of Appeals are, as a
general rule, binding and conclusive upon the Supreme Court. Alibi, on the other hand,
cannot prevail over positive identification by credible witnesses. Furthermore, alleged
violations of constitutional rights during custodial investigation are relevant only when
the conviction of the accused by the trial court is based on the evidence obtained during
such investigation.
The Case
These are the principles relied upon by the Court in resolving this appeal from the Court
of Appeals (CA) 1 Decision 2 dated September 28, 1995, convicting Rolusape Sabalones
and Timoteo Beronga of murder and frustrated murder. The convictions arose from a
shooting incident on June 1, 1985 in Talisay, Cebu, which resulted in the killing of two
persons and the wounding of three others, who were all riding in two vehicles which
were allegedly ambushed by appellants.
After conducting a preliminary investigation, Second Assistant Provincial Prosecutor

Juanito M. Gabiana Sr. filed before the Regional Trial Court (RTC) of Cebu City, Branch
7, 3 five amended Informations charging four "John Does," who were later identified as
Rolusape Sabalones, Artemio Timoteo Beronga, Teodulo Alegarbes and Eufemio
Cabanero, with two counts of murder and three counts of frustrated murder. The
Informations are quoted hereunder.
1) Crim Case No. CBU-9257 for murder:
That on the 1st day of June, 1985, at 11:45 o'clock in the evening, more or less, at
Mansueto Village, Bulacao, Municipality of Talisay, Province of Cebu, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping one another, armed with high-powered firearms,
with intent to kill and treachery, did then and there wilfully, unlawfully and feloniously
attack, assault and shoot GLENN TIEMPO, who was riding [i]n a jeep and who gave no
provocation, thereby inflicting upon the latter several gunshot wounds, thereby causing
his instantaneous death.
CONTRARY TO Article 248 of the Revised Penal Code.
2) Criminal Case No. 9258 for murder:
That on the 1st day of June, 1985 at 11:45 o'clock in the evening, more or less at
Mansueto Village, Barangay Bulacao, Municipality of Talisay, Province of Cebu,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and mutually helping one another, armed with high-
powered firearms, with intent to kill and treachery, did [then] and there wilfully,
unlawfully and feloniously attack, assault and shoot ALFREDO NARDO, who was riding
on a jeep and who gave no provocation, thereby inflicting upon the latter several
gunshot wounds, thereby causing his instantaneous death.
CONTRARY TO Article 248 of the Revised Penal Code.
3) Crim Case No. CBU-9259 for frustrated murder:
That on the 1st day of June, 1985 at 11:45 o'clock in the evening, more or less, at
accused conspiring, confederating and mutually helping one another, armed with high-
powered firearms, with intent to kill and treachery, did and there wilfully, unlawfully and
feloniously attack, assault and shoot REY BOLO who was riding in a car and who gave
no provocation, thereby inflicting upon the latter the following injuries to wit:
laceration, mouth due to gunshot wound, gunshot wound (L) shoulder penetrating (L)
chest; gunshot wound (R) hand (palm); open fracture (L) clavicle (L) scapula; contusion
(L) lung;
thereby performing all the acts of execution which would produce the crime of [m]urder
as a consequence but which, nevertheless, did not produce it by reason of causes
independent of the will of the perpetrator, i.e. the timely medical attendance.
IN VIOLATION of Article 248 of the Revised Penal Code.
4) Criminal Case No. 9260 for frustrated murder:
powered firearms, with intent to kill and treachery, did then and there wilfully, unlawfully
and feloniously attack, assault and shoot ROGELIO PRESORES, who was riding in a
car and who gave no provocation, thereby inflicting upon the latter the following injuries,
to wit:
gunshot wound, thru and thru right chest
thereby performing all the acts of execution which would produce the crime of [m]urder
as a consequence but which, nevertheless, did not produce it by reason of causes
5) Criminal Case No. 9261 for frustrated murder:
powered firearms, with intent to kill and treachery, did then and there wilfully, unlawfully
and feloniously attack, assault and shoot NELSON TIEMPO, who was riding in a car
and who gave no provocation, thereby inflicting upon the latter the following injuries, to
wit:
Gunshot wound neck penetrating wound perforating trachea (cricoid) thereby

performing all the acts of execution which would produce the crime of [m]urder as a
consequence but which nevertheless, did not produce it by reason of causes
Of the four indictees in the five Informations, Teodulo Alegarbes and Artemio Timoteo
Beronga were the first to be arraigned. Upon the arrest of the two, the Informations
were amended by the public prosecutor, with the conformity of the defense counsel, by
substituting the names of the two accused for the "John Does" appearing in the original
Informations. When arraigned, said accused, assisted by their respective lawyers,
pleaded not guilty to the five Informations.
Alegarbes died in the course of trial; thus, the cases against him were dismissed.
Accused Cabanero remained at large. Sabalones, on the other hand, was eventually
arrested. Subsequently, he jumped bail but was recaptured in 1988 and thereafter
pleaded not guilty during his arraignment.
The cases against Sabalones and Beronga were jointly tried. Thereafter, the lower court
found them guilty beyond reasonable doubt of the crimes charged. The RTC disposed
as follows:
WHEREFORE, premises above-set forth, the Court finds accused ROLUSAPE

SABALONES and (ARTEMIO) TIMOTEO BERONGA, [g]uilty beyond reasonable doubt,
as principals:
In Crim. Case No. CBU-9257, for MURDER, defined and penalized in Art. 248 of the
Revised Penal Code, hereby sentences each said accused to suffer the penalty of
[f]ourteen (14) years, [e]ight (8) months and [o]ne (1) day, as minimum, to [s]eventeen
(17) years, [f]our (4) months and [o]ne (1) day, of [r]eclusion [t]emporal, as maximum, to
indemnify the heirs of deceased, Glenn Tiempo, the sum of P50,000.00;
In Crim. Case No. CBU-9258, for MURDER, defined and penalized in Art. 248 of the
Revised Penal Code, hereby sentences each said accused to suffer the penalty of
[f]ourteen (14) years, [e]ight (8) months and [o]ne (1) day, as minimum, to [s]eventeen
(17) years, [f]our (4) months and [o]ne (1) day, of [r]eclusion [t]emporal, as maximum, to
indemnify the heirs of deceased, Alfredo Nardo, the sum of P50,000.00;
In Crim. Case No. CBU-9259, for FRUSTRATED MURDER, defined and penalized in
Art. 248 in relation to Art. 50 of the Revised Penal Code, hereby sentences each said
accused to suffer the penalty of [e]ight (8) years of prision mayor, as minimum, to
[f]ourteen (14) years and [e]ight (8) months of [re]clusion [t]emporal, as maximum, to
indemnify the victim, Rey Bolo, the sum of P20,000.00;
[f]ourteen (14) years and [e]ight months of [r]eclusion [t]emporal, as maximum, to
indemnify the victim, Rogelio Presores, the sum of P20,000.00;
[f]ourteen (14) years and [e]ight (8) months of [r]eclusion [t]emporal, as maximum, to
indemnify the victim, Nelson Tiempo, the sum of P20,000.00; and
To pay the costs in all instances. The period of their preventive imprisonment shall be
credited to each accused in full.
SO ORDERED. 4
Appellants filed a notice of appeal to the Court of Appeals. Thereafter, the CA affirmed
their conviction but sentenced them to reclusion perpetua for the murders they were
found guilty of. Accordingly, the appellate court, without entering judgment, certified the
case to the Supreme Court in accordance with Section 13, Rule 124 of the Rules of
Court. The dispositive portion of the CA Decision reads:
WHEREFORE, the Decision of the trial court convicting accused-appellants Rolusa[p]e

Sabalones and Artemio Timoteo Beronga for murder in Crim. Cases Nos. CBU-9257
and CBU-9258, and [f]rustrated [m]urder in Crim. Cases Nos. CBU-9259, CBU-9260,
and CBU-9261 is hereby AFFIRMED; however, the penalties in the [f]rustrated [m]urder
and [m]urder cases are hereby MODIFIED, such that both accused-appellants are each
sentenced to imprisonment of TEN (10) YEARS of [p]rision [m]ayor medium as
minimum to SEVENTEEN (17) YEARS and FOUR (4) MONTHS of [r]eclusion
[t]emporal medium as maximum in each of the three [f]rustrated [m]urder cases (Crim.
Cases Nos. CBU-9259, CBU-9260 and CBU-9261); and are each sentenced
to [r]eclusion [p]erpetua in each of the two [m]urder cases (Crim. Cases Nos. CBU-9257
and CBU-9258). The indemnity to the victim in each [f]rustrated [m]urder case shall
remain. In conformity with Rule 124, Section 13 of the Rules of Court, however, this
Court refrains from entering judgment, and hereby certifies the case and orders that the
entire record hereof be elevated to the Supreme Court for review. 5
After the Court of Appeals certified the case to this Court, we required appellants to file
supplemental briefs. Appellants failed to comply within the prescribed period and were
deemed to have waived their right to do so. 6 Thus, in resolving this case, this Court will
address primarily the arguments raised by the appellants in their Brief before the Court
of Appeals, which assailed the RTC Decision.
The Facts
Version of the Prosecution
The solicitor general 7 quoted the following factual findings of the trial court:
Edwin Santos, a resident of Mambaling, Cebu City stated that on June 1, 1985 at 6:00
o'clock in the evening, he was at the residence of Inday Presores, sister of Rogelio
Presores, located at Rizal Ave., Cebu City to attend a wedding. He stayed until 9:00
o'clock in the evening and proceeded to the house of Maj. Tiempo at Basak,
Mambaling, Cebu City where a small gathering was also taking place. (pp. 3-6, tsn, April
7, 1987)
Arriving thereat, he saw Nelson and Glenn Tiempo as well as Rogelio Presores, Rogelio
Oliveros, Junior Villoria, Rey Bolo and Alfredo Nardo. (p. 7, ibid.)
At about 11:00 o'clock in the evening, Stephen Lim, who was also at the party, called
their group and requested them to push his car. When the engine started, the former
asked them to drive his car home. (pp. 7-11, ibid.)
Together with Nelson Tiempo, who was at the wheel, Rogelio Presores, Rogelio
Oliveros and Junior Villoria, they drove to the residence of Stephen Lim at Mansueto
Compound, Bulacao, Talisay, Cebu. (p. 12, ibid.)
Glenn Tiempo, Rey Bolo and Alfredo Nardo also went with them riding in an owner-type
jeep, driven by the latter, in order to bring back the group [as] soon as the car of Mr. Lim
was parked in his home. (p. 21, ibid.)
The two vehicles traveled in convoy with the jeep 3 to 4 meters ahead of the car. When
they arrived at the gate of the house of Stephen Lim, they were met with a sudden burst
of gunfire. He looked at the direction where the gunfire came, and saw [the] persons
[who] fired at the jeep. He identified accused, Teodulo Alegarbes, Rolusape Sabalones
and Timoteo Beronga as the persons who fired at the vehicle. Except for Teodulo
Alegarbes, who was naked from [the] waist up, the gunmen wore clothes. (pp. 21-23;
13-16; 33, ibid.)
After firing at the jeep, the assailants shot the ear they were riding[,] hitting Nelson
Tiempo on the throat and Rogelio Presores on the breast. Despite the injury he
sustained, Nelson Tiempo was able to maneuver the car back to their residence. (pp.
17-19, ibid.)
He immediately informed Maj. Tiempo about the incident and the lat[t]er brought the
victims to the Cebu Doctor's Hospital. (p. 20, ibid.)
Rogelio Presores corroborated in substance the testimony of Edwin Santos, being one
of those who were in the car driven by Nelson Tiempo to the residence of Stephen Lim.
(pp. 4-6, tsn, Aug. 14, 1987)
He further testified that when the jeep driven by Alfredo Nardo with Rey Bolo and Glenn
Tiempo as passengers arrived at the front gate of Lim's residence and while their car
was 3 meters from the rear end of the jeep, there was a volley of gunfire. He glanced at
the direction of the gunfire and saw the jeep being fired at by four persons, who were
standing behind a concrete wall, 42 inches in height, and armed with long firearms.
Thenceforth, he saw Alfredo Nardo, Glenn Tiempo and Rey Bolo f[a]ll to the ground.
(pp. 6-7, ibid.)
He recognized accused, Rolusape Sabalones, as one of those who fired at the jeep. He
also identified in Court accused, Teodulo Alegarbes, Timoteo Beronga and another
person, whom he recognized only through his facial appearance. (pp. 7-8, ibid.)
When the shots were directed [at] their car[,] they were able to bend their heads low.
When the firing stopped, he directed Nelson Tiempo to back out from the place. As the
latter was maneuvering the car, the shooting continued and he was hit in the breast
while Nelson Tiempo, in the neck, and the windshield of the vehicle was shattered. (p.
10, ibid.)
Arriving at the house of Maj. Tiempo, they were brought to Cebu Doctor's Hospital. He
and Nelson Tiempo were operated on. He had incurred hospital expenses in the sum of
P5,412.69, (Exh. "I", "K"). (pp. 11-12, ibid.)
Ladislao Diola, Jr., [m]edico-[l]egal [o]fficer of the PC Crime Laboratory, Regional Unit 7
stationed at Camp Sotero Cabahug, Cebu City remembered having performed a post-
mortem examination on the dead body of Glenn Tiempo on June 2, 1985 at the
Cosmopolitan Funeral Homes, Cebu City. (p. 7, tsn, Nov. 11, 1987)
He issued the necessary Death Certificate, (Exh. "D") and Necropsy Report, (Exh. "F")
and indicated therein that the victim's cause of death was "[c]ardio respiratory arrest
due to [s]hock and [h]emorrhage [s]econdary to [g]unshot wounds to the trunk." (p.
8, ibid.)
The victim sustained gunshot wounds in the right chest and left lumbar area. (pp. 10-
11, ibid.)
He explained that in gunshot wound no. 1, the wound entrance[,] which [was]
characterized by invaginated edges and contusion collar[,] was located in the right chest
and the bullet went up to the left clavicle hitting a bone which incompletely fractured it
causing the navigation of the bullet to the left and to the anterior side of the body. He
recovered a slug, (Exh. "G") below the muscles of the left clavicle. (p. 21, ibid.)
Based on the trajectory of the bullet, the assailant could have been [o]n the right side of
the victim or in front of the victim but [o]n a lower level than the latter.
In both gunshot wounds, he did not find any powder burns which would indicate that the
muzzle of the gun was beyond a distance of 12 inches from the target. (p. 15, ibid.)
At the time he conducted the autopsy, he noted that rigor mortis in its early stage had
already set in which denote[s] that death had occurred 5 to 6 hours earlier. (pp. 34-
5, ibid.)
Maj. Juan Tiempo, father of the victims, Glenn and Nelson Tiempo, testified that when
he learned about the incident in question, he immediately summoned military soldiers
and together they proceeded to the scene. (pp. 4-6, tsn, Nov. 12, 1988)
Arriving thereat, he saw the lifeless body of his son, Glenn. He immediately carried him
in his arms and rushed him to the hospital but the victim was pronounced Dead on
Arrival. (pp. 6-7, ibid.)
They buried his son, who was then barely 14 years old, at Cebu Memorial Park and had
incurred funeral expenses (Exhs. "K", "L", "O"). (pp. 7-8, ibid.)
His other son, Nelson, then 21 years old and a graduate of [m]edical [t]echology, was
admitted at the Cebu Doctor's Hospital for gunshot wound in the neck. The latter
survived but could hardly talk as a result of the injuries he sustained. He had incurred
medical and hospitalization expenses in the sum of P21,594.22, (Exh. "H"), (pp. 8-
10, ibid.)
He had also incurred expenses in connection with the hospitalization of the injured
victims, Rogelio Presores and Rey Bolo in the amount[s] of P5,412.69, (exh. "I") and
P9,431.10, (Exh. "J"), respectively. (p. 11, ibid.)
He further stated that he [was] familiar the accused, Roling Sabalones, because the
latter had a criminal record in their office in connection with the kidnapping of a certain
Zabate and Macaraya. (p. 16, ibid.)
xxx xxx xxx
Dr. Jesus P. Cerna, [m]edico-[l]egal [o]fficer of the PC/INP, Cebu Metrodiscom, had
conducted an autopsy on the dead body of Alfredo Nardo, who sustained two (2)
gunshot wounds in the lower lip and left intraclavicular region, upon the request of the
[c]hief of the Homicide Section of Cebu Metrodiscom. He issued the victim's Necropsy
Report, (Exh. "F:") and Death Certificate, (Exh. "G"). (pp. 5-8, tsn, Dec. 4, 1987; pp. 4-6,
tsn, Nov. 29, 1988)
He stated that the wound of entrance in gunshot wound no. 1 was located in the lower
lip, more or less[,] on the left side making an exit in the left mandibular region. (pp. 9-11,
tsn, Dec. 4, 1987; pp. 6-8, tsn, Nov. 29, 1988)
In gunshot wound no. 2, the wound of entrance was in the left intraclavicular region
exiting at the back as reflected in the sketch, (Exh. "F-2"). This wound was fatal and
[could] almost cause an instantaneous death considering that the bullet penetrated the
thoracic cavity, lacerating the lungs and perforating the heart before making an exit. (pp.
11-13, tsn, Dec. 4, 1987; pp. 13-15, tsn, Nov. 29, 1988)
He found no tattooing around the wound of entrance in both gunshot wounds. (pp. 8-9,
tsn, Nov. 29, 1988)
He prepared and issued th[e] Necropsy Report, (Exh. "F") and Death Certificate, (Exh.
"G") of Alfredo Nardo who was identified to him by the latter's daughter, Anita Nardo.
(pp. 26-27, ibid.)
Rey Bolo, one of the victims, testified that when the jeep he was riding [in] together with
Glenn Tiempo and Alfredo Nardo, reached the gate of the residence of Stephen Lim,
they were suddenly fired upon. (pp. 5-8, tsn, March 6, 1989)
He was hit in the right palm and left cheek. He jumped out of the vehicle and ran
towards the car which was behind them but he was again shot at [,] [and hit] in the left
scapular region. He was still able to reach the road despite the injuries he sustained and
tried to ask help from the people who were in the vicinity but nobody dared to help him,
[they] simply disappeared from the scene, instead: (pp. 8-9, ibid.)
He took a passenger jeepney to the city and had himself treated at the Cebu Doctor's
Hospital, and incurred medical expenses in the sum of P9,000.00. (p. 9, ibid.)
He was issued a Medical Certificate, (Exh. "N") by his attending physician.

