Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 158754 August 10, 2007

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.
SANDIGANBAYAN (Special Division) and JOSE "JINGGOY" ESTRADA, Respondents.

DECISION

GARCIA, J.:

The instant petition for certiorari under Rule 65 of the Rules of Court seeks to reverse and set aside
the Resolution1 of herein respondent Sandiganbayan (Special Division) issued on March 6, 2003 in
Criminal Case No. 26558, granting bail to private respondent Senator Jose "Jinggoy" Estrada
(hereafter "Jinggoy" for brevity), as effectively reiterated in its Resolution 2 of May 30, 2003, denying
the petitioner’s motion for reconsideration.

The factual antecedents which gave rise to this proceeding are set forth in the Court’s Decision 3 of
February 26, 2002, in G.R. No. 148965, to wit:

In November 2000, as an offshoot of the impeachment proceedings against Joseph Ejercito Estrada,
then President of the Republic of the Philippines, five criminal complaints against the former
President and members of his family, his associates, friends and conspirators were filed with the …
Office of the Ombudsman.

On April 4, 2001, the … Ombudsman issued a Joint Resolution finding probable cause warranting
the filing with the Sandiganbayan of several criminal Informations against the former President and
the other respondents therein. One of the Informations was for the crime of plunder under Republic
Act [RA] No. 7080 and among the respondents was herein petitioner Jose "Jinggoy" Estrada, then
mayor of San Juan, Metro Manila.

The Information was amended and filed on April 18, 2001. Docketed as Criminal Case No. 26558,
the case was assigned to [the] respondent Third Division of the Sandiganbayan. xxx. (Emphasis
added.)

The amended information referred to, like the original, charged respondent Jinggoy, together with
the former President and several others, with plunder, defined and penalized under RA No. 7080, as
amended by Section 12 of RA No. 7659, allegedly committed as follows:

That during the period from June, 1998 to January, 2001, in the Philippines, and within the
jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PUBLIC
OFFICER, …, by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE
MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS
ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE
OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR INFLUENCE, did
then and there wilfully (sic), unlawfully and criminally amass, accumulate and acquire BY
HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount OR TOTAL
VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE
HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P4,097,804,173.17], more
or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND
TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES,
through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR
MEANS, described as follows:

(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN

THE AGGREGATE AMOUNT OF… (P545,000,000.00), MORE OR LESS, FROM ILLEGAL
GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM
OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused … Jose
‘Jinggoy’ Estrada, …, [and] JOHN DOES AND JANE DOES, in consideration OF
TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;

(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR

INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit, public funds …
[P130,000,000.00], more or less, representing a portion of the … [P200,000,000] tobacco
excise tax share allocated for the Province of Ilocos Sur under R.A. No. 7171, BY HIMSELF
AND/OR in CONNIVANCE with co-accused Charlie ‘Atong’ Ang, Alma Alfaro, JOHN DOE
a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia
Rajas, AND OTHER JOHN DOES AND JANE DOES;

(c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the
Government Service Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF
STOCK MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF
STOCK MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE
OR LESS … [P744,612,450.00], RESPECTIVELY, OR A TOTAL OF MORE OR LESS
… [P1,847,578,057.50]; AND BY COLLECTING OR RECEIVING, DIRECTLY OR
INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE
DOES, COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES OF
SHARES OF STOCK IN THE AMOUNT … [P189,700,000.00], MORE OR LESS, FROM
THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE
EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME "JOSE VELARDE";

(d) by unjustly enriching himself FROM

COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF
PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES , in the
amount of MORE OR LESS … [P3,233,104,173.17] AND DEPOSITING THE SAME UNDER
HIS ACCOUNT NAME "JOSE VELARDE" AT THE EQUITABLE-PCI BANK. 4

What transpired next are narrated in the same February 26, 2002 Decision in G.R. No. 148965, thus:

On April 25, 2001, the respondent court issued a warrant of arrest for [Jinggoy] and his co-accused.
On its basis, [Jinggoy] and his co-accused were placed in custody of the law.

On April 30, 2001, [Jinggoy] filed a "Very Urgent Omnibus Motion" alleging that: (1) no probable
cause exists to put him on trial and hold him liable for plunder, it appearing that he was only
allegedly involved in illegal gambling and not in a "series or combination of overt or criminal acts" as
required in R.A. No. 7080; and (2) he is entitled to bail as a matter of right. [He] prayed that he be
excluded from the Amended Information …. In the alternative, [he] also prayed that he be allowed to
post bail …..
On June 28, 2001, [he] filed a "Motion to Resolve Mayor Jose ‘Jinggoy’ Estrada’s Motion To Fix Bail
On Grounds That An Outgoing Mayor Loses Clout An Incumbent Has And That On Its Face, the
Facts Charged In The Information Do Not Make Out A Non-Bailable Offense As To Him."

xxx xxx xxx

On July 9, 2001, respondent Sandiganbayan issued a Resolution denying [Jinggoy’s] "Motion to

Quash and Suspend" and "Very Urgent Omnibus Motion." [His] alternative prayer to post bail was
set for hearing after arraignment of all accused. xxx

xxx xxx xxx

The following day, July 10, 2001, [Jinggoy] moved for reconsideration of the Resolution. Respondent
court denied the motion and proceeded to arraign [him]. [He] refused to make his plea prompting
respondent court to enter a plea of "not guilty" for him.5 (Emphasis and words in brackets added)

From the denial action of the Sandiganbayan immediately adverted to, Jinggoy interposed a petition
for certiorari before this Court claiming that the respondent Sandiganbayan committed grave abuse
of discretion in, inter alia, (a) sustaining the charge against him for alleged offenses and with alleged
conspirators with whom he is not even connected, and (b) in not fixing bail for him. Pending
resolution of this petition, docketed as G.R. No. 148965, Jinggoy filed with the Sandiganbayan an
"Urgent Second Motion for Bail for Medical Reasons." The Ombudsman opposed the motion. For
three (3) days in September 2001, the Sandiganbayan conducted hearings on the motion for bail,
with one Dr. Roberto Anastacio of the Makati Medical Center appearing as sole witness for Jinggoy. 6

On December 18, 2001, Jinggoy filed with the Court an Urgent Motion praying for early resolution of
his Petition for Bail on Medical/Humanitarian Considerations." He reiterated his earlier plea for bail
filed with the Sandiganbayan. On the same day, the Court referred the motion to the Sandiganbayan
for resolution and directed said court to make a report, not later than 8:30 in the morning of
December 21, 2001.7

The report was submitted as directed. Attached to the Report was a copy of the Sandiganbayan’s
Resolution dated December 20, 2001 denying Jinggoy’s motion for bail for "lack of factual basis."
According to the graft court, basing its findings on the earlier testimony of Dr. Anastacio, Jinggoy
"failed to submit sufficient evidence to convince the court that the medical condition of the accused
requires that he be confined at home and for that purpose that he be allowed to post bail." 8

On February 26, 2002, the Court dismissed Jinggoy’s petition in G.R. No. 148965, on the following
rationale:

The constitutional mandate makes the grant or denial of bail in capital offenses hinge on the issue of
whether or not the evidence of guilt of the accused is strong. This requires that the trial court conduct
bail hearings xxx. The burden of proof lies with the prosecution to show strong evidence of guilt.

This Court is not in a position to grant bail to [Jinggoy] as the matter requires evidentiary hearing that
should be conducted by the Sandiganbayan. The hearings on which respondent court based
its Resolution of December 20, 2001 involved the reception of medical evidence only and which
evidence was given in September 2001, five months ago. The records do not show that evidence on
petitioner’s guilt was presented before the lower court.
Upon proper motion of [Jinggoy], respondent Sandiganbayan should conduct hearings to determine
if the evidence of [Jinggoy’s] guilt is strong as to warrant the granting of bail to [him]. 9 (Underscoring
and words in brackets added).

On April 17, 2002, Jinggoy filed before the Sandiganbayan an Omnibus Application for Bail 10 against
which the prosecution filed its comment and opposition. Bail hearings were then conducted, followed
by the submission by the parties of their respective memoranda.

In the herein assailed Resolution 11 of March 6, 2003, respondent Sandiganbayan (Special Division)
granted the omnibus application for bail, disposing as follows:

WHEREFORE, in light of all the facts and applicable law and jurisprudence, JOSE "JINGGOY"
ESTRADA’s "OMNIBUS APPLICATION FOR BAIL" dated April 16, 2002 is GRANTED. Bail for
accused-movant is fixed at Five Hundred Thousand Pesos (Php500,000.00) to be paid in cash and
his release is ordered upon the posting thereof and its approval, unless movant is being held for
some other legal cause.

This resolution is immediately executory.

SO ORDERED.

Petitioner filed a motion for reconsideration thereto which the respondent court denied via the herein
equally assailed May 30, 2003 Resolution,12 the dispositive part of which reads:

WHEREFORE, for lack of merit, the prosecution’s "MOTION FOR RECONSIDERATION [RE:
GRANT OF JOSE "JINGGOY" ESTRADA’S PETITION FOR BAIL] dated 13 March 2003 is DENIED.

SO ORDERED.

Hence, the present petition on the submission 13 that respondent Special Division of the
Sandiganbayan acted with grave abuse of discretion amounting to lack or excess of jurisdiction -

I.

IN GRANTING BAIL TO RESPONDENT JINGGOY ESTRADA,…[CONSIDERING] THE

WELL-ESTABLISHED THEORY OF OVERLAPPING CONSPIRACIES AND, THUS,
GRIEVOUSLY DISREGARDED THE APPLICATION OF ACCEPTED CRIMINAL LAW
PRECEPTS AND THEREBY SET A DANGEROUS PRECEDENT.

II.

xxx WHEN IT GRANTED BAIL TO RESPONDENT JINGGOY ESTRADA WHEN IT FAILED

TO RECOGNIZE THAT THE CONDUCT OF RESPONDENT JINGGOY ESTRADA
POINTED TO A CONCURRENCE OF SENTIMENT OR CRIMINAL DESIGN INDICATING
THE EXISTENCE OF A CONSPIRACY BETWEEN ACCUSED JOSEPH ESTRADA AND
JINGGOY ESTRADA.

III.

xxx WHEN IT GRANTED BAIL TO RESPONDENT JINGGOY ESTRADA CONSIDERING

THAT THE UNDISPUTED FACT CLEARLY EVIDENCES THAT RESPONDENT JINGGOY
 ESTRADA, EVEN WITHOUT A FINDING OF CONSPIRACY, IS EQUALLY GUILTY AND
LIABLE AS ACCUSED JOSEPH ESTRADA HIMSELF BY HIS INDISPENSABLE
COOPERATION AND/OR DIRECT PARTICIPATION IN THE COMMISSION OF THE
CRIME OF PLUNDER.

IV.

xxx WHEN IT LIMITED THE CONSIDERATION OF THE EVIDENCE, AS WELL AS THE

POTENTIAL [LIABILITY] OF RESPONDENT JINGGOY ESTRADA, TO SUBPARAGRAPH
"A" OF THE AMENDED INFORMATION.

The imputation of grave abuse of discretion to the public respondent is untenable.

To begin with, Section 13 of Article III (Bill of Rights) of the Constitution mandates:

Section 13. All persons, except those charged with offenses punishable by reclusion perpetua when
evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released
on recognizance as may be provided by law. xxx.

Even if the capital offense charged is bailable owing to the weakness of the evidence of guilt, the
right to bail may justifiably still be denied if the probability of escape is great. 14 Here, ever since the
promulgation of the assailed Resolutions a little more than four (4) years ago, Jinggoy does not, as
determined by Sandiganbayan, seem to be a flight risk. We quote with approval what the graft court
wrote in this regard:

It is not open to serious doubt that the movant [Jinggoy] has, in general, been consistently respectful
of the Court and its processes. He has not ominously shown, by word or by deed, that he is of such
a flight risk that would necessitate his continued incarceration. Bearing in mind his conduct, social
standing and his other personal circumstances, the possibility of his escape in this case seems
remote if not nil.15

The likelihood of escape on the part individual respondent is now almost nil, given his election on
May 10, 2004, as Senator of the Republic of the Philippines. The Court takes stock of the fact that
those who usually jump bail are shadowy characters mindless of their reputation in the eyes of the
people for as long as they can flee from the retribution of justice. On the other hand, those with a
reputation and a respectable name to protect and preserve are very unlikely to jump bail. The Court,
to be sure, cannot accept any suggestion that someone who has a popular mandate to serve as
Senator is harboring any plan to give up his Senate seat in exchange for becoming a fugitive from
justice.

Petitioner’s first argument denigrates as grave abuse of discretion the public respondent’s rejection
of the theory of overlapping conspiracies, which, in the abstract, depicts a picture of a conspirator in
the first level of conspiracy performing acts which implement, or in furtherance of, another
conspiracy in the next level of which the actor is not an active party. As the petitioner’s logic goes
following this theory, respondent Jinggoy is not only liable for conspiring with former President
Estrada in the acquisition of ill-gotten wealth from "jueteng" under par. (a) of the amended
information. He has also a culpable connection with the conspiracy, under par. (b), in the diversion of
the tobacco excise tax and in receiving commissions and kickbacks from the purchase by the SSS
and GSIS of Belle Corporation shares and other illegal sources under par. (c) and (d), albeit, he is
not so named in the last three paragraphs. And since the central figure in the overlapping
conspiracies, i.e., President Estrada, is charged with a capital offense, all those within the
conspiracy loop would be considered charged with the same kind of non-bailable offense.
Explaining its point, petitioner cites People v. Castelo 16 which, as here, also involves multiple levels
of conspiracies. Just like in the present case where the lead accused is a former President no less,
the prime suspect in Castelo was also a powerful high-ranking government official – a former Judge
who later rose to hold, in a concurrent capacity, the positions of Secretary of Justice and Secretary
of National Defense, to be precise. In Castelo, charges and countercharges were initially hurled by
and between Castelo and Senator Claro Recto, who was then planning to present Manuel Monroy
as star witness against Castelo in a scandal case. Castelo left the Philippines for Korea. While away,
someone shot Monroy dead. Evidence pointed to a conspiracy led by a certain "Ben Ulo" (who
appears to be the mastermind) and a group of confidential agents of the Department of National
Defense, one of whom was the triggerman. Coincidentally, Ben Ulo was a close bodyguard of
Castelo. In the end, the Solicitor General tagged Ben Ulo (not Castelo) as the central figure in the
conspiracy. This notwithstanding, the Court held Castelo guilty beyond reasonable doubt for murder,
because only he had a motive for desiring Monroy’s demise. The conspiracy between Castelo and
Ben Ulo was then determined to be overlapping with the conspiracy between Ben Ulo and the
confidential agents, one of whom was the triggerman.

Further explaining the theory of overlapping conspiracies, petitioner cites the ruling in People v. Ty
Sui Wong,17 featuring a love triangle involving a certain Victor and Mariano, each out to win the heart
of Ruby. Victor left Manila for Mindanao. While Victor was away, the dead body of Mariano was
found with multiple stab wounds in a dark alley in Pasay. Evidence pointed to a conspiracy among
"Sampaloc hoodlums" who had no direct link with Victor. However, one of the neighbors of the
"Sampaloc hoodlums" was a classmate of Victor. In the end, on the basis of interlocking
confessions, the Court found Victor and his classmate together with all the "Sampaloc hoodlums"
guilty of murder.

Positing the applicability of Castelo and Ty Sui Wong under the premises, petitioner presently
argues:

It should be noted that this is the same scenario of accused Joseph Estrada conspiring with former
Gov. Singson for the collection and receipt of bribes (jueteng protection money); and of former Gov.
Singson involving respondent Jinggoy Estrada in yet another level of conspiracy in pursuit of the
first, i.e., the regular collection of jueteng protection money for accused Joseph Estrada; and,
respondent Jinggoy Estrada, aware of the details of the conspiracy between accused Joseph
Estrada and Gov. Singson, agreeing to remit the greater part of his collection of bribes to accused
Joseph Estrada as its ultimate beneficiary. Thus, respondent Jinggoy Estrada reached an
agreement with former Gov. Singson, executed the plan and participated in furtherance of the
conspiracy for the receipt and collection of jueteng protection money, i.e., collecting P3 Million in
jueteng protection money every month; remitting P2 Million thereof to former Gov. Singson for
delivery to accused Joseph Estrada and retaining P1 Million thereof for himself.

Similarly, therefore, respondent Jinggoy Estrada should have been denied bail since he is as guilty
and liable as accused Joseph Estrada for the non-bailable offense of Plunder.18

As we see it, the rulings in Castelo and Ty Sui Wong are not on all-fours applicable to and of
governing sway to the issue of the propriety of revoking Jinggoy’s release on bail.

As it were, the petitioner erroneously equates the provisional grant of bail to respondent Jinggoy to
his virtual acquittal in Criminal Case No. 26558. Petitioner is wrong. Castelo and Ty Sui Wong
contextually dealt with the guilt of culprits therein for the crimes of murder after all the evidence had
been adduced. Unlike in this proceeding, the propriety of a grant of bail, given the evidence for or
against the bail application, was not an issue in Castelo and Ty Sui Wong. And in the present case,
respondent Sandiganbayan is still in the process of determining the facts and merits of the main
case. In the words of the public respondent:

As a cautionary parting word, it must be categorically stated herein that in making the above
pronouncements, this Court [Sandiganbayan] is not making any judgment as to the final outcome of
this case either with respect to movant [Jinggoy] or with respect to accused Estrada. This Court
[Sandiganbayan] is simply called to determine whether, at this stage, the evidence of movant's guilt
is strong as to warrant his temporary release on bail. xxx.19

Revoking the bail thus granted to respondent Jinggoy, as the petitioner urges, which necessarily
implies that the evidence of his guilt is strong, would be tantamount to pre-empting the
Sandiganbayan’s ongoing determination of the facts and merits of the main case.

Petitioner’s second and third arguments focus on the possible degrees of participation of Jinggoy in
the crime of Plunder. Noticeably, both arguments, if pursued to their respective logical conclusions,
tend to cancel each other out, one leading as it were to a direction quite the opposite of the other.
For while the second argument attempts to establish an "implied conspiracy" between Jinggoy and
his father - hence, the guilt of one is the guilt of the other - the third argument eschews the idea of
conspiracy, but respondent Jinggoy is nonetheless "equally guilty" as President Estrada because of
his indispensable cooperation and/or direct participation in the crime of Plunder.

By statutory definition, conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. 20 Venturing into the gray areas of the
concept of conspiracy, petitioner cites the following obiter defining "implied conspiracy," thus:

When by their acts, two or more persons proceed toward the accomplishment of the same felonious
object, with each doing his act, so that their acts though seemingly independent were in fact
connected, showing a closeness of formal association and concurrence of sentiment, conspiracy
may be inferred.21

Admittedly, direct proof is not essential to establish conspiracy. Since by its nature conspiracy is
planned in utmost secrecy, it can rarely be proved by direct evidence. Consequently, the presence of
the concurrence of minds which is involved in conspiracy may be inferred from proof of facts and
circumstances which, taken together, apparently indicate that they are merely parts of some
complete whole. If it is proved that two or more persons aimed by their acts towards the
accomplishment of the same unlawful object, each doing a part so that their combined acts, though
apparently independent, were in fact connected and cooperative, indicating a closeness of personal
association and a concurrence of sentiment, a conspiracy may be inferred though no actual meeting
among them to concert is proved. That would be termed an implied conspiracy. 22

From the above pronouncements, petitioner then proceeds to present voluminous documents and
transcripts of stenographic notes purporting to prove that Jinggoy had been deep inside the web of
"implied conspiracy" under the second argument of this petition. From the "implied conspiracy"
theory, it then shifts gears to embrace the "equally guilty" hypothesis under the fall-back third
argument.

Regardless, however, of whatever legal strategy petitioner may have in mind, the fundamental
principle that the Court is not a trier of facts remains. Petitioner’s second and third arguments are to
1avvphi1

be sure relevant to the proceedings for the grant or denial of bail that were pending before in the
Sandiganbayan. They are of little moment here where the only issue now is whether or not there
was grave abuse of discretion on the part of the Sandiganbayan in granting bail to the private
respondent.
With the view we take of this case, the respondent court did not commit grave abuse of discretion in
issuing its assailed resolutions, because the grant of bail therein is predicated only on its preliminary
appreciation of the evidence adduced in the bail hearing to determine whether or not deprivation of
the right to bail is warranted. Needless to stress, a grant of bail does not prevent the trier of facts, the
same Anti-Graft Court, from making a final assessment of the evidence after full trial on the merits.
As jurisprudence teaches:

xxx Such appreciation [of evidence] is at best preliminary and should not prevent the trial judge from
making a final assessment of the evidence before him after full trial. It is not an uncommon
occurrence that an accused person granted bail is convicted in due course. 23

Petitioner’s last argument is, at bottom, an attempt to have the Court reverse in this case its earlier
holding in another case - G.R. No. 148965 - where we stated:

The Amended Information, in its first two paragraphs, charges petitioner [Jinggoy] and his other co-
accused with the crime of plunder. The first paragraph names all the accused, while the second
paragraph describes in general how plunder was committed and lays down most of the elements of
the crime itself. Sub-paragraphs (a) to (d) describe in detail the predicate acts that constitute
the crime and name in particular the co-conspirators of former President Estrada in each
predicate act. The predicate acts alleged in the said four sub-paragraphs correspond to the items
enumerated in Section 1 (d) of R.A. No. 7080. Sub-paragraph (a) alleged the predicate act of
receiving, on several instances, money from illegal gambling, in consideration of toleration or
protection of illegal gambling, and expressly names petitioner [Jinggoy] as one of those who
conspired with former President Estrada in committing the offense. This predicate act corresponds
with the offense described in item [2] of the enumeration in Section 1 (d) of R.A. No. 7080. Sub-
paragraph (b) alleged the predicate act of diverting, receiving or misappropriating a portion of the
tobacco excise tax share allocated for the province of Ilocos Sur, which act is the offense described
in item [1] in the enumeration in Section 1 (d) of the law. This sub-paragraph does not mention
petitioner but instead names other conspirators of the former President. Sub-paragraph (c) alleged
two predicate acts – that of ordering the … (GSIS) and the … (SSS) to purchase shares of stock of
Belle Corporation, and collecting or receiving commissions from such purchase from the Belle
Corporation which became part of the deposit in the "Jose Velarde" account at the Equitable-PCI
Bank. These two predicate acts fall under items [2] and [3] in the enumeration of R.A. No. 7080, and
was allegedly committed by the former President in connivance with John Does and Jane Does.
Finally, sub-paragraph (d) alleged the predicate act that the former President unjustly enriched
himself from commissions, gifts, kickbacks, in connivance with John Does and Jane Does, and
deposited the same under his account name "Jose Velarde" at the Equitable-PCI Bank. This act
corresponds to the offense under item [6] in the enumeration of Section 1 (d) of R.A. No. 7080.

From the foregoing allegations of the Amended Information, it is clear that all the accused named in
sub-paragraphs (a) to (d), thru their individual acts, conspired with former President Estrada to
enable the latter to amass, accumulate or acquire ill-gotten wealth …. As the Amended Information
is worded, however, it is not certain whether the accused in sub-paragraphs (a) to (d) conspired with
each other to enable the former President to amass the subject ill-gotten wealth. In light of this lack
of clarity, petitioner cannot be penalized for the conspiracy entered into by the other accused with
the former President as related in the second paragraph of the Amended Information in relation to its
sub-paragraphs (b) to (d). We hold that petitioner can be held accountable only for the predicate acts
[illegal gambling] he allegedly committed as related in sub-paragraph (a) of the Amended
Information which were allegedly done in conspiracy with the former President whose design was to
amass ill-gotten wealth amounting to more than P4 billion.24 (Emphasis added.) 1avvphi1
Obviously hoping to maneuver around the above ruling so as to implicate individual respondent for
predicate acts described in sub-paragraphs (b), (c) and (d) of the Amended Information, petitioner
now argues:

It should be emphasized that in the course of the proceedings in the instant case, respondent
Jinggoy Estrada waived the benefit of the said ruling and opted, instead, to participate, as he did
participate and later proceeded to cross-examine witnesses whose testimonies were clearly offered
to prove the other constitutive acts of Plunder alleged in the Amended Information under sub-
paragraphs "b", "c" and "d".25

We disagree.

At bottom, the petitioner assumes that the ruling accorded "benefits" to respondent Jinggoy that
were inexistent at the start of that case. But no such benefits were extended, as the Court did not
read into the Amended Information, as couched, something not there in the first place. Respondent
Jinggoy’s participation, if that be the case, in the proceedings involving sub-paragraphs "b," "c" and
"d," did not change the legal situation set forth in the aforequoted portion of the Court’s ruling in G.R.
No. 148965. For when it passed, in G.R. No. 148965, upon the inculpatory acts envisaged and
ascribed in the Amended Information against Jinggoy, the Court merely defined what he was
indicted and can be penalized for. In legal jargon, the Court informed him of the nature and cause of
the accusation against him, a right guaranteed an accused under the Constitution. 26 In fine, all that
the Court contextually did in G.R. No. 148965 was no more than to implement his right to be
informed of the nature of the accusation in the light of the filing of the Amended Information as
worded. If at all, the Court’s holding in G.R. No. 148965 freed individual respondent from the ill
effects of a wrong interpretation that might be given to the Amended Information.

In all, the Court rules that public respondent Sandiganbayan (Special Division) did not commit grave
abuse of discretion when, after conducting numerous bail hearings and evaluating the weight of the
prosecution’s evidence, it determined that the evidence against individual respondent was not strong
and, on the basis of that determination, resolved to grant him bail.

As a final consideration, the Court notes a statement made by the respondent court which adds an
appropriate dimension to its resolve to grant bail subject of this recourse. Wrote that court in its
assailed resolution of March 6, 2003:

xxx Corollarily, it is not amiss to state that, at this time, there looms the possibility that, in case of
conviction, [respondent Jinggoy’s] criminal liability would probably not warrant the death penalty or
reclusion perpetua. (Underscoring in the original; Words in bracket added).

WHEREFORE, the instant petition is DISMISSED.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 149372 September 11, 2007

RICARDO BACABAC, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

CARPIO MORALES, J.:

In the evening of December 23, 1990, Hernani Quidato (the victim) was at a dance hall in Purok 4,
San Joaquin, Iloilo City in the company of Eduardo Selibio (Eduardo) and Melchor Selibio (Melchor).
And so were Jonathan Bacabac (Jonathan) and Edzel Talanquines (Edzel).1

Jonathan and Edzel left the dance hall. Not long after, the victim and his companions also left and on
their way home, they encountered Jonathan and Edzel. It appears that the two groups then and
there figured in a misunderstanding.

On his way home, Jesus Delfin Rosadio (Jesus), who was also at the dance hall, noticed a
commotion. He soon saw that Melchor was "hugging" Edzel, and later "tying" Jonathan "with his
hands." Still later, he saw the victim hit Edzel with a "stick."2 He thus told the victim and his
companions that Edzel is the son of Councilor Jose Talanquines, Jr. (Jose), whereupon
Eduardo3 told him (Jesus) to go away for they might shoot him. Jesus thus left and proceeded to
Edzel's residence to report to his father what he had witnessed. In the meantime, Edzel and
Jonathan managed to flee.

The victim and his companions thereafter headed for home in the course of which they met Pat.
Ricardo Bacabac (herein petitioner), together with Edzel and Jonathan who are his nephews, and
Edzel's father, Jose, his mother, and two sisters at the corner of M.H. Del Pilar and Sto. Domingo
Streets. Petitioner and Jose were carrying M-16 armalites, while Jonathan and Edzel were carrying a
piece of wood and a revolver, respectively.

Jesus thereupon pointed to the victim and his companions as the ones who had manhandled
Jonathan and Edzel. The victim apologized, explaining that he and his companions mistook
Jonathan and Edzel for other persons. Jesus blurted out, however, "You are just bragging that you
are brave. You are only bullying small children."4 Petitioner, at that instant, fired his armalite into the
air, while Jose fired his armalite ("as if spraying his rifle from right to left") at the victim and Eduardo,
even hitting Jonathan in the thigh as he (Jonathan) "was on the move to strike [the victim] with a
piece of wood." Eduardo fell. And so did the victim who was in a kneeling position, and as he was
raising his hands in surrender, Jose shot him again.

Meanwhile, Melchor escaped.5

The victim, Eduardo, and Jonathan were brought to the hospital. The victim was pronounced dead
on arrival. Eduardo died two hours later.

Post-mortem examination showed that the victim sustained two bullet wounds in the thoraco-
abdominal regions and one bullet wound in the extremities, and that he died due to "maceration of
the internal organs due to bullet wounds."6 Eduardo sustained two bullet wounds in the thoraco-
abdominal region, and died of "hemorrhage due to gunshot wounds."7
Two Informations for Murder were filed with the Regional Trial Court (RTC) of Iloilo City against
Jose, Edzel, Jonathan, Jesus, and the herein petitioner. The accusatory portion of the first
Information, docketed as Criminal Case No. 35783, reads:

That on or about the 23rd day of December, 1990, in the Municipality of San Joaquin,
Province of Ilo-ilo, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring, confederating and mutually helping one another to better realize
their purpose, armed with two (2) M16 [a]rmalite [r]ifles and one (1) nickel-plated revolver of
unknown make and caliber, with deliberate intent and decided purpose to kill, with treachery
and evident premeditation and without any justifiable cause or motive, did then and there
willfully, unlawfully and feloniously assault, attack and shoot one HERNANI QUIDATO with
the firearms they were then provided, inflicting upon the latter gunshot wounds on the
different parts of his body which caused the immediate and instantaneous death of said
Hernani Quidato.

CONTRARY TO LAW.8

The accusatory portion of the second Information, docketed as Criminal Case No. 35784, reads:

That on or about the 23rd day of December, 1990, in the Municipality of San Joaquin,
Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring, confederating and mutually helping one another to better realize
their purpose, armed with two (2) M16 [a]rmalite [r]ifles and one (1) nickel-plated revolver of
unknown make and caliber, with deliberate intent and decided purpose to kill, with treachery
and evident premeditation and without any justifiable cause or motive, did then and willfully,
unlawfully and feloniously assault, attack and shoot one EDUARDO SELIBIO with the
firearms they were then provided inflicting upon the latter gunshot wounds on the different
parts of his body which caused the immediate and instantaneous death of said Eduardo
Selibio.

CONTRARY TO LAW.9

The cases were jointly tried.