Dr. Miguel Mancao, a [p]hysician-[s]urgeon, recalled having attended [to] the victims,
Nelson Tiempo, Rey Bolo and Rogelio Presores at the Cebu Doctor's Hospital on June
2, 1985. (pp. 7-8, 11, 14, tsn, May 30, 1989)
Nelson Tiempo sustained gunshot wound[s] in the neck and in the right chest but the
bullet did not penetrate the chest cavity but only the left axilla. He was not able to
recover any slugs because the same disintegrated while the other was thru and thru.
The wound could have proved fatal but the victim miraculously survived. As a
consequence of the injury he sustained, Nelson Tiempo permanently lost his voice
because his trachea was shattered. His only chance of recovery is by coaching and
speech therapy. He issued his Medical Certificate. (Exh. "O"). (pp. 8-11, ibid.)
With regard to the patient, Rey Bolo, the latter suffered multiple gunshot wounds in the
left shoulder penetrating the chest and fracturing the 2nd, 3rd, and 4th ribs in the
process, in the right hand fracturing the proximal right thumb and in the mouth
lacerating its soft tissues, per Medical Certificate, (Exh. "N") which he issued. (pp. 11-
16, ibid.)
Based on the trajectory of the bullet, the gunman could have been in front of the victim,
when gunshot would no. 1 was inflicted. (p. 30, ibid.)
With respect to the patient, Rogelio Presores, the latter suffered [a] gunshot wound in
the chest with the wound of entrance in the right anterior chest exiting at the back which
was slightly lower than the wound of entrance. He issued the victim's Medical
Certificate, (Exh. "M"). (pp. 34-35, ibid.)
Based on the location of the wound, the gunman could have been in front of the victim
but [o]n a slightly higher elevation than the latter. (pp. 35-36, ibid.) 8
Version of the Defense
Appellants interposed denial and alibi. Their version of the facts is summarized by the
trial court 9 thus:
. . . Timoteo Beronga, a cristo or bet caller in the cockpit, testified that in the afternoon
of June 1, 1985, he was in the Talisay Sports Complex located at Tabunok, Talisay,
Cebu to attend a cock-derby.
At about 7:00 o'clock in the evening, he was fetched by his wife and they left taking a
taxicab going to their residence in Lapulapu City. After passing by the market place,
they took a tricycle and arrived home at 8:00 o'clock in the evening.
After taking his supper with his family, he went home to sleep at 10:30 in the evening.
The following morning, after preparing breakfast, he went back to sleep until 11:00 in
the morning.
On February 24, 1987, while he was playing mahjong at the corner of R.R. Landon and
D. Jakosalem Sts., Cebu City, complainant, Maj. Juan Tiempo with some companions,
arrived and after knowing that he [was] "Timmy," [which was] his nickname, the former
immediately held him by the neck.
He ran away but the latter chased him and kicked the door of the house where he hid.
He was able to escape through the back door and took refuge in Mandaue at the
residence of Nito Seno, a driver of Gen. Emilio Narcissi. (Tsn-Abangan, pp. 4-17,
October 19, 1989)
On February 27, 1987, upon the advi[c]e of his friend, they approached Gen. Narcissi
and informed him of the incident. The latter brought him to the Provincial Command
Headquarters in Lahug, Cebu City to confront Maj. Juan Tiempo.
After several days, he was brought by Maj. Tiempo to the PC Headquarter[s] in Jones
Ave., Cebu City where he was provided with a lawyer to defend him but he was
instructed that he should assent to whatever his lawyer would ask of him.
He was introduced to Atty. Marcelo Guinto, his lawyer, who made him sign an Affidavit,
(Exh. "U") the contents of which, co[u]ched in the dialect, were read to him.
He also testified that before he was detained at the CPDRC, complainant brought him
inside the shop of a certain Den Ong, where he was again mauled after he denied
having any knowledge of the whereabouts of Roling Sabalones and the carbine.
At the instance of Col. Medija, he was physically examined at the Southern Islands
Hospital, Cebu City and was issued a [M]edical Certificate. (Tsn-Formentera, pp. 3-36,
Jan. 18, 1990).
Justiniano Cuizon, [a]ccount [o]fficer of the Visayan Electric Company (VECO) South
Extension Office, who is in charge of the billing, disconnection and reconnection of
electric current, testified that based on the entries in their logbook, (Exh. "3") made by
their checker, Remigio Villaver, the electrical supply at the Mansueto Compound,
Bulacao, Talisay, Cebu, particularly the Mansueto Homeowners covered by Account
No. 465-293000-0, (Exh. "4-B") was disconnected on January 10, 1985, (Exh. "3-A") for
non-payment of electric bills from March 1984 to January 1985 and was reconnected
only on June 17, 1985 (Exh. "4", "4-A"). (Tsn-Abangan, pp. 22-27, Jan. 31, 1990).
Remigio Villaver, a checker of VECO, whose area of responsibility cover[ed] the towns
of Talisay and San Fernando, Cebu had kept the record of disconnection of electrical
supply of Mansueto Subdivision in Bulacao, Talisay, Cebu and the same showed that
on January 10, 1985, (Exh. "3-A"), a service order was issued by their office to the
Mansueto Homeowners for the permanent disconnection of their electric lights due to
non-payment of their electric bills from March 1984 until January 1985. The actual
disconnection took place on December 29, 1984.
Witness Fredo Canete made efforts to corroborate their testimony. (Tsn-Formentera,
pp. 3-5, Apr. 20, 1990).
Vicente Cabanero, a resident of Mansueto Compound in Talisay, Cebu since 1957 until
the present, remembered that on June 1, 1985, between 10:00 o'clock and 11:00
o'clock in the evening, he heard a burst of gunfire about 15 to 20 armslength [sic] from
his residence.
He did not bother to verify because he was scared since the whole place was in total
darkness. (Tsn-Abangan, pp. 18-23, Feb. 22, 1990).
Marilyn Boc, another witness for the accused, stated that on the date and time of the
incident in question, while she was at the wake of Junior Sabalones, younger brother of
Roling Sabalones, who died on May 26, 1985, a sudden burst of gunfire occurred more
or less 60 meters away.
Frightened, she went inside a room to hide and saw accused, Roling Sabalones, sound
asleep.
She came to know accused, Timoteo Beronga, only during one of the hearings of this
case and during the entire period that the body of the late Junior Sabalones [lay] in state
at his residence, she never saw said accused.
She was requested to testify in this case by Thelma Beronga, wife of Timoteo Beronga.
(Tsn-Abangan, pp. 9-13, February 28, 1990).
Dr. Daniel Medina, while then the [r]esident [p]hysician of Southern Islands Hospital,
Cebu City had treated the patient, Timoteo Beronga on March 18, 1987.
Upon examination, he found out that the patient sustained linear abrasion, linear
laceration and hematoma in the different parts of the body. Except for the linear
laceration which he believed to have been inflicted two or three days prior to [the] date
of examination, all the other injuries were already healed indicating that the same were
inflicted 10 to 12 days earlier.
He issued the corresponding Medical Certificate (Exh. "2") to the patient. (Tsn-Abangan,
pp. 9-13, May 21, 1990).
Atty. Jesus Pono, counsel for accused Beronga, mounted the witness stand and
averred that he [was] a resident of Mansueto Compound, Bulacao, Talisay, Cebu. As
shown in the pictures, (Exhs. "3", "4" & "5" with submarkings) his house is enclosed by a
concrete fence about 5 feet 6 inches tall. It is situated 6 meters from the residence of
accused, Roling Sabalones, which was then being rented by Stephen Lim. Outside the
fence [are] shrubs and at the left side is a lamp post provided with 200 watts fluorescent
bulb.
On June 1, 1985 at about 7:00 o'clock in the evening, he saw Roling Sabalones, whom
he personally [knew] because they used to be neighbors in Talisay, Cebu, at the wake
of his brother, Federico Sabalones, Jr. or Junior Sabalones, as mentioned repeatedly
hereabout. They even had a talk and he noticed accused to be physically indisposed
being gravely affected by the loss of his only brother, who met a violent death in the
hands of an unknown hitman on May 26,1985.
He went home after he saw accused [lie] down on a bamboo bench to rest.
At about 12:00 o'clock midnight, he was awakened by a rapid burst of gunfire which
emanated near his house. He did not attempt to go down or look outside. He [was] in no
position to tell whether or not the street light was lighted.
When he verified the following morning, he noticed bloodstains on the ground as well as
inside the jeep which was parked 2 to 3 meters from his fence and 50 to 70 meters from
the house where Junior Sabalones [lay] in state. He observed that the jeep was riddled
with bullets and its windshield shattered. (Tsn-Abangan, pp. 3-16, June 6, 1990).
He admitted that he used to be a counsel of accused, Roling Sabalones, in several

cases, among which involved the death of a certain Garces and Macaraya, which cases
were however, dismissed by the Office of the Provincial Fiscal of Cebu. (Tsn-Tumarao,
pp. 2-3, June 13, 1990).
Doroteo Ejares, a relative of accused, testified that when he attended the wake of Junior
Sabalones on June 1, 1985 at 8:00 o'clock in the evening, he saw accused lying on a
bamboo bench in the yard of the house of the deceased.
At past 10:00 o'clock in the evening, accused excused himself as he was not feeling
well and entered a room to rest while he remained by the door and slept.
At almost 12:00 o'clock midnight, he was awakened by a burst of gunfire which took
place more or less 20 meters away and saw the people scamper[ing] for safety. He hid
inside the room where accused was sleeping and peeped thru the door. Not long after,
Marilyn Boc entered and in a low voice talked about the incident.
They decided to wake up the accused to inform him of what was happening, but the
latter merely opened his eyes and realizing that accused was too weak, they allowed
him to go back to sleep.
When he went home at past 5:00 o'clock in the morning of June 2, 1985, he saw a jeep
outside of the compound. He did not bother to investigate or inquire about the incident
as he was in a hurry to go home and prepare for the burial of Junior Sabalones.
He was requested to testify in this case by his aunt and mother of accused Rolusape
Sabalones. (Tsn-Tumarao, pp. 10-15, June 13, 1990).
Russo Sabalones, uncle of accused, Sabalones, averred that the latter was once, one
of his undercover agents while he was then the [c]hief of the Intelligence Service of the
PC from 1966 until 1968.
As part of their intelligence tradition, an undercover agent is not allowed to carry his real
name. In the case of his nephew and accused, Rolusape Sabalones, the latter chose
the name "Paciano Laput" which name was recorded in their code of names.
When he retired in 1968, the accused ceased to be an agent and . . . likewise ceased to
have the authority to use the name Paciano Laput. (Tsn-Abangan, p. 12, July 23, 1990).
Alfonso Allere, a distant relative of the accused, remembered having received a call
from Roling Sabalones, one morning after the burial of the latter's brother, asking for his
advise because of the threats [to] his life which he received thru telephone from the
group of Nabing Velez and the group of the military.
After he had advised accused to lie low, he had not heard of him, since then.
Godofredo Mainegro of the Public Assistance and Complaint Action Office of the
Regional Unified Command 7, received a complaint from one Inocencia Sabalones on
March 13, 1986.
He recorded the complaint in their Complaint Sheet, (Exh. "6") and let complainant affix
her signature.
After the document was subscribed and sworn to before him, (Exh. "6-C"), he indorsed
it to their [c]ommanding [o]fficer, Apolinario Castano. (Tsn-Formentera, pp. 3-10, July
24, 1990).
Ret. Col. Apolinario Castano, recalled that while he was then with the Regional Unified
Command 7, his niece, Racquel Sabalones together with her husband Roling
Sabalones, came to him for advi[c]e because the latter was afraid of his life brought
about by the rampant killings of which his brother and the son of Maj. Tiempo were
victims.
Considering that accused's problem matter, they approached Gen. Ecarma, the then
[c]ommander of the PC/INP, Recom 7, and the latter referred them to his [c]hief of
[s]taff, Col. Roger Denia, who informed them that there was no case filed against the
accused. Nevertheless, the latter was advised to be careful and consult a lawyer.
Inocencia Sabalones, mother of accused, Roling Sabalones, narrated that on March 12,
1986 at past 10:00 o'clock in the evening, she was roused from sleep by a shout of a
man demanding for Roling Sabalones.
Upon hearing the name of her son, she immediately stood up and peeped through the
door of her store and saw men in fatigue uniforms carrying long firearms. Thenceforth,
these men boarded a vehicle and left.
On the following morning, she was again awakened by the persistent shouts and
pushing of the gate. When she verified, the man who introduced himself to her as Maj.
Tiempo, ordered her to open the gate. Once opened, the men of Maj. Tiempo entered
the house and proceeded to search for Roling Sabalones, whom Maj. Tiempo
suspected to have killed his son and shot another to near death. When she demanded
for a search warrant, she was only shown a piece of paper but was not given the
chance to read its contents.
Racquel Sabalones, wife of accused, Rolusape Sabalones, maintained that on June 1,

1985 at 1.00 o'clock in the afternoon, she was at the wake of her brother-in-law, Junior
Sabalones, at his residence in Bulacao, Talisay, Cebu.
At 11:00 o'clock in the evening of the same day, together with her 3 daughters as well
as Marlyn Sabarita, Rose Lapasaran and Gloria Mondejar, left the place in order to
sleep in an unoccupied apartment situated 30 meters away from the house where her
deceased, brother-in-law, Junior, was lying in state, as shown in the Sketch, (Exh. "7"
and submarkings) prepared by her. They brought with them a flashlight because the
whole place was in total darkness.
As they were about to enter the gate leading to her apartment she noticed a sedan car
coming towards them. She waited for the car to come nearer as she thought that the
same belong[ed] to her friend, but the vehicle instead stopped at the corner of the road,
(Exh. "7-F") and then proceeded to the end portion of Mansueto Compound, (Exh. "7-
G"). As it moved slowly towards the highway, she rushed inside the apartment.
Few minutes later, she heard a burst of gunfire outside their gate. She immediately
gathered her children and instructed Marlyn Sabarita to use the phone situated at the
third door apartment and call the police.
After the lull of gunfire, she went to the terrace and saw people in civilian and in fatigue
uniforms with firearms, gathered around the place. One of these men even asked her
about the whereabouts of her husband, whom she left sleeping in the house of the
deceased.
At 8:30 in the morning of June 2, 1985, during the burial of Junior Sabalones, they were
informed by Pedro Cabanero that Roling Sabalones was a suspect for the death of
Nabing Velez and the son of Maj. Tiempo.
She believed that the reason why her husband was implicated in the killing of Nabing
Velez was because of the slapping incident involving her father-in-law, Federico
Sabalones, Sr. and Nabing Velez which took place prior to the death of Junior
Sabalones.
After the funeral, she began to receive mysterious calls at their residence in Sikatuna
St., Cebu City where they began staying since 1978. She also noticed cars with tinted
windows strangely parked in front of their residence.
Frightened and cowed, they decided to seek the advice of Col. Apolinario Castano, who
after relating to him their fears, advised her husband to lie low and to consult a lawyer.
To allay their apprehension, accused, Roling Sabalones, left Cebu City for Iligan, Manila
and other cities to avoid those who were after him. When she learned about the threat
made by Maj. Tiempo on her husband, she forewarned the latter not to return to Cebu.
Marlyn Sabarita, an illegitimate daughter of Rolusape Sabalones, stated that in the night
in question, she was at the wake of Junior Sabalones and saw her Papa Roling, the
herein accused, lying on the lawn of the house of the deceased.
She was already in the apartment with her Mama Racquel when she heard a burst of
gunfire. Upon instructions of the latter, she went out to call the police thru the phone
located [in] the third apartment occupied by a certain Jet. (Tsn-Tumarao, pp. 3-15, Oct.
15, 1990).
Edward Gutang, [a]sst. lay-out [e]ditor and [a]sst. [s]ports [e]ditor of Sun-Star Daily,
while then a military and police reporter had covered the shooting incident which took
place on June 1, 1985 at the Mansueto Compound, Bulacao, Talisay, Cebu.
At past 1:00 o'clock dawn, together with their newspaper photographer, Almario Bitang,
they went to the crime scene boarding the vehicle of the Cosmopolitan Funeral Homes.
Arriving thereat, they decided not to proceed inside the compound because of fear. The
place was then incomplete darkness.
Upon being informed that the victims were brought to Cebu City Medical Center, they
rushed to the place and met Maj. Tiempo hugging the dead body of his 14-year old son.
His photographer took a picture of that pathetic scene. (Exh. "8-B").
Samson Sabalones, a retired [a]mbassador and uncle of Rolusape Sabalones, posted a

bail bond for his nephew with Eastern Insurance Company, when a warrant for his
arrest was issued by the Municipal Court, on March 12, 1986 because he was bothered
by the fact that the latter was being unreasonably hunted by several groups. He even
advised the accused to appear in [c]ourt to clarify the nature of the case filed against
him.
Virgincita Pajigal, a resident of Butuan City, met accused, Rolusape Sabalones, who
introduced himself to her as "Paciano Laput" nicknamed, Ondo, in a massage clinic
where she was working.
For less than a year, they lived together as husband and wife without the benefit of
marriage because according to her the accused was married but separated from his
wife, whose name was never mentioned to her. For such a short span of time being
together, her love for the accused developed to the extent that whatever happen[ed] to
him, she [would] always be there to defend him.
With the help of Maj. delos Santos, who advised her to always stay close [to] the
accused, she was able to board the same vessel. She saw the latter clad in green T-
shirt, (Exh. "14") and pants, handcuffed and guarded.
Reaching Cebu City, they took a taxicab and as the vehicle went around the city, she
was instructed by Maj. Tiempo to place the towel, (Exh. "15") which she found inside
her bag, on the head of the accused. They stopped at the Reclamation Area and Maj.
Tiempo pulled them out of the vehicle but she held on tightly to Ondo, ripping his shirt.
This pulling incident happened for several times but complainant failed to let them out of
the vehicle.
The accused was finally brought to the Provincial Jail while she stayed in the residence
of the accused. She returned to Butuan after a week. (Tsn-Formentera, pp. 5-33, Jan.
22, 1991).
Accused, Rolusape Sabalones, alias "Roling", in his defense, with ancillary incidental