By Decision of April 30, 1993, Branch 39 of the Iloilo RTC, finding the presence of conspiracy among
petitioner and his co-accused,10 convicted them of murder qualified by treachery.11 The dispositive
portion of the decision of the trial court reads:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

In Criminal Case No. 35783, all the accused, namely; Jose Talanquines, Jr., Edzel
Talanquines, Jonathan Bacabac, Pat. Ricardo Bacabac, and Jesus Delfin Rosadio are
hereby found guilty beyond reasonable doubt of the crime of murder and there being no
aggravating circumstances with one mitigating circumstance [immediate vindication for Jose
and Jesus; voluntary surrender for Pat. Ricardo Bacabac12], and applying the indeterminate
sentence law, accused Jose Talanquines, Jr., Ricardo Bacabac and Jesus Delfin Rosadio
are hereby sentenced each to suffer imprisonment for a period of 10 years and 1 day, as
minimum, to 17 years, 4 months and 1 day as maximum; while accused Edzel Talanquines
and Jonathan Bacabac who are entitled to the privileged mitigating circumstance of minority
and the ordinary mitigating circumstance of immediate vindication of a grave offense are
hereby sentenced each to suffer imprisonment for a period of four (4) years, 2 months, and 1
day, as minimum, to 10 years and 1 day as maximum. All the accused are ordered to pay
 jointly and severally the heirs of the deceased Hernani Quidato, the amount of P50,000.00
for his wrongful death; P20,000.00 for moral damages; P10,000.00 for attorneys fees; and
the costs of the suit. (Underscoring supplied)

In Criminal Case No. 35784, judgment is hereby rendered as follows:

All the accused, namely; Jose Talanquines, Jr., Edzel Talanquines, Jonathan Bacabac, Pat.
Ricardo Bacabac and Jesus Delfin Rosadio are hereby found guilty of the crime of Murder
and there being no aggravating circumstance with one mitigating circumstance, accused
Jose Talanquines, Jr., Ricardo Bacabac and Jesus Delfin Rosadio are hereby sentenced
each to suffer imprisonment for a period of 10 years and 1 day as minimum, to 17 years, 4
months and 1 day, as maximum; while accused Edzel Talanquines and Jonathan Bacabac
who are entitled to the privileged mitigating circumstance of minority and the ordinary
mitigating circumstance of immediate vindication of a grave offense, are hereby sentenced to
suffer imprisonment for a period of 4 years, 2 months and 1 day, as minimum to 10 years
and 1 day as maximum. All the accused are ordered to pay jointly and severally the heirs of
the deceased Eduardo Selibio, the amount of P50,000.000 for his wrongful
death; P20,000.00 for moral damages; P10,000.00 for attorney's fees; and the costs of the
suit. (Underscoring supplied)

Accused Jesus Delfin Rosadio, who is detained, is hereby credited with the number of days
he spent under detention, if he is qualified.

SO ORDERED.13

While petitioner and his co-accused filed a Notice of Appeal14 which was given due course,15 only
petitioner filed a Brief, albeit beyond the extensions granted to him, drawing the Court of Appeals to
dismiss his appeal.16 The conviction of petitioner's co-accused had thus become final and executory.

Petitioner's Motion for Reconsideration17 of the dismissal of his appeal having been denied,18 he filed
a Petition for Review with this Court which, by Resolution of October 22, 1997, directed the Court of
Appeals to reinstate petitioner's appeal.19

By Decision20 of June 28, 1999, the Court of Appeals affirmed the trial court's decision. Entry of final
judgment was made by the Court of Appeals on July 22, 1999.21

The trial court thereafter issued a February 7, 2000 Order directing the issuance of warrants for the
arrest of the accused.22 Except petitioner, all were arrested.23

On February 24, 2000, petitioner filed before the appellate court a Petition for Relief from Judgment,
Order, and/or Denial of Appeal24 which was granted,25 hence, the Entry of Judgment issued by the
appellate court on July 22, 1999 was set aside. He thereafter filed a Motion for Reconsideration 26 of
the appellate court's June 28, 1999 Decision which was denied by Resolution of August 8,
2001;27 hence, the present Petition for Review on Certiorari.28

Petitioner assails the Court of Appeals' decision as follows:

First: Contrary to its conclusion on the basis of the facts of the case, Petitioner may not be
deemed to be in conspiracy with the other Accused.

Second: Contrary to its conclusion, there was no treachery.

 Third: Contrary to its conclusion, Petitioner, assuming in gratis argumenti the correctness of
the pronouncement of guilt, should have been credited with the mitigating circumstance of
immediate vindication of a grave offense, in the same manner that the other Accused
were so credited.

Fourth: Contrary to its conclusion, the guilt of the Petitioner has not been proved beyond
reasonable doubt; hence, by the equipoise rule, should have been acquitted.

Fifth: Contrary to its conclusion, Petitioner is not civilly liable.29 (Emphasis in the original)

The Court notes that the first, second, and fifth arguments of petitioner were, in the main, raised
before the appellate court.30

During the pendency of the present petition, petitioner, through counsel, filed before the trial court an
"Urgent Ex Parte Alternative Motions (Re: Pat. Ricardo Bacabac's Motion for Reconsideration and/or
to Vacate the Order dated February 7, 2000 [directing the arrest of the accused] and to Recall the
Warrant of Arrest Dated the Same Date in so far as the Accused Pat. Ricardo Bacabac Only is
Concerned)."31 The trial court denied32 the motion as it did deny33 petitioner's motion for
reconsideration,34 drawing petitioner to file before this Court on October 5, 2006 a "Motion to Vacate
Order for the Arrest of the Accused and the Warrant of Arrest Issued by the Regional Trial Court
(Branch 39) of Iloilo City."35

In his "Motion to Vacate Order for the Arrest of the Accused and the Warrant of Arrest Issued by the
Regional Trial Court . . . ," petitioner argues that

[T]he basis of the RTC's Order of February 7, 2000 was the Entry of Judgment by
the Court of Appeals dated 25 November 1999.36 BUT THE SAID ENTRY OF JUDGMENT
was ALREADY VACATED and SET-ASIDE BY THE COURT OF APPEALS ITSELF ON
ITS RESOLUTION DATED 13 DECEMBER 2000. Therefore, the RTC's Order of 7 February
2000 was ipso facto vacated.37 (Emphasis in the original)

and that

[T]he second sentence of Section 7, Rule 65 of the Rules of Court cited by the Order of 13
July 2006 does not apply to the case at bench because the main case on the
merits which originated in the RTC as Criminal Cases Nos. 35783-84, went to the Court of
Appeals as CA-G.R. No. 16348 and is now pending in the Supreme Court (Third Division) as
G.R. No. 149372 because of the Petition for Review On Certiorari filed by Movant herein x x
x. THE MAIN CASE IS NO LONGER PENDING IN THIS HONORABLE COURT [sic].
THEREFORE, THE RTC HAS NO JURISDICTION TO REITERATE AND EXECUTE THE
ORDER OF 7 FEBRUARY 2000.38 (Emphasis in the original)

As this Court hereby affirms petitioner's conviction, resolution of his "Motion to Vacate . . ." is
rendered unnecessary.

Petitioner, denying the presence of conspiracy on his part, argues:

[The petitioner] affirms that he was at the scene of the incident and merely fired a warning
shot into the air to respond to a public disturbance, and his firing a warning shot into the
air was intended to avert further acts of violence; both circumstances, therefore, being
merely and solely in pursuance to his avowed duty to keep peace and order in the
community and clearly not to be part of any alleged community of design to kill the victims.

xxxx

Another indication that there was no unity of purpose and of execution in so far as the
Petitioner is concerned is his conduct after Jose Talanquines, Jr. shot the
victims. Eyewitness accounts state that after that lone warning shot, closely followed by
Jose Talanquines, Jr. firing at the victims, the petitioner merely stood there and did nothing
and said nothing. This is obviously because he was himself stunned by the fast happening of
events. The investigating police officer, PO3 NESTOR SANTACERA, on rebuttal, likewise,
admitted to the facts that ten (10) minutes after the incident, they (the police) responded and
upon arrival thereat, learned that the Petitioner already reported the incident to their station
and that it was the Petitioner who first reported the shooting incident officially to their
office. The aforedescribed proven conduct of the Petitioner during and immediately after the
incident in question are, Petitioner respectfully submits, inconsistent with what a co-
conspirators is [sic] wont to do under the circumstances. It is submitted instead that his
conduct on the contrary underscores the lack or want of community of purpose and interest
in the killing incident to make him criminally liable under the conspiracy theory.

Finally, in connection with the conspiracy theory and anent the finding below that the
Petitioner and his Co-Accused waited for the victims' arrival at the corner of St. Domingo
and M.H. del Pilar Streets, it is asserted that the same runs counter to the natural and
ordinary experience of things and event [sic], and raises a cloud of doubt over the
correctness of the lower Courts decision which are based on the Prosecution's version of the
incident. Since, according to the prosecution, the Petitioner and the other Accused were
armed with high-powered firearms (armalite rifles and revolver); they waited at the
stated street corner for thirty (30) minutes; the stated street corner was well lighted;
accompanying them were the wife and two (2) young daughters of Jose Talanquines, Jr;
and they stood there conversing with the group of Elston Saquian [a prosecution witness
who testified that he saw the petitioner and his co-accused waiting for the victims 39 and
admitting that they were waiting for certain persons who mauled Edzel Talanquines and
Jonathan Bacabac.

In other words, the lower Courts gave credence to an improbable scenario painting the
Petitioner, known to the place as a police officer, and co-accused to have recklessly and
uncaringly displayed, for all and sundry to see, their alleged criminal intentions. It would
indeed be the height of foolishness for them to be by a well lighted street corner, perhaps
even well traversed, conspicuously fully armed, waiting for persons who were not even sure
would pass by such place, and apparently willing to admit to other passers-by that they were
indeed waiting for the persons who mauled Edzel and Jonathan, and consequently give out
the impression that they were intending to retaliate – which is what the lower Courts
regrettably observed.

xxxx

Likewise, the presence of the wife and two (2) young daughters of the accused Jose
Talanquines, Jr. at the scene of the alleged crimes, as testified to by the prosecution
witnesses and believed by the lower Courts, assumes importance in the matter of
determining which version of the incident is correct.
 The Prosecution places the wife and the daughters with the alleged fully armed Petitioner
and Co-Accused at Sto. Domingo Streets, also waiting during the same length of time as the
men for the (probable) arrival of the group of the victims. But such a scenario is, likewise,
unnatural. Because, will the male relatives unhesitatingly expose their defenseless
womenfolk to imminent danger?40 (Citations omitted, emphasis in the original, and
underscoring supplied)

Petitioner's argument that it is improbable for him and his co-accused to have waited for the victims
at a well-lighted street corner does not persuade. Crimes are known to have been brazenly
committed by perpetrators, undeterred by the presence of onlookers or even of peace officers,
completely impervious of the inevitability of criminal prosecution and conviction. 41

From the mode and manner in which the crimes were perpetrated, the conduct of petitioner before,
during, and after their commission,42 and the conditions attendant thereto,43 conspiracy, which need
not be proved by direct evidence, is deduced.44 Petitioner's firing of his armalite could not have
amounted to none other than lending moral assistance to his co-accused, thereby indicating the
presence of conspiracy.45

As the appellate court observed which is quoted with approval:

In the present recourse, when informed that Jonathan and Edzel were being manhandled
and assaulted by male persons, Appellant armed himself with an M-16 armalite. Jose
Talanquines, Jr., the father of Edzel, followed suit and armed himself with an M-16 armalite
gun. Jesus armed himself with a revolver while Jonathan armed himself with a piece of
wood. Jonathan and Edzel were nephews of the Appellant who resided in the house of Jose
Talanquines, Jr. All the Accused including the Appellant then proceeded posthaste to
the corner of M.H. del Pilar corner Sto. Domingo Streets where the culprits would pass
by and waited for the advent of the culprits. Even as Hernani apologized for his and
his companions' assault of Edzel and Jonathan, Jesus berated Hernani and his
companions. Almost simultaneously, the Appellant fired his gun into the air as
Jonathan lunged at Hernani and his companions to hit them with the piece of
wood. Almost simultaneously, Jose Talaquines, Jr. fired his gun at Hernani and shot
Eduardo hitting them and, in the process, hitting his nephew, Jonathan Bacabac. The
Appellant did not lift a finger when Jose fired at and shot Hernani and Eduardo. He
stood by as Jose shot Hernani anew when the latter on bended knees, raised his two
(2) hands, in surrender. The Appellant and the other Accused then fled from the
scene, with their respective firearms and weapons. The overt act of the Accused and the
Appellant in conjunto, constitute proof of conspiracy.

The Appellant and Jose were armed with high-powered guns. Jesus was armed with a
revolver. The nature of the weapons of the Accused evinced a common desire to do
away with the culprits, not merely to scare them.

What is outrageous is that the Appellant was a policeman. He could very well have
just arrested the culprits as they sauntered by and brought them to the police station
for the requisite investigation and the institution of criminal complaints, if warranted.
He could have dissuaded Jose and Jesus and assured them that the culprits will be
duly investigated and charged if warranted. The Appellant did not. He armed himself
with an M-16 armalite x x x. [T]he three (3) positioned themselves at the corner of M.H. del
Pilar and Sto. Domingo Streets for the culprits to arrive. Hernani and his companions were
doomed. It may be true that the Appellant did not aim his gun at the deceased but the same
is peu de chose. By his overt acts, in unison with the other Accused and his kinship with
 Jonathan and Edzel, We are convinced that he conspired with Jose Talanquines, Jr. and the
other Accused to achieve a common purpose to kill Hernani and Eduardo. 46 (Emphasis and
underscoring supplied)

Petitioner's failure to assist the victims after the shooting reinforces this Court's appreciation of
community of design between him and his co-accused to harm the victims. That it was he who first
officially reported the shooting to the police station47 does not make him any less a conspirator.
Voluntary surrender and non-flight do not conclusively prove innocence.48 Besides, a conspirator
who wants to extricate himself from criminal liability usually performs an overt act to dissociate or
detach himself from the unlawful plan to commit the felony while the commission of the felony is in
progress.49 In petitioner's case, he reported the shooting incident after it had already taken place. In
legal contemplation, there was no longer a conspiracy to be repudiated since it had already
materialized.50

Contrary to petitioner's assertion,51 the appellate court did not err in appreciating the presence of
conspiracy despite its finding that there was no evident premeditation. This Court's pronouncement
that conspiracy presupposes the existence of evident premeditation52 does not necessarily imply that
the converse ─ that evident premeditation presupposes the existence of a conspiracy ─ is true. In
any event, a link between conspiracy and evident premeditation is presumed only where the
conspiracy is directly established and not where conspiracy is only implied, as in the present case. 53

Neither did the appellate court err in finding the presence of treachery. Treachery, under Article 14,
paragraph 16 of the Revised Penal Code, is present "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."

What is decisive in treachery is that "the attack was executed in such a manner as to make it
impossible for the victim to retaliate."54 In the case at bar, petitioner, a policeman, and his co-
accused were armed with two M-16 armalites and a revolver. The victim and his companions were
not armed.55 The attack was sudden and unexpected,56 and the victim was already kneeling in
surrender when he was shot the second time. Clearly, the victim and his companion Eduardo had no
chance to defend themselves or retaliate.

Petitioner nevertheless argues that he not being the trigger man, it is not logical nor legal to hold him
guilty of treachery.57 This argument falls in the face of the settled doctrine that once conspiracy is
established, the act of one is the act of all even if not all actually hit and killed the victim. 58

As for petitioner's invocation of the mitigating circumstance of "immediate vindication of a grave

offense," it fails. For such mitigating circumstance to be credited, the act should be, following Article
13, paragraph 5 of the Revised Penal Code, "committed in the immediate vindication of a grave
offense to the one committing the felony (delito), his spouse, ascendants, descendants,
legitimate, natural or adopted brothers or sisters, or relatives by affinity within the same
degree."59 The offense committed on Edzel was "hitting" his ear with a stick60 (according to Jesus),
a bamboo pole (according to Edzel).61 By Edzel's own clarification, "[he] was hit at [his] ear, not on
[his] head."62 That act would certainly not be classified as "grave offense." And Edzel is petitioner's
nephew, hence, not a relative by affinity "within the same degree" contemplated in Article 13,
paragraph 5 of the Revised Penal Code.

WHEREFORE, the petition is DISMISSED and the appellate court's decision is AFFIRMED.

Costs against petitioner.

SO ORDERED.

THIRD DIVISION

[G.R. NO. 176526 : August 8, 2007]

PEOPLE OF THE PHILIPPINES, Appellee, v. JEMUEL TAN and CHARLIE

AMAR, Appellants.

DECISION

YNARES-SANTIAGO, J.:

Mercedes Amar, Jemuel Tan and Charlie Amar were charged with murder in an
Information that reads:

That on or about the 3rd day of June, 1992, in the Municipality of Tibiao, Province of
Antique, Republic of the Philippines and within the jurisdiction of this Honorable Court,
the above-named accused being then armed with a knife, conspiring, confederating
together and mutually helping one another, with intent to kill, with the qualifying
circumstances of treachery and taking advantage of superior strength, did then and
there willfully, unlawfully and feloniously attack, assault and stab with said knife one
Jessie Dionesio y Cumla, thereby inflicting on the latter fatal wound on the vital part of
his body which caused his instantaneous death.

Contrary to the provisions of Article 248 of the Revised Penal Code.1

The accused pleaded not guilty. Trial on the merits ensued thereafter.

The prosecution presented Rogelio Cumla, Dr. Emilia Monicimpo, and Celedonia
Dionesio, as witnesses.

Rogelio Cumla testified that on June 3, 1992 at about 7:30 in the evening, he was in
Brgy. Importante, Tibiao, Antique, selling fish when he chanced upon Mercedes Amar
wrapping her arms around the neck of Jessie Dionesio, while Jemuel Tan was twisting
and holding Jessie's arms at the back. When Jessie was rendered immobile, Charlie
Amar stabbed him on the left side of the breast with a bladed weapon approximately 10
inches long. Rogelio was able to identify the protagonists as he was only six meters
away and the place was illuminated by the moonlight. The incident happened a few
meters from the house of Mercedes Amar.

Celedonia Dionesio is the mother of the victim. She testified that on June 3, 1992 at
around 8:30 in the evening, Mercedes Amar informed her that her son Jessie was
stabbed to death. Celedonia, together with Jessie's twin brother, Jaime, proceeded to
the crime scene where they saw Jessie lying on the ground about four meters away
from Mercedes' house. They recovered two rubber slippers from the scene.

The following day, Mercedes went to their house and took back the slippers. Later that
day, Celedonia went to the Municipal Hall then to the health clinic. She alleged that she
saw Mercedes Amar following her. When she went to the Rural Bank of Tibiao,
Mercedes allegedly informed her that Jessie would have been dead earlier or on June 2,
1992, had she not fetched him from Mercedes' house.

Dr. Monicimpo, the Municipal Health Officer of Tibiao, Antique testified that on June 4,
1992, she conducted an autopsy on the body of the victim. Her findings indicated that
Jessie suffered a fatal stab wound on the chest about two inches wide which penetrated
the heart and lung.

The defense presented PO2 Victoriano Songcayawon, Mercedes Amar, Charlie Amar,
Jemuel Tan, SPO3 Orlando Julian, and Antonio Dalumpines.

PO2 Songcayawon testified that at about 8:50 in the evening of June 3, 1992, Ana
Dionesio, together with Mercedes Amar and Carlitor Amar, reported to the police station
the stabbing incident involving Jessie Dionesio. According to Ana, they were not able to
identify the assailant.

Mercedes Amar testified that her co-accused, Charlie Amar and Jemuel Tan, are her son
and nephew, respectively. She narrated that on the night of the incident, she was at
the feeder road to bolt their fence when she saw the victim, Jessie Dionesio, talking
with Eva Cumla and Pedro Cumla some 10 meters away from their fence. She told them
to go home and eat their supper as there was a "red alert" in their community. She
then turned back and walked towards her house. After a while, she heard somebody cry
"aguy." She went back to investigate and saw Jessie who was wounded while another
person whom she did not recognize was running towards the hill.

Mercedes shouted for help. After a while, Charlie and Jemuel arrived. Together, they
carried the body of Jessie to the roadside to avoid being run over by passing vehicles.
Charlie then borrowed a petromax from Pedro Cumla which Mercedes lighted and
placed beside Jessie. She then went to Celedonia's house and informed her about the
incident. Charlie and Jemuel went inside the house and boiled water in case Celedonia
would need it.

Mercedes further testified that after informing Celedonia, she accompanied the victim's
sister, Ana, to the house of the barangay captain to report the incident aboard a tricycle
driven by Mercedes' husband. However, the barangay captain was not around so they
proceeded to the police station and reported the incident.

The police then proceeded to the crime scene. Thereafter, Mercedes, Guillermo
Dionesio, Ninfa Dionesio, and PO3 Julian went to Sitio Mangkuyas to inform a certain
Bernardo Cumla about the incident. While at the house of Bernardo, prosecution
witness Rogelio Cumla allegedly informed them that the victim was a trouble maker.

Mercedes denied the allegations of prosecution witness Rogelio Cumla that she,
together with her son Charlie and nephew Jemuel, were responsible for the death of
Jessie. On the contrary, she claimed that they were the ones who rendered assistance
to the wounded victim. She claimed that Rogelio did not witness the crime as he was
not in the vicinity when the incident happened.
Charlie Amar alleged that on the night of the incident, he was inside their house
together with his father, younger brothers, and cousin Jemuel, while his mother was
locking the gate. When he heard his mother shout for help, he and Jemuel went out to
investigate and saw the body of Jessie sprawled on the ground with a stab wound on
his chest. The three of them moved the body of Jessie to the roadside. Thereafter, his
mother lighted a petromax, then informed the relatives of Jessie. Charlie alleged that
his father remained inside their house.

Charlie denied stabbing Jessie. He claimed that more than a month prior to the
incident, Jessie had been staying in their house because he had a fight with his twin
brother, Jaime. Charlie narrated that in the morning of June 3, 1992, Jessie and Jaime
fought with each other. Jaime allegedly chased Jessie with a knife prompting the latter
to stay in Amar's house.

On cross-examination, Charlie explained that they had only one petromax which they
used inside their house, thus he had to borrow a petromax from their neighbor, Pedro
Cumla, and placed the same near the body of the deceased.

Jemuel Tan testified that on the night of the incident, he went to the house of Mercedes
to buy kerosene and was thereafter invited for dinner. While eating, he heard his aunt
Mercedes shout for help. Together with Charlie, he ran towards the gate near the feeder
road where he saw Mercedes focusing her flashlight on Jessie who was bloodied and
lying on the ground. After carrying the body of Jessie to the roadside, they lighted
a petromax which Charlie borrowed from their neighbor Pedro Cumla. He denied any
participation in the stabbing incident.

On cross-examination, he admitted that Mercedes' husband, Carlito Amar, was inside

the house when the incident happened. Carlito did not go out because he does not want
to be implicated in the incident. Jemuel also alleged that nobody responded to
Mercedes' plea for help except him and Charlie. Nobody went to the crime scene from
the time they saw Jessie sprawled on the ground, up to time of Celedonia's arrival.

PO3 Julian testified that at about 8:50 in the evening of June 3, 1992, Mercedes Amar,
Carlito Amar, and Ana Dionesio arrived at the police station and reported the stabbing
incident. Ana Dionesio allegedly informed him that they did not know the identity of the
assailant.

When PO3 Julian went to the crime scene, Celedonia requested that Bernardo Cumla be
informed about the incident. Thus, PO3 Julian, Mercedes Amar, Guillermo Dionesio, and
Ninfa Dionesio, proceeded to the house of Bernardo in Sitio Mangcuyas. When they
arrived, Mercedes called out Bernardo but it was Rogelio Cumla who answered them.
PO3 Julian claimed that he heard Rogelio dismiss the death of Jessie because he was
allegedly a bad guy. Thereafter, Bernardo accompanied them to the crime scene while
Rogelio stayed behind.

On cross-examination, PO3 Julian testified that the body of Jessie was sprawled about
three arms length away from the gate of Mercedes and was positioned at the center of
the road.
Another defense witness, Antonio Dalumpines, testified that he was on his way home
on June 3, 1992 when he saw a person stab another. He claimed he was only
four brazas away but was not able to recognize the assailant because it was dark. He
claimed that one week after the incident, he told Mercedes about what he saw.

On May 19, 1998, the Regional Trial Court of San Jose, Antique, Branch 12, rendered
judgment acquitting Mercedes, convicting Charlie as principal by direct participation,
and Jemuel as accomplice, for the crime of murder. The dispositive portion of which
states:

WHEREFORE, for failure of the prosecution to establish beyond reasonable doubt the
guilt of Mercedes Amar, she is hereby ACQUITTED for the offense charged. Further,
finding the accused Jemuel Tan and Charlie Amar GUILTY beyond reasonable doubt of
the crime of Murder as defined and penalized in Article 248 of the Revised Penal Code,
the Court imposes upon Charlie Amar who is a principal by direct participation the
penalty of reclusion perpetua, and upon Jemuel Tan who is an accomplice, to an
indeterminate penalty of seven (7) years of prision correccional as minimum to thirteen
(13) years of prision mayor as maximum, applying Article 52 in relation to Article 248
of the Revised Penal Code, and to indemnify the heirs of Jessie Dionesio the sum
of P50,000.00 for his death and P12,000.00 for funeral expenses, jointly and severally.

No costs.2

The trial court found the testimony of prosecution witness Rogelio Cumla that he saw
Charlie stab the victim on the chest while Jemuel pinned his hands and held him
immobile, to be credible. However, it acquitted Mercedes based on the alleged
contradictory statements of Rogelio Cumla. The court a quo noted that initially, Rogelio
testified that he saw Mercedes tie a rope around Jessie's neck but later alleged that
Mercedes was merely wrapping her hands around the victim's neck.

The trial court also found that the aggravating circumstances of treachery and abuse of
superior strength attended the commission of the crime. There was treachery because
Charlie and Jemuel committed the crime in such a manner as to deprive the victim any
chance to defend himself. Abuse of superior strength was likewise present because
there was notorious inequality of forces between the malefactors and the victim.

On appeal, the Court of Appeals affirmed with modification the trial court's Decision,
thus:

WHEREFORE, in the light of the foregoing, the Decision appealed from is AFFIRMED with
MODIFICATION that accused-appellant Jemuel Tan is sentenced to suffer also the
penalty of reclusion perpetua.

SO ORDERED.3

The appellate court noted that although the trial court disbelieved in part the account of
Rogelio Cumla, it correctly lent credence to his testimony that he witnessed the
stabbing of the victim by Charlie Amar with the help of Jemuel Tan. It likewise noted
that the trial court correctly appreciated the aggravating circumstances of treachery
and abuse of superior strength.

However, the appellate court ruled that Jemuel Tan should likewise be convicted as a
principal by direct participation and not merely as an accomplice. It observed that the
trial court found unity of purpose between the two malefactors and even discussed in
the body of its decision that the two should be found guilty of murder as principals by
direct participation. However, in the dispositive portion of the trial court's decision, it
inadvertently convicted Jemuel Tam merely as an accomplice. Accordingly, the
appellate court modified the trial court's decision by finding Jemuel Tan guilty of murder
as principal by direct participation and sentenced him to suffer the penalty of reclusion
perpetua.

Hence, this petition.

We find Charlie Amar and Jemuel Tan guilty as principals by direct participation for the
crime of murder.

Although the trial court disbelieved in part the testimony of Rogelio Cumla as regards
the participation of Mercedes in the perpetration of the crime, it nevertheless did not
err in giving credence to the rest of Rogelio's testimony. Settled is the rule that a
witness' testimony may be believed in part and disbelieved in another part, depending
upon the probabilities and improbabilities of the case.4

Appellants' contention that it is highly incredible for Rogelio not to shout and come to
the aid of Jessie if he indeed saw the latter being stabbed lacks merit. People react
differently when confronted by a startling experience. As admitted by Rogelio, he was
gripped with fear when he witnessed the incident thus he decided to run away from the
scene. Even his companion Edmundo Fillores did the same. We find this explanation
plausible and normal under the circumstances. The crime was committed a few arms
length from the house of the malefactors located at Brgy. Importante while Rogelio
hails from Sitio Mangcuyas. There were two assailants and one of them was armed
while there was only Rogelio and Edmundo Fillores who ran away upon witnessing the
stabbing incident.

Appellants' contention that Rogelio's testimony should be disbelieved because he is

jobless lacks basis. The credibility of a person's testimony does not depend on whether
he/she is jobless. Besides, Rogelio was not exactly jobless. In fact, he was selling fish
when the stabbing occurred. The trial court which is in the best position to determine
the credibility of a witness, found the eyewitness account of Rogelio that he saw Charlie
stab Jessie while Jemuel pinned his hands at the back, credible and straightforward. We
have also examined the records and found no reason to deviate from said findings.

Furthermore, we find the testimonies of the appellants and the defense witnesses
incredible, rehearsed and inconsistent with each other.

Charlie Amar and Jemuel Tan testified that they carried the body of Jessie to the side of
the road to avoid being run over by passing vehicles. However, this was contradicted by
the testimony of defense witness, PO3 Julian, who testified that:
Q: And this house of Mercedes Amar, towards what direction was this in relation to the
dead body of Jessie Dionesio? cralaw library

A: Beside.

Q: And the dead body was about how far from the gate of the house of Mercedes
Amar? cralaw library

A: About 3 armslength away, more or less.

Q: Was it at the center of the road the dead body? cralaw library

A: Yes sir.

Q: So that the position of the body is that if ever a motor vehicle passes by it will be
ran over because it was at the center of the road? cralaw library

A: Can be reached when a vehicle passes by.5

Similarly, Jemuel testified that Jessie's body was "cold" when touched. This is
impossible considering that they supposedly found the wounded body of Jessie mere
seconds after he was stabbed. Thus:

Q: Why do you say that you lighted the cadaver of Jessie Dionesio, what do you mean
by cadaver? cralaw library

A: The dead body.

Q: How did you come to know that it is the cadaver of the dead body of said Jessie
Dionesio? cralaw library

A: Because we saw him full of blood and when we touched him his body was cold.6

Charlie testified that he rushed outside upon hearing his mother shout for help.
However, Mercedes' husband, Carlito, remained inside the house and was unconcerned
about what was happening outside. We find this strange considering that it was his
wife, Mercedes, who was shouting for help and whose life may be in danger. Charlie
testified thus:

A: I heard a voice shouting in the other house ... I heard a voice shouting for a fight in
the other house and also I heard the voice of my mother asking for help that is why I
and Jemuel ran outside of the house.

Q: How about your father, what did he do? cralaw library

A: He remained inside the house observing? cralaw library

Q: In what manner was he observing? cralaw library

A: He was observing who killed Jessie, he might return.

Q: That was immediately after you and Jemuel went out of your house? cralaw library

COURT:

Answer politely.

A: I do not know what my father was doing inside the house for we ran towards outside
and when I returned I asked my father and he answered that he was just observing.

ATTY. SIRUELO:

Q: And your father told you that he was observing because the person who could have
killed Jessie Dionesio might have returned? cralaw library

A: Yes sir.

Q: That was what your father told you when you and Jemuel Tan entered the house? cralaw library

A: Yes sir.7

Since Carlito remained inside the house, then he could not have known initially about
the stabbing of Jessie. It is therefore illogical for Charlie to claim that his father
remained inside the house "to observe" because the killer might return. Also, if Carlito
was apprehensive about the killer returning to the crime scene, then he should not
have allowed his wife Mercedes to go to Celedonia's house by herself.