narrations, testified, that on June 1, 1985 at 6:00 o'clock in the evening, he was at the
wake of his only brother, Junior Sabalones, who was killed on May 26, 1985.
He had no idea as to who was responsible for the killing of his brother inasmuch as the
latter had plenty of enemies. He also did not exert effort to look into the case and to
place it under police authority since he had lost faith in the capabilities of the police. The
matter was however reported by his uncle, Ambassador Sabalones, to the authorities.
He stayed at the wake until 10:00 o'clock in the evening because he was not feeling
well. He retired in a small room adjacent to the sala of the house of the deceased. Not
long after, he felt somebody waking him up but he merely opened his eyes and went
back to sleep as he was really exhausted.
At 6:30 the following morning, he was roused by his wife so he could prepare for the
burial. He came to know about the burst of gunfire which took place the previous night
upon the information of his wife. He did not take the news seriously as he was busy
preparing for the burial of his deceased brother, Jun.
The funeral started at past 8:00 o'clock in the morning and he noticed the presence of
Maj. Eddie Ricardo and his men, who were sent by Col. Castano purposely to provide
the burial with military security, upon the request of his wife.
He had a conversation with Maj. Ricardo who inquired about the shooting incident which
resulted in the death of the son of Maj. Tiempo and others in his company. Also in the
course of their conversation, he came to know that Nabing Velez was killed earlier on
that same night in Labangon, Cebu [C]ity.
On the same occasion, Pedro Cabanero also notified him that he was a suspect in the
killing of Nabing Velez, a radio commentator of ferocious character, who was engaged
in a protection racket with several under his control.
He remembered that a month prior to the death of Nabing Velez, his father, Federico
Sabalones, Sr. and the deceased while matching their fighting cocks at the Talisay
Sports Complex, had an altercation and the latter slapped his paralytic father and
challenged him to ask one of his sons to avenge what he had done to him. He came to
know about the incident only after a week.
He did not deny the fact that he was hurt by the actuation of the deceased for
humiliating his father but it did not occur to him to file a case or take any action against
the deceased because he was too busy with his business and with his work as a bet
caller in the cockpit.
He advised his father to stay in Bohol to avoid further trouble because he knew that the
latter would frequent the cockpit[,] being a cockfight aficionado.
Likewise, during the burial, he was informed by a PC soldier, Roger Capuyan, that he
was also a suspect in the killing of the son of Maj. Tiempo and even advised him to
leave the place.
On the following days after the burial, his wife started to notice cars suspiciously parked
in front of their house and [she] also received mysterious calls.
Together with his wife, they decided to see Col. Apolinario Castaño to seek his advise.
The latter verified from the Cebu Metrodiscom and learned that there was no case filed
against him.
In the evening of June 6, 1985, he left for Iligan and after a month, he transferred to
Ozamis and ten to Pagadian. He likewise went to Manila especially when he learned
that his uncle, Samson Sabalones, had arrived from abroad. The latter posted a bond
for his temporary liberty immediately after being informed that a case was filed against
him, before the Municipal Court of Talisay.
Despite . . . the bond put up his uncle, he did not return to Cebu City because it came to
his knowledge that Maj. Tiempo inquired from the bonding company as to his address.
He also stayed in Marikina in the house of his friend and during his stay in the said
place, he registered as a voter and was issue a Voter's Affidavit, (Exh. "19"; Exh. "R" for
the prosecution) which bore the name "Paciano Mendoza Laput" which [was] his
baptismal name. He explained that the name[s] Mendoza and Laput [were] the middle
name and surname, respectively of his mother. The name "Rolusape" was given to him
by his father and the same [was] not his registered name because during the old days,
priests would not allow parents to name their children with names not found in the
Almanac; thus, Paciano [was] his chosen name and the same appeared in his
Baptismal Certificate, (Exh. "20") issued by the Parish of the Blessed Trinity of Talibon,
Bohol. In his Birth Certificate, it [was] the name "Rolusape" which appeared based upon
the data supplied by his father.
He had used the name Paciano during the time when he [was] still a secret agent under
his uncle, Gen. Russo Sabalones, when the latter was still the [c]hief of the C-2 in 1966
until 1967 and as such, he was issued a firearm. He likewise used said name at the
time he was employed at the Governor's Office in Agusan and when he registered in the
Civil Service Commission to conceal his identity to protect himself from those who were
after him.
From Marikina he proceeded to Davao and then to Butuan City where he was made to
campaign for the candidacy of Gov. Eddie Rama. When the latter won in the election,
he was given a job at the Provincial Capitol and later became an agent of the PC in
Butuan using the name, "Paciano Laput."
During his stay in Butuan, he met Virgie Pajigal, a manicurist who became his live-in
partner.
On October 23, 1988 while he was at the Octagon Cockpit in Butuan with Sgt. Tambok,
he was arrested by Capt. Ochate and was brought to the PC Headquarter[s] in Libertad,
Butuan City and was detained. Among the papers confiscated from him was his
Identification Card No. 028-88, (Exh. "21") issued by the PC Command bearing the
name Paciano Laput.
On October 26, 1988 he was taken from the City Jail by Capt. Ochate and some
soldiers, one of whom was Maj. Tiempo whom he met for the first time.
On their way to Nasipit to board a vessel bound for Cebu City, Maj. Tiempo made him
lie flat on his belly and stepped on his back and handcuffed him. He cried in pain
because of his sprained shoulder. A certain soldier also took his watch and ring.
Arriving in Cebu at 7:00 o'clock in the morning, he and Virgie Pajigal, who followed him
in the boat, were made to board a taxicab. Maj. Tiempo alighted in certain place and
talked to a certain guy. Thereafter, they were brought to the Reclamation Area and were
forced to go down from the vehicle but Virgie Pajigal held him tightly. They were again
pulled out of the taxi but they resisted.
From the Capitol Building, they proceeded to CPDRC and on their way thereto, Maj.
Tiempo sat beside him inside the taxi and boxed him on the right cheek below the ear
and pulled his cuffed hands apart.
At the Provincial Jail, he was physically examined by its resident physician, Dr. Dionisio
Sadaya, and was also fingerprinted and photographed, (Exh. "21"). He was issued a
Medical Certificate, (Exh. "22").
He further stated that he [was] acquainted with his co-accused Timoteo Beronga, known
to him as "Timmy" being also a bet caller in the cockpit. (Tsn-Formentera, pp. 5-23,
Feb. 26, 1991; Tsn-Abangan, pp. 3-33, Feb. 27, 1991; Tsn-Abangan, pp. 4-18, Apr. 10,
1991).
As surrebuttal witness, accused Rolusape Sabalones denied that he bribed a certain

soldier because at the time he was arrested, his wallet as well as his wristwatch and
ring worth P2,000.00 each were confiscated and his hands tied behind his back.
He also denied the allegation of Maj. Tiempo that he offered the latter the amount of
P1,000,000.00 to drop the case against him, the truth being that while they were on
board a vessel bound for Cebu City, Maj. Tiempo compelled him to tell [who] the real
killers of his son [were] because he knew that he (Rolusape Sabalones) was not
responsible. The former also inquired from him as to the whereabouts of the carbine.
He also rebutted complainant's testimony that upon their arrival here in Cebu City and
while on board a taxicab, he directed the former [to] first go around the city to locate a
certain Romeo Cabañero, whom he did not know personally. 10
Ruling of the Court of Appeals
Giving full credence to the evidence of the prosecution, the Court of Appeals affirmed
the trial court's Decision convicting appellants of two counts of murder and three counts
of frustrated murder. Like the trial court, it appreciated the qualifying circumstance of
treachery and rejected appellants' defense of alibi.
The Court of Appeals, however, ruled that the penalties imposed by the trial court were
erroneous. Hence, for each count of murder, it sentenced appellants to reclusion
perpetua. For each count of frustrated murder, it imposed the following penalty: ten
years (10) of prision mayor (medium), as minimum, to seventeen years (17) years and
four (4) months of reclusion temporal (medium), as maximum. Sustaining the trial court,
the Court of Appeals awarded indemnity of P20,000 to each of the victims of frustrated
murder. However, it was silent on the indemnity of P50,000 awarded by the trial court to
the heirs of each of the two deceased.
Having imposed reclusion perpetua on the appellants, the Court of Appeals, as earlier

noted, refrained from entering judgment and certified the case to the Supreme Court for
review, in conformity with Section 13, Rule 124 of the Rules of Court.
Hence, this appeal before this Court. 11
The Issues
In his Brief, 12 Appellant Sabalones raised the following errors allegedly committed by

the trial court:
I
The court a quo erred in finding that accused Sabalones and his friends left the house
where his brother Sabalones Junior was lying in state and "went to their grisly
destination amidst the dark and positioned themselves in defense of his turf against the
invasion of a revengeful gang of the supporters of Nabing Velez.
II
The court a quo erred in finding that accused Sabalones and his two co-accused were
identified as among the four gunmen who fired at the victims.
III
The court a quo erred in overlooking or disregarding physical evidence that would have
contradicted the testimony of prosecution witnesses Edwin Santos and Rogelio
Presores that the gunmen were shooting at them from a standing position.
IV
The court a quo erred in holding that the instant case is "one of aberratio ictus", which is
not a defense, and that the "defense of alibi" interposed by the accused may not be
considered.
The court a quo erred in not finding that the evidence of the prosecution has not
overcome the constitutional presumption of innocence in favor of the accused.
VI
The court a quo erred in not acquitting the accused on ground of reasonable doubt.
In a Manifestation dated December 20, 1995, Appellant Beronga, through counsel,

adopted as his own the Brief of Sabalones. 13
The foregoing assignment of errors shall be reformulated by the Court into these three
issues or topics: (1) credibility of the witnesses and sufficiency of the prosecution
evidence, (2) defense of denial and alibi, and (3) characterization of the crimes
committed and the penalty therefor.
The Court's Ruling
The appeal is devoid of merit.

First Issue:
Credibility of Witnesses and
Sufficiency of Evidence
Well-entrenched is the tenet that this Court will not interfere with the trial court's
assessment of the credibility of the witnesses, absent any indication or showing that the
trial court has overlooked some material facts or gravely abused its
discretion, 14 especially where, as in this case, such assessment is affirmed by the Court
of Appeals. "As this Court has reiterated often enough, the matter of assigning values to
declarations at the witness stand is best and most competently performed or carried out
by a trial judge who, unlike appellate magistrates, can weigh such testimony in light of
the accused's behavior, demeanor, conduct and attitude at the trial." 15 Giving credence
to the testimonies of the prosecution witnesses, the trial court concluded:
Stripped of unnecessary verbiage, this Court, given the evidence, finds that there is
more realism in the conclusion based on a keener and realistic appraisal of events,
circumstances and evidentiary facts on record, that the gun slaying and violent deaths
of Glenn Tiempo and Alfredo Nardo, and the near fatal injuries of Nelson Tiempo, Rey
Bolo and Rogelio Presores, resulted from the felonious and wanton acts of the herein
accused for mistaking said victims for the persons [who were] objects of their wrath. 16
We stress that "factual findings of the lower courts, the trial court and the Court of
Appeals are, as a general rule, binding and conclusive upon the Supreme Court." 17 We
find nothing in the instant case to justify a reversal or modification of the findings of the
trial court and the Court of Appeals that appellants committed two counts of murder and
three counts of frustrated murder.
Edwin Santos, a survivor of the assault, positively pointed to and identified the
appellants as the authors of the crime. His categorical and straightforward testimony is
quoted hereunder: 18
COURT:
Q You stated there was a gun fired. What happened next?
WITNESS:
A There was a rapid fire in succession.
Q When you heard this rapid firing, what did you do?
A I tried to look from where the firing came from.
Q After that, what did you find?
A I saw persons firing towards us.

Q Where were these persons situated when they were firing towards you?
A Near the foot of the electric post and close to the cemented wall.
Q This electric post, was that lighted at that moment?
A Yes, sir, it was lighted.
Q How far were these persons firing, to the place where you were?
A From here to there (The witness indicating the distance by pointing to a place inside
the courtroom, indicating a distance of about 6 to 7 meters, making the witness stand as
the point of reference).
Q Were you able to know how many persons fired towards you?
A I only saw 3 to 4 persons.
Q How long did these persons fire the guns at you?
A Until we went home. The persons were still firing, until we went home.
Q You stated that you saw these persons who were firing at you. Do you know these
persons?
A I can identify [them] when I [see] them.
Q Try to look around this courtroom, if these persons you saw who were firing at you
are present in the courtroom[.]
A Yes, sir.
Q Can you point to these persons?
A Yes, sir.
Q Point at them.
COURT INTERPRETER:
The Court directed the witness to go down from the witness stand and [point] at them,
Beronga and Alegarbes.
FISCAL GABIANA:
I would like to make it of record that on the bench of prisoner, only the two accused
were seated.
COURT:
Make it of record that only two prisoners were present.
Q Now, Mr. Santos, aside from these two accused you identified as among those who
fired [at] you on that evening, were there other persons that you saw on that particular
occasion who fired at you?
A Yes, sir, there were[;] if I can see them, I can identify them.
Corroborating the foregoing, Rogelio Presores, another survivor, also pointed to

Timoteo Beronga, Teodulo Alegarbes and Roling Sabalones as the perpetrators of the
crime. His testimony proceeded in this manner: 19
Q When you arrived at the residence of Stephen Lim, can you remember of any unusual
incident that took place?
A Yes, sir.
Q What was that?
A When the jeep arrived, the car was following.
Q What happened next?
A When the jeep was near the gate, the car was following.
Q The car was following the jeep, at what distance?
A 3 to 4 meters.
Q While the car was following the jeep at that distance of 3 to 4 meters, what
happened?
A All of a sudden, we heard the burst of gunfire.
Q From what direction was the gunfire?
A Through the direction of the jeep.
Q After hearing the gunfire, what happened?
A We looked at the jeep.