Jemuel testified that they had several neighbors whose houses are close to each other.
Yet, only Jemuel, Charlie and Mercedes were present and who allegedly attended to the
victim from the time he was stabbed until the victim's mother arrived.

Q: Now, near the house of Mercedes there are houses very near, is that correct? cralaw library

A: Yes, sir.

Q: As a matter of fact at the back of the house there is a house which is adjacent to the
fence? cralaw library

A: Yes, sir.

Q: And on both sides of the house of Mercedes there were houses about two meters
from the fence of the house of Mercedes Amar? cralaw library

A: Yes, sir.8

Finally, appellants insist that assuming they killed Jessie, they could not be held liable
for murder because the aggravating circumstances of treachery and abuse of superior
strength are not present. At the very least, they could only be found guilty of homicide.
We are not persuaded.

As correctly found by the trial court and the Court of Appeals, there was conspiracy
between the malefactors in the commission of the crime. Their concerted efforts were
performed with closeness and coordination indicating their common purpose to inflict
injury on the victim. For conspiracy to exist, the evidence need not establish the actual
agreement which shows the preconceived plan, motive, interest or purpose in the
commission of the crime. Proof of publicly observable mutual agreement is not
indispensable to establish conspiracy. Hence, there is conspiracy where two of the
accused held the victim's hands and the third stabbed the victim from
behind.9 Conspiracy may be implied from the concerted action of the assailants in
confronting the victim.10 In the instant case, the prosecution satisfactorily established
that Jemuel twisted and pinned Jessie's hands at the back, after which Charlie delivered
the fatal blow.

Since there was conspiracy between the malefactors, the actual role played by each of
them does not have to be differentiated or segregated from the acts performed by the
other accused. As a conspirator, each would still be equally responsible for the acts of
the other conspirators.11 Thus, the Court of Appeals correctly found Jemuel Tan liable as
a principal by direct participation and not merely as an accomplice. ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

The trial court and the Court of Appeals correctly appreciated the qualifying
circumstance of treachery. The sudden and unexpected stabbing of Jessie while being
held by Jemuel, insured the killing without risk to the assailants.12

However, we find no basis for the lower courts' finding that the aggravating
circumstance of abuse of superior strength attended the commission of the crime.
Abuse of superior strength requires deliberate intent on the part of the accused to take
advantage of such superiority. It must be shown that the accused purposely used
excessive force that was manifestly out of proportion to the means available to the
victim's defense. In this light, it is necessary to evaluate not only the physical condition
and weapon of the protagonists but also the various incidents of the event.13 In the
instant case, the prosecution failed to establish the physical condition of the
protagonists, much less that appellants deliberately took advantage of their superior
strength.

Anent the award of damages, we note that the lower court awarded P50,000.00 as civil
indemnity and P12,000.00 as funeral expenses. However, no receipts were presented to
substantiate the claim for funeral expenses hence it must be deleted. It is necessary for
a party seeking the award of actual damages to produce competent proof or the best
evidence obtainable to justify such award. Only substantiated and proven expenses, or
those that appear to have been genuinely incurred in connection with the death, wake,
or burial of the victim will be recognized in court.14 Nonetheless, we shall award nominal
damages in the amount of P10,000.00 since the heirs of the victim clearly incurred
funeral expenses.15 In addition, moral damages in the amount of P50,000.00 shall be
awarded. Celedonia Dionesio testified on the mental anguish she suffered as a
consequence of the death of Jessie.

WHEREFORE, the Decision of the Court of Appeals finding appellants Charlie Amar and
Jemuel Tan guilty of murder and sentencing them to suffer the penalty of reclusion
perpetua and to pay the heirs of Jessie Dionesio the amount of P50,000.00 as civil
indemnity, is AFFIRMED with MODIFICATIONS that appellants are further ordered to
pay the amount of P50,000.00 as moral damages; the amount of P12,000.00 as funeral
expenses is DELETED and in lieu thereof, appellants are ordered to pay the amount
of P10,000.00 as nominal damages.

SO ORDERED.

Endnotes:

1
CA rollo, p. 10.

2
Id. at 35. Penned by Judge Antonio M. Natino.

3
Rollo, p. 8. Penned by Associate Justice Agustin S. Dizon and concurred in by
Associate Justices Pampio A. Abarintos and Priscilla Baltazar-Padilla.

4
People v. Lucena, G.R. No. 137281, April 3, 2001, 356 SCRA 90, 99.

5
TSN, February 10, 1994, pp. 18-19.

6
TSN, December 16, 1993, p. 7. Emphasis supplied.

7
TSN, December 15, 1993, pp. 25-26.

8
TSN, March 23, 1994, p. 11.

9
People v. Tala, 225 Phil. 198, 207-208 (1986).

10
People v. Ebora, 225 Phil. 242, 245 (1986).

11
People v. Tala, supra at 208.

12
See People v. Ebora, supra.

13
People v. Ortega, Jr., 342 Phil. 124, 138 (1997).

14
People v. Caraig, 448 Phil. 78, 95 (2003).

15
Id. at 95-96. See also People v. Annibong, 451 Phil. 117, 132 (2003).

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION
G.R. No. 172608 February 6, 2007

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
BERNARD MAPALO, Accused-Appellant.

DECISION

CHICO-NAZARIO, J.:

In its Decision1 dated 27 October 2004, the Regional Trial Court (RTC), Branch 32 of Agoo, La
Union, in Criminal Case No. A-2871, found appellant Bernard Mapalo guilty beyond reasonable
doubt of the crime of Murder, and imposed upon him the penalty of reclusion perpetua. On appeal,
the Court of Appeals rendered a Decision2 dated 21 November 2005, modifying the Decision of the
RTC, and finding Bernard Mapalo guilty beyond reasonable doubt of the crime of Frustrated Murder.

The Indictments

Appellant, together with Peter Doe, John Doe and Peter Doe, Jr., was charged before the RTC of
Agoo, La Union with the crime of Murder, said to have been committed as follows:

That on or about the 13th day of February, 1994, in the Municipality of Aringay, Province of La
Union, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
with intent to kill and being then armed with lead pipes and bladed weapons and conspiring,
confederating and mutually helping each other, did then and there by means of treachery and with
evident premeditation and taking advantage of their superior strength, wil[l]fully, unlawfully and
feloniously attack, assault and use personal violence on one Manuel Piamonte y Ugay by clubbing
him with the said pipes and stabbing him several times with the said bladed weapons, and thereby
inflicting on the aforenamed victim fatal injuries which were the direct and immediate cause of his
death, to the damage and prejudice of his heirs.

Contrary to law.3

The RTC ordered the issuance of a warrant of arrest for the apprehension of the appellant. No bail
was recommended.4 When the case was called, appellant filed a Motion for Reinvestigation and Bail,
which was granted.

On 27 March 1995, 3rd Assistant Provincial Prosecutor Manuel S. Oliva filed a Motion to Admit
Amended Information and for the Issuance of Warrant of Arrest for the Apprehension of the Other
Accused,5 alleging that a reinvestigation was conducted and a prima facie case was found against
the other accused. It was prayed that an amended information be admitted and a warrant of arrest
be issued for the apprehension of Alejandro Fajardo, Jr., Jimmy Frigillana, and Rolando Mapalo
alias "Lando." Finding the Motion to be well-taken, the RTC issued an Order, 6 dated 27 April 1995,
admitting the Amended Information, viz:

The undersigned Assistant Provincial Prosecutor accuses BERNARD MAPALO, ALEJANDRO

FAJARDO, JR., JIMMY FRIGILLANA and ROLANDO MAPALO alias Lando of the crime of
MURDER, committed as follows:

That on or about the 13th day of February, 1994, in the Municipality of Aringay, Province of La
Union, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused,
with intent to kill and being then armed with lead pipe and bladed weapons and conspiring,
confederating and mutually helping each other, did then and there by means of treachery and with
evident premeditation and taking advantage of their superior strength, wil[l]fully, unlawfully and
feloniously attack, assault and use personal violence on one Manuel Piamonte y Ugay by clubbing
him with the said pipe and stabbing him several times with the said bladed weapons, and thereby
inflicting on the aforenamed victim fatal injuries which were the direct and immediate cause of his
death, to the damage and prejudice of his heirs.7

Consequently, a warrant of arrest was issued for the apprehension of Alejandro Fajardo, Jr., Jimmy
Frigillana, and Rolando Mapalo alias "Lando." Only Alejandro Fajardo, Jr. was apprehended; the
other two remain at large.

On arraignment, appellant pleaded not guilty.8 Thereafter, trial on the merits commenced.

After the prosecution had rested its case, Alejandro Fajardo, Jr. filed a Demurrer to Evidence which
was granted by the RTC, in its Order9 dated 5 November 1998, on the ground that the prosecution
did not present any evidence against him. Thus, only accused Bernard Mapalo proceeded to present
his evidence. He was eventually found guilty.

The Case for the Prosecution

The prosecution presented Calixto Garcia (Garcia) as its lone eyewitness.

Garcia testified that on 12 February 1994, a pre-Valentine dance was held in Sitio Baracbac, Brgy.
Sta. Cecilia in Aringay, La Union. He watched the dance, along with the appellant and Jimmy
Frigillana.10 In the early morning of 13 February 1994, at around 3:00 a.m., a fight erupted between
Manuel Piamonte (Piamonte) and the group of Lando Mapalo,11 Jimmy Frigillana, and the appellant.12

Garcia further testified that he witnessed the fight from a distance of more or less five (5) meters. He
claimed that he could see the incident very clearly because of the light at the dancing hall. 13 He saw
the appellant club Piamonte with a lead pipe from behind, hitting him on the right side of the
head.14 The pipe was one and a half (1 and ½) feet in length, and one and a half (1 and ½) inches in
diameter.15 At that time when the appellant struck Piamonte with a lead pipe, he saw Jimmy
Frigillana and Lando Mapalo standing in front of Piamonte. Later, he saw the dead body of
Piamonte, which had suffered multiple stab wounds.16 He saw stab wounds on the left and right parts
of the abdomen, and below the left breast, as well as small wounds on the front part of his left
hip.17 Garcia disclosed that he neither witnessed how Piamonte was stabbed, nor did he see the act
of stabbing Piamonte.18 He does not know who stabbed the latter.19 It was only when Piamonte’s shirt
was removed when he saw stab wounds on the former’s dead body.20

The Case for the Defense

Appellant testified that in the evening of 13 February 1994, 21 at around 9:00 p.m., he, along with his
wife, Caridad Mapalo, entertained several guests at their residence, namely, Crispin Calderon, Noel
Cordero, Ruel Mercado, and Rolando Mapalo.22 They drank wine.23 Appellant knew that there was a
Valentine’s Day dance celebration at the dance hall, located northeast of his house at a distance of
about 20-30 meters.24 At 12:30 a.m., after his guests had left the house, he went to sleep. 25 At 3:00
a.m., his wife woke him up and was informed that somebody had been stabbed. He said he came to
know that Piamonte was the person who was stabbed.26 He added that he planned to go out of the
house, but his wife prevented him from doing so.27 He, thereafter, returned to his room, and went
back to sleep.28
Corroborating the appellant’s defense of denial and alibi, his wife, Caridad Mapalo, narrated that on
13 February 199429 at 8:00 p.m., she served brandy to her husband and their guests at their
residence. The celebration finished at around 12:00 midnight.30 Thereafter, she and her husband
went to sleep, while their guests proceeded to the dance hall. At 3:00 a.m., she awoke because of a
commotion from the dance hall.31 She described that the dance hall is around 60 to 70 meters,
southwest of their residence.32 She went outside of their house, and along with her sister-in-law,
Marissa Dapit, proceeded to the edge of the dancing hall.33 She claimed that her husband did not go
out and just stayed at their house.34 She explained that she and Marissa Dapit went out to see or to
know the name of the person who died at the commotion.35 At the dancing hall, she saw the body of
Piamonte, lying face down.36

The Ruling of the RTC

After trial, the RTC rendered a Decision, dated 27 October 2004, finding appellant guilty beyond
reasonable doubt of the crime of Murder.

It ruled that appellant’s defense of alibi cannot prevail over the positive identification of the lone
eyewitness. As emphasized by the RTC, per admission of appellant, the distance between his house
and the dancing hall is only 20 to 30 meters, more or less. There was no physical impossibility for
the appellant to be present at the scene of the crime. Moreover, it found Garcia’s testimony to be
consistent and uncontradicted. On the other hand, the RTC considered the testimony of Caridad
Mapalo as defying the natural course of human reaction and experience. The RTC found it strange
that it was only Caridad Mapalo who was awakened by the commotion, while the appellant remained
asleep. Learning of the same, Caridad Mapalo exposed herself to danger by proceeding to the
dance hall to see what the commotion was all about without even informing her husband. The RTC
conjectured that Caridad Mapalo proceeded to the dance hall not to see what the commotion was all
about, but because she was informed that her husband was involved in a fight. 37

Further, the RTC ruled that conspiracy was established by the prosecution. According to the RTC,
the appellant was clearly identified by Garcia as the one who struck Piamonte on the head with a
lead pipe, which alone is "sufficient manifestation of a concerted, common and united design with
the other accused to commit an unlawful and felonious act." The fact that the medical certificate
shows the cause of death as stab wounds was deemed by the RTC as immaterial, in view of the
presence of conspiracy. The RTC also appreciated the attendance of abuse of superior strength as
a qualifying circumstance, on the rationalization that the perpetrators were armed with bladed
weapons and a lead pipe that were out of proportion to the unarmed Piamonte.

The decretal portion of the RTC Decision states:

WHEREFORE, the accused BERNARD MAPALO is hereby found Guilty beyond reasonable doubt
of the crime of MURDER and is sentenced to suffer the penalty of RECLUSION PERPETUA.

Further, the accused is ordered to pay the heirs of Manuel Piamonte the amount of Twelve
Thousand Seven Hundred Pesos (₱12,700.00) as actual damages. Fifty Thousand Pesos
(₱50,000.00) as civil indemnity for the death of Piamonte and Fifty Thousand Pesos (₱50,000.00) as
moral damages.38

The Ruling of the Court of Appeals

Before the appellate court, appellant challenged the credibility of the prosecution’s lone eyewitness.
Appellant similarly assailed the ruling of the RTC on the ground that it erred in convicting him despite
the failure of the prosecution to prove his guilt beyond reasonable doubt. 39
The Court of Appeals found no adequate reason to disturb the findings of the RTC in weighing the
testimony of Garcia. It did not find significant the alleged inconsistencies in Garcia’s affidavits as
executed before the investigating police and the prosecutor.40 The appellate court did not accept the
appellant’s defense of alibi. The positive identification of the prosecution witness which was
consistent and categorical, and shown to be without ill-motive, has discredited appellant’s defense.