Q What did you see?
A We saw Alfredo Nardo and Glenn Tiempo and Rey Bolo f[a]ll to the ground. There
were only 3.
Q Who was driving the jeep at that time?
A Alfredo Nardo.
Q What happened after that?
A So, I looked, whence the burst of gunfire came from.
Q What did you see from that gunfire?
A I saw 4 persons standing at the back of the fence.
Q What were those 4 persons doing when they were standing at the back of the fence?
A They were bringing long firearms.
Q Did you recognize these persons?
A I can clearly recognize one and the 3 persons[.] I can identify them, if I can see them
again.
Q If you are shown these persons, can you recognize them? Can you name these
persons?
A No, sir. Only their facial appearance.
Q What about the 3 persons?
A That's why the 3 persons, I do not know them. I can recognize only their facial
appearance.
Q What about one person?
A Yes, sir.
Q What is the name of the person?
A Roling Sabalones.
Q If Roling Sabalones is inside the courtroom, can you recognize Roling Sabalones?
A Yes, sir, he is around.
Q Can you point to Roling Sabalones?
A Yes, he is there (The witness pointing to the person who answered the name of
Roling Sabalones).
Q I would like [you] again to please look around and see, if those persons whom you
know through their faces, if they are here around?
A The two of them (The witness pointing to the 2 persons, who, when asked, answered
that his name [was] Teofilo Beronga and the other [was] Alegarbes).
Indeed, we have carefully waded through the voluminous records of this case and the
testimonies of all the fifty-nine witnesses, and we find that the prosecution has
presented the required quantum of proof to establish that appellants are indeed guilty as
charged. Appellants' arguments, as we shall now discuss, fail to rebut this conclusion.
Positive Identification
Appellants allege that the two witnesses could not have properly identified the
appellants because, after the first burst of shooting, they both crouched down, such that
they could not have seen the faces of their assailants. This contention does not
persuade. Both eyewitnesses testified that the firing was not continuous; thus, during a
lull in the firing, they raised their heads and managed a peek at the perpetrators. Edwin
Santos testified as follows:
Atty. Albino, counsel for accused Beronga:
Q You mean to say that when you bent you heard the successive shots, [and] you again
raised your head. Is that correct?
A There, were times that the shots were not in succession and continuous and that was
the time I raised my head again. 20
Like Santos, Rogelio Presores also stooped down when the firing started, but he raised
his head during a break in the gunfire:
Atty. Albino:
Q So, what did you do when you first heard that one shot?
A So, after the first shot, we looked towards the direction we were facing and when we
heard the second shot, that was the time we stooped down. 21
He further testified:
Atty. Acido: [Counsel for Appellant Sabalones]
Q And you said you stooped down inside the car when you heard the first firing to the
jeep. Is that what you want the Court to understand[?]
Presores:
A Yes, sir.
Q So, you never saw who fired the successive shots to the car as you said you stooped
down inside the car?
A The bursts of gunfire stopped for a while and that was the time I reared of [ sic] my
head.
Q And that was the first time you saw them?
A Yes, sir. 22
The records clearly show that two vehicles proceeded to the house of Stephen Lim on
that fateful day. The first was the jeep where Alfredo Nardo, Glenn Tiempo and Rey
Bolo were riding. About three to four meters behind was the second car carrying Nelson
Tiempo, Guillermo Viloria, Rogelio Oliveros and the two prosecution witnesses - Edwin
Santos and Rogelio Presores. 23 As stated earlier, said witnesses attested to the fact
that after the first volley of shots directed at the jeep, they both looked at the direction
where the shots were coming from, and they saw their friends in the jeep falling to the
ground, as well as the faces of the perpetrators. 24 It was only then that a rapid
succession of gunshots were directed at them, upon which they started crouching to
avoid being hit.
Hence, they were able to see and identify the appellants, having had a good look at
them after the initial burst of shots. We stress that the normal reaction of a person is to
direct his sights towards the source of a startling shout or occurrence. As held in People
v. Dolar, 25 "the most natural reaction for victims of criminal violence is to strive to see
the looks and faces of their assailants and to observe the manner in which the crime is
committed.
In bolstering their claim that it was impossible for the witnesses to have identified them,
appellants further aver that the crime scene was dark, there being no light in the
lampposts at the time. To prove that the service wire to the street lamps at the
Mansueto Compound was disconnected as early as December 1984 and reconnected
only on June 27, 1985, they presented the testimonies of Vicente Cabanero, 26 Remigio
Villaver, 27 Fredo Canete 28 and Edward Gutang. 29 The trial court, however, did not lend
weight to said testimonies, preferring to believe the statement of other prosecution
witnesses that the place was lighted during that time.
The Court of Appeals sustained said findings by citing the testimonies
of defense witnesses. Fredo Canete of the Visayan Electric Company (VECO), for
instance, admitted that it was so easy to connect and disconnect the lights. He testified
thus:
Atty. Kintanar:
Q Now, as a cutter, what instruments do you usually use in cutting the electrical
connection of a certain place?
Canete:
A Pliers and screw driver.
Q Does it need . . . very sophisticated instruments to disconnect the lights?
A No, these are the only instruments we use.
Q Ordinary pliers and ordinary screw driver?
A Yes, sir.
Q And does [one] need to be an expert in electronic [sic] in order to conduct the
disconnection?
A No, sir.
Q In other words, Mr. Canete, any ordinary electrician can cut it?
A That is if they are connected with the Visayan Electric Company.
Q What I mean is that, can the cutting be done by any ordinary electrician?
A Yes, sir. 30
Said witness even admitted that he could not recall if he did in fact cut the electrical
connection of the Mansueto Compound. 31 The Court of Appeals further noted that
"none of the above witnesses were at the crime scene at or about the exact time that
the ambush occurred. Thus, none was in a position to state with absolute certainty that
there was allegedly no light to illuminate the gunmen when they rained bullets on the
victims. 32
Even assuming arguendo that the lampposts were not functioning at the time, the
headlights of the jeep and the car were more than sufficient to illuminate the crime
scene. 33 The Court has previously held that the light from the stars or the moon, an
oven, or a wick lamp or gasera can give ample illumination to enable a person to
identify or recognize another. 34 In the same vein, the headlights of a car or a jeep are
sufficient to enable eyewitnesses to identify appellants at the distance of 4 to 10 meters.
Extrajudicial Statement
of Beronga
Appellants insist that Beronga's extrajudicial statement was obtained through violence
and intimidation. Citing the res inter alios acta rule, they also argue that the said
statement is inadmissible against Sabalones. Specifically, they challenge the trial court's
reliance on the following portions of Beronga's statement:
Q After Roling knew that Na[b]ing Velez was killed, have you observed [if] Roling and
his companions prepared themselves for any eventuality?
A It did not take long after we knew that Na[b]ing was killed, somebody called up by
telephone looking for Roling, and this was answered by Roling but we did not know
what they were conversing about and then Roling went back to the house of Junior after
answering the phone. And after more than two hours, we heard the sound of engines of
vehicles arriving, and then Meo, the man who was told by Roling to guard, shouted
saying: "They are already here[;]" after that, Roling came out carrying a carbine
accompanied by Tsupe, and not long after we heard gunshots and because of that we
ran towards the house where the wake was. But before the gun-shots, I heard Pedring
Sabalones father of Roling saying: "You clarify, [t]hat you watch out for mistake[n] in
identity," and after that shout, gunshots followed. [sic] Then after the gun-shots Roling
went back inside still carrying the carbine and shouted: "GATHER THE EMPTY
SHELLS AND MEO[,] YOU BRING A FLASHLIGHT," and then I was called by Meo to
help him gather the empty shells of the carbine and also our third companion to gather
the empty shells.
These arguments have no merit. In the first place, it is well to stress that appellants
were convicted based primarily on the positive identification of the two survivors, Edwin
Santos and Rogelio Presores, and not only on the extrajudicial statement, which merely
corroborates the eyewitness testimonies. Thus, said arguments have no relevance to
this case. As the Court held in People vs. Tidula: 35 "Any allegation of violation of rights
during custodial investigation is relevant and material only to cases in which an
extrajudicial admission or confession extracted from the accused becomes the basis of
their conviction."
In any case, we sustain the trial court's holding, as affirmed by the Court of Appeals,
that the extrajudicial statement of Beronga was executed in compliance with the
constitutional requirements. 36 "Extrajudicial confessions, especially those which are
adverse to the declarant's interests are presumed voluntary, and in the absence of
conclusive evidence showing that the declarant's consent in executing the same has
been vitiated, such confession shall be upheld." 37
The exhaustive testimony of Sgt. Miasco, who undertook the investigation, shows that
the appellant was apprised of his constitutional rights to remain silent and to have
competent and independent counsel of his own choice. 38 Said witness also stated that
Beronga was assisted by Atty. Marcelo Guinto during the custodial investigation. 39 In
fact, Atty. Guinto also took the witness stand and confirmed that Appellant Beronga was
informed of his rights, and that the investigation was proper, legal and not objectionable.
Indeed, other than appellants' bare allegations, there was no showing that Beronga's
statement was obtained by force or duress. 40
Equally unavailing is appellants' reliance on the res inter alios acta rule under Section
30, Rule 130 of the Rules of Court, which provides:
The act or declaration of a conspirator relating to the conspiracy and during its
existence, may be given in evidence against the co-conspirator after the conspiracy is
shown by evidence other than such act or declaration.
Appellants assert that the admission referred to in the above provision is considered to
be against a co-conspirator only when it is given during the existence of the conspiracy.
They argue that Beronga's statement was made after the termination of the conspiracy;
thus, it should not be admitted and used against Sabalones.
The well-settled rule is that the extrajudicial confession of an accused is binding only
upon himself and is nor admissible as evidence against his co-accused, it being mere
hearsay evidence as far as the other accused are concerned. 41 But this rule admits of
exception. It does not apply when the confession, as in this case, is used as
circumstantial evidence to show the probability of participation of the co-accused in the
killing of the victims 42 or when the confession of the co-accused is corroborated by
other evidence. 43
Beronga's extrajudicial statement is, in fact, corroborated by the testimony of

Prosecution Witness Jennifer Binghoy. Pertinent portions of said testimony are
reproduced hereunder:
Q While you were at the wake of Jun Sabalones and the group were sitting with Roling
Sabalones, what were they doing?
A They were gathered in one table and they were conversing with each other.
xxx xxx xxx
Q On that same date, time and place, at about 10:00 [i]n the evening, can you
remember if there was unusual incident that took place?
A I heard over the radio at the Sabalones Family that a certain Nabing Velez was shot.
Q That [a] certain Nabing Velez was shot? What else . . . transpired?
A I observed that their reactions were so queer, - as if they were running.
xxx xxx xxx
Q In that evening of June 1, 1985, when you went there at the house of Jun Sabalones,
have you seen an armalite?
A Yes, sir.
Q Where aid you see this armalite?
A At the table where they were conversing.
Q How many armalites or guns [did you see] that evening in that place?
A Two (2).
xxx xxx xxx
Q This armalite that you saw, - how far was this in relation to the groups of Sabalones?
A There (The witness indicating a distance of about 4 to 5 meters).
ATTY. KINTANAR:
Q When you looked . . . through the window and saw there were two vehicles and there
were bursts of gunfire, what happened after that?
A I did not proceed to look . . . through the window because I stooped down.
Q When you stooped down, what happened?
A After the burst of gunfire, I again opened the window.
Q And when again you opened the window, what happened?
A I saw two persons going towards the jeep.
Q What transpired next after [you saw] those 2 persons?
A When they arrived there, they nodded their head[s].
Q After that, what happened?
A So, they went back to the direction where they came from, going to the house of
Sabalones.
Q While they were going to the direction of the house of Sabalones, what transpired?
A I saw 5 to 6 persons coming from the highway and looking to the jeep, and before
they reached the jeep, somebody shouted that "it's ours".
Q Who shouted?
A The voice was very familiar to me.
Q Whose voice?
A The voice of Roling Sabalones.
Q What else have you noticed during the commotion [when] wives were advising their
husbands to go home?
A They were really in chaos. 44
A careful reading of her testimony buttresses the finding of the trial court that Rolusape
Sabalones and his friends were gathered at one table, conversing in whispers with each
other, that there were two rifles on top of the table, and that they became panicky after
hearing of the death of Nabing Velez on the radio. Hence, the observation of the trial
court that "they went to their grisly destination amidst the dark and positioned
themselves in defense of his turf against the invasion of a revengeful gang of supporters
of the recently slain Nabing Velez." 45
Alleged Inconsistencies
Appellants also allege that the prosecution account had inconsistencies relating to the
number of shots heard, the interval between gunshots and the victims' positions when
they were killed. These, however, are minor and inconsequential flaws which
strengthen, rather than impair, the credibility of said eyewitnesses. Such harmless
errors are indicative of truth, not falsehood, and do not cast serious doubt on the
veracity and reliability of complainant's testimony. 46
Appellants further claim that the relative positions of the gunmen, as testified to by the
eyewitnesses, were incompatible with the wounds sustained by the victims. They cite
the testimony of Dr. Ladislao Diola, who conducted the autopsy on Glenn Tiempo. He
declared that the victim must necessarily be on a higher level than the assailant, in the
light of the path of the bullet from the entrance wound to where the slug was extracted.
This finding, according to appellant, negates the prosecution's account that the
appellants were standing side by side behind a wall when they fired at the victims. If
standing, appellants must have been on a level higher than that of the occupants of the
vehicles; if beside each other, they could not have inflicted wounds which were
supposed to have come from opposite angles.
We are not persuaded. The defense presumes that the victims were sitting still when
they were fired upon, and that they froze in the same position during and after the
shooting. This has no testimonial foundation. On the contrary, it was shown that the
victims ducked and hid themselves, albeit in vain, when the firing began. After the first
volley, they crouched and tried to take cover from the hail of bullets. It would have been
unnatural for them to remain upright and still in their seat. Hence, it is not difficult to
imagine that the trajectories of the bullet wounds varied as the victims shifted their
positions. We agree with the following explanation of the Court of Appeals:
The locations of the entry wounds can readily be explained, . . . Glenn Tiempo, after
looking in the direction of the explosion, turned his body around; and since the
ambushers were between the jeep and the car, he received a bullet in his right chest
(wound no. 1) which traveled to the left. As to wound No. 2, it can be explained by the
spot where Major Tiempo found his fallen son.
Atty. Kintanar:
Q: Upon being informed by these occupants who were ambushed and [you] were able
to return the car, what did you do?
Major Tiempo:
A: I immediately got soldiers and we immediately proceeded to the area or to the place
where my fallen son was located and when we reached . . . the place, I saw my fallen
son [in] a kneeling position where both knees [were] touching the ground and the toes
also and the forehead was touching towards the ground. (TSN, Feb. 12, 1988, p. 6)
In such position the second bullet necessarily traveled upwards in relation to the body,
and thus the entry wound should be lower than the exit wound. There is no showing
that both wounds were inflicted at the same time. 47
In any event, the witnesses saw that the appellants were the gunmen who were
standing side by side firing at them. They could have been in a different position and in
another hiding place when they first fired, but this is not important. They were present at
the crime scene, and they were shooting their rifles at the victims.
Aberratio Ictus
Appellants likewise accuse the trial court of engaging in "conjecture" in ruling that there
was aberratio ictus in this case. This allegation does not advance the cause of the
appellants. It must be stressed that the trial court relied on the concept of aberratio
ictus to explain why the appellants staged the ambush, not to prove that appellants did
in fact commit the crimes. Even assuming that the trial court did err in explaining the
motive of the appellants, this does not detract from its findings, as affirmed by the Court
of Appeals and sustained by this Court in the discussion above, that the guilt of the
appellants was proven beyond reasonable doubt.
In any event, the trial court was not engaging in conjecture in so ruling. The conclusion
of the trial court and the Court of Appeals that the appellants killed the wrong persons
was based on the extrajudicial statement of Appellant Beronga and the testimony of
Jennifer Binghoy. These pieces of evidence sufficiently show that appellants believed
that they were suspected of having killed the recently slain Nabing Velez, and that they
expected his group to retaliate against them. Hence, upon the arrival of the victims'
vehicles which they mistook to be carrying the avenging men of Nabing Velez,
appellants opened fire. Nonetheless, the fact that they were mistaken does not diminish
their culpability. The Court has held that "mistake in the identity of the victim carries the
same gravity as when the accused zeroes in on his intended
victim."
Be that as it may, the observation of the solicitor general on this point is well-taken. The
case is better characterized as error personae or mistake in the identity of the victims,
rather than aberratio ictus which means mistake in the blow, characterized by aiming at
one but hitting the other due to imprecision in the blow.
Second Issue:
Denial and Alibi
Appellants decry the lower courts' disregard of their defense of alibi. We disagree. As
constantly enunciated by this Court, the established doctrine requires the accused to
prove not only that he was at some other place at the time of the commission of the
crime, but that it was physically impossible for him at the time to have been present at
the locus criminis or its immediate vicinity. 49 This the appellants miserably failed to do.
Appellant Beronga testified that, at the time of the incident, he was in his residence in
Lapulapu City, which was not shown to be so remote and inaccessible that it precluded
his presence in Mansueto Subdivision. The alibi of Sabalones is even more unworthy of
belief; he sought to establish that he was a mere 20-25 meters away from the scene of
the crime. He was allegedly in the house of his brother who was lying in state, which
was so near the ambush site that some of the defense witnesses even testified that they
were terrified by the gunfire. Clearly, appellants failed to establish the requisites of alibi.
Furthermore, the defense of alibi cannot overcome the positive identification of the
appellants. 50 As aptly held by this Court in People v. Nescio: 51
Alibi is not credible when the accused-appellant is only a short distance from the scene
of the crime. The defense of alibi is further offset by the positive identification made by
the prosecution witnesses. Alibi, to reiterate a well-settled doctrine, is accepted only
upon the clearest proof that the accused-appellant was not or could not have been at
the crime scene when it was committed.
Flight
Appellants further object to the finding that Sabalones, after the incident, "made himself
scarce from the place of commission. He left for Manila, thence Mindanao on the
supposition that he want[ed] to escape from the wrath of Maj. Tiempo and his men for
the death of Glenn Tiempo and the near fatal shooting of the other son or from the
supporters of Nabing Velez. . . . On his supposedly borrowed freedom, he jumped bail
and hid himself deeper into Mindanao, under a cloak of an assumed name. Why, did his
conscience bother him for comfort?" 52
Appellants rationalized that Sabalones was forced to jump bail in order to escape two
groups, who were allegedly out to get him, one of Nabing Velez and the other of Major
Tiempo. Their ratiocination is futile. It is well-established that "the flight of an accused is
competent evidence to indicate his guilt, and flight, when unexplained, is a circumstance
from which an inference of guilt may be drawn." 53 It must be stressed, nonetheless, that
appellants were not convicted based on legal inference alone but on the overwhelming
evidence presented against them.
Third Issue:
Crime and Punishment
We agree with the appellate court that accused-appellants are guilty of murder for the
deaths of Glenn Tiempo end Alfredo Nardo. The allegation of treachery as charged in
the Information was duly proven by the prosecution. "Treachery is committed when two
conditions concur, namely, that the means, methods, and forms of execution employed
gave the person attacked no opportunity to defend himself or to retaliate; and that such
means, methods and forms of execution were deliberately and consciously adopted by
the accused without danger to his person." 54 These requisites were evidently present
when the accused, swiftly and unexpectedly, fired at the victims who were inside their
vehicles and were in no position and without any means to defend themselves.
The appellate court also correctly convicted them of frustrated murder for the injuries
sustained by Nelson Tiempo, Rey Bolo and Rogelio Presores. As evidenced by the
medical certificates and the testimony of Dr. Miguel Mancao who attended to the
victims, Nelson Tiempo sustained a neck wound which completely shattered his trachea
and rendered him voiceless, as well as a wound on the right chest which penetrated his
axilla but not his chest cavity. 55 Rey Bolo sustained three injuries which affected his
clavicle, ribs and lungs. 56 Rogelio Presores, on the other hand, sustained an injury to
his lungs from a bullet wound which entered his right chest and exited through his
back. 57
The wounds sustained by these survivors would have caused their death had it not
been for the timely medical intervention. Hence, we sustain the ruling of the Court of
Appeals that appellants are guilty of three counts of frustrated murder.
We also uphold the Court of Appeals' modification of the penalty for murder, but not its
computation of the sentence for frustrated murder.
For each of the two counts of murder, the trial court imposed the penalty of fourteen
(14) years, eight (8) months and one (1) day of reclusion temporal (medium), as
minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion
temporal (maximum), as maximum. This is incorrect. Under Article 248 of the Ravised
Penal Code, the imposable penalty is reclusion temporal, in its maximum period, to
death. There being no aggravating or mitigating circumstance, aside from the qualifying
circumstance of treachery, the appellate court correctly imposed reclusion perpetua for
murder.
The Court of Appeals, however, erred in computing the penalty for each of the three
counts of frustrated murder. It sentenced appellants to imprisonment of ten years
of prision mayor (medium) as minimum to seventeen years and four months
of reclusion temporal (medium) as maximum. It modified the trial court's computation of
eight (8) years of prision mayor (minimum), as minimum, to fourteen (14) years and
eight (8) months of reclusion temporal (minimum) as maximum.
Under Article 50 of the Revised Penal Code, the penalty for a frustrated felony is the
"next lower in degree than that prescribed by law for the consummated felony . . . ." The
imposable penalty for frustrated murder, therefore, is prision mayor in its maximum
period to reclusion temporal in its medium period. 58 Because there are no aggravating
or mitigating circumstance as the Court of Appeals itself held, 59 the penalty prescribed
by law should be imposed in its medium period. With the application of the
Indeterminate Sentence Law, the penalty for frustrated murder should be 8 years
of prision mayor (minimum), as minimum, to 14 years and 8 months of reclusion
temporal (minimum) as maximum.
Although the Court of Appeals was silent on this point, the trial court correctly ordered
the payment of P50,000 as indemnity to the heirs of each of the two murdered victims.
In light of current jurisprudence, this amount is awarded without need of proof other than
the fact of the victim's death. 60 The trial court and the CA, however, erred in awarding
indemnity of P20,000 each to Nelson Tiempo, Rogelio Presores and Rey Bolo. There is
no basis, statutory or jurisprudential, for the award of a fixed amount to victims of
frustrated murder. Hence, they are entitled only to the amounts of actual expenses duly
proven during the trial.
Thus, Nelson Tiempo, who was treated for a gunshot wound on the neck which
shattered his trachea, should be awarded indemnity of P21,594.22 for his medical
expenses. This is evidenced by a statement of account from Cebu Doctor's Hospital. 61
Rogelio Presores, who was likewise treated for gunshot wound in the same hospital,
presented a statement of account amounting to P5,412.69 for his
hospitalization. 62 Hence, he is likewise entitled to indemnity in the said amount.
Rey Bolo, on the other hand, incurred an expense of P9,431.10 for the treatment of his
gunshot wounds, as evidenced by a statement of account from the same
hospital. 63 This amount should be awarded to him as indemnity.
WHEREFORE, the appeal is DENIED and the assailed Decision is AFFIRMED.
However, the penalties are hereby MODIFIED as follows:
1) In Crim. Case No. CBU-9257, for MURDER, the accused-appellants are each hereby
sentenced to reclusion perpetua and to indemnify, jointly and severally, the heirs of the
deceased, Glenn Tiempo, in the sum of P50,000;
2) In Crim. Case No. CBU-9258, for MURDER, the accused-appellants are each hereby
sentenced to reclusion perpetua and to indemnify, jointly and severally, the heirs of the
deceased, Alfredo Nardo, in the sum of P50,000;
3) In Crim. Case No. CBU-9259, for FRUSTRATED MURDER, the accused-appellants

are each hereby sentenced to suffer the penalty of 8 years of prision mayor (minimum),
as minimum, to 14 years and 8 months of reclusion temporal (minimum) as maximum;
and to jointly and severally pay the victim, Rey Bolo, in the sum of P9,431.10 as actual
damages;
4) In Crim Case No. CBU-9260, for FRUSTRATED MURDER, the accused-appellants

are hereby sentenced to suffer the penalty of 8 years of prision mayor (minimum), as
minimum, to 14 years and 8 months of reclusion temporal (minimum) as maximum; and
to jointly and severally indemnify the victim, Rogelio Presores, in the sum of P5,412.69
for actual damages;
5) In Crim. Case No. CBU-9261 for FRUSTRATED MURDER, the accused-appellants

are hereby sentenced to suffer the penalty of 8 years of prision mayor (minimum), as
minimum, to 14 years and 8 months of reclusion temporal (minimum) as maximum; and
to jointly and severally indemnify the victim, Nelson Tiempo, in the sum of P21,594.22
as actual damages.
Let copies of this Decision be furnished the Secretary of Interior and Local Government
and the Secretary of Justice so that Accused Eufemio Cabanero may be brought to
justice.
Costs against appellants.
SO ORDERED.
G.R. No. 130650 September 10, 2002
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARIO VERCELES, FELIX CORPUZ, MAMERTO SORIANO (At large), PABLO
RAMOS (At large), and JERRY SORIANO (State Witness), accused,
MARIO VERCELES and FELIX CORPUZ, accused-appellants.
YNARES-SANTIAGO, J.:
Accused Mario Verceles alias "Baldog", Felix Corpuz, Mamerto Soriano alias "Merto",
Pablo Ramos and Jerry Soriano were charged with the crime of Robbery with Rape
committed as follows:
That on or about the 19th day of October, 1996, in the morning, in barangay