The Court of Appeals, however, found reason to modify the findings of the RTC. It convicted the
appellant of frustrated murder only. It was not convinced that the evidence on record established
conspiracy among the appellant and his co-accused. The appellate court rationalized that while the
evidence shows that Piamonte sustained stab wounds which caused his death,41 the appellant was
never identified as the one who inflicted the stab wounds on the deceased. According to the
appellate court, the prosecution’s evidence only established that the appellant clubbed Piamonte
with a lead pipe. However, the prosecution’s witness did not see the stabbing. He was not able to
describe the particular acts which caused Piamonte’s death. Hence, it cannot be inferred from the
account of the witness that the appellant and his co-accused came to an agreement to commit a
felony, or that they decided to commit the same, by concerted acts.42 The Court of Appeals made the
following observations:

In the first place, the killing was the result of a fight that erupted suddenly during the Valentine
dance, which discourages the conclusion that the killing was planned. Also, the witness did not see
any stabbing. He did not see anyone else perform any act of stabbing or hitting, other than the
appellant delivering blows with a lead pipe on the victim. There is no proof, therefore, of any
concerted action or common design to kill the victim that could be the basis for a finding of
conspiracy among several malefactors. Because of this, it could not be said that conspiracy was
proven attendant beyond reasonable doubt.43

In the absence of a conspiracy, the Court of Appeals said that the appellant could only be held liable
for the consequences of his own criminal act. It ruled that when the appellant hit Piamonte in the
head with the lead pipe, he performed all the acts that would have brought about the death of the
victim.44 Piamonte’s death however was due to some other supervening cause, independent of the
appellant’s will.45

The fallo of the Court of Appeals’ Decision reads, viz:

WHEREFORE, premises considered, the lower court’s Decision is hereby MODIFIED, in that the
accused-appellant Bernard Mapalo is hereby found guilty beyond reasonable doubt of the crime of
Frustrated Murder. Accused-appellant is hereby sentenced to 8 years and 1 day of prision mayor, as
minimum to 14 years, 8 months and 1 day of reclusion temporal, as maximum.

Further, the accused is ordered to pay the heirs of Manuel Piamonte[,] the amount of Twenty Five
Thousand Pesos (₱25,000.00) as temperate damages, Thirty Thousand Pesos (₱30,000.00) as civil
indemnity and Thirty Thousand Pesos (₱30,000.00) as moral damages pursuant to prevailing
jurisprudence. (People v. Pacana, 345 SCRA 72 [2000]; People v. Givera, 349 SCRA 513 [2001]). 46

The Issues

Appellant contends that:

I
 THE COURT OF APPEALS GRAVELY ERRED IN CONVICTING THE ACCUSED-
APPELLANT DESPITE FAILURE OF THE PROSECUTION TO IDENTIFY THE ACCUSED-
APPELLANT IN OPEN COURT; and

II

ASSUMING THAT THE ACCUSED-APPELLANT IS GUILTY, THE COURT OF APPEALS

GRAVELY ERRED IN CONVICTING HIM OF FRUSTRATED MURDER INSTEAD OF
FRUSTRATED HOMICIDE.47

The Ruling of the Court

In support of the first assignment of error, appellant raises, for the first time, the defense that the
witness for the prosecution failed to positively identify him during the trial proceedings. Citing People
v. Galera48 and People v. Hatton,49 appellant submits that the prosecution failed to discharge its first
duty, which is the identification of the accused as the author of the crime charged. 50 Witness Garcia
did not identify the appellant in open court.

Appellant further posits that Garcia did not deny drinking gin at around 9:00 p.m. on 13 February
1994 until 3:00 a.m. of the following day. Garcia was then intoxicated if he had been drinking hard
liquor continuously for six hours. At such point, he can no longer positively determine a person’s
identity. It is argued that the foregoing circumstances create doubts as to the identity of the appellant
as one of the perpetrators of the crime.

We first tackle the issue on the lack of in-court identification.

True that on the matter of identification, the Court in Hatton said:

More importantly, the accused-appellant was not positively identified in court. True, his name was
referred to by both Basierto and Ongue in their respective direct testimonies. However, he was not
identified in Court. The failure of the prosecution witness to positively identify the assailant in court is
fatal to the prosecution’s cause. Pre-trial identification is not sufficient. 51

Verily, the records are bereft of proof that there was in-court identification by the witness Garcia of
the appellant. Indeed, Garcia did not point to the appellant in the courtroom. Such fact can be
gleaned from the pertinent portion of the transcript of stenographic notes of the trial, reproduced
hereunder, as follows:

Direct-examination by Prosecutor Rudio of the witness Calixto Garcia

Q Do you know the accused Bernard Mapalo?

A I know, sir.

Q If that accused is inside the courtroom now will you please stand up and point to him if he is inside
the courtroom?

A No, he is not around.

COURT:
Q Was he notified for (sic) today’s hearing?

INTERPRETER:

Yes, he signed, sir.

COURT: O R D E R:

It appears that the accused Bernard Mapalo was being notified for (sic) today’s hearing and his wife
came to Court and informed the Honorable Court that her husband could not come to Court because
he is sick.52

The same testimony, however, conspicuously reveals that there was no identification in open court
of the appellant because said appellant was not present at the time, despite notice, as according to
his wife, he was sick.

In a later case, this Court clarified that a physical courtroom identification is essential only when
there is a question or doubt on whether the one alleged to have committed the crime is the same
person who is charged in the information and subject of the trial. In People v. Quezada, 53 this Court
expounded, thus:

We do not see the absolute need for complainant to point to appellant in open court as her attacker.
While positive identification by a witness is required by the law to convict an accused, it need not
always be by means of a physical courtroom identification. As the court held in People v.
Paglinawan:

"x x x. Although it is routine procedure for witnesses to point out the accused in open court by way of
identification, the fact that the witness x x x did not do so in this case was because the public
prosecutor failed to ask her to point out appellant, hence such omission does not in any way affect or
diminish the truth or weight of her testimony."

In-court identification of the offender is essential only when there is a question or doubt on whether
the one alleged to have committed the crime is the same person who is charged in the information
and subject of the trial. This is especially true in cases wherein the identity of the accused, who is a
stranger to the prosecution witnesses, is dubitable. In the present case, however, there is no doubt
at all that the rapist is the same individual mentioned in the Informations and described by the victim
during the trial. (Emphasis supplied.)54

We do not find herein a case where there is a question or doubt as to whether the one alleged to
have committed the crime is the same person charged in the information and subject of the trial. In
fact, appellant never denied that he is the person indicted in the Information, and subject of the
proceedings. His denial is that he did not participate in the commission of the crime. Hence, in-court
identification is not indispensable in the case at bar.

We are convinced that the identity of the appellant was sufficiently established by the evidence on
record.

The appellant is not a stranger to the witness Garcia. The identity of the appellant to Garcia does not
appear to be controvertible. In fact, appellant himself admits that he and Garcia are friends. Thus:

Cross-examination by Prosecutor Lachica of [appellant] Bernard Mapalo

Q Mr. Witness you said that you were informed by your counsel a while ago that a certain Calixto
Garcia testified against you in this case did I get you right?

A Yes, sir.

Q And this Calixto Garica is a resident of the same Barangay as you are?

A Yes, sir.

Q In fact this Calixto Garcia is an acquaintance of yours?

A Yes, sir.

Q He is considered a friend?

A Yes, sir I consider him as such.

Q Prior to the incident which happened sometime on February 13, 1994, you have never quarreled
with this Calixto Garcia?

A No, sir.

Q Even after that incident that happened on February 13, 1994 you never quarreled with Calixto
Garcia?

A No, sir.

Q You know that this Calixto Garcia is not a relative of Piamonte the victim in this case?

A I do not know whether he is a relative of the victim or not.

Q You know for a fact that Calixto Garcia executed a statement before the police pointing to you or
pointing to you as the assailant of Paimonte did you come to know that?

A No, sir.

Q You said that you know Calixto Garcia your friend according to you, did you confront him when he
testified against you in court?

A No, sir.

Q You did not tell your friend that he was mistaken in identifying you as the assailant of Piamonte,
correct?

A No, sir. 55

The proper identification of the appellant is further bolstered by the fact that appellant’s wife, Caridad
Mapalo corroborated the testimony that the witness Garcia is a family friend of the spouses. Thus:

Cross examination of Caridad Mapalo by Prosecutor Lachica

Q Do you know a certain Calixto Garcia?

A Yes, sir.

Q He is your Barangay mate?

A Yes, sir.

Q His house is closed to your house, correct?

A Far, sir.

Q But he is staying within your barangay which is Sta. Cecilia?

A Yes, sir.

Q This Calixto Garcia whom you know is a friend of your family, correct?

A Yes, sir.

Q In fact, your family have (sic) never quarreled with Calixto Garcia?

A None, sir.

Q Prior to the filing of this case, you know that Calixto Garcia being a friend will not falsify his
testimony regarding your husband?

A Yes, sir.

ATTY. RIMANDO:

Objection, your honor.

COURT:

Objection overruled.

PROSECUTOR LACHICA:

Q Until now, this Calixto Garcia is your friend?

A Yes, sir.

PROSECUTOR LACHICA:

That would be all for the witness.

RE-DIRECT EXAMINATION BY ATTY. RIMANDO:

Q This Calixto Garcia was your guest in that evening in your residence?

A No, sir.

Q Is your family close with (sic) this Calixto Garcia?

A Yes, sir.56

Moreover, we do not find herein the presence of factors57 that could cause the witness Garcia to
misidentify the appellant. In People v. Limpangog,58 this Court enumerated several other known
causes of misidentification, viz:

x x x Known causes of misidentification have been identified as follows:

"Identification testimony has at least three components. First, witnessing a crime, whether as a
victim or a bystander, involves perception of an event actually occurring. Second, the witness must
memorize details of the event. Third, the witness must be able to recall and communicate accurately.
Dangers of unreliability in eyewitness testimony arise at each of these three stages, for whenever
people attempt to acquire, retain, and retrieve information accurately, they are limited by normal
human fallibilities and suggestive influences."59

There is no question that the witness Garcia was at a close range of merely five meters more or less
from the scene of the incident.60 Neither can it be said that the illumination was poor. The dancing
hall was lighted.61 No improper motive was attributed to the witness Garcia for testifying against the
appellant. Moreover, witness Garcia is familiar not only to appellant. Garcia was also familiar with
the deceased, Piamonte. Witness Garcia, in his testimony, referred to Piamonte as his third cousin. 62

On appellant’s submission that it is doubtful if witness Garcia can still have positively identified him
as one of the perpetrators of the crime considering that the former admitted to drinking hard liquor
from 9:00 p.m. on 13 February 1994 until 3:00 a.m. of the following day, we are not convinced that
the same can overthrow the trial court’s evaluation of Garcia’s testimony. Beyond appellant’s bare
allegations, no evidence whatsoever was produced to show that Garcia suffered from such a level of
intoxication as to impair his facility and disable him to identify appellant. In the case of People v.
Dee,63 the credibility of the surviving victim therein as witness was disputed because he was under
the influence of liquor at the time of the incident. In Dee, the witness was even found positive for
alcoholic breath, but the Court ruled that such fact does not necessarily prevent him from making a
positive identification of his attackers, especially since his level of intoxication was not shown to
impair his faculties. The credibility of the witness therein was not made to suffer on that score
alone.64

The foregoing material considerations, taken together with the fact that witness Garcia and the
appellant are not strangers to each other, satisfy us that the danger of Garcia misidentifying the
appellant does not exist. Where the prosecution eyewitness was familiar with both victim and
accused, and where the locus criminis afforded good visibility, and where no improper motive can be
attributed to the witness for testifying against the accused, his version of the story deserves much
weight.65

Hence, we do not find any reason to depart from the general rule that the conclusions of the trial
court on the credibility of witnesses deserve great respect, viz:
The assessment of the credibility of witness and their testimony is a matter best undertaken by the
trial court because of its unique opportunity to observe the witnesses firsthand; and to note their
demeanor, conduct and attitude under examination. Its findings on such matters are binding and
conclusive on appellate courts unless some facts or circumstances of weight and substance have
been overlooked, misapprehended or misinterpreted.66

Appellant’s defense of alibi and denial cannot stand in the face of the positive identification of the
accused. We have unfailingly held that alibi and denial being inherently weak cannot prevail over the
positive identification of the accused as the perpetrator of the crime.67 It is facile to fabricate and
difficult to disprove, and is generally rejected.68

For the defense of alibi to prosper, it must be shown with clear and convincing evidence that at the
time of the commission of the crime charged, the accused is in a place other than the situs of the
crime such that it was physically impossible for him to have been at the situs criminis when the crime
was committed.69

In the case at bar, appellant was not successful in invoking the defense of alibi. Appellant insists that
he was sleeping at his residence at the time when the incident occurred. The RTC and the Court of
Appeals consistently found that the distance between appellant’s residence and the dance hall, or
the situs criminis, is 20 to 30 meters, more or less.70 Such a distance is negligible. In fact, appellant’s
wife testified that from their residence, she could see the people dancing at the hall. 71 It was not
highly impossible for the appellant to be physically present at the dancing hall at the time of the
occurrence of the incident. We, therefore, reject appellant’s defense of alibi.

We shall now determine the criminal liability of the appellant.

To reiterate, the RTC, in convicting the appellant guilty beyond reasonable doubt of the crime of
murder, proceeded from a rationalization that there was conspiracy among appellant and his co-
accused. It also appreciated the attendance of abuse of superior strength to qualify the crime to
Murder.

The Court of Appeals was unable to agree with the RTC. It found that the conspiracy was not proven
beyond reasonable doubt. It ruled that the witness Garcia admitted to not being able to see the
stabbing. He could only attest to the clubbing of the victim by appellant with a lead pipe. No proof
was shown as to the concerted action of the malefactors of their common design to kill. It, thus,
modified the RTC’s conviction, and, instead, found appellant guilty of frustrated murder.

The Amended Information charged the appellant and his co-accused with conspiracy in killing
Piamonte.

Conspiracy exists when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it.72 Conspiracy as a basis for conviction must rest on nothing less than
a moral certainty.73 Considering the far-reaching consequences of criminal conspiracy, the same
degree of proof necessary in establishing the crime is required to support the attendance thereof,
i.e., it must be shown to exist as clearly and convincingly as the commission of the offense
itself.74 Thus, it has been held that neither joint nor simultaneous actions is per se sufficient proof of
conspiracy.75

We are, further, guided by the following pronouncement of the Court:

For conspiracy to exist, the participants must agree to the commission of the felony and decide to
commit it, which agreement may be deduced from the mode and manner of the commission of the
offense or inferred from the acts that point to joint purpose and design, concerted action and
community of intent. x x x.76

While conspiracy need not be established by direct evidence, it is, nonetheless, required that it be
proved by clear and convincing evidence by showing a series of acts done by each of the accused in
concert and in pursuance of the common unlawful purpose.77

There is a want of evidence to show the concerted acts of the appellant and his co-accused in
pursuing a common design - to kill the deceased, Piamonte. The sole eyewitness for the
prosecution, Garcia, was categorical and precise in declaring that he did not see the act of stabbing
Piamonte, nor the manner in which Piamonte was stabbed. He later learned that Piamonte died from
stab wounds when he saw the latter’s dead body covered with stab wounds. The cause of death of
Piamonte, as found by the RTC and the Court of Appeals,78 and as borne by the records, is multiple
stab wounds.79 It was, thus, incumbent on the part of the prosecution to prove beyond reasonable
doubt that the appellant and his co-accused acted in concert with a unity of purpose to kill Piamonte.
They must show to the satisfaction of this Court the appellant’s overt act in pursuance or furtherance
of the complicity.80 They must show that appellant’s act of striking Piamonte with a pipe was an
intentional participation in the transaction with a view to the furtherance of the common design and
purpose.81

The prosecution was unable to show, either by direct or indirect evidence, proof of the agreement
among the appellant and his co-accused to warrant conspiracy as a basis for appellant’s conviction.
No evidence was even adduced to show implied conspiracy. Nothing has been shown that the
appellant and his co-accused were "aimed by their acts towards the accomplishment of the same
unlawful object, each doing a part so that their combined acts, though apparently independent of
each other were, in fact, connected and cooperative, indicating a closeness of personal association
and a concurrence of sentiment."82