Malibong, municipality of Urbiztondo, province of Pangasinan, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and helping one another, with intent of gain and by
means of force upon things, entered the house of one Mrs. Rosita Quilates by
forcibly destroying the grills of the window which they used as an ingress and
once inside, did, then and there, willfully, unlawfully and feloniously take and cart
away the following personal properties: one (1) colored T.V., one (1) VHS,
assorted jewelries, one (1) alarm clock and one (1) radio cassette, all valued at
SIXTY THOUSAND PESOS (P60,000.00) owned by the said Rosita Quilates,
and that on the same occasion, the said accused, conspiring, confederating and
helping one another, did then and there, willfully, unlawfully and feloniously have
sexual intercourse with Maribeth Bolito against her will to the damage and
prejudice of the aforenamed victims.
CONTRARY to Art. 299, par. A(2) in relation to Art. 335 of the Revised Penal
Code.1
Of the five accused, Mamerto Soriano and Pablo Ramos remain at large. Only Mario
Verceles, Felix Corpuz and Jerry Soriano were brought to the jurisdiction of the court.
During arraignment, the three accused, duly assisted by counsel, pleaded not guilty to
the crime charged. Thereafter, the prosecution filed a motion to discharge accused
Jerry Soriano as a State Witness. The court proceeded with the trial of the case pending
the resolution of the said motion to discharge.1âwphi1.nêt
The trial court subsequently discharged accused Jerry Soriano and received his
testimony as state witness. According to Soriano, on October 18, 1996, the five accused
boarded a tricycle owned by Mario Verceles to visit his cousin in barangay Goliso,
located at the boundary of Urbiztondo. At 8:00 in the evening, they proceeded to
barangay Malibong to visit Pepe, a compadre of Mamerto Soriano. Before reaching
Pepe’s place, they stopped at the house of Jerry’s grandmother, Rosita Quilates. Jerry
sensed that his companions had an evil plan, so he and Pablo Ramos tried to leave.
However, Mamerto Soriano poked a gun at Jerry and told them not to leave. Then, they
tied Jerry and Pablo under a mango tree. The three proceeded to the house of Rosita
Quilates. While waiting for the three, Jerry and Pablo fell asleep. When they woke up at
2:00 a.m., they saw the three accused carrying a TV set, VHS and other things. They
helped the three load the items in the tricycle. Then they went home to San Jacinto,
Pangasinan. Several days later, they sold the items and Jerry was given three hundred
pesos.2
The prosecution witness Maribeth Bolito testified that on October 19, 1996 at around
2:00 in the morning, she was awakened by a man fondling her breast and other private
parts. She tried to resist and fight back but her strength proved too weak against her
aggressor. Furthermore, the man had a gun pointed at her head. She later identified her
aggressor as Mamerto Soriano. While she was being ravished, she saw two men
standing at the door, whom she identified as accused Mario Verceles and Felix Corpuz.
Soriano undressed her then kissed her on the body and fondled her breasts for five
minutes. She pretended to be thirsty, so Soriano, holding her tightly, brought her to the
kitchen. There he removed his pants and laid her on the floor and tried to insert his
penis inside her vagina. Maribeth lost consciousness and when she came to, her private
part was very painful and the three accused were gone. 3
Dra. Revelina Millan, who examined Maribeth on October 20, 1996, made the following
findings:4
- GO IMP : September 2nd week/96
3 days
- SKIN : No hematoma
No Abrasion
- IE : with healed laceration at 9 o’clock
position
- For vaginal smear for presence of spermatozoa
- Result : Negative for sperm
SPO2 Eduardo Fernandez, who investigated the robbery, testified that the malefactors
entered through the window of one of the bedrooms of the house; that they took
personal properties valued at P60,000.00; that Maribeth Bolito was sexually abused;
and that a necklace was recovered from Felix Corpuz. 5
Mrs. Rosita Quilates testified that she learned from her granddaughter, Maribeth Bolito,
that her house was robbed and her personal belongings were missing; and that she was
able to recover the properties from a certain Andres Tirano, who bought them from
accused Mamerto Soriano.
In their defense, Felix Corpuz testified that on October 19, 1996, he was in Manila
working as a carpenter in a construction firm. He stayed in Manila from October 5, 1996,
and did not visit his hometown until the completion of the job contract on October 27,
1996. He first learned that he was a suspect in a crime on November 3, 1996. 6
Ernesto Lambino, Jr. corroborated the testimony of Felix Corpuz. He testified that he
was the one who recruited Felix to work in Tambo, Rizal, Parañaque as a mason
carpenter. They arrived in Manila on October 5, 1996 and Felix started his work on
October 6, 1996 until October 26, 1996. 7
Accused Mario Verceles, for his part, testified that in the evening of October 18, 1996,
he attended the wake of Crispulo de Guzman at Barangay San Vicente, San Jacinto,
Pangasinan. There he played cards up to 4:00 a.m. of October 19, 1996. He left the
place at 5:00 a.m. He only learned that the police were looking for him when his wife
fetched him in Mapandan, Pangasinan. He went to the barangay captain of his place
and arranged for his surrender to the authorities. Police Inspector Rodolfo Tadeo
corroborated his testimony that he voluntarily surrendered to the police on November 5,
1996.8
After trial, the lower court rendered a decision, the dispositive portion of which reads: 9
WHEREFORE, in view of the foregoing, the Court hereby finds accused Felix
Corpuz and Mario Verceles guilty beyond reasonable doubt of the crime of
Robbery with Rape defined and penalized under Article 294, 1, as amended, of
the Revised Penal Code, and there being neither mitigating nor aggravating
circumstance, the Court hereby sentences each to suffer the penalty of
Reclusion Perpetua. Both Felix Corpuz and Mario Verceles are likewise ordered
to pay jointly and solidarily the victim Maribeth Bolito the sum of Two Hundred
Thousand Pesos (P200,000.00) for moral damages, One Hundred Thousand
Pesos (P100,000.00) for exemplary damages and to pay Rosita Quilates the sum
of Twenty One Thousand Pesos (P21,000.00) on the value of the properties
which were not recovered and further orders that the recovered TV, VHS
appliances and necklace be returned to its lawful owner.
SO ORDERED.
Accused Felix Corpuz and Mario Verceles interposed the instant appeal. They alleged
that the trial court erred in discharging Jerry Soriano as a state witness, in appreciating
conspiracy among the accused, in not considering as mitigating circumstance the
voluntary surrender of Mario Verceles, and in awarding damages to the private
complainants.
The appeal lacks merit.
Accused-appellants contend that the discharge of Jerry Soriano did not comply with the
requirements of the Rules of Court. They contend that Soriano’s testimony does not
constitute direct evidence; at most, it was circumstantial in nature and of minuscule
importance.10 Moreover, Jerry Soriano was the most guilty for he admitted his guilt with
regard to the commission of the crime together with Mamerto Soriano. 11
The requirements for the discharge and utilization of an accused as a state witness are
enumerated in Rule 119, Section 1712 of the Revised Rules of Criminal Procedure, viz:
a) There is absolute necessity for the testimony of the accused whose discharge
is requested;
b) There is no other direct evidence available for the proper prosecution of the
offense committed, except the testimony of the accused;
c) The testimony of said accused can be substantially corroborated in its material

points;
d) Said accused does not appear to be the most guilty; and
e) Said accused has not at any time been convicted of any offense involving
moral turpitude.
The trial court did not err in discharging Jerry Soriano to be utilized as a state
witness. First, the testimony of Jerry Soriano was absolutely necessary as the
prosecution has no direct evidence to prove the identity of the malefactors Mamerto
Soriano, Felix Corpuz, Mario Verceles and Pablo Ramos. The record reveals that the
five accused were together on the night the robbery and rape took place. He may not
have witnessed the actual robbery and rape, but he has personal knowledge of the
robbery when he saw the three accused return to the place where he and Pablo Ramos
were allegedly tied, carrying with them the properties said to have been stolen. Second,
Jerry Soriano’s testimony was corroborated in its material points by other prosecution
witnesses and physical evidence. These are: (a) the testimony of Maribeth Bolito that
there were three malefactors, one of whom sexually abused her and two of whom just
stood at the door; (b) the testimony of Rosita Quilates that her properties were stolen;
and (c) the testimony of SPO2 Renato Solomon that they were able to recover the
stolen properties from a certain Andres Tirano who bought them from accused Mamerto
Soriano. Lastly, Jerry Soriano does not appear to be the most guilty for he was not a co-
conspirator in the robbery with rape. He merely accompanied the accused and received
three hundred pesos as his share in the proceeds of the sale of the stolen properties.
Besides, the question of whether Jerry Soriano appears to be the most guilty is a factual
issue. The discretionary judgment of the trial court on this matter is seldom interfered
with by appellate court except in case of grave abuse of discretion. 13 We find no good
reason to disturb the trial court’s findings of facts.
Granting ex gratia argumenti that not all the requisites of a valid discharge are present,
the improper discharge of an accused will not render inadmissible his testimony nor
detract from his competency as a witness. Any witting or unwitting error of the
prosecution in asking for the discharge, and of the court in granting the petition, no
question of jurisdiction being involved, cannot deprive the discharged accused of the
acquittal provided by the Rules, and of the constitutional guarantee against double
jeopardy.14
On the matter of whether rape was committed, we agree with the trial court’s ruling that
neither the healed lacerations on the vagina of the victim nor the absence of
spermatozoa negates rape. When an alleged victim of rape says she was violated, she
says in effect all that is necessary to show that rape had been inflicted on her, and so
long as her testimony meets the test of credibility, the accused may be convicted on the
basis thereof.15
In the case at bar, the victim’s declaration of her sexual ordeal, which was given in a
straightforward, convincing, credible and satisfactory manner, shows no other intention
than to obtain justice for the wrong committed by accused-appellant Mamerto Soriano
against her. The Court finds no reason to depart from the rule that the trial court’s
evaluation of the credibility of the testimonies of the witnesses is accorded great weight
because it has the unique opportunity of hearing the witnesses testify and observing
their deportment and manner of testifying.16
We agree with the trial court that conspiracy has been sufficiently proved by the
prosecution. Accused-appellants were one in design with accused Mamerto Soriano in
taking personal properties belonging to others without the latter’s consent by breaking
one of the windows to be used as their ingress. In the course of the robbery, one of
them, particularly Mamerto Soriano, succumbed to lustful desires and raped Maribeth
Bolito while accused-appellants just stood outside the door and did nothing to prevent
Mamerto Soriano. We have previously ruled that once conspiracy is established
between two accused in the commission of the crime of robbery, they would be both
equally culpable for the rape committed by one of them on the occasion of the robbery,
unless any of them proves that he endeavored to prevent the other from committing the
rape.17 The rule in this jurisdiction is that whenever a rape is committed as a
consequence, or on the occasion of a robbery, all those who took part therein are liable
as principals of the crime of robbery with rape, although not all of them took part in the
rape.18
In trying to mitigate his criminal liability, accused-appellant Mario Verceles argued that
the trial court erred in not considering the circumstance of voluntary surrender in his
favor. Upon learning that police authorities were searching for him in connection with
the alleged crime, he immediately proceeded to the barangay captain of his place and
voluntarily surrendered himself. However, the Solicitor General argues that the
surrender of accused-appellant Mario Verceles was not voluntary and spontaneous for it
took him 16 days to show up from the commission of the crime on October 19, 1996 to
November 4, 1996.19
For the mitigating circumstance of voluntary surrender to be appreciated, the accused

must satisfactorily comply with three requisites: (1) he has not been actually arrested;
(2) he surrendered himself to a person in authority or the latter's agent; and (3) the
surrender is voluntary. There must be a showing of spontaneity and an intent to
surrender unconditionally to the authorities, either because the accused acknowledges
his guilt or he wishes to spare them the trouble and expense concomitant to his
capture.20 Voluntary surrender is not a mitigating circumstance where it appears that the
purpose of the accused in going to the authorities is for an entirely different matter as to
inquire merely about a warrant of arrest in connection with a pending case against the
accused for rape.21
Evidence shows that Mario Verceles’ surrender to the authorities was not spontaneous
and unconditional. He submitted himself to the police only to clear the matter and to
know the reason why the police were looking for him 22 and when asked what his
involvement was to the alleged robbery and rape, he answered that he does not know
anything about the crime.23 In People v. Abella,24 we held that when the accused goes to
a police station merely to clear his name and not to give himself up, voluntary surrender
may not be appreciated. On the basis of the foregoing, accused-appellant Mario
Verceles is not entitled to the benefit of the mitigating circumstance of voluntary
surrender.1âwphi1.nêt
We thus hold that accused-appellant’s defense of alibi and denial cannot overcome
Maribeth Bolito’s positive testimony that she was raped and that her grandmother’s
house was robbed, especially since this was substantially corroborated by the other
prosecution witnesses. Time-honored is the rule that the positive and categorical
assertions of witnesses generally prevail over bare denials. 25
In line with established jurisprudence,26 we are constrained to modify the award of moral
damages from P200,000.00 to P50,000.00, as this award is not intended to enrich the
victim but to compensate for her suffering. Moreover, the trial court committed a
reversible error when it awarded exemplary damages in the amount of P100,000.00
despite the absence of one or more aggravating circumstances. 27 As regards the value
of the properties belonging to Rosita Quilates that were not recovered, the records are
bereft of any evidence to support such claim. Lastly, Maribeth Bolito should have been
awarded the sum of P50,000.00 for civil indemnity, as it is mandatory upon a conviction
of rape. Such indemnity is distinct from moral damages and based on different jural
foundations.28
WHEREFORE, the assailed decision finding accused-appellants Mario Verceles and
Felix Corpuz guilty beyond reasonable doubt of the crime of Robbery with Rape
punished under Article 294 (1) of the Revised Penal Code and sentencing them to
suffer the penalty of Reclusion Perpetua, is AFFIRMED with the MODIFICATION that
the award of moral damages is reduced from P200,000.00 to P50,000.00; the award of
exemplary damages is DELETED for lack of basis and the sum of P50,000.00 is
awarded for civil indemnity.
SO ORDERED.
Davide, Jr., C.J., Vitug, and Carpio, JJ., concur.
Philippine Supreme Court Jurisprudence > Year 1907 > July 1907 Decisions > G.R. No.