This complete absence of evidence on the part of the prosecution to show the conduct of the
appellant and his co-accused, disclosing a common understanding among them relative to the
commission of the offense,83 is fatal to the prosecution. The prosecution’s witness could not testify on
the manner by which the deceased Piamonte was stabbed, precisely because by his own admission,
he did not see the stabbing. No account of the stabbing which caused the death of the deceased
Piamonte was ever given nor shown. Unfortunately, no account of how Piamonte died was ever
given, except for the established fact that he died due to stabbing. The appellant’s act of holding a
lead pipe and hitting the deceased in the head was not shown to be in furtherance of the common
design of killing the deceased. What transpired during the stabbing of the victim, which is material to
proving the fact of conspiracy, is, regrettably, left merely to speculation. This Court must neither
conjecture nor surmise that a conspiracy existed. The rule is clear that the guilt of the accused must
be proved with moral certainty.84 All doubts should be resolved in favor of the accused. Thus, the
time honored principle in criminal law that if the inculpatory facts are capable of two or more
explanations, one consistent with the innocence of the accused and the other with his guilt, the Court
should adopt that which is more favorable to the accused for then the evidence does not fulfill the
test of moral certainty.85

Liability of the Accused Bernard Mapalo

There being no conspiracy, the liability of the appellant will revolve around his individual participation
in the event.86
In the case of Li v. People,87 a street fight ensued resulting in the death of the victim therein. No
conspiracy was proven beyond reasonable doubt. The liability of the accused Li who was shown to
have struck the victim’s right arm with a baseball bat, resulting in a contusion was, thus, determined
by the Court in the following manner:

The only injury attributable to Li is the contusion on the victim’s right arm that resulted from Li striking
[the victim] Arugay with a baseball bat. In view of the victim’s supervening death from injuries which
cannot be attributed to Li beyond reasonable doubt, the effects of the contusion caused by Li are not
mortal or at least lie entirely in the realm of speculation. When there is no evidence of actual
incapacity of the offended party for labor or of the required medical attendance, the offense is only
slight physical injuries, penalized as follows:

xxxx

The duration of the penalty of arresto menor is from one day to thirty days. The felony of slight
physical injuries is necessarily included in the homicide charges. Since the Information against Li
states that among the means employed to commit the felonious act was the use of the baseball bat,
conviction on the lesser offense or slight physical injuries is proper. There being no aggravating or
mitigating circumstances established, the imposition of the penalty in its medium period is warranted.
Li was convicted by the RTC on January 5, 1994. Having long served more than the imposable
penalty, Li is entitled to immediate release unless, of course, he is being lawfully detained for
another cause.88

In the case at bar, no injury was shown to be attributable to the appellant. The only medical evidence
that appears on records is the deceased Piamonte’s death certificate,89 which indicates that the
cause of death is massive hypovolemia90 secondary to multiple stab wounds. The factual findings of
the RTC and the Court of Appeals coincide to show that the cause of death of Piamonte is multiple
stab wounds. Nothing has been shown otherwise. Other than the presence of multiple stab wounds,
no other type of injury on the deceased was established. No contusions or injury on the head of the
victim or anywhere else in his body caused by a lead pipe was shown. The witness Garcia, in his
testimony, merely pointed to stab wounds on the different parts of the body of the deceased. 91 No
proof on the injury that was sustained by the deceased that can be attributable to appellant’s act was
demonstrated. No other physical evidence was proffered.92

We cannot convict appellant of Attempted or Frustrated Murder or Homicide. The principal and
essential element of attempted or frustrated homicide or murder is the assailant’s intent to take the
life of the person attacked.93 Such intent must be proved clearly and convincingly, so as to exclude
reasonable doubt thereof.94 Intent to kill may be proved by evidence of: (a) motive; (b) the nature or
number of weapons used in the commission of the crime; (c) the nature and number of wounds
inflicted on the victim; (d) the manner the crime was committed; and (e) words uttered by the
offender at the time the injuries are inflicted by him on the victim. 95

In the case at bar, no motive on the part of appellant to kill Piamonte was shown either prior or
subsequent to the incident. Nor can such intent to kill be inferred from his acts. It bears reiterating
that no injury on the body of the deceased was attributed to the appellant’s act of hitting the victim
with a lead pipe. On the nature of the weapon used, the lead pipe was described by Garcia as one
and a half feet in length, and one and a half inches in diameter. The relevant testimony of Garcia on
the incident follows:

Q Now you said that Bernard Mapalo clubbed this Manuel Piamonte. He clubbed him from behind?

A Yes, sir.
Q And what did he use in clubbing the victim, is it lead pipe?

A Yes, sir.

Q How long is that lead pipe?

A Around this length. (Witness demonstrated 1 1/2 feet).

Q And how wide is the diameter?

A 1 ½ inches.

Q What part of his body was hit?

A Right side of the head, sir. (Witness showing the right side of his head.) 96

Homicidal intent must be evidenced by the acts that, at the time of their execution, are unmistakably
calculated to produce the death of the victim by adequate means.97 We cannot infer intent to kill from
the appellant’s act of hitting Piamonte in the head with a lead pipe. In the first place, wounds were
not shown to have been inflicted because of the act. Secondly, absent proof of circumstances to
show the intent to kill beyond reasonable doubt, this Court cannot declare that the same was
attendant.

When the offender shall ill-treat another by deed without causing any injury, and without causing
dishonor, the offense is Maltreatment under Article 266,98 par. 3 of the Revised Penal Code. It was
beyond reasonable doubt that by hitting Piamonte, appellant ill-treated the latter, without causing any
injury. As we have earlier stated, no proof of injury was offered. Maltreatment is necessarily included
in Murder, which is the offense charged in the Information. Thus:

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

xxxx

3. By arresto menor in its minimum period or a fine not exceeding 50 pesos when the offender shall
ill-treat another by deed without causing any injury.

The duration of the penalty of arresto menor in its minimum period is 1 day to 10 days.

WHEREFORE, the Decision of the Court of Appeals, dated 21 November 2005, in CA-G.R. CR HC
No. 00408 is MODIFIED. Appellant Bernard Mapalo is ACQUITTED of the charge of MURDER for
lack of evidence beyond reasonable doubt. He is found GUILTY of the crime of MALTREATMENT,
as defined and punished by Article 266, par. 3 of the Revised Penal Code. He is accordingly
sentenced to suffer the penalty of imprisonment of arresto menor of 10 days. Considering that
appellant has been incarcerated since 2004, which is well-beyond the period of the penalty herein
imposed, the Director of the Bureau of Prisons is ordered to cause appellant’s IMMEDIATE
RELEASE, unless appellant is being lawfully held for another cause, and to inform this Court, within
five (5) days from receipt of this Decision, of the compliance therewith.

SO ORDERED.
MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:

CONSUELO YNARES – SANTIAGO

Associate Justice
Chairperson

MA. ALICIA AUSTRIA-MARTINEZ ROMEO J. CALLEJO, SR.

Associate Justice Asscociate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, it
is hereby certified that the conclusions in the above Decision were reached in consultation before
the case was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

Footnotes

THIRD DIVISION

[G.R. NO. 177276 : August 20, 2008]

GRACIANO SANTOS OLALIA, JR., Petitioner, v. PEOPLE OF THE

PHILIPPINES, Respondent.

DECISION

CHICO-NAZARIO, J.:
Before Us is a Petition for Review on Certiorari under Rule 45 of the
Rules of Court which assails the Decision1 of the Court of Appeals in
CA-G.R. CR No. 23725 which affirmed with modification the
Decision2 of the Regional Trial Court (RTC) of San Carlos City,
Pangasinan, Branch 56, finding petitioner Graciano Santos Olalia, Jr.
and his co-accused Jeffrey Poquiz and Pedro Poquiz, guilty beyond
reasonable doubt of the crime of Frustrated Murder.

On 25 March 1998, an Information for Frustrated Murder was filed

before the RTC against petitioner Graciano Santos Olalia, Jr.
(Graciano), Jeffrey Poquiz (Jeffrey) and Pedro Poquiz (Pedro), which
was docketed as Criminal Case No. SCC-2818. The accusatory
portion of the Information reads:

That on or about February 21, 1998 in the evening in the Poblacion,

Municipality of Bayambang, Province of Pangasinan, xxx and within
the jurisdiction of this [Honorable] Court, the above-named accused
with intent to kill, with treachery and superior strength, conspiring,
confederating and mutually helping one another, unlawfully and
feloniously attack, assault and stab Rommel Camacho with a knife
inflicting upon him the following injuries:

- Non-penetrating stab wound 3 cm. 5th intercostal space mid

axillary line (L)

- Non-penetrating stab wound 1.5 cm. scapular area (L)

- 2 cm. stab wound supra orbital area (L)

the accused having thus performed all the acts of execution which
should have produced the crime of Murder as a consequence but,
which nevertheless, did not produce it by reason of causes
independent of the will of the accused and that is due to the timely
medical assistance afforded to said Rommel Camacho which
prevented his death and to his damage and prejudice.3

During the arraignment on 3 July 1998, petitioner and his co-

accused, with the assistance of counsel de parte, entered their
respective pleas of not guilty.4 Thereafter, trial on the merits
ensued.
At the trial, the prosecution presented the following witnesses: (1)
The 24-year old victim himself, Rommel Camacho (Rommel), who
testified on matters that occurred prior, during and after the alleged
stabbing incident; (2) Analyn Fernandez, a 15-year old eyewitness
and one of Rommel's companions during the incident in question,
whose testimony corroborated that of the victim; (3) Roderick
Poquiz, a by-stander who witnessed the mauling and the stabbing
incident; (4) Dr. Mario Ferdinand Garcia, the physician who
attended to the injuries of Rommel; and (5) Dionisio Camacho, the
victim's father who testified on the actual expenses incurred as a
result of the injury.

As documentary evidence, the prosecution offered the following:

Exhibit "A" - the Affidavit of a certain Maricel Soriano declaring that
she witnessed the stabbing incident of Rommel; Exhibit "B" - the
sworn statement of the Rommel; Exhibit "C" - the Medical
Certificate of Rommel; Exhibit "D" - the receipts for the medical
expenses in the treatment of the injuries suffered by the victim; and
Exhibit "E" - the receipts for the transportation expenses of the
victim's father who traveled from Bicol to Pangasinan to be with the
victim.

The collective evidence adduced by the prosecution shows that at

around 9:20 p.m. of 21 February 1998, while Rommel was
squatting along Burgos Street, Zone 4 of Poblacion, Bayambang,
Pangasinan, trying to disentangle the warped chain of the tribike he
was driving, a tricycle driven by petitioner Graciano, and which had
as passengers, the accused Jeffrey and Pedro, came by and stopped
at the other side of the street. Rommel was with Maylani Poquiz and
Analyn Fernandez. Jeffrey told Rommel to move the tribike to the
far side of the road. Rommel replied that the road was wide enough
for the tricycle to pass through. The three men on board the tricycle
alighted. Jeffrey proceeded to the direction of Rommel with
Graciano and Pedro following immediately behind. Without warning,
Jeffrey punched Rommel's face. Graciano and Pedro lost no time
and joined in the onslaught by punching the victim until he fell in
the muddy canal at the side of the road. Pedro continued the attack
by kicking the victim several times. As Rommel was trying to lift
himself out of the canal, Pedro ordered Graciano and Jeffrey to kill
the victim. Jeffrey right away drew a knife and lunged the same at
Rommel's back several times. Rommel tried to dodge the attack,
but his effort did not totally spare him from harm as he absorbed
some wounds at his back and on the eyebrow. Feeling helpless,
Rommel raised his two hands and pleaded his attackers to stop. He
was nonetheless stabbed on the left side of his armpit and fell to the
ground on his butt. The three assailants boarded the tricycle and
sped off. Maylani Poquiz shouted for help so Rommel could be
brought to the hospital. Rommel was first taken to the Bayambang
Emergency Hospital and was later transferred to the Provincial
General Hospital where he was confined for three days.

The medical certificate of Rommel shows that there were three non-
penetrating wounds sustained by him: first, at the back or the
scapular area; second, near the left armpit or the intercostal space,
mid-axillary line; and third, at the eyebrow or the supra-orbital
area.

Dr. Mario Ferdinand Garcia, the attending physician of Rommel,

testified that the victim could still survive his injuries even without
the immediate medical assistance. He admitted though that he
injected the patient with anti-tetanus serum to prevent him from
dying of tetanus.

As a result of the incident, the victim's father, Dionisio Camacho,

who was attending to family matters in Bicol, was forced to travel to
Pangasinan and incur expenses, as evidenced by receipts, in the
amount of P1,880.00. The victim's father likewise spent P10,476.75
for hospital and medical bills.

On the other hand, accused Jeffrey invoked self-defense, while

accused Pedro and petitioner Graciano interposed the defense of
denial. To prove their respective theories, only the testimonies of
the three were presented.

Jeffrey, 21 years old and nephew of accused Pedro, testified that on

the night in question, he and his companions, Graciano and Pedro,
were riding on a tricycle driven by Graciano, heading home from a
send-off party of a certain Atty. Benedicto Cayabyab, when they
were stalled as someone was blocking the middle of the road.5 He
told the man, who was then fixing the tribike, to move to the side of
the road.6 The man, whom he identified as Rommel, responded
rudely, "Vulva of your mother all of you, this road is not yours."
Jeffrey tried to talk to Rommel and approached him. As he was
approaching, Rommel brandished a screwdriver and stabbed Jeffrey.
Jeffrey parried the strike and pushed Rommel to the canal at the
side of the road.7 Rommel fell. He, together with Graciano and
Pedro, left. He also said that during the incident, Pedro was inside
the tricycle sleeping, while Graciano stayed on the driver's
seat.8 When asked during cross-examination if he reported to the
police officers the attempt on his life by Rommel, he responded that
it was not necessary, as he thought that such incident was
inconsequential.9

Pedro, 51 years old, testified he was drunk and was asleep

throughout the journey from Atty. Cayabyab's party to his house.
He came to know of the pushing incident involving Jeffrey and
Rommel when he was in his house when Jeffrey narrated to him the
occurrence.10 Upon learning of the incident, he, too, did not deem it
necessary to report it to the police authorities.11

Graciano corroborated the testimony of Jeffrey, stating that while

they were plying Burgos Street, they slowed down by Rommel's
side, as the latter was fixing a tribike in the middle of the street.
Jeffrey instructed Rommel to move his tribike to the side of the road
and to fix it there. Rommel replied by uttering offensive and
obscene words. Jeffrey went near Rommel and a heated argument
between the two followed. Graciano saw Jeffrey push Rommel, with
the latter falling into the canal. Graciano further said that during the
commotion, he remained on the driver's seat, while Pedro was
intoxicated and asleep on the passenger's seat. On cross-
examination, he said he neither saw Rommel stab Jeffrey with a
screw driver nor did he see Jeffrey stab Rommel.12

On 17 August 1999, the RTC rendered a decision finding petitioner

and his co-accused guilty beyond reasonable doubt of the crime
charged. The decretal portion of the RTC decision reads:

WHEREFORE, premises considered, herein three accused, Jeffrey

Calpao Poquiz, Pedro Pidlaoan Poquiz and Graciano Santos Olalia,
Jr., nicknamed "Junior", are hereby found guilty beyond reasonable
doubt of the crime of Frustrated Murder penalized by Article 248 in
relation to Articles 6 and 50 of the Revised Penal Code, as amended
by R.A. No. 7659. They should suffer the indeterminate prison term
of six (6) years, one (1) month and ten (10) days of prision mayor,
minimum, to twelve (12) years and one (1) day of reclusion
temporal, maximum, including the accessory penalties provided by
law. They should proportionately pay Dionisio Mabanglo Camacho,
the father of the victim who shouldered the total expenses
of P12,356.75.13

On 27 August 1999, Graciano, Pedro and Jeffrey filed a notice of

appeal.