L-3756 October 28, 1907 - UNITED STATES v. ILDEFONSO RODRIGUEZ
009 Phil 136:
FIRST DIVISION
[G.R. No. L-3756. October 28, 1907. ]
THE UNITED STATES, Plaintiff-Appellee, v. ILDEFONSO RODRIGUEZ, Defendant-

Appellant.
J. Sumulong, for Appellant.
Attorney-General Araneta, for Appellee.
SYLLABUS
1. AGGRAVATING CIRCUMSTANCES; DWELLING; PENALTY. — It is a principle

established by the courts that it is not proper to consider as an aggravating
circumstance the fact that the crime was committed in the dwelling of the injured party,
when the house wherein the crime was perpetrated is at the same time the dwelling of
the accused. (No. 20, art. 10 Penal Code.)
2. ABSENCE OF MODIFYING CIRCUMSTANCES; PENALTY. — Where the Penal

Code imposes a punishment consisting of two indivisible penalties, such as that of
death or any of the life punishments, the lower one shall be applied, both when no
generic mitigating or aggravating circumstance is present and when there exists an
extenuating and no aggravating circumstance.
DECISION
TORRES, J. :
On the 27th of August, 1906, a complaint was filed by the provincial fiscal of Surigao
with the district court accusing Ildefonso Rodriguez of the crime of parricide, in that, on
the morning of Thursday, March 8 of said year, he did intentionally, and with
premeditation, kill his father, Florentino Rodriguez, at the latter’s own house, and
without any provocation on the part of the deceased.
Proceedings having been instituted by reason of the foregoing complaint, the court, in
view of the conclusions, entered judgment therein on the 26th of November, 1906, and
sentenced the accused to the penalty of life imprisonment and the accessories thereof,
to indemnify the heirs of the deceased in the sum of P1,000 and to pay the costs. From
the judgment the accused has appealed.
From the testimony of several witnesses in this case, it appears that on the morning of
March 7 of said year, during a conversation had by the accused with Tomas Gereda at
the house of Dominga Eslava, the former stated that if his father, Florentino Rodriguez,
ever scolded him, he was prepared to oppose and resist him because his father had
burned his clothes; the owner of the house was not present at the time. Although the
accused lived with his father and stepmother, Gregoria Lantoria, he did not spend the
night of the 7th in their company, but slept at the house of the said Dominga Eslava. On
the morning of the 8th, for the reason that the accused had not summoned the laborers
as his father had directed, he and his stepmother were scolded by the father, and the
accused, Ildefonso, was ordered to leave the house, which he at once did, but shortly
thereafter he returned to the house of his father armed with a bolo with which he
immediately assaulted the same and as the stepmother, Lantoria, tried to interfere, the
accused threatened to kill her if she did not leave the house; she therefore, through
fear, left the house at once while the accused and his father were engaged in a furious
struggle.
A few moments afterwards, while the stepmother, Gregoria Lantoria, was at the house
of Inocencio Nabalo, where she had gone after leaving the house of the deceased, the
accused made his appearance and upon being questioned as to what he had done to
his father, he replied that he had tied him up in the shape of a figure eight, and that a
dried fish would have a better chance to live than his father; these statements were
heard by Nabalo, the owner of the house, and he further added that he had heard the
accused say, in the presence of the witness Mauricio Iligan, that he had killed his father
a short time previously by strangling him with his hands, and that he refused to pardon
his father because the latter also declined to forgive him, and for the further reason that
his father had burned his clothes, a fact which he considered as if he himself had been
burned; this is confirmed by Iligan. Shortly before the crime was committed Basilia
Bitancol and Maria Cruces saw, from the house of Dominga Eslava, that the accused
had gone down, and, as they were unable to stop him, he went in the direction of his
father’s house and immediately after he had gone upstairs they heard the father ask for
forgiveness and call for assistance, and subsequently the accused appeared at the
house of Maria Cruces, asking for his washed clothes, and they then saw blood stains
on one of the shoulders of his coat. Maria Lastima and Eustaquio Silos also testify to
having heard the victim call for assistance from his own house from which the accused
descended shortly after.
In the evening of the day when the affray occurred the accused requested Marcelino
Ebor, Severino Legaspi, and Andres Bitancol, residents of the barrio, to take the body of
his father to the pueblo to be buried, and, when in the house where the crime was
committed, they saw that the deceased had a small wound in the right hand and
another in the left temple, that the neck was discolored, and that the body was lying
face downwards on the floor, on which they noticed stains of blood; the aforesaid
witnesses, Silos and Lastima, testify that prior to the occurrence they saw the deceased
burn the clothes of the accused.
The criminal act resulting from the statement contained in this case is fully proven by
the testimony of competent witnesses, and from conclusions derived from other facts
also proven, and because of the relationship existing between the accused and his
victim, the crime committed is that of parricide, defined by and punished under article
402 of the Penal Code which reads:jgc:chanrobles.com.ph
"He who shall kill his father, mother, . . . shall be punished as a parricide, with the
penalty of cadena perpetua to death."cralaw virtua1aw library
The accused, Ildefonso Rodriguez, pleaded not guilty. The facts in the case, however,
and the incriminating details offered therein, taken as a whole and viewed according to
the principles of sound criticism and common sense, produced in the mind a full
certainty of the guilt of the accused as the only proven author of the violent death of his
father, Florentino Rodriguez; his unjustified allegation that his father died in
consequence of illness contracted on the day previous to his death is inadmissible,
because, far from said allegation being confirmed, it has been denied by Hilaria
Lastima, and by Gregoria Lantoria, the wife of the deceased, who both state that he was
in good health and that he was not suffering from any malady up to the time when he
was violently killed.
The above-named wife of the deceased was present at the latter’s house when the
accused entered carrying a bolo in his hand and assaulted his father with the same, and
also at the time when the furious struggle ensued between father and son wherein she
could not interfere because the accused, under threat of death, ordered he to leave the
house. The fact that cries for help and the prayer for pardon from the deceased to his
assailant, the accused were heard by some neighbors shortly after; the fact that when
the accused appeared at the house of Inocencio Nabalo where his stepmother,
Gregoria Lantoria, had taken refuge, and that upon being questioned by her as to what
he had done to his father, he replied that he had tied him up and that a dried fish would
have a better chance to live than his unfortunate father; the fact that the accused
affirmed in the presence of said Nabalo and of Mauricio Iligan that he had killed his
father by strangling him with his hands, and also told Tomas Gereda, on the morning of
the 7th of March, the day before the occurrence, that he was prepared to resist his
father in case the latter scolded him, for the reason that the father had burned the
clothes of the accused; the fact that the accused appeared at the house of Maria
Cruces with blood stains on one of the shoulders of the coat he then wore, and asked
for washed clothes shortly after the occurrence, and the fact that the body of the
deceased was found lying face downwards on the floor of the house, with a small
wound at the right hand and another in the left temple, the front part of his throat being
discolored, the floor of the house being stained with blood, all according to the
testimony of the three individuals who were summoned by the accused for the burial of
the body, all of which facts were closely related, and considering the uncontradicted
testimony of the above-named witnesses, the culpability of Ildefonso Rodriguez as the
slayer of his unfortunate father, Florentino Rodriguez, is proven beyond a doubt.
In the commission of the crime there were no aggravating circumstances and paragraph
20 of article 10 of the code can not be considered because the accused lived in the
same house as his father, and it has not been shown that he had his own and
independent dwelling, and according to the well-established precedents of courts it is
not proper to consider such circumstance when the house wherein the crime was
committed is the dwelling of both the offender and of the injured party. The proven fact
that, on the day before the occurrence, the deceased burned the clothes of the
accused, and the dismissal of the latter from his house shortly before the assault
because he did not fulfill an order given him by the deceased might, perhaps be
considered as a mitigating circumstance, as he was prompted to act under loss of self-
control and without the respect and regard due to his father; for this reason, the penalty
in its minimum grade would apply in this case. However, whether or not the said
circumstance, which is the seventh of article 9 of the code, be considered, because no
aggravating circumstance was present, it is only proper to impose on the accused the
lower of the two indivisible penalties prescribed by said article 402, in accordance with
rules 2 and 3 of article 80 of the Penal Code.
Therefore, in view of the foregoing and accepting the conclusions of the court below as
stated in the judgment appealed from, the same should be affirmed, provided that the
accessories 2 and 3 of article 54 of the Penal Code shall be imposed and that the
indemnity shall be paid to the widow and other heirs of the deceased, with the costs
against the accused. So ordered.
Arellano, C.J., Johnson, Willard, and Tracey, JJ., concur.
G.R. No. L-51304-05 June 28, 1983
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARTIN MANDOLADO and JULIAN ORTILLANO, defendants-appellants.
The Solicitor General for plaintiff-appellee.
Basilio V. Lanoria for defendants-appellants.

GUERRERO, J.:
The judgment of conviction rendered by the Court of First Instance of Cotabato, Branch
I I, Cotabato City dated June 28, 1979 sentencing the accused Martin Mandolado to the
supreme penalty of death in each case and the accused Julian Ortillano to
imprisonment of six (6) years of prision correccional as minimum to seventeen (17)
years of prision mayor as maximum, being merely an accessory, is before Us for
mandatory review.
Under two (2) separate criminal informations dated January 5, 1978 filed by First
Assistant Provincial Fiscal Ismael G. Bagundang, the two accused- appellants, Martin
Mandolado and Julian Ortillano, draftees assigned with the Alpha Company, 3rd Infantry
Battalion, Second Infantry Division, Philippine Army with station at Pikit, North Cotabato,
together with Anacleto Simon and Conrado Erinada, trainees attached to the
Headquarters & Headquarters Company, 3rd Infantry Battalion, 2nd Infantry Division,
Philippine Army, stationed at the Army Detachment along Simuay Junction, Simuay,
Sultan Kudarat, Maguindanao, were accused of murder for the death of the victims
Herminigildo Tenorio and his driver Nolasco Mendoza with the use of their firearms in
the afternoon of October 3. 1977 at Sultan Kudarat, Maguindanao, qualified with the
aggravating circumstances of treachery, evident premeditation and abuse of superior
strength.
Specifically, in Criminal Case No. 561, the information charged the accused as follows:
That on or about October 3, 1977 in the afternoon, in the Municipality of

Sultan Kudarat, Province of Maguindanao, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused with intent
to kill, conspiring, confederating and helping one another with treachery,
evident premeditation and the use of superior strength all armed with high
powered weapons did then and there willfully, unlawfully, and feloniously,
and with the use of their guns shoot Mr. Nolasco Mendoza hitting the latter
on the different parts of his body causing his instantaneous death.
Contrary to law with the aggravating circumstances of treachery, evident

premeditation, and the use of superior strength.
Similarly, in Criminal Case No. 562, the information reads:
That on or about October 3, 1977, in the afternoon, in the Municipality of

Sultan Kudarat, Province of Maguindanao, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with intent
to kill, conspiring, confederating and helping one another with treachery,
evident premeditation and the use of superior strength all armed with high-
powered weapons did then and there willfully, unlawfully, and feloniously,
and with the use of their guns shoot Mr. Herminigildo Fajardo Tenorio
hitting the latter on the different parts of his body causing his
instantaneous death.
Contrary to law with the aggravating circumstances of treachery, evident

premeditation, and the use of superior strength.
The charges having been allegedly committed at the same place and occasion and
involving all the four (4) accused in each instance were jointly tried per order of the trial
court dated February 28, 1978 and after completion thereof, the two herein accused-
appellants were found guilty while the remaining two accused, Anacleto Simon and
Conrado Erinada were acquitted. We quote hereunder the dispositive portion of the
decision now under review, to wit:
WHEREFORE, Martin Mandolado is found guilty beyond reasonable

doubt of the crime of murder in Criminal Case No. 562 for the killing of
Herminigildo Fajardo Tenorio, and also in Criminal Case No. 561 for the
killing of Nolasco Mendoza, with the aggravating circumstances of (1)
'advantage was taken of his being a draftee in the Philippine Army,' and
(2) 'abuse of confidence or obvious ungratefulness' without the presence
of any mitigating circumstances and is meted the following penalty, to wit;
In Criminal Case No. 562, for the killing of Herminigildo Tenorio, he is

sentenced to suffer the penalty of the crime in its maximum degree which
is death.
He shall pay the heirs of the deceased the amount of P12,000.00 for the
death of this victim, and the amount of P20,000.00 as moral and
exemplary damages.
In Criminal Case No. 561 for the killing of the driver, Nolasco Mendoza, he
is similarly sentenced to death.
He is to pay the heirs of said deceased the amount of P50,000.00 for the
death of said victim, and the amount of P100,000.00 as moral and
exemplary damages.
In both Criminal Cases Nos. 561 and 562, on the grounds of reasonable
doubt, Anacleto Simon and Conrado Erinada are both found not guilty.
This case against them (Anacleto Simon and Conrado Erinada) is hereby
dismissed.
In Criminal Cases Nos. 561 and 562, Julian Ortillano was found guilty as
an accessory. He fired his M-16 armalite whenever Martin Mandolado
fired his machine gun and this could be for no other purpose than to
conceal or destroy the body of the crime in making it appear the victims
were fighting them or running away or that somebody else like the MNLF,
rebels, NPA or bandits committed the crime. Furthermore, in his own
admission, the purpose of their attempt to leave Mindanao for Bulacan
after this incident was to hide and wait for the time when Martin
Mandolado could succeed in settling this case which is evidence that he
assisted in the escape of the principal of the crime.
He is hereby sentenced in each of both cases to serve an imprisonment

term of six (6) years of Prision Correccional as the
minimum penalty, to seventeen (17) years of Prision Mayor as the maximum penalty.
Martin Mandolado and Julian Ortillano are to pay jointly and solidarily the
cost of this litigation.
SO ORDERED.
Given in the City of Cotabato, Philippines, the 28th day of June, 1979.
(SGD.
)
ALEJ
ANDR
O R.
LEOP
ANDO
Distric
t
Judge
The facts are as stated in the People's Brief as follows:
In the morning of October 3, 1977, Julian Ortillano, Martin Mandolado,

Conrado Erinada and Anacleto Simon, trainees/draftees of the Armed
Forces of the Philippines and assigned to the 3rd Infantry Battalion of the
Philippine Army, were passengers of a bus bound for Midsayap, North
Cotabato (p. 8, t.s.n., Feb. 21, 1979). They alighted at the bus terminal in
Midsayap. Being all in uniform, armed and belonging to the same military
outfit, they got acquainted and decided to drink ESQ rum, at the said bus
terminal (pp. 10-11, Supra).
While drinking, Conrado Erinada and Anacleto Simon decided to join appellants in going
to Pikit, North Cotabato, home base of appellants (p. 59, Id.). After drinking for about an
hour, appellant Mandolado got drunk and went inside the public market. Subsequently,
he returned, grabbed his .30 caliber machine gun and started firing. His companions
tried to dissuade him but he nonetheless continued firing his gun (pp. 11-12, Supra).
Sensing trouble, Conrado Erinada and Anacleto Simon ran away, hailed and boarded a
passing Ford Fiera with some passengers on board. Appellants followed and boarded
also the vehicle (pp, 13-15, Supra). The soldiers forced the driver of the Ford Fiera to
bring them to the Midsayap crossing (p. 58, t.s.n., July 24,1978).
On their way, appellant Mandolado got his knife and tried to attack the driver (pp. 61-
62, Supra). After appellants alighted at said crossing, the Ford Fiera sped away.
Appellant Mandolado fired his .30 caliber machine gun at the speeding vehicle (p. 51,
t.s.n., Jan. 17, 1979) hitting the right side of the back of the driver's sister who was then
on board said vehicle (p. 64, t.s.n., July 24, 1978).
While waiting for a ride at the Midsayap crossing a privately owned jeep, driven by
Herminigildo Tenorio, passed by. On board said jeep which was bound for Cotabato
City were Nolasco Mendoza and two (2) others, but the latter two alighted at said
crossing. Conrado Erinada and Anacleto Simon boarded the jeep. Thereafter,
appellants ran after the jeep, shout at Herminigildo Tenorio the driver thereof, to stop
the vehicle and subsequently, both appellants Mandolado and Ortillano boarded the
jeep (p. 34, Supra). On the way, both appellants kept firing their guns (pp. 54-55, t.s.n.,
Jan. 17, 1979) prompting Herminigildo Tenorio to remark, "Kung hindi kayo tatahimik,
ibabangga ko itong jeep" (Sworn Statement, Exh. Q., Mandolado) which literally means,
"if you will not stop firing your guns, I will ram this jeep into something. "
Upon learning that the jeep was bound for Cotabato City and not Pikit, North Cotabato,
appellant Mandolado got angry, "cocked" his gun and ordered the driver to stop (pp. 36-
38, Supra). While the jeep was coming to a full stop, Conrado Simon and Anacleto
Erinada immediately jumped off the jeep and ran towards their detachment camp
located some two hundred fifty meters away. Appellants also got off the jeep.
Thereupon, appellant Mandolado fired his .30 caliber machine gun at and hit the
occupants of the jeep (Sworn Statement, Exh. Q, Mandolado). Appellant Ortillano
likewise, fired his armalite, not at the occupants of said jeep but downwards hitting the
ground. These bursts of gunfire were heard by both Conrado Erinada and Anacleto
Simon who were then already about fifty meters away from the jeep while running
towards their detachment camp (pp. 38 and 42, t.s.n., Feb. 21, 1979). Although it was
then raining torrentially, Anacleto Simon recognized the bursts of gunfire as those of a
machine gun (p. 43, Supra).
Appellants ran away from the scene and boarded another vehicle, alighting at Pinaring
crossing. Appellant Mandolado proceeded to a house where he left his belongings and
changed his wet uniform (p. 104, Supra). After about an hour, they rode in a "Hino"
passenger bus bound for Midsayap. On board said bus was a certain Mr. Leopoldo
Jalandoni who was seated in front of the appellants.
Upon reaching a BPH building near Nuling, Sultan Kudarat, the passengers of said bus
were ordered to alight at the military check point but appellant Mandolado did not alight
(pp. 10-13, t.s.n., Oct. 5, 1975). As the bus was not proceeding to Pikit, North Cotabato
and upon advice of Mr. Jalandoni, appellants alighted at the Midsayap crossing and
waited for a bus bound for Pikit (pp. 19-20, Supra).
Appellants were able to ride on a sand and gravel truck which took them to Pikit, North
Cotabato, arriving thereat at about 3:00 o'clock in the afternoon. At their camp,
appellants returned their firearms, but did not report the incident. In the evening,
appellants attended a party at the Pikit Elementary School (pp. 32-35, t.s.n., April 16,
1979). The following day, appellants proceeded to Davao City but stopped at Kavocan
where they stayed overnight.
Arriving at Davao City, the following morning, appellants went to see a movie and
afterwards proceeded to the Office of Doña Ana, a shipping firm (p. 40, Supra), where
they saw a certain Sgt. Villanueva who was then leaving for Luzon. Sgt. Villanueva
informed the appellants that they were suspects in the Tenorio and Mendoza killings.
Immediately thereafter, appellant Mandolado purchased two passenger tickets for
Manila. The other ticket was for appellant Ortillano (pp. 120-123, Supra). However,
before appellants could board the ship bound for Manila, they were apprehended by a
team led by Lt. Licas (p. 45, Supra). Appellants were brought to Pikit, North Cotabato
where they were investigated by Lts. Licas and Maburang about the aforesaid killings.
The following day, appellants were brought to the headquarters of the 2nd MP Battalion
at P.C. Hill, Cotabato City where they were again investigated. In said investigation,
after appellants were duly apprised of their constitutional rights, they executed and
signed their respective sworn statements (Exhs. "O" and "R"). Appellant Mandolado
admitted the killing of Tenorio and Mendoza (Exh. "Q"); whereas appellant Ortillano
admitted his presence at said killings and of his having fired his armalite downwards
after appellant Mandolado fired upon the killed the afore-named victims (Exh. "R ").
Silverio Balderosa, on October 3, 1977, at about 12:30 p.m., was on board a "Pinoy"
jeep. On his way home to Midsayap, he passed a jeep parked along the highway
towards the direction of Cotabato City and about 250 meters away from the BPH
building. The parked jeep was surrounded by several persons. Alighting from the
"pinoy" jeep, he went near the parked jeep to see what happened. He saw the lifeless
bodies of two persons, one sprawled along the highway whom he recognized as
Nolasco Mendoza and the other whom he recognized as Mr. Tenorio slumped on the
wheel of the parked jeep (pp. 13-15, t.s.n., July 24, 1978).
The postmortem examination conducted by Dr. Taeb Zailon, Municipal Health Officer of
Sultan Kudarat, Maguindanao, upon the bodies of Tenorio and Mendoza on October 3,
1977, were reduced into writing and reads as follows:
POST-MORTEM EXAMINATION REPORT
Post-mortem examination was performed at the Rural Health Center, Sultan Kudarat,
Maguindanao on October 3, 1977 at around 3:30 p.m. in the presence of police officers
of Sultan Kudarat, Maguindanao and personnel of the Health Center and other persons
in the vicinity.
PERTINENT PERSONAL DATA:
Name: HERMINIGILDO TENORIO
Sex: Male
Age: 55 yrs. old
Height: 5'5'
Weight: 145 lbs.
C.S.: Married
Residence: Midsayap, N. Cotabato
Place of Death: Sultan Kudarat, Maguindanao
POST-MORTEM EXAMINATION FINDINGS
1. Avulsed cranial content at the level of forehead including eyeballs;
2. Wound-circular lacerate 3 inches in diameter T-T at lateral side of right deltoie region;
3. Wound-1 in. circular wound at the right forearm T-T 4 inches below the elbow;
4. Comminuted fracture at right leg just below the knee cap;
5. Comminuted fracture at right leg just above ankle;
6. Wound-1 in. circular non-penetrating at lateral side left arm;
7. Wound-1/2in.circularnon-penetrating at left region.
PROBABLE CAUSE OF DEATH
Hemorrhage severe secondary to multiple gunshot wounds.
Respectfully submitted:
(SGD.) TAEB ZAILON, M.D.

Municipal Health Officer
Sultan Kudarat, Maguindanao (Exh. "N")
POST-MORTEM EXAMINATION REPORT

Post-mortem examination report was performed at the Rural Health Center, Sultan
Kudarat, Maguindanao on October 3, 1977 at 3:30 p.m. in the presence of police
officers, personnel of the health center and other civilians.
PERTINENT PERSONAL DATA:
Name: NOLASCO MENDOZA
Sex: Male
Age: 45 years old
Height: 5'4"
Weight: 135 lbs.
C.S.: Married
Residence: Midsayap, North Cotabato
Place of Death: Sultan Kudarat, Maguindanao
POST-MORTEM EXAMINATION FINDINGS
1. Wound -Circular, one inch wide, one inch above right eyebrow;
2. Wound-Circular, 1/2 inch wide, lateral part of left side of neck:
3. Wound-Circular, 3/4 inch wide, upper aspect of right deltoid muscle;
4. Wound-Circular, 1 1/2 inch wide, lateral aspect of right deltoid muscle; and
5. Wound-Circular, 1 1/2 inch wide, lateral aspect of right breast 3 inches below arm pit.
PROBABLE CAUSE OF DEATH
Wounds, gunshot, multiple shock, secondary hemorrhage, external-internal, extensive
Respectfully submitted:
(SGD.) TAEB A. ZAILON, M.D.

Municipal Health Officer
Sultan Kudarat, Maguindanao (Exh. "P")
Acting upon the letter request of the commanding officer, Lt. Rodolfo Villanueva, a
ballistic test was conducted by Sgt. Leon Platoon of the P.C. Crime Laboratory at
Cotabato City, on the firearms issued to appellant Mandolado, Anacleto Simon and
Conrado Erinada. In said test, bullets were fired from said guns and the empty shells,
called test specimen (T05-1 to T-05-3), together with the empty shells recovered from
the scene of the crime called specimen evidence, and the 10 links of cal. 30 machine
gun, were forwarded to Camp Crame for Ballistic Examination (pp. 20-24, t.s.n.,
October 6, 1978). Sgt. Platoon marked the 8 shells of .30 caliber recovered from the
scene of the crime as HT-1 to HT-8 and the armalite shells as CM-9 to CM-13.
In the ballistic examination conducted by Reynaldo Pasatiempo of the Camp Crame

Criminal Laboratory, it was found that the caliber .30 shells recovered from the scene of
the crime (Exh. "HT-1" to "HT-8 ") reveal Identical impressions as the test specimens of
five empty shells ("T-05-1 to "T-05-3 ") fired from appellant Mandolado's machine gun.
Whereas the armalite shells recovered from the scene of the crime reveal non-identical
impressions with the shells fired from the armalites of Conrado Simon and Anacleto
Erinada. He then concluded that the .30 caliber shells recovered from the scene of the
crime were fired from the same machine gun issued to appellant Mandolado (pp. 60-62,
t.s.n., October 6, 1978).
Appellants submit only one assigned error and that is, that the trial court erred in
convicting appellants Martin Mandolado and Julian Ortillano beyond reasonable doubt
as principal and accessory, respectively, of the crimes charged on the strength of the
prosecution's evidence totally disregarding the evidence of the defense. Appellants
contend that their guilt was not proven beyond reasonable doubt inasmuch as the
circumstantial evidence of the prosecution merely proved the fact of the deaths of
Tenorio and Mendoza and not as to the actual perpetrators of the crime; that the
evidence of the prosecution being weak on its own, the only link of the appellant
Mandolado to the killings is his extra-judicial sworn confession, Exhibit "Q", which he
stoutly repudiates for being unlawfully taken under force and duress and in the failure of
the investigator to apprise him of his constitutional right to remain silent and to be
assisted by counsel.
It is contended by the defense that although the ballistic expert and the firearm
examiner testified that they conducted ballistic and firearm examinations, respectively
and that their finding was that the caliber .30 empty shells were fired from the machine
gun issued to Martin Mandolado, the prosecution failed to prove that the "evidence
specimen" (Exh. "HT-1" " to Exh. "HT-8") were the empty shells recovered from the
scene of the crime, the prosecution not having presented any witness who recovered
these empty shells. It was not shown that these empty shells were recovered from the
scene of the crime nor that the slugs of these empty shells caused the gunshot wounds
which resulted in the death of the victims, Hence, the only link of appellant Martin
Mandolado with the empty caliber .30 shells was the fact that these shells were fired
from his machine gun, yet the records disclose that Mandolado accidentally fired his
machine gun at the Mintranco Terminal in Midsayap, North Cotabato, which is not the
scene of the crime, when he threatened the person who tried to steal his bag.
Appellant Mandolado's claim that he was not previously apprised of his constitutional
rights before he executed his extra-judicial confession, Exh. "Q ", deserves scant
consideration. His claim is clearly belied by the opening statements appearing in his
sworn statement, which reads, thus:
Preliminaries: Dft Martin Mandolado please be informed that you are now
under investigation by this unit in connection with the Shooting incident
that happened at National Highway particularly near the vicinity of the
BPH Office at Sultan Kudarat, Maguindanao on or about 031300H
October 1977. Before I ask you any questions, you must understand your
legal rights to wit: You have the right to remain silent. Anything you say
maybe used for or against you as evidence. You have the right to the
services of a lawyer of your own choice. If you cannot afford a lawyer and
you want one, a lawyer will be appointed for you before I ask you any
questions.
Question: Are these all clearly understood by you?
Answer: Yes, sir.
2. Q— Do you wish now to proceed with this investigation

ever. in the absence of a lawyer of your own choice?
A— Yes sir.
3. Q— Are you willing to give your statement without being

forced, coerced, intimidated or promised of any reward
whatsoever?
A— Yes sir.
4. Q— Now that you are about to testify under oath, do you

swear to tell the truth?
A— Yes sir.
WAIVER
I have been advised of my legal right to remain silent; that anything I say
maybe used as evidence against me, and that I have the right to a lawyer
to be present with me while I am being questioned.
I understand these rights and I am willing to make a statement and answer

to questions. I do not want the assistance of a counsel and I understand
and know what I am doing. No promises or threats have been made to me
and no force or pressure of any kind have been used against me.
(SGD.) MARTIN A. MANDOLADO
Dft 07A-2853 PA
(Affiant)
And with respect to the accused-appellant Julian Ortillano, the same preliminary
questions were made to him before his investigation and he answered similarly as his
co-accused Mandolado which is shown in Exhibit "R" and said Ortillano likewise
executed the same waiver as that of his co- accused, which is marked Exhibit "R-A".
The contention of both appellants that they signed their sworn statements (Exhibits Q
and R) because they were maltreated and forced, cannot be believed, not only for
failure on their part to present any evidence of compulsion, duress or violence but also
because they even failed to Identify their investigators who allegedly inflicted
maltreatment to them, much less complained to the officials who administered the oaths
to their sworn statements of such maltreatment, if any. Moreover, the sworn statements
themselves contain significant and important details which the affiants alone could have
furnished, thereby clearly revealing the voluntariness of said statements and rendering
the same admissible as evidence. (People vs. Rosales, 108 SCRA 339; People vs.
Regular, 108 SCRA 23, 39; People vs. Tintero, 111 SCRA 714; People vs. Estero, 91
SCRA 93,99).
The conviction of appellant Mandolado for double murder appears to be based not only
on his extra-judicial confession (Exhibit Q) but also upon the following circumstances
which proved that he did shot and kill the victims, Tenorio and Mendoza, beyond
peradventure of doubt. And these are listed in the People's Brief, to wit: "(1) he
repeatedly fired his .30 caliber machine gun while intoxicated at the bus terminal in
Midsayap (pp. 11-12, t.s.n., February 21, 1979); (2) that he fired at the Ford Fierra
which took them in the Midsayap junction (p. 51, Supra) hitting one of its passengers (p.
64, t.s.n., July 24, 1978); (3) that Anacleto Simon while running away from the jeep
driven by the deceased, heard a burst of machine gun fire coming from the direction of
the jeep (p. 42, t.s.n., February 21, 1979); (4) the result of the Ballistic examination
showing that the shells recovered from the scene of the crime were fired from the gun
issued to appellant Mandolado (pp. 60-62, t.s.n., October 16, 1978); (5) the attempted
flight of both appellants from justice (pp. 120-123, t.s.n., April 16, 1979) and which act
clearly indicates guilt for the 'wicked teeth where no man pursueth but the righteous are
as bold as the lion, and lastly (6) appellant's own admission before the lower court that
he killed Tenorio and Mendoza although he claims the same to be accidental (pp. 7-8,
t.s.n., October 6, 1978). "
The killing of the two victims in the case at bar is correctly qualified as murder, there
being present the qualifying circumstance of treachery which is alleged in the
informations. There is treachery when the offender commits any of the crimes against
the person, employing means, methods or forms in the execution thereof which tend
directly and specially to insure its execution, without risk to himself arising from the
defense which the offended party might make. (Art. 14, paragraph 16, Revised Penal
Code). The prosecution evidence is quite clear and explicit that when appellants
alighted from the jeep, the accused Mandolado immediately fired his .30 caliber
machine gun at the occupants of the jeep, the victims Nolasco Mendoza and
Herminigildo Tenorio, and both of them died instantaneously on the spot, and from this
sudden means or manner of attack, it can reasonably be concluded that it tended
directly to insure its execution without risk to the appellant-assailant and also deprive
the victims of any chance or opportunity to defend themselves. We also rule that the
particular means or manner employed by the appellant-assailant was consciously or
deliberately sought and not a mere accidental circumstance resorted to on the spur of
the moment on the basis of the evidence that the appellant had previously and
repeatedly fired his .30 caliber machine gun at the bus terminal in Midsayap and had
also fired the machine gun at the Ford Fiera which took them to Midsayap junction and
that appellants waited for sometime riding on board the jeep driven by Tenorio before
they ordered the jeep to stop, alight therefrom and then shoot the occupants therein.
While the informations allege as aggravating circumstances that of evident

premeditation and the use of superior strength, aside from treachery, We cannot agree
with the finding of the trial court that the aggravating circumstances of (1) advantage
was taken of his being a Draftee in the Philippine Army, and (2) abuse of confidence or
obvious ungratefulness were present in the commission of the crime.
While it may be true that a soldier in the Armed Forces of the Philippines is deemed as
one who holds public position (U.S. vs. Gimenea, 24 Phil. 464, where a constabulary
soldier was held to be a public officer), there is no persuasive showing that herein
appellants being draftees of the Army, in full military uniform and carrying their high-
powered firearms, facilitated the commission of the crimes they were charged. It may be
conceded that as draftees, the accused could easily hitch hike with private vehicles, as
in the case of the deceased Tenorio's owner-type jeep, but there is no evidence that
when they stopped the jeep the accused already intended to shoot the occupants of the
vehicle. As it was held in People Pantoja, 25 SCRA 468, 471 which We reiterate that
"There is nothing to show that the appellant took advantage of his being a sergeant in
the Philippine Army in order to commit the crimes. The mere fact that he was in fatigue
uniform and had an army rifle at the time is not sufficient to establish that he misused
his public position in the commission of the crimes ... "
There is also merit in appellants' contention that there could be no abuse of confidence
as the evidence on record showed the lack of confidence by the victims to the
appellants, that this confidence was abused, and that the abuse of the confidence
facilitated the commission of the crimes. In order that abuse of confidence be deemed
as aggravating, it is necessary that "there exists a relation of trust and confidence
between the accused and one against whom the crime was committed and the accused
made use of such a relationship to commit the crime." (People vs. Comendador, 100
SCRA 155, 172). It is also essential that the confidence between the parties must be
immediate and personal such as would give that accused some advantage or make it
easier for him to commit the crime; that such confidence was a means of facilitating the
commission of the crime, the culprit taking advantage of the offended party's belief that
the former would not abuse said confidence (People vs. Hanasan, 29 SCRA 534). In the
instant case, there is absolutely no showing of any personal or immediate relationship
upon which confidence might rest between the victims and the assailants who had just
met each other then. Consequently, no confidence and abuse thereof could have
facilitated the crimes.
Similarly, there could have been no obvious ungratefulness in the commission of the
crime for the simple reason that the requisite trust of the victims upon the accused prior
to the criminal act and the breach thereof as contemplated under Article 14, par. 4 of the
Revised Penal Code are manifestly lacking or non-existent. In all likelihood, the accused
Army men in their uniforms and holding their high-powered firearms cowed the victims
into boarding their jeep for a ride at machine gun point which certainly is no source of
gratefulness or appreciation.
The finding of the trial court that: "There is no doubt about Martin Mandolado's state of
intoxication. He was so drunk that even his three (3) companions armed with M-16
armalite feared him. The same thing was true with the MPs," should credit said accused
with the mitigating circumstance of drunkenness but which the trial court decision failed
to appreciate in his favor. Accordingly, the penalty to be imposed upon the accused-
appellant Mandolado shall be reduced in the computation thereof.
With respect to the accused-appellant Julian Ortillano who was found guilty as an
accessory in Criminal Cases No. 561 and No. 562 for having fired his M-16 armalite
whenever Martin Mandolado fired his machine gun and, according to the court, this
could be for no other purpose than to conceal or destroy the body of the crime and
making it appear that the victims were fighting them or running away or that somebody
else like the MNLF, rebels, NPA or bandits committed the crime, and for assisting in the
escape of the principal Martin Mandolado) of the crime and sentenced in each of both
cases to serve imprisonment for a term of six (6) years of prision correccional as
minimum to seventeen (17) years of prision mayor as maximum, We find and hold that
the accused-appellant Julian Ortillano should be convicted, not as an accessory, but as
an accomplice.
An accomplice cooperates in the execution of the offense by previous or simultaneous

acts, provided he has no direct participation in its execution or does not force or induce
others to commit it, or his cooperation is not indispensable to its accomplishment (Art.
18, Revised Penal Code).
To hold him liable, upon the other hand, as an accomplice, it must be

shown that he had knowledge of the criminal intention of the principal,
which may be demonstrated by previous or simultaneous acts which
contributes to the commission of the offense as aid thereto whether
physical or moral (People vs. Silvestre, et al., 56 Phil, 353, 356). As aptly
stated in People vs. Tamayo (44 Phil. 38, 49): 'It is an essential condition
to the existence of complicity, not only that there should be a relation
between the acts done by the principal and those attributed to the person
charged as accomplice, but it is further necessary that the latter, with
knowledge of the criminal intent, should cooperate with the intention of
supplying material or moral aid in the execution of the crime in an
efficacious way. (People vs. Custodia, 47 SCRA 289,303 [19721).
In the case at bar, Ortillano, by his acts, showed knowledge of the criminal design of
Mandolado. He was present when Mandolado tried to attack the driver of the Ford
Fierra with a knife and fired at the vehicle hitting a female passenger (p. 4, Decision).
When Mandolado got angry and "cocked" his gun and ordered Tenorio to stop the jeep,
their two other companions, Simon and Erinada, immediately jumped off the jeep and
ran away, but Ortillano stayed. In a display of unity with Mandolado, Ortillano fired his
armalite while they were riding in the jeep of the victim (p. 5, Decision). And Ortillano's
act of firing his gun towards the ground manifested his concurrence with the criminal
intent. In other words, Ortillano's simultaneous acts supplied, if not material, moral aid in
the execution of the crime in an efficacious way. Ortillano's presence served to
encourage Mandolado, the principal, or to increase the odds against the victims (U.S.
vs. Guevara, 2 Phil. 528 [1903]; People vs. Silvestre and Atienza, 56 Phil. 353 [1931]).
In convicting the accused Ortillano as an accomplice, We, however, appreciate the

mitigating circumstance of drunkenness in his favor, the same as We did to his co-
accused Martin Mandolado, the principal defendant.
In resume, the crime committed by the accused-appellant Martin Mandolado is murder,

qualified by treachery. There being no aggravating circumstance but having found and
appreciated drunkenness which is not habitual as a mitigating circumstance, the penalty
prescribed under Article 248 of the Revised Penal Code which is reclusion temporal in
its maximum period to death shall be imposed in its minimum period. Applying the
Indeterminate Sentence Law, the accused shall be sentenced to imprisonment of ten
(10) years and one (;) day of prision mayor as minimum to seventeen (17) years, four
(4) months and one (1) day of reclusion temporal as maximum in each case.
As to the accused-appellant Julian Ortillano, convicted as an accomplice to the crime of

murder, and appreciating in his favor the mitigating circumstance of drunkenness which
is not habitual, the penalty to be imposed upon him shall be one degree lower than that
imposed for murder (Article 52, Revised Penal Code), which will be in the minimum
period. Applying the Indeterminate Sentence Law, the accused Ortillano shall be
sentenced to imprisonment of four (4) years, two (2) months of prision correccional as
minimum to ten (10) years and one (1) day of prision mayor as maximum in each case.
With respect to damages, for the death of Herminigildo Tenorio, the award of
P12,000.00 as compensatory damages and P 20,000.00 for moral damages is hereby
affirmed.
For the death of Nolasco Mendoza, We reduce the award of P50,000.00 as

compensatory damages to P12,000.00 We also reduce the award of P100,000.00 as
moral damages to P20,000.00.
The liability of the appellants for the above damages which shall be paid to the heirs of
the victims shall be in solidum (Article 110, par. 1, Revised Penal Code).
WHEREFORE, IN VIEW OF ALL THE FOREGOING, the judgment of the trial court is
hereby MODIFIED. The accused-appellant Martin Mandolado is hereby found guilty
beyond reasonable doubt of the crime of murder in Criminal Case No. 561 for the killing
of Nolasco Mendoza and in Criminal Case No. 562, for the killing of Herminigildo
Tenorio. There being no aggravating circumstance but having found and appreciated
drunkenness which is not habitual as a mitigating circumstance, said accused is hereby
sentenced to suffer imprisonment of ten (10) years and one (1) day of prision mayor as
minimum to seventeen (17) years, four (4) months and one (1) day of reclusion
temporal as maximum in each of the two cases.
The accused-appellant Julian Ortillano is hereby found guilty beyond reasonable doubt
as accomplice in the crime of murder in Criminal Case No. 561 for the killing of Nolasco
Mendoza and in Criminal Case No. 562 for the killing of Herminigildo Tenorio. Similarly,
there being no aggravating circumstance but having found and appreciated the
mitigating circumstance of drunkenness which is not habitual in his favor, said accused
is hereby sentenced to suffer imprisonment of four (4) years, two (2) months of prision
correccional as minimum to ten (10) years and one (1) day of prision mayor as
maximum in each case.
In Criminal Case No. 561 for the killing of Nolasco Mendoza, We sentence both
accused to pay the heirs of the victim P12,000.00 as compensatory damages and
P20,000.00 as moral damages. The liability of the accused shall be in solidum.
In Criminal Case No. 562 for the killing of Herminigildo Tenorio, We sentence both
accused to pay the heirs of the victim P12,000.00 as compensatory damages and
P20,000.00 for moral damages. The liability of the accused shall also be in solidum.
Costs against the appellants. Judgment modified.
SO ORDERED.
G.R. No. L-35071 August 27, 1931
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
BLAS ORTIZ and MODESTA ZAUSA, defendants-appellants.
Edilberto Gonzalez for appellants.
Attorney-General Jaranilla for appellee.
IMPERIAL, J.:
Blas Ortiz and Modesta Zausa are charged with the crime of homicide in an information,
the relevant portion of which reads:
That on or about September 8, 1930, in the municipality of Pilar, Province of

Capiz, P. I., the aforesaid defendants, conspiring and helping each other,
willfully, unlawfully, and feloniously killed Sotero Bancoyo, attacking him with a
bamboo lance (sumbiling) and wounding him on the left side of the abdomen,
from which wound his bowels protruded. Contrary to law.
The defendants pleaded not guilty in the Court of First Instance of Capiz, were tried,
and appealed from the judgment finding them guilty of said crime, for which they were
each sentenced to fourteen years, eight months and one day of reclusion temporal, to
indemnify the heirs of the deceased in the amount of P1,000, to suffer the accessories
of the law, and each to pay one-half of the costs.
Counsel for the appellants assigns in his brief the following alleged errors:
1. The trial court erred in giving credit to the testimony of the witnesses for the
prosecution, and not to the witnesses for the defense, and in concluding that the
deceased felt no resentment whatever.
2. The court also erred in finding that after Sotero Bancoyo's death, the male
defendant placed the shotgun beside the corpse in order to pretend that it
belonged to the deceased.
3. The court likewise erred in not finding that it was Blas Ortiz who wounded,
assaulted, and killed Sotero Bancoyo, and that he did so in self-defense; and
4. The trial court also erred in not acquitting the defendants because they acted
in self-defense.
With the exception of the last assignment of error, all the others raise questions of fact.
It has therefore been necessary in order to decide them, to make a careful examination
of all the parol and documentary evidence adduced at the hearing. From an analysis of
said evidence we find the following facts to be clearly proved:
Sotero Bancoyo, the deceased, and the appellants had known one another for many
years at the time the crime was committed, for his wife and that of the male appellant
were sisters. The latter-named appellant, for reasons which do not appear of record,
confiscated and retained several of the dead man's cedula certificates, which the latter
resented. About noon on September 8, 1930, the deceased, accompanied by three
laborers, companions of his, was returning from a plantation belonging to Pio Brionson
carrying some corn which he had gathered; on reaching the house preceding that of the
defendants, as he felt thirsty he attempted to ask the occupants for water, but as they
happened to be absent, he went to the defendant's house, situate in the barrio of
Malapoy, municipality of Pilar, Province of Capiz, and while in front of the house, called
out to the male appellant for a drink of water. The latter answered from within that they
had no water, and could not serve him, to which the deceased replied: "May we not
drink your water?" The appellant rejoined, "But we have no water. How can you compel
us to give you some water?" And immediately afterwards, he descended from the house
carrying his shotgun, which he pointed at the deceased. When the latter saw the
appellant's aggressive attitude, he flung himself upon him, caught hold of the weapon,
and they both struggled for it. At this juncture Modesta Zausa, the female appellant,
companion of Blas Ortiz, took a spear from within the house, rushed down and with it
attacked the deceased, stabbing him on the left side of the abdomen, so that the
intestines protruded. (Dying declaration.) The deceased fell to the ground unconscious,
was assisted, and that night died of peritonitis.
The defense contends that the trial court should have given more credence to the
witnesses for the defense, and held that the shotgun belonged to the deceased; that a
struggle took place between the deceased and the male appellant in the course of
which the latter succeeded in overpowering his opponent and in obtaining the firearm;
that in defending himself the male appellant wounded the deceased with the spear, and
that the shotgun found after the fight beside the dead man's right arm was not place
there by the appellant. As to the female appellant, the theory of the defense is that she
took no part, directly or indirectly, in the attack.
The defense's account of the occurrence finds no support in the evidence. It clearly
appears that the shotgun belonged to the appellant, who had it for a long time before
the crime; several of the witnesses for the prosecution saw him with the gun. The
appellant began the attack, because of the deceased's reproach in exclaiming there
was not even water to drink in the appellants' house. These main facts have been
established by the testimony of the following witnesses for the prosecution: Guillermo
Baldia, Ambrosio Tungala, and Brigido Bernales; as well as by the deceased himself in
his ante mortem declaration made before the justice of the peace who took charge of
the preliminary investigation, and went at once to the place of the crime. The fact that
the appellants testified to a different facts, and that their two witnesses apparently
corroborated them, does not mean that the evidence of the prosecution has lost its
value or that the real facts are not those established thereby.
It is argued that the ante mortem statement does not contain all the requisites for its
validity, because it appears that the deceased's statement that he was very seriously
wounded, and that he believed he would not survive, was made after and not before or
at the beginning of the declaration. We hold that the latter is not invalid for this reason.
At any rate, it appears that the deceased made the declaration referred to with the full
conviction that he was very seriously ill, and with the consciousness that he was about
to die. (Underhill on Criminal Evidence [2d ed.], sec. 103; U. S vs. Castellon, 12 Phil.,
160; U. S. vs. Mallari, 29 Phil., 14; U. S. vs. Jakan Tucko, 20 Phil., 23; U. S. vs. Virrey,
37 Phil., 618; and U. S. vs. Ramos, 23 Phil., 300.)
After carefully examining all the evidence presented, we have no hesitancy in finding
that the attack was begun, as already stated, by the appellant Blas Ortiz, who levelled
his shotgun at the deceased; that a struggle ensued between the two for the possession
of the weapon; and that at this juncture Modesta Zausa came down from the house with
a bamboo spear, approached the deceased and stabbed him on the left side of the
abdomen, producing a wound so serious that it resulted in peritonitis, which caused his
death that same night.
Finally, the defense contends that if the facts are really as stated, the appellant Ortiz
should be acquitted because he did not take part in the attack made by Modesto Zausa,
and because, according to the facts, there was no previous agreement between them to
commit the crime. In this we believe the defense is right. It has been indisputably shown
by the ante mortem statement (Exhibit D) that while the deceased and the male
appellant were struggling for the shotgun, Modesta Zausa caught up the spear, hurried
downstairs, approached the deceased, and suddenly stabbed him with it. From this it
appears that there was no plan or agreement between the appellants to carry out the
attack which ended in the death of the victim, and that from the time Modesta Zausa
though of wounding the deceased to the time she actually did so, barely a few seconds
elapsed, and this interval is palpably insufficient to give rise to the criminal agreement
alleged in the information.
In the United States vs. Magcomot 913 Phil., 386), we held:
In the absence of a previous plan or agreement to commit a crime, the criminal

responsibility arising from different acts directed against one and the same
person is individual and not collective, and each of the participants is liable only
for the acts committed by himself.
In the United States vs. Reyes and Javier (14 Phil., 27), one of the defendants, named
Reyes, suddenly and unexpectedly inflicted certain mortal wounds with his club upon
one Legaspi, while the latter was being held by the other defendant. It was held:
That Javier was neither principal nor accomplice in the commission of the crime
of homicide of which Reyes was convicted, it appearing that there was no
concerted action between him and his codefendant, that he had no reason to
believe that a homicidal attack was about to be made, and that, in holding
Legaspi, he was not voluntarily cooperating therein.
In United States vs. Juares (21 Phil., 440), the judgment of conviction for homicide was
reversed with reference to one of the appellants on the ground that although in the
course of a quarrel in a barrio he joined with some others who were threatening the
deceased, he did not follow them in pursuing said deceased, there being nothing in the
record to show that the accused had any reason for believing that his companions
would take the victim's life should they catch him up.
In United States vs. Monteroso and Monteroso (33 Phil., 325), it was held that . . . while
the record discloses that the defendant Eugenio Monteroso joined with his father and
his brothers in the quarrel which arose as a result of the misbehaviour of the deceased,
it does not conclusively appear that he was a party to the deadly assault of which his
father was guilty, or that he had any means of knowing that his father was about to
make such an assault . . ., said accused should be acquitted.
In People vs. Martinez (42 Phil., 85), it is said that:
As no evidence appears in the record showing that the three accused had
agreed to kill the deceased, but on the contrary, as it appears from the evidence
of the prosecution, that the accused Leon Martinez, in intervening in the fight
between his father and brother and the deceased, acted independently without
any previous agreement with his coaccused, it is not proper to consider said
accused, Juan Martinez and Francisco Martinez, to be responsible for the
consequences of the wound inflicted upon the deceased by his coaccused Leon
Martinez.
Applying the same doctrine laid down in the cases cited to the case of appellant Ortiz,
we hold that he cannot be convicted of homicide committed on the deceased Sotero
Bancoyo, either as principal or as accessory before the fact, for it has been shown that
there was neither plan nor agreement between him and his companion, the appellant
Modesta Zausa, to commit the crime, and that he took no part in the latter's attack with
the spear; and this notwithstanding the fact that the said appellant began by pointing his
shotgun at the deceased, but without any consequences.
From all the foregoing it may be inferred that the first three assignments of error are
unfounded, but that the fourth and last is well taken; wherefore, we have reached the
conclusion that Blas Ortiz did not incur any criminal liability for the act committed by his
coappellant.
The penalty imposed upon Modesta Zausa is the minimum of the medium degree of
that fixed by article 404 of the Penal Code, which is in accordance with law, there being
no modifying circumstance present.
Wherefore, the judgment appealed from is affirmed so far as it finds the appellant
Modesta Zausa guilty of homicide and sentences her to fourteen years, eight months,
and one day of reclusion temporal, to indemnify the heirs of the deceased in the amount
of P1,000, to suffer the accessories of article 59 of the Penal Code, and to pay one-half
of the costs of both instances, and reversed with reference to the appellant Blas Ortiz,
who is hereby acquitted, with the other half of the costs de oficio. So ordered.
Avanceña, C.J., Johnson, Street, Romualdez and Villa-Real, JJ., concur.
Malcolm and Villamor, JJ., we vote to affirm.
Philippine Supreme Court Jurisprudence > Year 1950 > March 1950 Decisions > G.R.

No. L-3463 March 6, 1950 - LEONCIO ROSARES v. DIRECTOR OF PRISONS
085 Phil 730:

FIRST DIVISION
[G.R. No. L-3463. March 6, 1950.]
LEONCIO ROSARES, Petitioner, v. DIRECTOR OF PRISONS, Respondent.
Leoncio Rosares in his own behalf.
Solicitor General Felix Bautista Angelo, Assistant Solicitor General Ruperto

Kapunan, Jr., and Solicitor Felicisimo R. Rosete for the Respondent.
SYLLABUS
1. CRIMINAL LAW; PENALTIES; SUBSIDIARY IMPRISONMENT, WHEN NOT TO BE

IMPOSED. — The addition of one the prison sentence from prision correctional to
prision mayor and places the case within the terms of Art. 39, par. 3 of the Revised
Penal Code which provides that when the principal penalty imposed is higher than
prision correccional no subsidiary imprisonment shall be imposed upon the culprit. If
without this subsidiary imprisonment a convict has already served his sentence, he
should be released.
DECISION
MONTEMAYOR, J.:
In his first petition for habeas corpus against the Director of Prisons, filed in this Court
on November 14, 1948, Leoncio Rosares alleged that his maximum term of
imprisonment was six (6) years. On that basis, computing his period of imprisonment
already served, including preventive imprisonment as well as the period allowed for
good conduct, it was found that he had yet to serve the subsidiary imprisonment
provided by law because of nonpayment of the indemnity of P2,000, which formed part
of his sentence in a decision of the Court of First Instance of Leyte finding him guilty of
homicide. For that reason his petition was denied in a resolution dated November 17,
1949.
The petitioner has now filed a second petition on February 9, 1950, asking for a
reconsideration of our resolution, alleging that his true maximum imprisonment was six
(6) years and one (1) day and not only six (6) years as erroneously alleged in his first
petition. This addition of one day to the period of imprisonment raises the prison
sentence from prision correccional to prision mayor and places the case within the
terms of Art 39, par. 3 of the Revised Penal Code which provides that when the
principal penalty imposed is higher than prision correccional no subsidiary imprisonment
shall be imposed upon the culprit. The record shows that without this subsidiary
imprisonment petitioner has already served his sentence, in fact, with a little excess.
The Solicitor General who represents the respondent Director of Prisons after
conducting the necessary investigation makes the same finding and recommends that
petitioner be now released.
In view of the foregoing considerations, the resolution of November 17, 1949, is hereby
set aside; the second petition is granted and petitioner Leoncio Rosares is ordered
released, unless there be any other lawful cause for his further detention. No costs.
Moran, C.J., Ozaeta, Pablo, Bengzon, Padilla, Tuason and Reyes, JJ., concur.

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G.R. No.

123485 August 31, 1998

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ROLUSAPE

After conducting a preliminary investigation, Second Assistant Provincial Prosecutor

1) Crim Case No. CBU-9257 for murder:

2) Criminal Case No. 9258 for murder:

CONTRARY TO Article 248 of the Revised Penal Code.

3) Crim Case No. CBU-9259 for frustrated murder:

IN VIOLATION of Article 248 of the Revised Penal Code.

4) Criminal Case No. 9260 for frustrated murder:

IN VIOLATION of Article 248 of the Revised Penal Code.

5) Criminal Case No. 9261 for frustrated murder:

Gunshot wound neck penetrating wound perforating trachea (cricoid) thereby

IN VIOLATION of Article 248 of the Revised Penal Code.

WHEREFORE, premises above-set forth, the Court finds accused ROLUSAPE

WHEREFORE, the Decision of the trial court convicting accused-appellants Rolusa[p]e

Version of the Prosecution

xxx xxx xxx

He was issued a Medical Certificate, (Exh. "N") by his attending physician.

Version of the Defense

He admitted that he used to be a counsel of accused, Roling Sabalones, in several

Racquel Sabalones, wife of accused, Rolusape Sabalones, maintained that on June 1,

Samson Sabalones, a retired [a]mbassador and uncle of Rolusape Sabalones, posted a

Accused, Rolusape Sabalones, alias "Roling", in his defense, with ancillary incidental

As surrebuttal witness, accused Rolusape Sabalones denied that he bribed a certain

Ruling of the Court of Appeals

Having imposed reclusion perpetua on the appellants, the Court of Appeals, as earlier

Hence, this appeal before this Court. 11

In his Brief, 12 Appellant Sabalones raised the following errors allegedly committed by

In a Manifestation dated December 20, 1995, Appellant Beronga, through counsel,

The Court's Ruling

The appeal is devoid of merit.

Q You stated there was a gun fired. What happened next?

A There was a rapid fire in succession.

A I tried to look from where the firing came from.

Q After that, what did you find?

A I saw persons firing towards us.

Q This electric post, was that lighted at that moment?

A Yes, sir, it was lighted.

A I only saw 3 to 4 persons.

Q How long did these persons fire the guns at you?

A I can identify [them] when I [see] them.

Q Can you point to these persons?

Make it of record that only two prisoners were present.

Corroborating the foregoing, Rogelio Presores, another survivor, also pointed to

Q What was that?

A When the jeep arrived, the car was following.

Q What happened next?

Q The car was following the jeep, at what distance?

A All of a sudden, we heard the burst of gunfire.

Q From what direction was the gunfire?

A Through the direction of the jeep.

Q After hearing the gunfire, what happened?

A We looked at the jeep.

Q Who was driving the jeep at that time?

Q What happened after that?

A So, I looked, whence the burst of gunfire came from.

Q What did you see from that gunfire?

A I saw 4 persons standing at the back of the fence.

A They were bringing long firearms.

Q Did you recognize these persons?

A No, sir. Only their facial appearance.