In an Order dated 30 August 1999, the RTC ordered the transmittal

of the entire records of the case to the Court of Appeals.14

Despite their notice of appeal, on 31 August 1999, Pedro and

Graciano, nonetheless, filed a Motion for Reconsideration.15

Since all the accused already perfected their appeal, and since the
RTC lost jurisdiction over the case by reason of the appeal, it did
not resolve the motion for reconsideration.

The Court of Appeals, on 25 September 2006, promulgated its

Decision affirming the decision of the RTC, with modification on the
penalty imposed, thus:

WHEREFORE, the appealed Decision of the Regional Trial Court,

Branch 56 of San Carlos City, Pangasinan in Criminal Case No. SCC-
2818 finding appellants Jeffrey Poquiz, Pedro Poquiz, and Junior
Olalia GUILTY beyond reasonable doubt is AFFIRMED with
Modification. As modified, the appellants are hereby sentenced to
suffer the indeterminate penalty of Six (6) Years, One (1) Month
and Ten (10) Days of prision mayor as minimum to Fourteen (14)
Years, Eight (8) Months and one (1) Day of reclusion temporal as
maximum. The appellants' solidary liability for the amount
of P12,356.75 to the victim's father Dionisio Mabanglo Camacho is
AFFIRMED.16
On 19 October 2006, petitioner alone filed a Motion for
Reconsideration which was denied by the Court of Appeals in a
Resolution17 dated 2 March 2007.

Hence, the instant petition filed by petitioner Graciano Santos

Olalia, Jr.

Petitioner asserts that the prosecution failed to establish his guilt

beyond reasonable doubt.

This submission is unmeritorious.

The prosecution, through the testimony of Rommel, positively

identified petitioner as one of the men who assaulted him. Rommel
likewise declared in the witness stand that he heard Pedro order
petitioner and Jeffrey to kill him:

Pros. Manaois:

Q: While you were fixing your tribike beside the road, near the
corner, do you recall if there was any unusual incident that
happened? cra lawlibrary

A: Yes, sir.

Q: What was that unusual incident? cra lawlibrary

A: The tricycle of Pedro Poquiz arrived, sir.

Q:
lawlibrary
And what happened when the tricycle of Pedro Poquiz arrived? cra

A: They stopped near us, sir.

Q: And when they stopped, what happened next? cra lawlibrary

A: They shouted, they were asking us (sic) to move our tribike at

the side of the road, sir.

Q: And what did you do? cra lawlibrary

A: I told them "the road is wide enough" and they can pass
through, sir.

Q: After you told them that "the road is wide enough," they can
pass through, what happened next? cra lawlibrary

A: They alighted, sir.

Q: Who alighted? cra lawlibrary

A: The three (3) of them, sir.

Q: And what did they do to you, if any? cra lawlibrary

A: Jeffrey Poquiz boxed me on my face, sir.

Q: How about Pedro Poquiz, what did he do to you? cra lawlibrary

A: He also boxed me, sir.

Q: How about Junior Olalia, what did he do to you? cra lawlibrary

A: The three helped one another in mauling me, sir.

Q: After you were boxed on the face several times, what

happened to you after you were boxed by the three (3) accused on
the face?cra lawlibrary

A: I fell on the canal, sir.

Q: And what happened next after you fell on the canal? cra lawlibrary

A: When I fell on the canal, Pedro Poquiz kicked me several

times, sir.

Q: Were you hit? cra lawlibrary

A: Yes, sir.

Court:

Q: Where? cra lawlibrary

A: In the different parts of my body, your Honor.

Pros. Manaois:

Q: After you were kicked by Pedro Poquiz on the different parts

of your body, what happened next? cra lawlibrary

A: I went out of the canal, sir.

Q: Were you able to go out of the canal? cra lawlibrary

A: Yes, sir.

Q: And what happened after you went out of the canal? cra lawlibrary

A: Pedro Poquiz ordered that I be killed, sir.

Q: To whom did Pedro Poquiz order to kill you? cra lawlibrary

A: His two (2) companions.

Q: You are referring to Jeffrey Poquiz and Junior Olalia? cra lawlibrary

A: Yes, sir.

Q: And what happened after Pedro Poquiz ordered his

companions to kill you? cra lawlibrary

A: Jeffrey Poquiz drew a balisong (29), sir.

Q: After Jeffrey Poquiz drew his balisong (29), what happened

next?cra lawlibrary

A: He stabbed me and I was hit at the back, sir.

Q: How many times? cra lawlibrary

A: Several times because the other thrust, I was not hit because
I was able to evade, sir.

Q: What happened after you were hit? cra lawlibrary

A: He was moving back but he was still stabbing me and I was
hit on my left elbow, sir.

Q: And after you moved back and you were still hit on the left
eyebrow, what happened after that? cra lawlibrary

A: I was pleading "that's enough" (Witness is raising his two (2)

hands) but I was still stabbed and I was hit on the armpit, sir.
(witness pointing to his left armpit.)

Q: After you were hit on your left armpit, what did you do if you
did anything? cra lawlibrary

A: I fell on the ground in a sitting position while my lady-

companion shouted for help saying "help us", sir.

Q: How about the three (3) accused Jeffrey Poquiz, Pedro Poquiz
and Junior Olalia, what did they do next? cra lawlibrary

A: They boarded the tricycle and left, sir.18

Witness Roderick Poquiz, who was in the place where the incident
happened, corroborated Rommel's testimony that petitioner was
one of the perpetrators of the crime:

Q: While you were on that particular place, date and time, do you
remember of any unusual incident that happened, Mr. witness? cra lawlibrary

A: While I was along the road, I heard a shout seeking for help,
sir.

Q: What did you do after you heard those shouts? cra lawlibrary

A: I went to the place and to see what's happening, sir.

Q: And what did you see? cra lawlibrary

A: I saw Rommel Camacho being mauled by Jeffrey Poquiz,

Pedro Poquiz and Junior Olalia, sir.
Q: Specifically, what did Jeffrey Poquiz do to Rommel Camacho? cra lawlibrary

A: Jeffrey Poquiz stabbed Rommel Camacho, sir.

Q: How many times? cra lawlibrary

A: Many times, sir, and Rommel Camacho was hit at the back, at
the armpit (Witness pointing to the left armpit and at the forehead
near the eye).

Q: How about Pedro Poquiz, what was his participation? cra lawlibrary

A: He helped in mauling boxing and kicking Rommel Camacho,

sir.

Q: How about Junior Olalia, what did he do? cra lawlibrary

A: The same with what Pedro Poquiz did, sir.

Q: You said while ago that Jeffrey Poquiz stabbed Rommel

Camacho several times, how did Jeffrey stabbed Rommel? cra lawlibrary

A: Witness raising his right hand in swaying position form back

and forward at the level of his armpit? cra lawlibrary

Q: What weapon did he use in stabbing Rommel Camacho? cra lawlibrary

A: Balisong, sir.19

These detailed accounts eloquently depict what transpired on the

night in question. Only trustworthy witnesses could have described
such picturesque view of the incident which ineluctably points to
petitioner as one of the culprits in the wrongdoing. Given the
sincere, trustworthy and positive identification by the prosecution
witnesses of the assailants and the latter's respective participation
in the felony, petitioner's denial is rendered futile. Under settled
jurisprudence, denial cannot prevail over the positive testimonies of
witnesses. Denial is intrinsically a weak defense which must be
buttressed by strong evidence of non-culpability to merit credibility.
Also, petitioner maintains that the RTC's findings on the attendance
of conspiracy and on his participation in the stabbing of Rommel are
based on a glaring misapprehension of facts. The testimonies of the
prosecution witnesses, he avers, merely indicate that he and his co-
accused punched the aggrieved party, but the same testimonies are
absolutely silent as to his specific participation in the stabbing of
said victim. He insists that he did not exhibit any overt act showing
that he heeded the prodding of accused Pedro to kill Rommel. In
fact, he dissociated himself from accused Jeffrey when the latter
drew his knife but it was too late for him to prevent what his
companions were about to do, since he had no idea what the two
were thinking.

There is conspiracy when two or more persons come to an

agreement concerning the commission of a felony and decide to
commit it.20 Direct proof of a previous agreement to commit a crime
is not necessary.21 Conspiracy may be deduced from the acts of the
accused before, during, and after the commission of the crime,
which indubitably point to and are indicative of a joint purpose,
concert of action and community of interest. It is sufficient that at
the time of the aggression, all the accused manifested by their acts
a common intent or desire to attack, so that the act of one accused
becomes the act of all.22

In the case under consideration, unity of design or objective can

easily be drawn from the concerted acts of the three assailants.
Coming from a drinking party, it is not far-fetched to infer that the
three were easily agitated and peeved by the straightforward
answer of Rommel when asked to move to the side of the road.
They rushed towards the target. Jeffrey, who was the first to get
near the victim, right away hit the victim's face. Petitioner and
Pedro joined in the punching spree, throwing punches and
pounding. As the victim tried to pick himself up, Pedro ordered his
companions to kill him. Jeffrey complied and dealt several stab
blows to the victim, while petitioner stood behind Jeffrey.
Petitioner's act of punching the victim indubitably showed his desire
to hurt him, which intent was also shared by Pedro and Jeffrey.
Moreover, his presence during the stabbing served no other purpose
than to ensure that no one else would come to the aid of the victim
and thereby stop their criminal design from being accomplished. If
indeed his desire was merely to punch the victim, he could have
told or stopped Jeffrey from stabbing Rommel, since Jeffrey was
just in front of him. However, instead of doing so, he remained
where he was. He committed no act whatsoever to indicate that he
did not concur with the act of stabbing or killing the victim. Thus,
their conspiracy is evident, notwithstanding petitioner's assertion
that he did not participate in the stabbing. Having shown that the
three were in conspiracy through their concerted acts, there is
collective criminal responsibility, since "all the conspirators are liable
as principals regardless of the extent and character of their
participation, because the act of one is the act of all."

Petitioner also disagrees with the findings of the RTC and the Court
of Appeals appreciating the aggravating circumstance of treachery.
He claims it was error for said courts to rely on the location of one
of the stab wounds inflicted at the victim's back as a basis for
considering the attack as treacherous. He states that the location
alone of the wound, as ruled consistently by this Court, does not
prove treachery. According to him, treachery could not have
existed, since it was the victim who instigated the fight when he
uttered insulting words against the assailants. This verbal
altercation which immediately preceded the attack, he insists, would
negate the presence of treachery. He adds that the fact that the
victim was able to parry some stab blows and was able put up a
fight indicates that the attack was not sudden and unexpected.

The essence of treachery is a deliberate and sudden attack,

affording the hapless, unarmed and unsuspecting victim no chance
to resist or to escape.23 Frontal attack can be treacherous when it is
sudden and unexpected and the victim is unarmed.24 What is
decisive is that the execution of the attack made it impossible for
the victim to defend himself/herself or to retaliate.25 In the instant
case, the victim who fixed his attention to what he was doing and
was unwary of what the assailants were about to do, and without
warning, was suddenly mauled by the three. When he was about to
get out from the canal, he was again hit. The barrage of bodily
harm inflicted on the victim culminated in the stabbing. Said attack
was so sudden and unexpected that the victim had not been given
the opportunity to defend himself or repel the aggression. He was
unarmed when he was attacked. Indeed, all these circumstances
indicate that the assault on the victim was treacherous. While he
was at some point able to avoid some of the stab blows, that does
not mean that the aggression was not sudden. The survival instinct,
which is inherent in every extant human being, may have worked
well for the victim, or he might just have been fortunate to escape
some of the thrusts dealt him, but these things would not negate
the presence of treachery. Contrary to petitioner's claim, there was
no heated argument preceding the aggression. Victim Rommel
Camacho merely testified that when he was ordered by Jeffrey to
get out of the way, he answered that the road was wide enough for
the tricycle to pass through. Jeffrey's order and the victim's answer
can hardly be considered as a heated argument.

Petitioner likewise makes much of the fact that the medical

certificate presented by the prosecution states nothing about the
injuries sustained from the punching. The seeming silence of the
medical certificate on the injuries caused by the punching does not
at all discount the evidence established by the prosecution of the
act of mauling. The credible testimonies of the prosecution
witnesses were sufficient to establish such fact.

The Office of the Solicitor General recommends that petitioner and

his companions be convicted of attempted murder and not
frustrated murder because the wounds inflicted were non-
penetrating or not mortal wounds.

We subscribe to such argument.

The rule is that where the wound inflicted on the victim is not
sufficient to cause his death, the crime is only attempted murder,
since the accused did not perform all the acts of execution that
would have brought about death.26 By commencing their criminal
design by overt acts but failing to perform all acts of execution as to
produce the felony by reason of some cause other than their own
desistance, petitioner and his cohorts committed an attempted
felony. In the instant case the three assailants already commenced
their attack with a manifest intent to kill by punching Rommel
countless times and when one of the malefactors stabbed him, but
failed to perform all the acts of execution by reason of causes
independent of his will, that is, the agility of the victim. Rommel
sustained three stab wounds which were characterized by the
prosecution witness Dr. Mario Ferdinand Garcia as non-penetrating
or non-life-threatening wounds.

The penalty of consummated murder under Article 248 of the

Revised Penal Code, as amended, is reclusion perpetua to death.
The imposable penalty should be reduced by two degrees under
Article 68 of the Revised Penal Code because the appellant is a
minor. As reduced, the penalty is reclusion temporal. Reclusion
temporal should be reduced by two degrees lower, conformably to
Article 51 of the Revised Penal Code, which is prision correccional.
Applying the Indeterminate Sentence Law, the penalty imposable on
a principal in an attempted murder, where there is no aggravating
or mitigating circumstance, is prision correccional in its maximum
period to prision mayor in its medium period. As applied, appellant
shall suffer the penalty of four (4) years and two (2) months
of prision correccional, as minimum, to eight (8) years and twenty
(20) days of prision mayor, as maximum.

As to the damages, we affirm the actual damages awarded by the

RTC to Dionisio Camacho in the amount of P12,356.75, the same
being supported by receipts.

One last note. Records reveal that the Court of Appeals affirmed the
RTC decision convicting Graciano Santos Olalia, Jr., Pedro Poquiz
and Jeffrey Poquiz of frustrated murder. However, only petitioner
Graciano Santos Olalia, Jr. appealed the judgment of conviction.
Accused Pedro Poquiz and Jeffrey Poquiz, for unknown reasons, did
not seek to assail their conviction before the Court. Since the Court
downgraded the crime committed by petitioner from frustrated
murder to attempted murder, and considering that the same set of
facts were used to convict Pedro Poquiz and Jeffrey Poquiz, the
Court holds, that the favorable verdict on petitioner's appeal should
likewise be extended to Pedro Poquiz and Jeffrey Poquiz, since
under Section 11(a), Rule 122 of the present Rules on criminal
procedure, an "appeal taken by one or more of several accused
shall not affect those who did not appeal, except insofar as the
judgment of the appellate court is favorable and applicable to the
latter."27

WHEREFORE, the Decision of the Court of Appeals dated 25

September 2006 2006 in CA-G.R. CR. No. 23725 is
hereby MODIFIED. Graciano Santos Olalia, Jr., Pedro Poquiz and
Jeffrey Poquiz are found GUILTY of ATTEMPTED MURDER and are
sentenced to suffer the prison term of four (4) years and two (2)
months of prision correccional, as minimum, to eight (8) years and
twenty (20) days of prision mayor, as maximum. They are also
ordered to pay jointly and severally Dionisio Camacho, the father of
the victim, the amount of P12,356.75 as actual damages.

SO ORDERED.

Endnotes: