3rd Batch Criminal Review Cases

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FIRST DIVISION G.R. No. 183094

September 22, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. REYNALDO BARDE, Accused-Appellant. DECISION PEREZ, J.: On appeal is the Decision1 dated 24 September 2007 of the Court of Appeals in CA-G.R. CR-H.C. No. 01245, which affirmed with modifications, the Decision2 dated 29 January 2005 of the Regional Trial Court (RTC) of Legazpi City, 5th Judicial Region, Branch 1, in Criminal Case No. 8661, finding herein appellant Reynaldo Barde (appellant) guilty beyond reasonable doubt of the complex crime of multiple murder with multiple frustrated murder. The appellate court, however, increased the penalty imposed upon the appellant by the court a quo from reclusion perpetua to the ultimate penalty of death, being the maximum penalty prescribed by law, for the crime of murder. In view, however, of the subsequent passage of Republic Act No. 93463 prohibiting the imposition of the death penalty, the appellate court reduced the penalty to reclusion perpetua. The appellate court further increased the amount of moral and temperate damages awarded by the court a quo to the heirs of each of the deceased victims from P30,000.00 to P50,000.00 and from P5,000.00 to P25,000.00, respectively. The heirs of each of the deceased victims were also awarded exemplary damages of P25,000.00. With respect to the surviving victims, Purisima Dado (Purisima) and Ligaya Dado (Ligaya), the appellate court similarly increased the temperate damages awarded to them by the court a quo from P5,000.00 to P25,000.00 each. They were also awarded exemplary damages of P25,000.00 each. On the other hand, appellant’s co-accused and brother, Jimmy Barde (Jimmy), was acquitted for failure of the prosecution to prove conspiracy and for insufficiency of evidence to prove his guilt for the crime charged. No civil liability has been adjudged against him as there was no preponderance of evidence to prove the same. Appellant and Jimmy were charged in an Information4 dated 13 August 1999 with the complex crime of multiple murder and multiple frustrated murder, the accusatory portion of which reads: That on or about the 15th day of April, 1999 at more or less 12:30 o’clock in the morning, at Sitio Santo Niño, Barangay Liguan, Municipality of Rapu-Rapu, Province of Albay, Philippines and within the jurisdiction of this Honorable Court, the above-named [appellant and Jimmy], conspiring and confederating and acting in concert to achieve a common purpose, willfully, unlawfully and feloniously, with intent to kill and committed with the qualifying circumstances of treachery (alevosia), evident premeditation, and by means of explosion, did then and there roll and explode a hand grenade (M26A1 Fragmentation grenade) inside the dance area which exploded and resulted to the instantaneous deaths of the following persons, to wit: 1. FRANCISCO BIAGO, JR. alias Tikboy5 2. ROGER SISO6 3. NICANOR OLOROSO 4. MARGIE BAÑADERA 5. VICTOR BAÑADERA 6. BIENVENIDO BAÑADERA 7. DIOSDADO BAÑADERA7 8. WILLIAM BUTIAL 9. MARYJANE BECHAYDA 10. RICHARD BLANSA8 11. EFREN YASUL9 12. JOSE BOMBALES10 13. DEONY BALIDOY11 14. DAISY OLOROZO12 15. ROLLY BELGA13 This single act of exploding the hand grenade (M26-A1 Fragmentation grenade) by the above-named [appellant and Jimmy] also caused and resulted in the injuries and wounding on the different and various parts of the bodies of at least seventy six (76) persons, namely, to wit: 1. JOEL MORALES 39. WILLIAM BALUTE, JR. 2. MARGARITA YASOL 40. JESUS CAÑO 3. SANTOS BAÑADERA, JR. 41. BIENVENIDO CAÑO 4. LEA BAÑADERA 42. VICTOR BORJAL 5. LIGAYA DADO14 43. VIRGILIO BALINGBING 6. VIRGILIO BAÑADERA 44. ALEJANDRO BALUTE 7. MANUEL BAÑADERA 45. GIL BINAMIRA, JR. 8. RODOLFO GALANG, JR. 46. RODELITA BARNEDO 9. PURISIMA DAO15 47. SANTIAGO BARNIDO 10. MELCHOR BALIDOY 48. LEVI MAGALONA

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11. ABUNDIO BARCENILLA 49. JUANITO CAÑO 12. LOURDES BALIDOY 50. ARELFA BETCHAYDA 13. JULIO ROMANGAYA 51. EDITHA BELCHES 14. FRANDY SANGCAP 52. JANET BOMBALES 15. LOLIT BERSABE 53. MARILOU BETCHAYDA 16. DONDON BERSABE 54. MARIFE BETCHAYDA 17. FERMIN BARNEDO, JR. 55. ROSEMARIE BEQUIO 18. THERESA BAJARO 56. ALEXANDER BASALLOTE 19. ANTONIO ECAL 57. VICTOR BALLARES 20. FLORENCIA ECAL 58. LUIS OLOROSO, JR. 21. MA. NETOS ECAL 59. DOMINGO SISO 22. VENUS ECAL 60. DOMINGO MICALLER 23. NELIZ MORALINA 61. JENIFER OLOROSO 24. NORMA BAJARO 62. CATALINO ARCINUE 25. ALEX BAÑADERA 63. VIOLETA BUEMIA 26. ALADIN MORALINA 64. TIRSO BARBERAN 27. PEDRO BIÑAS, JR. 65. NELLY BUEMIA 28. ROMEO MORALINA 66. RODOLFO BOMBITA 29. PABLITO FORMENTO 67. BIENVENIDO BAÑADERA 30. ANGELES BOMBALES 68. BERNARDINO BARBERAN, JR. 31. SARDONINA BERSABE 69. MYLEN CERILLO 32. DOLORES BAÑADERA 70. DIONY BALIDOY 33. CATALINO BARRAMEDA 71. PO3 SAMUEL BATAS 34. ABIGAEL BROSO 72. LITO BERMAS 35. NILDA YASOL 73. JOSEPHINE BEJORO 36. ESPERANZA BARDE 74. ROGER BELARO 37. RYAN BALUTE 75. ADELA VERGARA 38. ROBERTO BETITO 76. VINCENT BERMEJO these wounds and injuries caused being fatal and mortal; and thus the above-named [appellant and Jimmy] have already performed all the acts of execution which would have produced the crime of Multiple Murder but which nevertheless did not produce it by reason of causes independent of the will of the [appellant and Jimmy], that is, the able and timely medical assistance given to these victims which prevented their deaths, to the damage and prejudice of the legal heirs of those who died herein and also those who suffered injuries on the various parts of their bodies.16 [Emphasis supplied]. Upon arraignment,17 appellant and Jimmy, assisted by counsels de oficio, pleaded NOT GUILTY to the crime charged. Thereafter, trial on the merits ensued. As culled from the records and testimonies of prosecution witnesses, the facts of this case are as follows: On 14 April 1999, at around 9:00 p.m., Elmer Oloroso (Elmer), one of the prosecution witnesses and first cousin of appellant and Jimmy, was at a dancing place18 at Sitio Sto. Niño, Liguan, Rapu-Rapu, Albay, to attend a dance held in connection with the feast day celebration thereat. The dancing place, which was more or less ten (10) meters long and eight (8) meters wide, was enclosed by bamboo fence and properly equipped with long benches. It was well-lighted by the fluorescent lights surrounding it and an oscillating light located at the center thereof. While sitting on the bench inside the dancing place, near the front gate thereof, Elmer saw appellant and Jimmy outside holding flashlights and focusing the same toward the people inside.19 At around 11:00 p.m., Jimmy entered the dancing place and approached the person sitting beside Elmer. The latter overheard Jimmy telling the person beside him to go out and look for their companions. Not long after, Jimmy went out of the dancing place and it was the last time Elmer saw him on that particular day.20 Then, at around 12:00 midnight, which was already 15 April 1999, Elmer spotted appellant, who was wearing maong pants and maong jacket with a belt bag tied around his waist, entered the dancing place and walked towards the people who were dancing. At that time, Jimmy was no longer there. Elmer, who was only more or less three (3) meters away from the appellant, saw the latter get a rounded object from his belt bag, which he believed to be a hand grenade as he has previously seen one from military men when he was in Manila. Later, appellant pulled something from that rounded object, rolled it to the ground towards the center of the dancing place where the people were dancing, and left immediately. Five seconds thereafter, the rounded object exploded. At that moment, appellant was already one-half meter away from the gate of the dancing place.21 The lights went off, people scampered away, and many died and were seriously injured as a result of the said explosion. Elmer went out of the dancing place, together with the crowd, through the destroyed bamboo fence. Realizing his brothers and sisters might still be inside the dancing place, Elmer went back, together with the people carrying flashlights and torches, to look for his siblings. There he saw the lifeless body of his brother, Nicanor Oloroso (Nicanor). His other brother, Luis Oloroso (Luis), on the other hand, was seriously injured. Elmer’s two other siblings, Jenny and Edwin, both surnamed Oloroso, was slightly injured. Elmer immediately brought Luis at Bicol Regional Training and Teaching Hospital (BRTTH), Albay Provincial Hospital, where the latter was confined for almost three months.22 The second prosecution witness, Antonio Barcelona (Antonio), corroborated Elmer’s testimony on material points. Antonio first met appellant on 20 March 1999 as the latter’s brother, Rafael Barde (Rafael), invited him to their house to attend a dance in Mancao, Rapu-Rapu, Albay. There they had a little conversation and appellant told Antonio that he would not enter any dancing place without creating any trouble. On 14 April 1999 at around 9:30 p.m., Antonio again met appellant at the dancing place at Sitio Sto. Niño, Liguan, Rapu-Rapu, Albay. While Antonio was inside the dancing place, appellant saw him and summoned him to go out. Then, Antonio and appellant, who was then with his brothers, Jimmy and Joel, both surnamed Barde, conversed about their work.23 Suddenly, appellant uttered, "Diyan lang kamo, dai kamo maghale sa Tokawan na iyan, to kong may ribok man, yaon kami sa likod lang."24 Appellant told Antonio that he would just be behind him and his companions because there might be a trouble. Thereafter, Antonio went inside the dancing place. 25 At about 11:30 p.m., the dance was declared open to all. At this juncture, appellant and his two brothers went inside the dancing place. Jimmy then approached Antonio. Then, at around 12:30 a.m. of 15 April 1999, Antonio noticed appellant

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walking slowly towards the crowd inside the dancing place with his hands partly hidden inside his maong jacket with an eagle figure at the back thereof. Suddenly, appellant stopped, looked around, got something from his waist line, rolled it to the ground towards the crowd and hastily left. Antonio confirmed that what was rolled to the ground by appellant was a grenade because after more or less four seconds that thing exploded. Appellant was already in front of the gate of the dancing place when the explosion occurred. Antonio was not injured as he was more or less four (4) meters away from the place where the explosion occurred. Darkness followed after the explosion as the lights went off. People bustled. Many died and were injured.26 Other prosecution witnesses, Alexander Basallote (Alexander) and Nilda Yasol (Nilda) - the Barangay Captain of Liguan, Rapu-Rapu, Albay, also corroborated the testimonies of Elmer and Antonio. The prosecution likewise presented Senior Police Officer 2 Hipolito Talagtag (SPO2 Talagtag),27 who was assigned at R-4 Division, Explosive and Ordinance Disposal, Police Regional Office 5 at Camp Simeon Ola, Legazpi City. On 15 April 1999, SPO2 Talagtag received a call from Colonel Delos Santos (Col. Delos Santos), Chief of R-4 Division, Supply of RECOM 5, informing him about the explosion incident happened in a dancing place at Sitio Sto. Niño, Liguan, RapuRapu, Albay, and asking assistance from them. In response thereto, a team was organized composed of members from the Crime Laboratory, IID Investigators, CIS Investigating Agents and the Explosive Ordinance Team. Thereafter, the team proceeded to the scene of the crime. They reached the place at more or less 11:00 a.m. of 16 April 1999. The team found a crater inside the dancing place that served as their lead in determining the kind of explosive used. In the course of their investigation, they interviewed people living nearby who told them that the explosion was loud. Later, SPO2 Talagtag placed a magnet in the crater inside the dancing place and recovered several shrapnels similar to those that can be found in an M26-A1 fragmentation grenade. By reason thereof, SPO2 Talagtag concluded that the explosion was caused by an M26-A1 fragmentation grenade. Thereafter, the recovered shrapnels were turned over to the crime laboratory at Camp Simeon Ola, Legazpi City, for examination.281avvphi1 Engineer Ma. Julieta Razonable (Engr. Razonable), Police Senior Inspector and Forensic Chemical Officer assigned at Camp Simeon Ola, Legazpi City, received the specimen, i.e., the shrapnels recovered at the scene of the crime, for physical examination. Her examination yielded positive result, meaning, the specimen submitted to her were part of a hand grenade fragmentation, M26-A1.29 This result was subsequently reduced into writing as evidenced by Physical Identification Report No. PI-601-A-99 dated 16 April 1999.30 In his defense, appellant vehemently denied the charge against him and offered a different version of the incident. Appellant asseverated that at around 7:00 p.m. on 14 April 1999 he was at home in Mancao, Rapu-Rapu, Albay, organizing the plates, spoons, forks and other kitchen utensils that they were about to bring to the house of Teodora Arsenue (Teodora) at Sitio Sto. Niño, Liguan, Rapu-Rapu, Albay, in connection with the feast day celebration in the said place. Then, at around 7:30 p.m., the appellant, together with his mother Gloria Barde (Gloria) and brothers Jimmy, Joel, Rafael, Jovito, Jr., all surnamed Barde, proceeded to the house of Teodora and reached the same before 9:00 p.m. Teodora offered them food. After eating, they acceded to the suggestion of Jovito, Jr., to go to the dancing place also located at Sitio Sto. Niño, Liguan, Rapu-Rapu, Albay, only a ten minute-walk away from the house of Teodora.31 Upon reaching the dancing place, they stayed outside as they had no tickets. At around 11:30 p.m., through the help of William Gutchal (William),32 appellant and his brothers Joel and Jimmy, both surnamed Barde, were able to enter the dancing place while his mother and other brothers remained outside. They immediately proceeded to the left side of the dancing place near the baffles of the sound system and stood behind the benches as the same were already occupied. The three of them remained in that place until the explosion occurred inside the dancing place, which was more or less twenty-five (25) meters away from them. The people dancing in the area of the explosion died and some were injured.33 Appellant claimed that he had no idea how the explosion started because at that time he and his brother Jimmy were talking to Roger Springael (Roger), who was standing outside the bamboo fence surrounding the dancing place, as the latter was interested in buying a fighting cock from him. His other brother, Joel, was also with them, but he was sleeping. In the course of their conversation, he suddenly heard an explosion. All lights went off and there was a total blackout inside the dancing place. People were then pushing each other in order to get out. Appellant was able to go out and run towards a lighted place nearby. When the people carrying torches came, appellant went back to the dancing place to look for his mother and brothers. It was already 2:00 a.m. of 15 April 1999, when he saw his mother and brothers. They went home afterwards. When they reached their house, appellant and his father went to the house of his injured cousin to inform the latter’s family of what happened.34 The following day, or on 16 April 1999, appellant and Jimmy were invited by Police Officer, Efren Cardeño (Cardeño), at Camp Simeon Ola, Legazpi City, to be utilized as witnesses to the explosion incident happened on 15 April 1999. They refused the invitation as they did not actually witness the explosion. But, Cardeño insisted. On 17 April 1999, appellant and Jimmy went with Cardeño at Camp Simeon Ola, Legazpi City. Thereafter, they did not see Cardeño anymore.35 While appellant was at Camp Simeon Ola, Legazpi City, he was brought in one of the offices there and was told to be a witness to the explosion incident happened at Sitio Sto. Niño, Liguan, Rapu-Rapu, Albay. Shortly thereafter, the investigator showed him a typewritten document and was ordered to sign the same but, he refused because he did not understand its contents. Appellant maintained that he was even promised money and work should he sign it and testify but, once again, he refused. Due to his incessant refusal, he was ordered to go out. There he saw Jimmy who told him that he was also made to sign a certain document but, he also refused.36 Between 10:00 p.m. to 11:00 p.m. of 17 April 1999, appellant and Jimmy were awakened but the latter continued sleeping. As such, it was only appellant who was brought in another room and was made to drink wine by persons in civilian clothes. When appellant declined, he was then accused as the person responsible for the explosion incident. Appellant, however, strongly denied the accusation. At this instance, appellant was kicked and boxed and was ordered to admit the accusation but he refused to admit it. Appellant was subsequently brought inside a detention cell. When he met Jimmy, the latter told him that he was also tortured.37 The next day, or on 18 April 1999, appellant and Jimmy were brought at the office of a certain General Navarro and they were ordered to stand up with more than 30 people. Later, Antonio arrived. Appellant avowed that a certain person in civilian clothes instructed Antonio to point at them as the perpetrators of the explosion incident, which Antonio did. When they were pinpointed as the authors of the crime, they neither reacted nor denied the accusations. Afterwards, appellant and Jimmy were brought back inside their detention cell.38 Appellant similarly denied having met Antonio on 20 March 1999 at a dance in Mancao, Rapu-Rapu, Albay. Appellant likewise denied having told Antonio that whenever he enters a dance hall he would always create trouble. Appellant maintained that he saw Antonio for the first time when the latter pinpointed him and Jimmy at the office of a certain General Navarro. The second time was when Antonio testified in court. Appellant, however, confirmed that Elmer is his first cousin and he did not know any reason why he would accuse him with such a grave offense. 39

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Other defense witnesses, Roger, Jimmy and Gloria corroborated appellant’s testimony. Wilfredo Echague (Wilfredo), a radio broadcaster at Radio Filipino, DWRL, since 19 February 1991, testified that on 11 August 2001 while conducting series of interviews in relation to the explosion incident that happened on 15 April 1999 at Sitio Sto. Niño, Liguan, Rapu-Rapu, Albay, he met Violeta Buemia (Violeta) at the latter’s residence in Cabangan, Villa Hermosa, Rapu-Rapu, Albay, who claimed personal knowledge about the explosion incident. Wilfredo’s interview on Violeta was recorded by the former. On 17 August 2001, he accompanied Violeta to the National Bureau of Investigation (NBI), Legazpi City, where she executed her sworn statement before Atty. Raymundo D. Sarga, Jr. (Atty. Sarga), Head Agent of NBI, Legazpi City.40 Violeta affirmed that Wilfredo had interviewed her regarding the explosion incident and he had also accompanied her in executing her sworn statement before the NBI, Legazpi City.41 During her testimony, she disclosed that at around 10:00 p.m. of 14 April 1999, she and her daughter entered the dancing place at Sto. Niño, Liguan, Rapu-Rapu, Albay. Her daughter sat down while she stood near the gate. At round 12:00 a.m., which was already 15 April 1999, she went out to urinate. In a distance of more or less two (2) meters, she saw Eddie Oloroso (Eddie) standing outside the dancing place and then throw something inside that hit the wire beside a fluorescent bulb causing some sparks. The place became very bright and she confirmed that it was really Eddie who threw that something. Eddie then ran away. The thing exploded when it fell on the ground. The place became dark thereafter. She was hit by the flying pebbles coming from the explosion. She then looked for her daughter and was able to find her. Many died and seriously injured in the said explosion incident.42 Violeta also explained that it took her more than two years after the incident happened to come out and testify because she was afraid. Her conscience, however, kept bothering her so she decided to divulge what she knew about the incident. 43 Later in her testimony, Violeta admitted that she saw Eddie outside the dancing place and it was appellant and Jimmy, whom she saw sitting inside the dancing place at the far end of the fence.44 Finding the defense of appellant and Jimmy unmeritorious vis-a-vis the evidence proffered by the prosecution, the trial court rendered its Decision on 29 January 2005 finding appellant guilty of the complex crime of multiple murder with multiple frustrated murder and imposing upon him the penalty of reclusion perpetua. He was also ordered to pay the legal heirs of each of the deceased victims the amount of P50,000.00 as civil indemnity, P30,000.00 as moral damages, and P5,000.00 as temperate damages, as well as each of the surviving victims, Purisima and Ligaya, the amount of P20,000.00 as moral damages and P5,000.00 as temperate/actual damages. Jimmy, on the other hand, was acquitted of the crime charged for the prosecution’s failure to prove conspiracy and for insufficiency of evidence. No civil liability was adjudged against him there being no preponderance of evidence to prove the same.45 Aggrieved, appellant moved for the reconsideration of the aforesaid RTC Decision but it was denied in an Order46 dated 15 June 2005 for lack of merit. Accordingly, appellant elevated the 29 January 2005 RTC Decision to the Court of Appeals with the lone assignment of error, thus: THE TRIAL COURT GRAVELY ERRED IN FINDING [APPELLANT] GUILTY OF THE CRIME CHARGED DESPITE FAILURE OF THE PROSECUTION TO ESTABLISH HIS GUILT BEYOND REASONABLE DOUBT.47 On 24 September 2007, the Court of Appeals rendered its Decision, disposing: WHEREFORE, the Appeal is Denied. The Decision dated [29 January 2005] of the [RTC] of Lega[z]pi City, Branch 1, in Criminal Case No. 8661, is AFFIRMED with MODIFICATION in that: 1. The [appellant] shall suffer the penalty of Death. However, in view of the subsequent passage of R.A. No. 9346, which was approved on [24 June 2006], which repealed R.A. No. 817748 and R.A. No. 7659,49 the penalty of Death is REDUCED to RECLUSION PERPETUA. 2. The [appellant] is hereby ordered to indemnify the heirs of the deceased the amount of P50,000.00, as moral damages, P25,000.00, as temperate damages and P25,000.00 as exemplary damages. [Appellant] is also ordered to pay each Purisima Dado and Ligaya Dado temperate damages in the amount of P25,000.00 and exemplary damages in the amount of P25,000.00.50 [Emphasis supplied]. Appellant moved for the reconsideration of the aforesaid Court of Appeals Decision, but to no avail.51 Unable to accept his conviction, appellant appeals to this Court reiterating the same assignment of error he raised before the Court of Appeals, to wit: the trial court gravely erred in finding appellant guilty of the crime charged despite failure of the prosecution to establish his guilt beyond reasonable doubt. Appellant asserts that his guilt was not proven beyond reasonable doubt because the evidence presented by the prosecution was not sufficient to overcome his constitutionally enshrined right to be presumed innocent. He casts doubts on the credibility of prosecution witness Elmer because his statements were replete with inconsistencies. According to appellant, Elmer, at first, declared that after the explosion, lights went off and he saw appellant leave the dancing place but Elmer later stated that immediately after appellant threw the grenade, the latter went out and upon reaching the gate, the explosion occurred. These inconsistent statements of Elmer allegedly created doubts as to what actually transpired and who the real culprit was. Appellant then claims that there is a possibility that Elmer is a rehearsed witness as such inconsistencies relate to material points. Appellant’s contentions are not well-founded, thus, his conviction must stand. Primarily, it has been jurisprudentially acknowledged that when the issues revolve on matters of credibility of witnesses, the findings of fact of the trial court, its calibration of the testimonies of the witnesses, and its assessment of the probative weight thereof, as well as its conclusions anchored on said findings, are accorded high respect, if not conclusive effect. This is because the trial court has the unique opportunity to observe the demeanor of witnesses and is in the best position to discern whether they are telling the truth.52 In this case, it is notable that the Court of Appeals affirmed the factual findings of the trial court, according credence and great weight to the testimonies of the prosecution witnesses. Settled is the rule that when the trial court's findings have been affirmed by the appellate court, said findings are generally conclusive and binding upon this Court,53 unless the trial court had overlooked, disregarded, misunderstood, or misapplied some fact or circumstance of weight and significance which if considered would have altered the result of the case.54 None of these circumstances is attendant in this case. This Court, thus, finds no cogent reason to deviate from the factual findings arrived at by the trial court as affirmed by the Court of Appeals. Prosecution witnesses, Elmer and Antonio, actually witnessed the explosion incident. Both of them narrated in detail the

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events that transpired prior, during and after the explosion. They had a vivid recollection of how appellant entered the dancing place, walked towards the people who were dancing, got a rounded object from the belt bag tied on his waist, pulled something from it, rolled it to the ground towards the people who were dancing and left the place rapidly. Immediately thereafter, the explosion occurred. The trial court characterized their testimonies as candid, spontaneous and straightforward that despite rigid cross-examination their testimonies on who and how the crime was committed remained unshaken and undisturbed.55 With certainty, these prosecution witnesses positively identified appellant as the person who rolled a rounded object, which was later confirmed as an M26-A1 fragmentation grenade, towards the people who were dancing, the explosion killing and causing injuries to many. The identity of appellant was clear to the prosecution witnesses because the dancing place where the explosion occurred was well lighted. Besides, Elmer and Antonio knew the appellant well. Elmer is appellant’s first cousin. Antonio met appellant prior to the explosion incident at a dance in Mancao, Rapu-Rapu, Albay, where they engaged in some conversations. Given these circumstances, the prosecution witnesses could not have been mistaken as to appellant’s identity. The records were also wanting in evidence that would show that these witnesses were impelled by improper motive to impute such a grave offense against the appellant. Even appellant himself admitted that he did not know any reason why Elmer would accuse him with such an offense with pernicious consequences on his life and liberty, considering the fact that they are relatives. It bears stressing that Elmer’s brother, Nicanor, died, his other brother, Luis, was seriously injured and almost died and his two other siblings were also injured because of the explosion. Elmer had more than enough reason to identify the appellant.56 Indeed, his relationship to the victims cannot be taken against him and it does not automatically impair his credibility and render his testimony less worthy of credence since that no improper motive can be ascribed to him for testifying.57 It would be unnatural for a relative who is interested in seeking justice for the victims to testify against an innocent person and allow the guilty one to go unpunished.58 Rather, his inherent desire to bring to justice those whom he personally knew committed a crime against his close relative makes his identification of the appellant all the more credible.59 In comparison with the clear and straightforward testimony of prosecution witnesses, all that appellant could muster is the defense of denial and alibi. It is well-entrenched that alibi and denial are inherently weak and have always been viewed with disfavor by the courts due to the facility with which they can be concocted. They warrant the least credibility or none at all and cannot prevail over the positive identification of the appellant by the prosecution witnesses.60 For alibi to prosper, it is not enough to prove that appellant was somewhere else when the crime was committed; he must also demonstrate that it was physically impossible for him to have been at the scene of the crime at the time of its commission. Unless substantiated by clear and convincing proof, such defense is negative, self-serving, and undeserving of any weight in law.61 Denial, like alibi, as an exonerating justification is inherently weak and if uncorroborated regresses to blatant impotence. Like alibi, it also constitutes self-serving negative evidence which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testify on affirmative matters.62 In this case, appellant himself and all his witnesses admitted that appellant was at the scene of the crime until the explosion occurred. With that, the defense ultimately failed to meet the necessary requisites for the proper invocation of alibi as a defense. Appellant’s defense of denial cannot also be given any considerable weight as it was unsubstantiated. The testimony of Violeta pointing at Eddie as the real culprit is intended to bolster appellant’s defense of denial. However, it cannot be given credence. Her testimony was given only after more than two years from the time the incident happened, and she failed to offer any convincing evidence to justify such delay. Records do not show that there was any threat on Violeta’s life that might have prevented from coming out to testify. She herself admitted that after the explosion incident she did not see Eddie anymore. Eddie then could not have possibly threatened her. She could freely testify on what she knew about the explosion incident had she wanted to. Her alleged fear is unfounded. It cannot justify her long delay in disclosing it before the court a quo. Moreover, if she was, indeed, afraid, she would not have allowed herself to be interviewed by a radio broadcaster and would not have divulged to him all that she knew about the incident. Instead of directly disclosing it to the proper authorities, she had chosen to tell it first to a radio broadcaster. Further, the only reason she gave the court for her silence of more than two years was that she began to be bothered by her conscience as she recently kept on dreaming of those who died in the explosion incident especially during "All Souls Day." Violeta, in other words, cannot rely on the doctrine that delay of witnesses in revealing what they know about a crime is attributable to their natural reticence against involvement therein.63 More telling is Violeta’s categorical admission that Eddie was outside the dancing place and it was appellant whom she saw inside the dancing place prior to the explosion incident. With this testimony, Violeta made appellant’s defense of denial even weaker. In light of the categorical and positive identification of the appellant by prosecution witnesses, without any showing of illmotive on the part of the latter testifying on the matter, appellant's defense of bare denial and alibi cannot prosper.64 As regards the alleged inconsistencies on Elmer’s narration of events, this Court considers the same trivial, inconsequential and do not affect the credibility of the statement that it was appellant who rolled the hand grenade towards the people dancing inside the dancing place, the explosion killing and injuring scores of victims. Furthermore, the alleged inconsistencies pointed to by appellant have been properly clarified in the course of Elmer’s testimony. As the Court of Appeals stated in its Decision, thus: Records reveal that during the direct examination, Elmer testified that immediately after the [appellant] rolled the grenade, he went out and when he was about to reach the gate the grenade exploded, while on cross-examination, Elmer testified that he saw [appellant] leave the [dancing place] after the explosion. However, when the trial court and [appellant’s counsel] asked him about the inconsistency, Elmer clarified and confirmed that [appellant] left the dance place before the explosion.65 Inconsistencies in the testimonies of witnesses which refer to minor and insignificant details do not destroy their credibility. They, instead, manifest truthfulness and candor and erase any suspicion of rehearsed testimony.66 All told, this Court affirms the findings of the trial court and the appellate court that, indeed, appellant was the author of the explosion incident that happened on 15 April 1999 inside the dancing place at Sitio Sto. Niño, Liguan, Rapu-Rapu, Albay, which took away the lives and caused injuries to the people thereat. As to the crime committed. The trial court and the appellate court convicted appellant of the complex crime of multiple murder with multiple frustrated murder. This Court believes, however, that appellant should only be convicted of the complex crime of multiple murder with double attempted murder.

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Appellant’s act of detonating a hand grenade, particularly an M26-A1 fragmentation grenade, inside the dancing place at Sitio Sto. Niño, Liguan, Rapu-Rapu, Albay, resulted in the death of 15 people, namely: Francisco Biago, Jr., Roger Siso, Nicanor Oloroso, Margie Bañadera, Victor Bañadera, Bienvenido Bañadera, Diosdado Bañadera, William Butial, Maryjane Bechayda, Richard Blansa, Efren Yasul, Jose Bombales, Deony Balidoy, Daisy Olorozo and Rolly Belga. The fact of death of these deceased victims was evidenced by their respective certificates of death and testimonies of their respective relatives. The defense similarly admitted that these victims died as a result of the explosion incident. Article 248 of the Revised Penal Code provides: ART. 248. Murder. – Any person who, not falling within the provisions of article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion perpetua to death if committed with any of the following attendant circumstances: 1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity. xxxx 3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of an airship, or by means of motor vehicles, or with the use of any other means involving great waste and ruin. [Emphasis supplied]. From the afore-quoted provision of law, the killing of the aforesaid deceased victims with the use of explosive, i.e., hand grenade particularly M26-A1 fragmentation grenade, certainly qualifies the crime to murder. Treachery, which was alleged in the Information, also attended the commission of the crime. Time and again, this Court, in a plethora of cases, has consistently held that there is treachery when the offender commits any of the crimes against persons, employing means, methods or forms in the execution thereof, which tend directly and specially to ensure its execution without risk to himself arising from the defense that the offended party might make. There are two (2) conditions that must concur for treachery to exist, to wit: (a) the employment of means of execution gave the person attacked no opportunity to defend himself or to retaliate; and (b) the means or method of execution was deliberately and consciously adopted.67 "The essence of treachery is that the attack is deliberate and without warning, done in a swift and unexpected manner, affording the hapless, unarmed and unsuspecting victim no chance to resist or escape."68 As elucidated by the trial court in its Decision: The victims were completely unaware of the danger forthcoming to them as they were in the midst of enjoying a dance. The [appellant] who caused the rolling of the hand grenade was at a complete advantage knowing that no risk to his life was involved as he can immediately fled [and] run away from the scene of the crime before any explosion could occur. There was no defense so to speak of that may came from the victims because they were completely unaware of the danger about to happen in their midst resulting as it did to deaths and injuries to many people among the crowd dancing. The act of rolling the hand grenade is unpardonable. It is a treacherous heinous act of the highest order. The victims can do nothing but to cry to high heavens for vengeance. xxxx As supported by the evidence adduced at the trial, [it] is fully convinced that the crime charge was committed under a cloak of treachery, and there is no doubt about it. The attacker suddenly came armed with a live fragmentation grenade, removed its pin and threw it towards the crowd who were enjoying a dance, unsuspecting of any danger that larks in their midst, thereby depriving them of any real opportunity to defend themselves. The attacker has employed a swift and unexpected attack to insure its execution without risk to himself x x x.69 As the killing, in this case, is perpetrated with both treachery and by means of explosives, the latter shall be considered as a qualifying circumstance since it is the principal mode of attack. Reason dictates that this attendant circumstance should qualify the offense while treachery will be considered merely as a generic aggravating circumstance.70 The Information also alleged that evident premeditation attended the commission of the crime. For evident premeditation to be appreciated, the prosecution must prove the following elements: (1) the time when the accused decided to commit the crime; (2) an overt act showing that the accused clung to their determination to commit the crime; and (3) the lapse of a period of time between the decision and the execution of the crime sufficient to allow the accused to reflect upon the consequences of the act.71 However, none of these elements could be gathered from the evidence on record. Appellant’s act of detonating a hand grenade, particularly M26-A1 fragmentation grenade, inside the dancing place at Sitio Sto. Niño, Liguan, Rapu-Rapu, Albay, likewise resulted in the wounding of several persons. But, out of the 76 injured victims named in the Information, only Purisima and Ligaya, both surnamed Dado, appeared personally in court to testify on the injuries and damages sustained by them by reason thereof. Purisima affirmed that after the explosion she was brought to the hospital because she suffered punctured wounds on her legs and forehead by reason thereof. Also, she was not able to walk for two (2) weeks. She was not confined though.72 She was issued medical certificate73 dated 23 April 1999 in relation thereto stating that her injuries will incapacitate her or will require medical assistance for one to two weeks. Her testimony, as well as her medical certificate, however, never mentioned that the wounds or injuries sustained by her were fatal or mortal and had it not for the timely medical assistance accorded to her she would have died. In the same way, Ligaya stated that because of the explosion she suffered blasting injuries on her chest and right forearm. She was confined and treated for five days at BRTTH, Legazpi City,74 as evidenced by her medical certificate75 dated 26 April 1999. There was also no mention that her injuries and wounds were mortal or fatal. Despite the fact that the injuries sustained by Purisima and Ligaya were not mortal or fatal, it does not necessarily follow that the crimes committed against them were simply less serious physical injuries,76 because appellant was motivated by the same intent to kill when he detonated the explosive device inside the dancing place.77 Since the injuries inflicted upon them were not fatal and there was no showing that they would have died if not for the timely medical assistance accorded to them, the crime committed against them is merely attempted murder. As this Court has previously stated, the rest of the injured victims named in the Information failed to testify. Though their medical certificates were attached in the records, they were not marked as exhibits and were not formally offered as evidence by the prosecution. Consequently, this Court cannot consider the same to hold that the crime committed as to them is frustrated murder and to grant damages in their favor. This Court has held in People v. Franco,78 thus:

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We thus reiterate the rule that the court shall consider no evidence which has not been formally offered. So fundamental is this injunction that litigants alike are corollarily enjoined to formally offer any evidence which they desire the court to consider. Mr. Chief Justice Moran explained the rationale behind the rule in this wise: The offer is necessary because it is the duty of a judge to rest his findings of facts and his judgment only and strictly upon the evidence offered by the parties to the suit.79 [Emphasis supplied]. Without the testimonies of the other injured victims or their medical certificates, the court will have no basis to hold that appellant committed the crime of frustrated murder as to them. Given the foregoing, it is clear that this case falls under the first clause of Article 4880 of the Revised Penal Code because by a single act, that of detonating an explosive device inside the dancing place, appellant committed two grave felonies, namely, (1) murder as to the 15 persons named in the Information; and (2) attempted murder as to Purisima and Ligaya. Therefore, this Court holds appellant guilty beyond reasonable doubt of the complex crime of multiple murder with double attempted murder. As to penalty. Article 48 of the Revised Penal Code explicitly states: ART. 48. Penalty for complex crimes. – When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period. [Emphasis supplied]. A complex crime is committed when a single act constitutes two or more grave or less grave felonies. Appellant’s single act of detonating an explosive device may quantitatively constitute a cluster of several separate and distinct offenses, yet these component criminal offenses should be considered only as a single crime in law on which a single penalty is imposed because the offender was impelled by a single criminal impulse which shows his lesser degree of perversity.81 Thus, applying the aforesaid provision of law, the maximum penalty for the most serious crime, which is murder, is death. Pursuant, however, to Republic Act No. 9346 which prohibits the imposition of the death penalty, the appellate court properly reduced the penalty of death, which it previously imposed upon the appellant, to reclusion perpetua. As to damages. Article 2206 of the Civil Code provides that when death occurs as a result of a crime, the heirs of the deceased are entitled to be indemnified for the death of the victim without need of any evidence or proof thereof.82 Moral damages like civil indemnity, is also mandatory upon the finding of the fact of murder.83 To conform with recent jurisprudence on heinous crimes where the proper imposable penalty is death, if not for Republic Act No. 9346, the award of civil indemnity and moral damages to the heirs of each of the deceased victims are both increased to P75,000.00 each. 84

It is settled that exemplary damages may be awarded in criminal cases as part of civil liability if the crime was committed with one or more aggravating circumstances.85 In this case, the generic aggravating circumstance of treachery attended the commission of the crime. The award of exemplary damages, therefore, is in order. To conform to current jurisprudence, this Court likewise increased the award of exemplary damages given by the appellate court to the heirs of each of the deceased victims to P30,000.00 each.86 Actual damages cannot be awarded for failure to present the receipts covering the expenditures for the wake, coffin, burial and other expenses for the death of the victims. In lieu thereof, temperate damages may be recovered where it has been shown that the victim’s family suffered some pecuniary loss but the amount thereof cannot be proved with certainty as provided for under Article 2224 of the Civil Code.87 This Court finds the award of P25,000.00 each to the heirs of each of the deceased victims proper. The surviving victims, Purisima and Ligaya, are also entitled to moral, temperate and exemplary damages. Ordinary human experience and common sense dictate that the wounds inflicted upon the surviving victims, Purisima and Ligaya would naturally cause physical suffering, fright, serious anxiety, moral shock, and similar injuries. It is only justifiable to grant them moral damages in the amount of P40,000.00 each in conformity with this Court’s ruling in People v. Mokammad.88 This Court affirms the appellate court’s award of P25,000.00 as temperate damages to each of the surviving victims, Purisima and Ligaya. It is beyond doubt that these two surviving victims were hospitalized and spent money for their medication. However, Purisima failed to present any receipt for her hospitalization and medication. Nevertheless, it could not be denied that she suffered pecuniary loss; thus, it is only prudent to award P25,000.00 to her as temperate damages. 89 Ligaya, on the other hand, presented receipts for her hospitalization and medication but the receipts were less than P25,000.00. In People v. Magdaraog90 citing People v. Andres, Jr.,91 when actual damages proven by receipts during the trial amount to less than P25,000.00 as in this case, the award of temperate damages for P25,000.00 is justified in lieu of actual damages of a lesser amount. Finally, the award of exemplary damages is also in order considering that the crime was attended by the qualifying circumstance of treachery.92 The award of exemplary damages to Purisima and Ligaya is increased to P30,000.00 to conform to current jurisprudence. WHEREFORE, premises considered, the Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 01245 dated 24 September 2007 is hereby AFFIRMED with MODIFICATIONS. Appellant is found guilty of the complex crime of multiple murder with double attempted murder. In view, however, of Republic Act No. 9346 prohibiting the imposition of the death penalty, appellant is hereby sentenced to suffer the penalty of reclusion perpetua without the benefit of parole. The award of civil indemnity, moral and exemplary damages to the heirs of each of the deceased victims are hereby increased to P75,000.00, P75,000.00, and P30,000.00, respectively. The surviving victims, Purisima and Ligaya, are also awarded moral damages of P40,000.00 each. The award of exemplary damages to these surviving victims is likewise increased to P30,000.00 each. SO ORDERED.

EN BANC

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G.R. No. 153559

June 8, 2004

PEOPLE OF THE PHILIPPINES, appellee, vs. ANTONIO COMADRE, GEORGE COMADRE and DANILO LOZANO, appellants. DECISION PER CURIAM: Appellants Antonio Comadre, George Comadre and Danilo Lozano were charged with Murder with Multiple Frustrated Murder in an information which reads: That on or about the 6th of August 1995, at Brgy. San Pedro, Lupao, Nueva Ecija, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with intent to kill and by means of treachery and evident premeditation, availing of nighttime to afford impunity, and with the use of an explosive, did there and then willfully, unlawfully and feloniously lob a hand grenade that landed and eventually exploded at the roof of the house of Jaime Agbanlog trajecting deadly shrapnels that hit and killed one ROBERT AGBANLOG, per the death certificate, and causing Jerry Bullanday, Jimmy Wabe, Lorenzo Eugenio, Rey Camat, Emelita Agbanlog and Elena Agbanlog to suffer shrapnel wounds on their bodies, per the medical certificates; thus, to the latter victims, the accused commenced all the acts of execution that would have produced the crime of Multiple Murder as consequences thereof but nevertheless did not produce them by reason of the timely and able medical and surgical interventions of physicians, to the damage and prejudice of the deceased’s heirs and the other victims. CONTRARY TO LAW.1 On arraignment, appellants pleaded "not guilty".2 Trial on the merits then ensued. As culled from the records, at around 7:00 in the evening of August 6, 1995, Robert Agbanlog, Jimmy Wabe, Gerry Bullanday,3 Rey Camat and Lorenzo Eugenio were having a drinking spree on the terrace of the house of Robert’s father, Barangay Councilman Jaime Agbanlog, situated in Barangay San Pedro, Lupao, Nueva Ecija. Jaime Agbanlog was seated on the banister of the terrace listening to the conversation of the companions of his son.4 As the drinking session went on, Robert and the others noticed appellants Antonio Comadre, George Comadre and Danilo Lozano walking. The three stopped in front of the house. While his companions looked on, Antonio suddenly lobbed an object which fell on the roof of the terrace. Appellants immediately fled by scaling the fence of a nearby school.5 The object, which turned out to be a hand grenade, exploded ripping a hole in the roof of the house. Robert Agbanlog, Jimmy Wabe, Gerry Bullanday, Rey Camat and Lorenzo Eugenio were hit by shrapnel and slumped unconscious on the floor.6 They were all rushed to the San Jose General Hospital in Lupao, Nueva Ecija for medical treatment. However, Robert Agbanlog died before reaching the hospital.7 Dr. Tirso de los Santos, the medico-legal officer who conducted the autopsy on the cadaver of Robert Agbanlog, certified that the wounds sustained by the victim were consistent with the injuries inflicted by a grenade explosion and that the direct cause of death was hypovolemic shock due to hand grenade explosion.8 The surviving victims, Jimmy Wabe, Rey Camat, Jaime Agbanlog and Gerry Bullanday sustained shrapnel injuries.9 SPO3 John Barraceros of the Lupao Municipal Police Station, who investigated the scene of the crime, recovered metallic fragments at the terrace of the Agbanlog house. These fragments were forwarded to the Explosive Ordinance Disposal Division in Camp Crame, Quezon City, where SPO2 Jesus Q. Mamaril, a specialist in said division, identified them as shrapnel of an MK2 hand grenade.10 Denying the charges against him, appellant Antonio Comadre claimed that on the night of August 6, 1995, he was with his wife and children watching television in the house of his father, Patricio, and his brother, Rogelio. He denied any participation in the incident and claimed that he was surprised when three policemen from the Lupao Municipal Police Station went to his house the following morning of August 7, 1995 and asked him to go with them to the police station, where he has been detained since.11 Appellant George Comadre, for his part, testified that he is the brother of Antonio Comadre and the brother-in-law of Danilo Lozano. He also denied any involvement in the grenade-throwing incident, claiming that he was at home when it happened. He stated that he is a friend of Rey Camat and Jimmy Wabe, and that he had no animosity towards them whatsoever. Appellant also claimed to be in good terms with the Agbanlogs so he has no reason to cause them any grief. 12 Appellant Danilo Lozano similarly denied any complicity in the crime. He declared that he was at home with his ten yearold son on the night of August 6, 1995. He added that he did not see Antonio and George Comadre that night and has not seen them for quite sometime, either before or after the incident. Like the two other appellants, Lozano denied having any misunderstanding with Jaime Agbanlog, Robert Agbanlog and Jimmy Wabe.13 Antonio’s father, Patricio, and his wife, Lolita, corroborated his claim that he was at home watching television with them during the night in question.14 Josie Comadre, George’s wife, testified that her husband could not have been among those who threw a hand grenade at the house of the Agbanlogs because on the evening of August 6, 1995, they were resting inside their house after working all day in the farm.15 After trial, the court a quo gave credence to the prosecution’s evidence and convicted appellants of the complex crime of Murder with Multiple Attempted Murder,16 the dispositive portion of which states: WHEREFORE, in view of the foregoing, judgment is hereby rendered: 1. Finding accused Antonio Comadre, George Comadre and Danilo Lozano GUILTY beyond reasonable doubt of the complex crime of Murder with Multiple Attempted Murder and sentencing them to suffer the imposable penalty of death; 2. Ordering Antonio Comadre, George Comadre and Danilo Lozano to pay jointly and severally the heirs of Robert Agbanlog P50,000.00 as indemnification for his death, P35,000.00 as compensatory damages and P20,000.00 as moral damages;

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3. Ordering accused Antonio Comadre, George Comadre and Danilo Lozano to pay jointly and severally Jimmy Wabe, Rey Camat, Gerry Bullanday and Jaime Agbanlog P30,000.00 as indemnity for their attempted murder. Costs against the accused. SO ORDERED. Hence, this automatic review pursuant to Article 47 of the Revised Penal Code, as amended. Appellants contend that the trial court erred: (1) when it did not correctly and judiciously interpret and appreciate the evidence and thus, the miscarriage of justice was obviously omnipresent; (2) when it imposed on the accused-appellants the supreme penalty of death despite the evident lack of the quantum of evidence to convict them of the crime charged beyond reasonable doubt; and (3) when it did not apply the law and jurisprudence for the acquittal of the accused-appellants of the crime charged.17 Appellants point to the inconsistencies in the sworn statements of Jimmy Wabe, Rey Camat, Lorenzo Eugenio and Gerry Bullanday in identifying the perpetrators. Wabe, Camat and Eugenio initially executed a Sinumpaang Salaysay on August 7, 1995 at the hospital wherein they did not categorically state who the culprit was but merely named Antonio Comadre as a suspect. Gerry Bullanday declared that he suspected Antonio Comadre as one of the culprits because he saw the latter’s ten year-old son bring something in the nearby store before the explosion occurred. On August 27, 1995, or twenty days later, they went to the police station to give a more detailed account of the incident, this time identifying Antonio Comadre as the perpetrator together with George Comadre and Danilo Lozano. A closer scrutiny of the records shows that no contradiction actually exists, as all sworn statements pointed to the same perpetrators, namely, Antonio Comadre, George Comadre and Danilo Lozano. Moreover, it appears that the first statement was executed a day after the incident, when Jimmy Wabe, Rey Camat and Lorenzo Eugenio were still in the hospital for the injuries they sustained. Coherence could not thus be expected in view of their condition. It is therefore not surprising for the witnesses to come up with a more exhaustive account of the incident after they have regained their equanimity. The lapse of twenty days between the two statements is immaterial because said period even helped them recall some facts which they may have initially overlooked. Witnesses cannot be expected to remember all the details of the harrowing event which unfolded before their eyes. Minor discrepancies might be found in their testimony, but they do not damage the essential integrity of the evidence in its material whole, nor should they reflect adversely on the witness’ credibility as they erase suspicion that the same was perjured.18 Honest inconsistencies on minor and trivial matters serve to strengthen rather than destroy the credibility of a witness to a crime, especially so when, as in the instant case, the crime is shocking to the conscience and numbing to the senses.19 Moreover, it was not shown that witnesses Jimmy Wabe, Rey Camat, Lorenzo Eugenio and Gerry Bullanday had any motive to testify falsely against appellants. Absent evidence showing any reason or motive for prosecution witnesses to perjure, the logical conclusion is that no such improper motive exists, and their testimony is thus worthy of full faith and credit. The trial court is likewise correct in disregarding appellants’ defense of alibi and denial. For the defense of alibi to prosper, the accused must prove not only that he was at some other place at the time of the commission of the crime but also that it was physically impossible for him to be at the locus delicti or within its immediate vicinity.20 Apart from testifying with respect to the distance of their houses from that of Jaime Agbanlog’s residence, appellants were unable to give any explanation and neither were they able to show that it was physically impossible for them to be at the scene of the crime. Hence, the positive identification of the appellants by eyewitnesses Jimmy Wabe, Jaime Agbanlog, Rey Camat and Gerry Bullanday prevails over their defense of alibi and denial.21 It was established that prior to the grenade explosion, Rey Camat, Jaime Agbanlog, Jimmy Wabe and Gerry Bullanday were able to identify the culprits, namely, appellants Antonio Comadre, George Comadre and Danilo Lozano because there was a lamppost in front of the house and the moon was bright.22 Appellants’ argument that Judge Bayani V. Vargas, the Presiding Judge of the Regional Trial Court of San Jose City, Branch 38 erred in rendering the decision because he was not the judge who heard and tried the case is not well taken. It is not unusual for a judge who did not try a case to decide it on the basis of the record for the trial judge might have died, resigned, retired, transferred, and so forth.23 As far back as the case of Co Tao v. Court of Appeals24 we have held: "The fact that the judge who heard the evidence is not the one who rendered the judgment and that for that reason the latter did not have the opportunity to observe the demeanor of the witnesses during the trial but merely relied on the records of the case does not render the judgment erroneous." This rule had been followed for quite a long time, and there is no reason to go against the principle now.25 However, the trial court’s finding of conspiracy will have to be reassessed. The undisputed facts show that when Antonio Comadre was in the act of throwing the hand grenade, George Comadre and Danilo Lozano merely looked on without uttering a single word of encouragement or performed any act to assist him. The trial court held that the mere presence of George Comadre and Danilo Lozano provided encouragement and a sense of security to Antonio Comadre, thus proving the existence of conspiracy. We disagree. Similar to the physical act constituting the crime itself, the elements of conspiracy must be proven beyond reasonable doubt. Settled is the rule that to establish conspiracy, evidence of actual cooperation rather than mere cognizance or approval of an illegal act is required.26 A conspiracy must be established by positive and conclusive evidence. It must be shown to exist as clearly and convincingly as the commission of the crime itself. Mere presence of a person at the scene of the crime does not make him a conspirator for conspiracy transcends companionship.27 The evidence shows that George Comadre and Danilo Lozano did not have any participation in the commission of the crime and must therefore be set free. Their mere presence at the scene of the crime as well as their close relationship with Antonio are insufficient to establish conspiracy considering that they performed no positive act in furtherance of the crime.

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Neither was it proven that their act of running away with Antonio was an act of giving moral assistance to his criminal act. The ratiocination of the trial court that "their presence provided encouragement and sense of security to Antonio," is devoid of any factual basis. Such finding is not supported by the evidence on record and cannot therefore be a valid basis of a finding of conspiracy. Time and again we have been guided by the principle that it would be better to set free ten men who might be probably guilty of the crime charged than to convict one innocent man for a crime he did not commit.28 There being no conspiracy, only Antonio Comadre must answer for the crime. Coming now to Antonio’s liability, we find that the trial court correctly ruled that treachery attended the commission of the crime. For treachery to be appreciated two conditions must concur: (1) the means, method and form of execution employed gave the person attacked no opportunity to defend himself or retaliate; and (2) such means, methods and form of execution was deliberately and consciously adopted by the accused. Its essence lies in the adoption of ways to minimize or neutralize any resistance, which may be put up by the offended party. Appellant lobbed a grenade which fell on the roof of the terrace where the unsuspecting victims were having a drinking spree. The suddenness of the attack coupled with the instantaneous combustion and the tremendous impact of the explosion did not afford the victims sufficient time to scamper for safety, much less defend themselves; thus insuring the execution of the crime without risk of reprisal or resistance on their part. Treachery therefore attended the commission of the crime. It is significant to note that aside from treachery, the information also alleges the "use of an explosive"29 as an aggravating circumstance. Since both attendant circumstances can qualify the killing to murder under Article 248 of the Revised Penal Code,30 we should determine which of the two circumstances will qualify the killing in this case. When the killing is perpetrated with treachery and by means of explosives, the latter shall be considered as a qualifying circumstance. Not only does jurisprudence31 support this view but also, since the use of explosives is the principal mode of attack, reason dictates that this attendant circumstance should qualify the offense instead of treachery which will then be relegated merely as a generic aggravating circumstance.32 Incidentally, with the enactment on June 6, 1997 of Republic Act No. 829433 which also considers the use of explosives as an aggravating circumstance, there is a need to make the necessary clarification insofar as the legal implications of the said amendatory law vis-à-vis the qualifying circumstance of "by means of explosion" under Article 248 of the Revised Penal Code are concerned. Corollary thereto is the issue of which law should be applied in the instant case. R.A. No. 8294 was a reaction to the onerous and anachronistic penalties imposed under the old illegal possession of firearms law, P.D. 1866, which prevailed during the tumultuous years of the Marcos dictatorship. The amendatory law was enacted, not to decriminalize illegal possession of firearms and explosives, but to lower their penalties in order to rationalize them into more acceptable and realistic levels.34 This legislative intent is conspicuously reflected in the reduction of the corresponding penalties for illegal possession of firearms, or ammunitions and other related crimes under the amendatory law. Under Section 2 of the said law, the penalties for unlawful possession of explosives are also lowered. Specifically, when the illegally possessed explosives are used to commit any of the crimes under the Revised Penal Code, which result in the death of a person, the penalty is no longer death, unlike in P.D. No. 1866, but it shall be considered only as an aggravating circumstance. Section 3 of P.D. No. 1866 as amended by Section 2 of R.A. 8294 now reads: Section 2. Section 3 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows: Section 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives. The penalty of prision mayor in its maximum period to reclusion temporal and a fine of not less than Fifty thousand pesos (P50,000.00) shall be imposed upon any person who shall unlawfully manufacture, assemble, deal in, acquire, dispose or possess hand grenade(s), rifle grenade(s), and other explosives, including but not limited to "pillbox," "molotov cocktail bombs," "fire bombs," or other incendiary devices capable of producing destructive effect on contiguous objects or causing injury or death to any person. When a person commits any of the crimes defined in the Revised Penal Code or special law with the use of the aforementioned explosives, detonation agents or incendiary devises, which results in the death of any person or persons, the use of such explosives, detonation agents or incendiary devices shall be considered as an aggravating circumstance. (shall be punished with the penalty of death is DELETED.) xxx

xxx

x x x.

With the removal of death as a penalty and the insertion of the term "xxx as an aggravating circumstance," the unmistakable import is to downgrade the penalty for illegal possession of explosives and consider its use merely as an aggravating circumstance. Clearly, Congress intended R.A. No. 8294 to reduce the penalty for illegal possession of firearms and explosives. Also, Congress clearly intended RA No. 8294 to consider as aggravating circumstance, instead of a separate offense, illegal possession of firearms and explosives when such possession is used to commit other crimes under the Revised Penal Code. It must be made clear, however, that RA No. 8294 did not amend the definition of murder under Article 248, but merely made the use of explosives an aggravating circumstance when resorted to in committing "any of the crimes defined in the Revised Penal Code." The legislative purpose is to do away with the use of explosives as a separate crime and to make such use merely an aggravating circumstance in the commission of any crime already defined in the Revised Penal Code. Thus, RA No. 8294 merely added the use of unlicensed explosives as one of the aggravating circumstances specified in Article 14 of the Revised Penal Code. Like the aggravating circumstance of "explosion" in paragraph 12, "evident premeditation" in paragraph 13, or "treachery" in paragraph 16 of Article 14, the new aggravating circumstance added by RA No. 8294 does not change the definition of murder in Article 248. Nonetheless, even if favorable to the appellant, R.A. No. 8294 still cannot be made applicable in this case. Before the use of unlawfully possessed explosives can be properly appreciated as an aggravating circumstance, it must be adequately established that the possession was illegal or unlawful, i.e., the accused is without the corresponding authority or permit to possess. This follows the same requisites in the prosecution of crimes involving illegal possession of firearm35 which is a kindred or related offense under P.D. 1866, as amended. This proof does not obtain in the present case. Not only was it not alleged in the information, but no evidence was adduced by the prosecution to show that the possession by appellant of the explosive was unlawful. It is worthy to note that the above requirement of illegality is borne out by the provisions of the law itself, in conjunction

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with the pertinent tenets of legal hermeneutics. A reading of the title36 of R.A. No. 8294 will show that the qualifier "illegal/unlawful ...possession" is followed by "of firearms, ammunition, or explosives or instruments..." Although the term ammunition is separated from "explosives" by the disjunctive word "or", it does not mean that "explosives" are no longer included in the items which can be illegally/ unlawfully possessed. In this context, the disjunctive word "or" is not used to separate but to signify a succession or to conjoin the enumerated items together.37 Moreover, Section 2 of R.A. 8294,38 subtitled: "Section 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives", clearly refers to the unlawful manufacture, sale, or possession of explosives. What the law emphasizes is the act’s lack of authority. Thus, when the second paragraph of Section 3, P.D. No. 1866, as amended by RA No. 8294 speaks of "the use of the aforementioned explosives, etc." as an aggravating circumstance in the commission of crimes, it refers to those explosives, etc. "unlawfully" manufactured, assembled, dealt in, acquired, disposed or possessed mentioned in the first paragraph of the same section. What is per se aggravating is the use of unlawfully "manufactured … or possessed" explosives. The mere use of explosives is not. The information in this case does not allege that appellant Antonio Comadre had unlawfully possessed or that he had no authority to possess the grenade that he used in the killing and attempted killings. Even if it were alleged, its presence was not proven by the prosecution beyond reasonable doubt. Rule 110 of the 2000 Revised Rules on Criminal Procedure requires the averment of aggravating circumstances for their application.39 The inapplicability of R.A. 8294 having been made manifest, the crime committed is Murder committed "by means of explosion" in accordance with Article 248 (3) of the Revised Penal Code. The same, having been alleged in the Information, may be properly considered as appellant was sufficiently informed of the nature of the accusation against him.40 The trial court found appellant guilty of the complex crime of murder with multiple attempted murder under Article 48 of the Revised Penal Code, which provides: Art. 48. Penalty for complex crimes. – When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means of committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period. The underlying philosophy of complex crimes in the Revised Penal Code, which follows the pro reo principle, is intended to favor the accused by imposing a single penalty irrespective of the crimes committed. The rationale being, that the accused who commits two crimes with single criminal impulse demonstrates lesser perversity than when the crimes are committed by different acts and several criminal resolutions. The single act by appellant of detonating a hand grenade may quantitatively constitute a cluster of several separate and distinct offenses, yet these component criminal offenses should be considered only as a single crime in law on which a single penalty is imposed because the offender was impelled by a "single criminal impulse" which shows his lesser degree of perversity.41 Under the aforecited article, when a single act constitutes two or more grave or less grave felonies the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period irrespective of the presence of modifying circumstances, including the generic aggravating circumstance of treachery in this case.42 Applying the aforesaid provision of law, the maximum penalty for the most serious crime (murder) is death. The trial court, therefore, correctly imposed the death penalty. Three justices of the Court, however, continue to maintain the unconstitutionality of R.A. 7659 insofar as it prescribes the death penalty. Nevertheless, they submit to the ruling of the majority to the effect that the law is constitutional and that the death penalty can be lawfully imposed in the case at bar. Finally, the trial court awarded to the parents of the victim Robert Agbanlog civil indemnity in the amount of P50,000.00, P35,000.00 as compensatory damages and P20,000.00 as moral damages. Pursuant to existing jurisprudence43 the award of civil indemnity is proper. However, the actual damages awarded to the heirs of Robert Agbanlog should be modified, considering that the prosecution was able to substantiate only the amount of P18,000.00 as funeral expenses. 44 The award of moral damages is appropriate there being evidence to show emotional suffering on the part of the heirs of the deceased, but the same must be increased to P50,000.00 in accordance with prevailing judicial policy.45 With respect to the surviving victims Jaime Agbanlog, Jimmy Wabe, Rey Camat and Gerry Bullanday, the trial court awarded P30,000.00 each for the injuries they sustained. We find this award inappropriate because they were not able to present a single receipt to substantiate their claims. Nonetheless, since it appears that they are entitled to actual damages although the amount thereof cannot be determined, they should be awarded temperate damages of P25,000.00 each.46 WHEREFORE, in view of all the foregoing, the appealed decision of the Regional Trial Court of San Jose City, Branch 39 in Criminal Case No. L-16(95) is AFFIRMED insofar as appellant Antonio Comadre is convicted of the complex crime of Murder with Multiple Attempted Murder and sentenced to suffer the penalty of death. He is ordered to pay the heirs of the victim the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages and P18,000.00 as actual damages and likewise ordered to pay the surviving victims, Jaime Agbanlog, Jimmy Wabe, Rey Camat and Gerry Bullanday, P25,000.00 each as temperate damages for the injuries they sustained. Appellants Gregorio Comadre and Danilo Lozano are ACQUITTED for lack of evidence to establish conspiracy, and they are hereby ordered immediately RELEASED from confinement unless they are lawfully held in custody for another cause. Costs de oficio. In accordance with Section 25 of Republic Act 7659 amending Article 83 of the Revised Penal Code, upon finality of this Decision, let the records of this case be forwarded to the Office of the President for possible exercise of pardoning power. SO ORDERED.



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EN BANC G.R. No. 141125

February 28, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JEFFREY GARCIA y CARAGAY and THREE JOHN DOES, accused. JEFFREY GARCIA y CARAGAY, accused-appellant. DECISION PER CURIAM: This is an automatic review pursuant to Article 47 of the Revised Penal Code, as amended by Section 22 of Republic Act No. 7659, of the decision of the Regional Trial Court of Baguio City, Branch 6, dated October 28, 1999, convicting accused-appellant Jeffrey Garcia y Caragay of Forcible Abduction with Rape and three counts of Rape, and sentencing him to death. 1 The victim, Cleopatra Changlapon, was nineteen years old and a sophomore student of B.S. Physical Therapy at the Baguio Central University. On July 14, 1998, she left school at 6:30 p.m. to go home to Km. 3, La Trinidad, Benguet. As she was crossing Bonifacio Street, Baguio City, she saw a white van approaching so she stopped to let it pass. Suddenly, the van stopped in front of her. The rear door slid open and Cleopatra was pulled by the arms into the van. She struggled as the door closed and the van sped away. Something was sprayed on her face which made her eyes sting and feel dizzy. She shouted, then she felt a fist blow on her stomach and she fell unconscious. 2 When Cleopatra came to, she was inside a room. She was totally undressed and was lying flat on her back on a bed. In the room with her were four men. One of them, who had Bombay features, was also totally naked while the other three were clad in briefs and smoking cigarettes. The Bombay-looking man lay on top of her. She tried to push him away but he held her left arm. Another man with long hair, whom she later identified as accused-appellant Jeffrey Garcia, burned her right chin with a lighted cigarette. Cleopatra fought back but accused-appellant held her right arm. While accusedappellant was seated on her right side and holding her, the Bombay-looking man proceeded to have sexual intercourse with her. She tried to kick him and close her legs, but two men were holding her feet. The two men boxed her thighs and burned her legs with cigarettes.3 After the Bombay-looking man finished having sexual intercourse with Cleopatra, accused-appellant took his turn and went on top of her. One of the men sat on her right leg and pinned it down, while another held her left leg. Cleopatra tried to punch accused-appellant with her right hand, but the Bombay-looking man held her right arm. Accused-appellant then had sexual intercourse with her while holding her left arm. 4 The third man, whom Cleopatra noted had pimples on his face, went on top of her. The Bombay-looking man was still holding her right arm, while the man on top of her held her left arm. She tried to close her legs but someone hit her right thigh, which forced her to keep her legs apart. The third man with pimples succeeded in having carnal knowledge of her. 5 The fourth man was next in raping Cleopatra. By that time, she was feeling helpless and was too tired to struggle. As the fourth man was having sexual intercourse with her, she saw the Bombay-looking man burning her panties with a lighted

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cigarette. She closed her eyes and heard the men laughing. After the fourth man finished raping her, he got up. She felt dizzy and her private parts were aching. She opened her eyes and tried to move, but accused-appellant hit her on the abdomen. 6 One of the men again sprayed something on Cleopatra’s face which made her vision blurred. She heard somebody say that it was 1:30.7 After that, she blacked out. When she regained consciousness, she was lying by the roadside somewhere between Tam-awan and Longlong. It was still dark. She already had her clothes on. She felt pain all over her body and was unable to move. A taxi passed by and picked her up. Although she was afraid to ride the taxi, she boarded it just to get home. The taxi brought her to her house.8 Her aunt, Rufina Angog, saw Cleopatra alight the taxi crying. She also noticed that Cleopatra’s clothes were inverted and she smelled bad. She woke up Cleopatra’s brothers and cousins.9 They asked her what happened. Cleopatra just kept crying and was unable to talk. After some time, when she was able to regain her composure, she told them that she had been raped by four men. 10 The following day, July 15, 1998, Cleopatra was brought to the Baguio City Police Station. After giving her statement to the police, she was brought to the Crime Laboratory of the Baguio City Police, where she was examined by Dr. Vladimir Villaseñor. In his Medico-Legal Report, Dr. Villaseñor wrote the following findings: FINDINGS: General and Extra-genital: Fairly nourished, fairly developed coherent female subject. Breasts are hemispherical with light brown areola and nipples from which no secretion could be pressed out. Abdomen is soft and flabby. The following are the injuries noted: 1. Second degree burns, mental region, measuring 1.3.1cm, 3cm from the anterior midline. 2. Second degree burns, left supra-mammary region, measuring 1 x 1cm, 8cm from the anterior midline. 3. Second degree burns, left supra-mammary region, measuring 0.6x0.6 cm, 8.5cm from the anterior midline. 4. Second degree burns, left hypothenar region, measuring 1x0.5cm, 7cm from the posterior midline. 5. Second degree burns, left middle 3rd of the left thigh, measuring 2x1cm, 13cm from the anterior midline. 6. Second degree burns, middle 3rd of the right thigh, measuring 1x 1cm, 10cm from the anterior midline. 7. Contusion, left mammary region, measuring 3x1cm, 5cm from the anterior midline. 8. Contusion, right mammary region, measuring 1x1cm, 9cm from the anterior midline. 9. Contusion, middle 3rd of the right arm, measuring 5x3cm, 3cm from the anterior midline. 10. Contusion, middle 3rd of the right thigh, measuing 6x4cm, 3cm from the anterior midline. 11. Hematoma, left zygomatic region, measuring 4x4cm 7cm from the anterior midline. There is tenderness on the mammary region, both thighs and at the abdominal region. Genital: There is abundant growth of pubic hair. Labia majora are full convex, gaping, with the congested abraded labia minora presenting in between. On separating the same is disclosed a congested hymen with shallow fresh lacerations at 7, 8 and 9 o’clock and deep fresh laceration at 6 o’clock positions. External vaginal orifice offers strong resistance to the introduction of the examining index finger and the virgin-sized vaginal speculum. Vaginal canal is narrow with prominent rugosities. Cervix is congested with moderate amount of whitish secretion. CONCLUSION: Findings are compatible with recent loss of virginity. Barring unforeseen complications, it is estimated that the above injuries will resolve in 14-15 days. REMARKS: Vaginal and peri-urethral smears are negative for gram (-) diplococci and POSITIVE for spermatozoa. 11 The panties that Cleopatra was wearing was also submitted to the Crime Laboratory for examination. Dr. Villaseñor found cigarette burns and seminal stains, 12 as well as stains of blood on the panties. 13 The Medico-Legal Report states: SPECIMEN SUBMITTED: Specimen "A" - One (1) white printed panty with cigarette burns and with suspected seminal stains. xxx

xxx

xxx

FINDINGS: Biochemical examination conducted on the above-mentioned specimen gave POSITIVE result to the test for the presence of seminal stains.

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CONCLUSION: Specimen "A" revealed the presence of seminal stains. 14 On July 17, 1998, Cleopatra went back to the police station and gave a description of the four rapists to the cartographer. 15 She likewise executed another sworn statement to the police. 16 Meanwhile, accused-appellant was arrested at 4:30 p.m. of July 17, 1998 in connection with another rape charge against him filed by a certain Gilda Mangyo. The cartographic sketches were published in the Sun-Star newspaper. Police Officers Gilbert Bulalit and Archibald Diaz saw the sketches and noticed that one of the suspects depicted in the cartographic sketch bore a striking resemblance to accused-appellant, who was in their custody. 17 On July 26, 1998, Cleopatra was summoned to the police station to identify accused-appellant. She was brought to the upper floor of the police building and asked to look below on the basketball court of the city jail and see if any of the inmates looked familiar to her. 18 Cleopatra recognized accusedappellant among those watching the basketball game. 19 PO1 Bulalit brought accused-appellant to the office upstairs. When Cleopatra saw accused-appellant face to face, she started to tremble and cry. Then she tried to attack him but she was restrained by the police officers. 20 On the same day, Cleopatra gave a supplemental statement to the police, confirming her identification of accused-appellant as one of her rapists.21 Inquest proceedings followed in due course. 22 On July 27, 1998, formal charges for forcible abduction with rape were brought against accused-appellant and three John Does, under an information which alleged: That on or about the 14th day of July, 1998, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually aiding one another, did then and there willfully, unlawfully and feloniously, and by means of force and intimidation abduct CLEOPATRA CHANGLAPON, 19 years old, by dragging her inside a van and taking her to Tam-awan Village, Baguio City, against her will and with lewd design, and once inside a house, had carnal knowledge of her, also by means of force and intimidation and against her will. CONTRARY TO LAW. 23 The information was docketed as Criminal Case No. 15805-R of the Regional Trial Court of Baguio City, Branch 6. Accused-appellant was arraigned, wherein he entered a plea of not guilty. Trial ensued as against him, while the other three unidentified accused remained at large. Accused-appellant testified that he spent the whole day of July 14, 1998 at the boarding house where his brother-in-law lived, located at No. 36 Torres Bugallon Street, Aurora Hills, Baguio City. His brother-in-law asked him to go there to take care of his nephew. That evening, while he was in the said house watching television, some of his friends came over to visit him. They brought a bottle of gin and began to have a drinking session. Accused-appellant did not join them because his stomach was upset. Accused-appellant’s brother-in-law arrived a little before midnight, after which his guests left. 24 When asked about the charges of rape against him, he denied the same. 25 Catherine Faith Madella was among those who visited accused-appellant in the evening of July 14, 1998. She came to know him through her friend, Joy Tabinas, who was a tenant at the said boarding house. Madella testified that she went to the boarding house on July 14, 1998 at 9:00 p.m. At 12:00 midnight, she went to the bedroom of Joy Tabinas and slept there. 26 Her testimony was corroborated by her boyfriend, Ronaldo T. Valdez, who also testified for the defense.27 Joy Tabinas likewise testified that on July 14, 1998, she was at the boarding house.1âwphi1 She watched television with accused-appellant from 6:00 to 10:00 p.m. 28 On October 28, 1999, the trial court rendered its decision convicting accused-appellant of one count of forcible abduction with rape and three counts of rape. The dispositive portion of the judgment reads: WHEREFORE, the Court Finds the Accused Jeffrey Garcia guilty beyond reasonable doubt of the complex crime of Forcible Abduction with Rape and likewise of the three (3) crimes of rape in conspiracy with three (3) others whose identities and whereabouts are yet unknown as charged in the Information and hereby sentences him to the supreme penalty of DEATH in each of the 4 offenses aforementioned; to indemnify the offended party, Cleopatra Changlapon, the sum of One Hundred Forty Six Thousand, One Hundred Twenty Five Pesos and Seventy Five Centavos (P 146,125.75) as actual damages and Fifty Thousand Pesos as moral damages without subsidiary imprisonment in case of insolvency and to pay one fourth (1/4) of the costs. The police authorities are directed to exert all efforts to identify and arrest the three other accused whose identities and whereabouts are yet unknown. Meantime, pending their arrests, the case is Archived in respect to the three (3) other accused whose identities and whereabouts are yet unknown to be revived upon their arrest. SO ORDERED. 29 In his Brief, accused-appellant raises the following errors: I THE COURT A QUO GRAVELY ERRED IN FINDING HEREIN ACCUSED-APPELLANT JEFFREY GARCIA Y CARAGAY GUILTY BEYOND REASONABLE DOUBT FOR THE COMPLEX CRIME OF FORCIBLE ABDUCTION WITH RAPE AND FOR THREE (3) COUNTS OF RAPE ALLEGEDLY COMMITTED IN CONSPIRACY WITH THREE (3) OTHERS WHOSE IDENTITIES AND WHEREABOUTS ARE STILL UNKNOWN. II THE COURT A QUO GRAVELY ERRED IN NOT GIVING SCANT CONSIDERATION TO THE THEORY OF THE DEFENSE THAT ACCUSED-APPELLANT JEFFREY GARCIA Y CARAGAY IS ONLY A LOOK-ALIKE OF THE REAL CULPRIT.

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III THE COURT A QUO GRAVELY ERRED IN FINDING THAT CLEOPATRA CHANGLAPON HAD POSITIVELY IDENTIFIED JEFFREY GARCIA Y CARAGAY AS ONE OF THOSE WHO ABDUCTED AND RAPED HER. 30 Accused-appellant assails his conviction based on complainant’s identification. According to him, the identification was improperly suggested by the police. We are not persuaded. Based on our own review of the records of this case, we find that complainant was neither influenced nor induced by the police to point to accused-appellant as one of her molesters. On the contrary, the transcripts convincingly show that complainant was left to freely study the faces of the thirty or more inmates on the basketball court below to see whether she recognized any of them. 31 There was no suggestion from the police to point to the new detainee, who had just been arrested on another rape charge. Owing to the gravity of the crime and penalty involved, we have meticulously studied the testimony of complainant Cleopatra Changlapon and find it to be clear, straightforward and categorical. The details of her narration are consistent on all material points. Her actions throughout her ordeal correspond to normal human behavior. We take particular note of her natural and spontaneous reaction of crying and attacking her molester when brought before her face to face. The records also eloquently exhibit that she repeatedly cried throughout her testimony. All of these actuations bear the ring of truth and deserve full faith and credit. More importantly, complainant’s narration of the events is well substantiated by the physical evidence. The second degree burns found on her face, chest and thighs prove that she was indeed burned with lighted cigarettes whenever she attempted to fight her assailants. The medico-legal officer confirmed that they were consistent with cigarette burns. 32 Furthermore, the contusions found on her body were said to be caused by a blunt instrument like a closed fist. 33 This confirms her testimony that she was repeatedly hit to stop her from struggling. The medico-legal officer placed the time of infliction of the external physical injuries on complainant within the last twenty-four hours. 34 The findings on her genitals --- namely the gaping labia majora, the congested and abraded labia minora, and the lacerations --- all suggest the entry of a foreign object, such as a fully erect male organ. 35 Finally, the presence of spermatozoa further confirms that complainant recently had sexual intercourse. 36 In the face of complainant’s positive and categorical declarations that accused-appellant was one of her rapists, accusedappellant’s alibi must fail. It is a well-settled rule that positive identification of the accused, where categorical and consistent and without any showing of ill motive on the part of the eyewitness testifying on the matter, prevails over alibi and denial which if not substantiated by clear and convincing evidence are negative and self-serving evidence undeserving of weight in law. 37 Furthermore, in order that the defense of alibi may prosper, accused-appellant must establish not only that he was somewhere else when the crime was committed but also that it was physically impossible for him to have been at the scene of the crime at the time it was committed. 38 In the case at bar, the place of commission of the rapes --somewhere between Tam-awan and Longlong --- and the boarding house where accused-appellant alleged he was in the evening of July 14, 1998, are both situated within Baguio City. The distance between Tam-awan and Aurora Hills, especially at dawn, can be traversed in just a matter of minutes. Indeed, as pointed out by the trial court, accused-appellant’s witnesses failed to account for his whereabouts after 12:00 midnight. At the time of the rape, complainant distinctly heard one of her molesters state the time as 1:30. Since it was still dark when complainant was dropped off on the side of the road, it can safely be assumed that the crimes were committed at dawn. The trial court, therefore, did not err in convicting accused-appellant of the complex crime of forcible abduction with rape. The two elements of forcible abduction, as defined in Article 342 of the Revised Penal Code, are: (1) the taking of a woman against her will and (2) with lewd designs. The crime of forcible abduction with rape is a complex crime that occurs when there is carnal knowledge with the abducted woman under the following circumstances: (1) by using force or intimidation; (2) when the woman is deprived of reason or otherwise unconscious; and (3) when the woman is under twelve years of age or is demented. 39 In the case at bar, the information sufficiently alleged the elements of forcible abduction, i.e., the taking of complainant against her against her will and with lewd design. It was likewise alleged that accused-appellant and his three co-accused conspired, confederated and mutually aided one another in having carnal knowledge of complainant by means of force and intimidation and against her will. Aside from alleging the necessary elements of the crimes, the prosecution convincingly established that the carnal knowledge was committed through force and intimidation. Moreover, the prosecution sufficiently proved beyond reasonable doubt that accused-appellant succeeded in forcibly abducting the complainant with lewd designs, established by the actual rape. 40 Hence, accused-appellant is guilty of the complex crime of forcible abduction with rape. He should also be held liable for the other three counts of rape committed by his three co-accused, considering the clear conspiracy among them shown by their obvious concerted efforts to perpetrate, one after the other, the crime. As borne by the records, all the four accused helped one another in consummating the rape of complainant. While one of them mounted her, the other three held her arms and legs. They also burned her face and extremities with lighted cigarettes to stop her from warding off her aggressor. Each of them, therefore, is responsible not only for the rape committed personally by him but for the rape committed by the others as well. 41 However, as correctly held by the trial court, there can only be one complex crime of forcible abduction with rape. The crime of forcible abduction was only necessary for the first rape. Thus, the subsequent acts of rape can no longer be considered as separate complex crimes of forcible abduction with rape. They should be detached from and considered independently of the forcible abduction. Therefore, accused-appellant should be convicted of one complex crime of forcible abduction with rape and three separate acts of rape. 42 The penalty for complex crimes is the penalty for the most serious crime which shall be imposed in its maximum period. Rape is the more serious of the two crimes and, when committed by more than two persons, is punishable with reclusion perpetua to death under Article 266-B of the Revised Penal Code, as amended by Republic Act No. 8353. Thus, accusedappellant should be sentenced to the maximum penalty of death for forcible abduction with rape. 43 As regards the other three acts of rape, accused-appellant can only be sentenced to reclusion perpetua. The trial court appreciated the aggravating circumstances of nighttime, superior strength and motor vehicle. However, these were not

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alleged in the information. Under the amended provisions of Rule 110, Sections 8 and 9 of the Revised Rules on Criminal Procedure, which took effect on December 1, 2000, aggravating as well as qualifying circumstances must be alleged in the information, otherwise, they cannot be considered against the accused even if proven at the trial. Being favorable to accused-appellant, this rule should be applied retroactively in this case. 44 Hence, there being no aggravating circumstance that may be appreciated, and with no mitigating circumstance, the lesser of the two indivisible penalties shall be applied, pursuant to Article 63, paragraph (2) of the Revised Penal Code. Anent the matter of damages, the trial court correctly awarded the amount of P50,000.00 as moral damages.1âwphi1 This was justified by complainant’s emotional and physical suffering, as narrated in her testimony. 45 Notably, the prosecution successfully proved that complainant lost her virginity during the rape. 46 As she narrated, virginity is a highly regarded virtue among the people of Kalinga. 47 However, the trial court failed to award civil indemnity to the complainant.1âwphi1 We have ruled that if rape is committed or qualified by any of the circumstances which authorize the imposition of the death penalty, the civil indemnity shall be not less than P75,000.00. 48 For the other three counts of simple rape, where the proper penalty is reclusion perpetua, accused-appellant is liable for civil indemnity in the amount of P50,000.00 for each count. 49 We also find that the actual damages awarded by the trial court was well substantiated. Complainant presented the required receipts for her medications, transportation and other expenses. 50 Complainant testified that as a member of the Kalinga tribe, she had to undergo the korong and songa rituals, wherein they had to butcher several chickens, pigs, and carabaos, thereby incurring total expenses of P90,000.00. 51 These rituals were intended for complainant’s safety and to call on the tribe’s spirits so that no more violence or misfortune may befall her. 52 The grand total of all these actual expenses, including those for medicines and transportation, as duly proved by the receipts and computations presented in evidence, is P 146,125.75, 53 the amount awarded by the trial court. WHEREFORE, based on the foregoing, the Decision of the Regional Trial Court of Baguio City, Branch 6, in Criminal Case No. 15805-R, convicting accused-appellant Jeffrey Garcia y Caragay of one count of Forcible Abduction with Rape and three counts of Rape, is AFFIRMED with MODIFICATIONS. As modified, accused-appellant is sentenced to suffer the penalty of Death for the complex crime of Forcible Abduction with Rape and Reclusion Perpetua for each of the three counts of rape. Further, accused-appellant is ordered to pay complainant Cleopatra Changlapon the amounts of P146,125.75 as actual damages, P75,000.00 as civil indemnity and P50,000.00 as moral damages. Costs against accused-appellant. In accordance with Article 83 of the Revised Penal Code, as amended, upon finality of this Decision, let the records of this case be forwarded to the Office of the President for possible exercise of pardoning power or executive clemency. SO ORDERED.















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SECOND DIVISION G.R. No. 154579

October 8, 2003

MA. LOURDES R. DE GUZMAN, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. RESOLUTION CALLEJO, SR., J.: The instant petition for review under Rule 45 assails the Decision1 of the Court of Appeals dated November 29, 2001 and the subsequent Resolution dated August 1, 2002 denying the motion for reconsideration. The CA affirmed with modification the decision of the Regional Trial Court, Makati City, Branch 145 in Criminal Case No. 96-1226,2 finding herein petitioner, Ma. Lourdes de Guzman guilty beyond reasonable doubt of Theft. The Information filed on July 9, 1996 reads as follows: That on or about the 8th day of February, 1995, in the City of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously with intent of gain and without the consent of the owner thereof, take, steal and carry away several pieces of jewelry valued at P4,600,000.00 belonging to one Jasmine Gongora, to the damage and prejudice of the said owner in the aforementioned amount of P4,600,000.00.3 After due hearing, the trial court rendered its judgment on December 11, 1997, the dispositive portion of which reads: WHEREFORE, the guilt of the accused having been sufficiently established by proof beyond reasonable doubt, the Court hereby finds the accused MA. LOURDES DE GUZMAN GUILTY of the present charge of THEFT and committed without aggravating circumstance charged nor mitigating circumstance proved and applying the Indeterminate Sentence Law, sentences her to suffer the minimum penalty of FOUR (4) YEARS and NINE (9) MONTHS and TEN (10) DAYS of prision correccional, and the maximum penalty of TWENTY (20) YEARS of reclusion temporal, as well as the penalties accessory thereto. The Court further finds the accused MA. LOURDES DE GUZMAN civilly liable and orders her to pay the private offended party, JASMINE GONGORA the sums of FOUR MILLION SIX HUNDRED FORTY THOUSAND PESOS (P4,640,000.00) representing the value as proven of the stolen jewelries; FIVE HUNDRED THOUSAND PESOS (P500,000.00) in moral damages and TWO HUNDRED THOUSAND PESOS (P200,000.00) as reasonable attorneys fees and litigation expenses.

4 On appeal, the CA affirmed the conviction but reduced the award of damages, to wit: WHEREFORE, upon the premises, We AFFIRM the decision appealed from with the MODIFICATION that the award for actual damages is reduced to P1,500,00 and moral damages to P100,000. The award for attorney’s fees is DELETED.5 Hence, this petition filed on September 24, 2002, raising the same issues in the CA that the decision of the trial court was tried and decided by a biased judge; and that the judgment of conviction was not proven beyond reasonable doubt. The Court required the Office of the Solicitor General (OSG) to comment.1awphi1.nét On January 30, 2003, counsel for the petitioner filed a Manifestation informing the Court that the petitioner passed away on January 13, 2003.6 The death of the petitioner resulted from a vehicular accident, as indicated in the Certificate of Death attached thereto.7 At issue now before the Court is the effect of petitioner’s death on the instant petition. Article 89 (1) of the Revised Penal Code clearly provides that: Art. 89. How criminal liability is totally extinguished. -Criminal liability is totally extinguished; 1. By the death of the convict, as to the personal penalties; and as to pecuniary penalties, liability therefore is extinguished only when the death of the offender occurs before final judgment; … The issue as to whether an action on the civil liability can survive and proceed against the estate of the deceased has been settled in the case of People v. Bayotas8 where it was held that: Upon death of the accused pending appeal of his conviction, the criminal action is extinguished inasmuch as there is no longer a defendant to stand as the accused; the civil action instituted therein for recovery of civil liability ex delicto is ipso facto extinguished, grounded as it is on the criminal.91awphi1.nét The pecuniary liabilities adjudged against the petitioner are undeniably ex delicto. The petitioner was ordered to pay actual damages, which is the value of the pieces of jewelry allegedly taken from the private complainant in the amount of P1,500,000, as modified by the Court of Appeals; and moral damages of P100,000 for the fear and trauma caused to the complainant because of the petitioner’s intrusion into her bedroom. These civil liabilities arose from the crime of Theft and are based solely on said delict. Although both the trial and the appellate courts found petitioner guilty beyond reasonable doubt, she had the right to appeal her case to this Court of last resort and challenge the findings of the two courts below. The judgment of conviction was pending review until her untimely demise. It has, therefore, not yet attained finality. Thus, pursuant to Article 89 of the Revised Penal Code, it is incumbent upon the Court to dismiss the instant petition for review. The Court is dismissing the case because there is no longer a need to continue with the review of the appeal. The lower court’s decision has thus

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become ineffectual.10 Needless to state, the civil liability attendant to the crime which includes the restitution of personal or real property11 is also extinguished. A substitution of heirs in petitioner’s stead is no longer necessary. WHEREFORE, the petition for review is DENIED. In view of the death of the petitioner, the appealed decision is SET ASIDE. Costs de oficio. SO ORDERED.



















THIRD DIVISION G.R. No. 139033

December 18, 2002

JOVENDO DEL CASTILLO, petitioner, vs. HON. ROSARIO TORRECAMPO, Presiding Judge, RTC of Camarines Sur, Branch 33 and PEOPLE OF THE PHILIPPINES, respondents. DECISION CORONA, J.: The instant petition is one for the review, by way of appeal by certiorari, of the Decision1 of the Court of Appeals dated November 20, 1998, and of the Resolution dated June 14, 1999 denying the motion for reconsideration thereof.

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Petitioner was charged on March 8, 1983 with violation of Section 178 (nn)2 of the 1978 Election Code in Criminal Case No. F-1447 before Branch 33, Regional Trial Court, Camarines Sur. The Information alleged: That on May 17, 1982, (Barangay Election Day), at around 8:15 P.M. in Barangay Ombao, Municipality of Bula, Province of Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did, then and there unlawfully conducted himself in a disorderly manner, by striking the electric bulb and two (2) kerosene petromax lamps lighting the room where voting center no. 24 is located, during the counting of the votes in said voting center plunging the room in complete darkness, thereby interrupting and disrupting the proceedings of the Board of Election Tellers.3 On arraignment, petitioner pleaded not guilty. Thereafter, trial on the merits ensued. On January 14, 1985, the trial court rendered judgment and declared petitioner guilty beyond reasonable doubt of violating Section 178 (nn) of PD 1296, otherwise known as the 1978 Election Code, as amended, and sentenced petitioner to suffer the indeterminate penalty of imprisonment of 1 year as minimum to 3 years as maximum. Aggrieved, petitioner appealed his conviction to the Court of Appeals which eventually affirmed the decision of the trial court in toto. Said decision became final and executory. Thus, the execution of judgment was scheduled on October 14, 1987. On October 12, 1987, an urgent motion to reset the execution of judgment was submitted by petitioner through his counsel. But it was denied for lack of merit. During the execution of judgment, petitioner failed to appear which prompted the presiding judge to issue an order of arrest of petitioner and the confiscation of his bond. However, petitioner was never apprehended. He remained at large. Ten years later, on October 24, 1997, petitioner filed before the trial court a motion to quash the warrant issued for his arrest on the ground of prescription of the penalty imposed upon him. However, it was denied. His motion for reconsideration thereof was likewise denied. Dissatisfied, petitioner filed with the Court of Appeals a Petition for Certiorari assailing the orders of the trial court denying both his motion to quash the warrant of arrest and motion for reconsideration. On November 20, 1998, the Court of Appeals rendered its now assailed decision dismissing the petition for lack of merit. Following the denial of his motion for reconsideration, the instant petition was filed before us. Petitioner asserts that the Court of Appeals gravely erred in holding that the penalty imposed upon petitioner has not prescribed. Petitioner maintains that Article 93 of the Revised Penal Code provides that the period of prescription shall commence to run from the date when the culprit should evade the service of his sentence. The Court of Appeals, in its interpretation of the said provision, engaged in judicial legislation when it added the phrase "by escaping during the term of the sentence" thereto, so petitioner claims. Going over the merits of the petition, the Court finds that the Court of Appeals did not err in dismissing the petition for certiorari. The threshold issue in the instant case is the interpretation of Article 93 of the Revised Penal Code in relation to Article 157 of the same Code. In dismissing the petition, the Court of Appeals ruled: "Article 92 of the Revised Penal Code provides as follows: ‘When and how penalties prescribe – The penalties imposed by the final sentence prescribed as follows: 1. Death and reclusion perpetua, in twenty years; 2. Other afflictive penalties, in fifteen years; 3. Correctional penalties, in ten years; with the exception of the penalty of arresto mayor, which prescribes in five years; 4. Light penalties, in one year.’ "And Article 93 of the Revised Penal Code, provides as follows: ‘Computation of the prescription of penalties – The period of prescription of penalties shall commence to run from the date when the culprit should evade the service of his sentence, and it shall be interrupted if the defendant should give himself up, be captured, should go to some foreign country with which his Government has no extradition treaty, or should commit another crime before the expiration of the period of prescription.’ "The penalty imposed upon the petitioner is one (1) year of imprisonment as minimum to three (3) years of imprisonment as maximum. "The law under which the petitioner was convicted is a special law, the 1978 Election Code. This law does not provide for the prescription of penalties. This being the case, We have to apply the provision of the Revised Penal Code which allows the application of said code in suppletory character when it provides that: ‘Offenses which are or in the future may be punishable under special laws are not subject to the provision of this code. This code shall be supplementary to such laws, unless the latter should specially provide the contrary.’ "The penalty imposed upon the petitioner is a correctional penalty under Article 25 in relation to Article 27 of the Revised Penal Code. Being a correctional penalty it prescribed in ten (10) years. "The petitioner was convicted by a final judgment on June 14, 1986. Such judgment would have been executed on October 14, 1986 but the accused did not appear for such proceeding. And he has never been apprehended. "The contention of the petitioner is that said judgment prescribed on October 24, 1996.

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"The issue here is whether or not the penalty imposed upon the petitioner has prescribed. "The elements in order that the penalty imposed has prescribed are as follows: ‘1. That the penalty is imposed by final sentence. 2. That the convict evaded the service of the sentence by escaping during the term of his sentence. 3. That the convict who escaped from prison has not given himself up, or been captured, or gone to a foreign country with which we have no extradition treaty or committed another crime. 4. That the penalty has prescribed, because of the lapse of time form the date of the evasion of the service of the sentence by the convict.’ (p. 93, Revised Penal Code by L. Reyes 93 ed.) "From the foregoing elements, it is clear that the penalty imposed has not prescribed because the circumstances of the case at bench failed to satisfy the second element, to wit – ‘That the convict evaded the service of the sentence by escaping during the service of his sentence.’ As a matter of fact, the petitioner never served a single minute of his sentence. The foregoing conclusion of the Court of Appeals is consistent with the ruling of this Court in Tanega vs. Masakayan, et. al.,4 where we declared that, for prescription of penalty imposed by final sentence to commence to run, the culprit should escape during the term of such imprisonment. The Court is unable to find and, in fact, does not perceive any compelling reason to deviate from our earlier pronouncement clearly exemplified in the Tanega case. Article 93 of the Revised Penal Code provides when the prescription of penalties shall commence to run. Under said provision, it shall commence to run from the date the felon evades the service of his sentence. Pursuant to Article 157 of the same Code, evasion of service of sentence can be committed only by those who have been convicted by final judgment by escaping during the term of his sentence. As correctly pointed out by the Solicitor General, "escape" in legal parlance and for purposes of Articles 93 and 157 of the RPC means unlawful departure of prisoner from the limits of his custody. Clearly, one who has not been committed to prison cannot be said to have escaped therefrom. In the instant case, petitioner was never brought to prison. In fact, even before the execution of the judgment for his conviction, he was already in hiding. Now petitioner begs for the compassion of the Court because he has ceased to live a life of peace and tranquility after he failed to appear in court for the execution of his sentence. But it was petitioner who chose to become a fugitive. The Court accords compassion only to those who are deserving. Petitioner’s guilt was proven beyond reasonable doubt but he refused to answer for the wrong he committed. He is therefore not to be rewarded therefor. The assailed decision of the Court of Appeals is based on settled jurisprudence and applicable laws. It did not engage in judicial legislation but correctly interpreted the pertinent laws. Because petitioner was never placed in confinement, prescription never started to run in his favor. WHEREFORE, for lack of merit, the petition is hereby DENIED. SO ORDERED.











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SECOND DIVISION G.R. No. 152662

June 13, 2012

PEOPLE OF THE PHILIPPINES, Petitioner, vs. MA. THERESA PANGILINAN, Respondent. DECISION PEREZ, J.: The Office of the Solicitor General (OSG) filed this petition for certiorari1 under Rule 45 of the Rules of Court, on behalf of the Republic of the Philippines, praying for the nullification and setting aside of the Decision2 of the Court of Appeals (CA) in CA-G.R. SP No. 66936, entitled "Ma. Theresa Pangilinan vs. People of the Philippines and Private Complainant Virginia C. Malolos." The fallo of the assailed Decision reads: WHEREFORE, the instant petition is GRANTED. Accordingly, the assailed Decision of the Regional Trial Court of Quezon City, Branch 218, is REVERSED and SET ASIDE and Criminal Cases Nos. 89152 and 89153 against petitioner Ma. Theresa Pangilinan are hereby ordered DISMISSED.3 Culled from the record are the following undisputed facts: On 16 September 1997, Virginia C. Malolos (private complainant) filed an affidavit-complaint for estafa and violation of Batas Pambansa (BP) Blg. 22 against Ma. Theresa Pangilinan (respondent) with the Office of the City Prosecutor of Quezon City. The complaint alleges that respondent issued nine (9) checks with an aggregate amount of Nine Million Six Hundred Fifty-Eight Thousand Five Hundred Ninety-Two Pesos (P9,658,592.00) in favor of private complainant which were dishonored upon presentment for payment. On 5 December 1997, respondent filed a civil case for accounting, recovery of commercial documents, enforceability and effectivity of contract and specific performance against private complainant before the Regional Trial Court (RTC) of Valenzuela City. This was docketed as Civil Case No. 1429-V-97. Five days thereafter or on 10 December 1997, respondent filed a "Petition to Suspend Proceedings on the Ground of Prejudicial Question" before the Office of the City Prosecutor of Quezon City, citing as basis the pendency of the civil action she filed with the RTC of Valenzuela City. On 2 March 1998, Assistant City Prosecutor Ruben Catubay recommended the suspension of the criminal proceedings pending the outcome of the civil action respondent filed against private complainant with the RTC of Valenzuela City. The recommendation was approved by the City Prosecutor of Quezon City. Aggrieved, private complainant raised the matter before the Department of Justice (DOJ). On 5 January 1999, then Secretary of Justice Serafin P. Cuevas reversed the resolution of the City Prosecutor of Quezon City and ordered the filing of informations for violation of BP Blg. 22 against respondent in connection with her issuance of City Trust Check No. 127219 in the amount of P4,129,400.00 and RCBC Check No. 423773 in the amount of P4,475,000.00, both checks totaling the amount of P8,604,000.00. The estafa and violation of BP Blg. 22 charges involving the seven other checks included in the affidavit-complaint filed on 16 September 1997 were, however, dismissed.

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Consequently, two counts for violation of BP Blg. 22, both dated 18 November 1999, were filed against respondent Ma.Theresa Pangilinan on 3 February 2000 before the Office of the Clerk of Court, Metropolitan Trial Court (MeTC), Quezon City. These cases were raffled to MeTC, Branch 31on 7 June 2000. On 17 June 2000, respondent filed an "Omnibus Motion to Quash the Information and to Defer the Issuance of Warrant of Arrest" before MeTC, Branch 31, Quezon City. She alleged that her criminal liability has been extinguished by reason of prescription. The presiding judge of MeTC, Branch 31, Quezon City granted the motion in an Order dated 5 October 2000. On 26 October 2000, private complainant filed a notice of appeal. The criminal cases were raffled to RTC, Branch 218, Quezon City. In a Decision dated 27 July 2001, the presiding judge of RTC, Branch 218, Quezon City reversed the 5 October 2000 Order of the MeTC. The pertinent portion of the decision reads: xxx Inasmuch as the informations in this case were filed on 03 February 2000 with the Clerk of Court although received by the Court itself only on 07 June 2000, they are covered by the Rule as it was worded before the latest amendment. The criminal action on two counts for violation of BP Blg. 22, had, therefore, not yet prescribed when the same was filed with the court a quo considering the appropriate complaint that started the proceedings having been filed with the Office of the Prosecutor on 16 September 1997 yet. WHEREFORE, the assailed Order dated 05 October 2000 is hereby REVERSED AND SET ASIDE. The Court a quo is hereby directed to proceed with the hearing of Criminal Cases Nos. 89152 and 89153.4 Dissatisfied with the RTC Decision, respondent filed with the Supreme Court a petition for review5 on certiorari under Rule 45 of the Rules of Court. This was docketed as G.R. Nos. 149486-87. In a resolution6 dated 24 September 2000, this Court referred the petition to the CA for appropriate action. On 26 October 2001, the CA gave due course to the petition by requiring respondent and private complainant to comment on the petition. In a Decision dated 12 March 2002, the CA reversed the 27 July 2001 Decision of RTC, Branch 218, Quezon City, thereby dismissing Criminal Case Nos. 89152 and 89153 for the reason that the cases for violation of BP Blg. 22 had already prescribed. In reversing the RTC Decision, the appellate court ratiocinated that: xxx this Court reckons the commencement of the period of prescription for violations of Batas Pambansa Blg. 22 imputed to [respondent] sometime in the latter part of 1995, as it was within this period that the [respondent] was notified by the private [complainant] of the fact of dishonor of the subject checks and, the five (5) days grace period granted by law had elapsed. The private respondent then had, pursuant to Section 1 of Act 3326, as amended, four years therefrom or until the latter part of 1999 to file her complaint or information against the petitioner before the proper court. The informations docketed as Criminal Cases Nos. 89152 and 89152(sic) against the petitioner having been filed with the Metropolitan Trial Court of Quezon City only on 03 February 2000, the said cases had therefore, clearly prescribed. xxx Pursuant to Section 2 of Act 3326, as amended, prescription shall be interrupted when proceedings are instituted against the guilty person. In the case of Zaldivia vs. Reyes7 the Supreme Court held that the proceedings referred to in Section 2 of Act No. 3326, as amended, are ‘judicial proceedings’, which means the filing of the complaint or information with the proper court. Otherwise stated, the running of the prescriptive period shall be stayed on the date the case is actually filed in court and not on any date before that, which is in consonance with Section 2 of Act 3326, as amended. While the aforesaid case involved a violation of a municipal ordinance, this Court, considering that Section 2 of Act 3326, as amended, governs the computation of the prescriptive period of both ordinances and special laws, finds that the ruling of the Supreme Court in Zaldivia v. Reyes8 likewise applies to special laws, such as Batas Pambansa Blg. 22.9 The OSG sought relief to this Court in the instant petition for review.1âwphi1 According to the OSG, while it admits that Act No. 3326, as amended by Act No. 3585 and further amended by Act No. 3763 dated 23 November 1930, governs the period of prescription for violations of special laws, it is the institution of criminal actions, whether filed with the court or with the Office of the City Prosecutor, that interrupts the period of prescription of the offense charged.10 It submits that the filing of the complaint-affidavit by private complainant Virginia C. Malolos on 16 September 1997 with the Office of the City Prosecutor of Quezon City effectively interrupted the running of the prescriptive period of the subject BP Blg. 22 cases. Petitioner further submits that the CA erred in its decision when it relied on the doctrine laid down by this Court in the case of Zaldivia v. Reyes, Jr.11 that the filing of the complaint with the Office of the City Prosecutor is not the "judicial proceeding" that could have interrupted the period of prescription. In relying on Zaldivia,12 the CA allegedly failed to consider the subsequent jurisprudence superseding the aforesaid ruling. Petitioner contends that in a catena of cases,13 the Supreme Court ruled that the filing of a complaint with the Fiscal’s Office for preliminary investigation suspends the running of the prescriptive period. It therefore concluded that the filing of the informations with the MeTC of Quezon City on 3 February 2000 was still within the allowable period of four years within which to file the criminal cases for violation of BP Blg. 22 in accordance with Act No. 3326, as amended. In her comment-opposition dated 26 July 2002, respondent avers that the petition of the OSG should be dismissed outright for its failure to comply with the mandatory requirements on the submission of a certified true copy of the decision of the CA and the required proof of service. Such procedural lapses are allegedly fatal to the cause of the petitioner. Respondent reiterates the ruling of the CA that the filing of the complaint before the City Prosecutor’s Office did not interrupt the running of the prescriptive period considering that the offense charged is a violation of a special law. Respondent contends that the arguments advanced by petitioner are anchored on erroneous premises. She claims that

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the cases relied upon by petitioner involved felonies punishable under the Revised Penal Code and are therefore covered by Article 91 of the Revised Penal Code (RPC)14 and Section 1, Rule 110 of the Revised Rules on Criminal Procedure.15 Respondent pointed out that the crime imputed against her is for violation of BP Blg. 22, which is indisputably a special law and as such, is governed by Act No. 3326, as amended. She submits that a distinction should thus be made between offenses covered by municipal ordinances or special laws, as in this case, and offenses covered by the RPC. The key issue raised in this petition is whether the filing of the affidavit-complaint for estafa and violation of BP Blg. 22 against respondent with the Office of the City Prosecutor of Quezon City on 16 September 1997 interrupted the period of prescription of such offense. We find merit in this petition. Initially, we see that the respondent’s claim that the OSG failed to attach to the petition a duplicate original or certified true copy of the 12 March 2002 decision of the CA and the required proof of service is refuted by the record. A perusal of the record reveals that attached to the original copy of the petition is a certified true copy of the CA decision. It was also observed that annexed to the petition was the proof of service undertaken by the Docket Division of the OSG. With regard to the main issue of the petition, we find that the CA reversively erred in ruling that the offense committed by respondent had already prescribed. Indeed, Act No. 3326 entitled "An Act to Establish Prescription for Violations of Special Acts and Municipal Ordinances and to Provide When Prescription Shall Begin," as amended, is the law applicable to BP Blg. 22 cases. Appositely, the law reads: SECTION 1. Violations penalized by special acts shall, unless otherwise provided in such acts, prescribe in accordance with the following rules: (a) xxx; (b) after four years for those punished by imprisonment for more than one month, but less than two years; (c) xxx. SECTION 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof and the institution of judicial proceedings for its investigation and punishment. The prescription shall be interrupted when proceedings are instituted against the guilty person, and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy. Since BP Blg. 22 is a special law that imposes a penalty of imprisonment of not less than thirty (30) days but not more than one year or by a fine for its violation, it therefor prescribes in four (4) years in accordance with the aforecited law. The running of the prescriptive period, however, should be tolled upon the institution of proceedings against the guilty person. In the old but oft-cited case of People v. Olarte,16 this Court ruled that the filing of the complaint in the Municipal Court even if it be merely for purposes of preliminary examination or investigation, should, and thus, interrupt the period of prescription of the criminal responsibility, even if the court where the complaint or information is filed cannot try the case on the merits. This ruling was broadened by the Court in the case of Francisco, et.al. v. Court of Appeals, et. al.17 when it held that the filing of the complaint with the Fiscal’s Office also suspends the running of the prescriptive period of a criminal offense. Respondent’s contention that a different rule should be applied to cases involving special laws is bereft of merit. There is no more distinction between cases under the RPC and those covered by special laws with respect to the interruption of the period of prescription. The ruling in Zaldivia v. Reyes, Jr.18 is not controlling in special laws. In Llenes v. Dicdican,19 Ingco, et al. v. Sandiganbayan,20 Brillante v. CA,21 and Sanrio Company Limited v. Lim,22 cases involving special laws, this Court held that the institution of proceedings for preliminary investigation against the accused interrupts the period of prescription. In Securities and Exchange Commission v. Interport Resources Corporation, et. al.,23 the Court even ruled that investigations conducted by the Securities and Exchange Commission for violations of the Revised Securities Act and the Securities Regulations Code effectively interrupts the prescription period because it is equivalent to the preliminary investigation conducted by the DOJ in criminal cases. In fact, in the case of Panaguiton, Jr. v. Department of Justice,24 which is in all fours with the instant case, this Court categorically ruled that commencement of the proceedings for the prosecution of the accused before the Office of the City Prosecutor effectively interrupted the prescriptive period for the offenses they had been charged under BP Blg. 22. Aggrieved parties, especially those who do not sleep on their rights and actively pursue their causes, should not be allowed to suffer unnecessarily further simply because of circumstances beyond their control, like the accused’s delaying tactics or the delay and inefficiency of the investigating agencies. We follow the factual finding of the CA that "sometime in the latter part of 1995" is the reckoning date of the commencement of presumption for violations of BP Blg. 22, such being the period within which herein respondent was notified by private complainant of the fact of dishonor of the checks and the five-day grace period granted by law elapsed. The affidavit-complaints for the violations were filed against respondent on 16 September 1997. The cases reached the MeTC of Quezon City only on 13 February 2000 because in the meanwhile, respondent filed a civil case for accounting followed by a petition before the City Prosecutor for suspension of proceedings on the ground of "prejudicial question". The matter was raised before the Secretary of Justice after the City Prosecutor approved the petition to suspend proceedings. It was only after the Secretary of Justice so ordered that the informations for the violation of BP Blg. 22 were filed with the MeTC of Quezon City. Clearly, it was respondent’s own motion for the suspension of the criminal proceedings, which motion she predicated on her civil case for accounting, that caused the filing in court of the 1997 initiated proceedings only in 2000. As laid down in Olarte,25 it is unjust to deprive the injured party of the right to obtain vindication on account of delays that are not under his control. The only thing the offended must do to initiate the prosecution of the offender is to file the requisite complaint. IN LIGHT OF ALL THE FOREGOING, the instant petition is GRANTED. The 12 March 2002 Decision of the Court of Appeals is hereby REVERSED and SET ASIDE. The Department of Justice is ORDERED to re-file the informations for violation of BP Blg. 22 against the respondent. SO ORDERED.

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SECOND DIVISION G.R. No. 172716

November 17, 2010

JASON IVLER y AGUILAR, Petitioner, vs. HON. MARIA ROWENA MODESTO-SAN PEDRO, Judge of the Metropolitan Trial Court, Branch 71, Pasig City, and EVANGELINE PONCE, Respondents. DECISION CARPIO, J.: The Case The petition seeks the review1 of the Orders2 of the Regional Trial Court of Pasig City affirming sub-silencio a lower court’s ruling finding inapplicable the Double Jeopardy Clause to bar a second prosecution for Reckless Imprudence Resulting in Homicide and Damage to Property. This, despite the accused’s previous conviction for Reckless Imprudence Resulting in Slight Physical Injuries arising from the same incident grounding the second prosecution. The Facts Following a vehicular collision in August 2004, petitioner Jason Ivler (petitioner) was charged before the Metropolitan Trial Court of Pasig City, Branch 71 (MeTC), with two separate offenses: (1) Reckless Imprudence Resulting in Slight Physical Injuries (Criminal Case No. 82367) for injuries sustained by respondent Evangeline L. Ponce (respondent Ponce); and (2) Reckless Imprudence Resulting in Homicide and Damage to Property (Criminal Case No. 82366) for the death of respondent Ponce’s husband Nestor C. Ponce and damage to the spouses Ponce’s vehicle. Petitioner posted bail for his temporary release in both cases. On 7 September 2004, petitioner pleaded guilty to the charge in Criminal Case No. 82367 and was meted out the penalty of public censure. Invoking this conviction, petitioner moved to quash the Information in Criminal Case No. 82366 for placing him in jeopardy of second punishment for the same offense of reckless imprudence. The MeTC refused quashal, finding no identity of offenses in the two cases.3 After unsuccessfully seeking reconsideration, petitioner elevated the matter to the Regional Trial Court of Pasig City, Branch 157 (RTC), in a petition for certiorari (S.C.A. No. 2803). Meanwhile, petitioner sought from the MeTC the suspension of proceedings in Criminal Case No. 82366, including the arraignment on 17 May 2005, invoking S.C.A. No. 2803 as a prejudicial question. Without acting on petitioner’s motion, the MeTC proceeded with the arraignment and, because of petitioner’s absence, cancelled his bail and ordered his arrest.4 Seven days later, the MeTC issued a resolution denying petitioner’s motion to suspend proceedings and postponing his arraignment until after his arrest.5 Petitioner sought reconsideration but as of the filing of this petition, the motion remained unresolved. Relying on the arrest order against petitioner, respondent Ponce sought in the RTC the dismissal of S.C.A. No. 2803 for petitioner’s loss of standing to maintain the suit. Petitioner contested the motion. The Ruling of the Trial Court In an Order dated 2 February 2006, the RTC dismissed S.C.A. No. 2803, narrowly grounding its ruling on petitioner’s forfeiture of standing to maintain S.C.A. No. 2803 arising from the MeTC’s order to arrest petitioner for his nonappearance at the arraignment in Criminal Case No. 82366. Thus, without reaching the merits of S.C.A. No. 2803, the RTC effectively affirmed the MeTC. Petitioner sought reconsideration but this proved unavailing.6 Hence, this petition. Petitioner denies absconding. He explains that his petition in S.C.A. No. 2803 constrained him to forego participation in the proceedings in Criminal Case No. 82366. Petitioner distinguishes his case from the line of jurisprudence sanctioning dismissal of appeals for absconding appellants because his appeal before the RTC was a special civil action seeking a pre-trial relief, not a post-trial appeal of a judgment of conviction.7 Petitioner laments the RTC’s failure to reach the merits of his petition in S.C.A. 2803. Invoking jurisprudence, petitioner argues that his constitutional right not to be placed twice in jeopardy of punishment for the same offense bars his prosecution in Criminal Case No. 82366, having been previously convicted in Criminal Case No. 82367 for the same offense of reckless imprudence charged in Criminal Case No. 82366. Petitioner submits that the multiple consequences of such crime are material only to determine his penalty. Respondent Ponce finds no reason for the Court to disturb the RTC’s decision forfeiting petitioner’s standing to maintain his petition in S.C.A. 2803. On the merits, respondent Ponce calls the Court’s attention to jurisprudence holding that light offenses (e.g. slight physical injuries) cannot be complexed under Article 48 of the Revised Penal Code with grave or less grave felonies (e.g. homicide). Hence, the prosecution was obliged to separate the charge in Criminal Case No. 82366 for the slight physical injuries from Criminal Case No. 82367 for the homicide and damage to property. In the Resolution of 6 June 2007, we granted the Office of the Solicitor General’s motion not to file a comment to the petition as the public respondent judge is merely a nominal party and private respondent is represented by counsel. The Issues Two questions are presented for resolution: (1) whether petitioner forfeited his standing to seek relief in S.C.A. 2803 when the MeTC ordered his arrest following his non-appearance at the arraignment in Criminal Case No. 82366; and (2) if in the negative, whether petitioner’s constitutional right under the Double Jeopardy Clause bars further proceedings in Criminal Case No. 82366.

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The Ruling of the Court We hold that (1) petitioner’s non-appearance at the arraignment in Criminal Case No. 82366 did not divest him of personality to maintain the petition in S.C.A. 2803; and (2) the protection afforded by the Constitution shielding petitioner from prosecutions placing him in jeopardy of second punishment for the same offense bars further proceedings in Criminal Case No. 82366. Petitioner’s Non-appearance at the Arraignment inCriminal Case No. 82366 did not Divest him of Standing to Maintain the Petition in S.C.A. 2803 Dismissals of appeals grounded on the appellant’s escape from custody or violation of the terms of his bail bond are governed by the second paragraph of Section 8, Rule 124,8 in relation to Section 1, Rule 125, of the Revised Rules on Criminal Procedure authorizing this Court or the Court of Appeals to "also, upon motion of the appellee or motu proprio, dismiss the appeal if the appellant escapes from prison or confinement, jumps bail or flees to a foreign country during the pendency of the appeal." The "appeal" contemplated in Section 8 of Rule 124 is a suit to review judgments of convictions. The RTC’s dismissal of petitioner’s special civil action for certiorari to review a pre-arraignment ancillary question on the applicability of the Due Process Clause to bar proceedings in Criminal Case No. 82366 finds no basis under procedural rules and jurisprudence. The RTC’s reliance on People v. Esparas9 undercuts the cogency of its ruling because Esparas stands for a proposition contrary to the RTC’s ruling. There, the Court granted review to an appeal by an accused who was sentenced to death for importing prohibited drugs even though she jumped bail pending trial and was thus tried and convicted in absentia. The Court in Esparas treated the mandatory review of death sentences under Republic Act No. 7659 as an exception to Section 8 of Rule 124.10 The mischief in the RTC’s treatment of petitioner’s non-appearance at his arraignment in Criminal Case No. 82366 as proof of his loss of standing becomes more evident when one considers the Rules of Court’s treatment of a defendant who absents himself from post-arraignment hearings. Under Section 21, Rule 11411 of the Revised Rules of Criminal Procedure, the defendant’s absence merely renders his bondsman potentially liable on its bond (subject to cancellation should the bondsman fail to produce the accused within 30 days); the defendant retains his standing and, should he fail to surrender, will be tried in absentia and could be convicted or acquitted. Indeed, the 30-day period granted to the bondsman to produce the accused underscores the fact that mere non-appearance does not ipso facto convert the accused’s status to that of a fugitive without standing. Further, the RTC’s observation that petitioner provided "no explanation why he failed to attend the scheduled proceeding"12 at the MeTC is belied by the records. Days before the arraignment, petitioner sought the suspension of the MeTC’s proceedings in Criminal Case No. 82366 in light of his petition with the RTC in S.C.A. No. 2803. Following the MeTC’s refusal to defer arraignment (the order for which was released days after the MeTC ordered petitioner’s arrest), petitioner sought reconsideration. His motion remained unresolved as of the filing of this petition. Petitioner’s Conviction in Criminal Case No. 82367Bars his Prosecution in Criminal Case No. 82366 The accused’s negative constitutional right not to be "twice put in jeopardy of punishment for the same offense"13 protects him from, among others, post-conviction prosecution for the same offense, with the prior verdict rendered by a court of competent jurisdiction upon a valid information.14 It is not disputed that petitioner’s conviction in Criminal Case No. 82367 was rendered by a court of competent jurisdiction upon a valid charge. Thus, the case turns on the question whether Criminal Case No. 82366 and Criminal Case No. 82367 involve the "same offense." Petitioner adopts the affirmative view, submitting that the two cases concern the same offense of reckless imprudence. The MeTC ruled otherwise, finding that Reckless Imprudence Resulting in Slight Physical Injuries is an entirely separate offense from Reckless Imprudence Resulting in Homicide and Damage to Property "as the [latter] requires proof of an additional fact which the other does not."15 We find for petitioner. Reckless Imprudence is a Single Crime, its Consequences on Persons andProperty are Material Only to Determine the Penalty The two charges against petitioner, arising from the same facts, were prosecuted under the same provision of the Revised Penal Code, as amended, namely, Article 365 defining and penalizing quasi-offenses. The text of the provision reads: Imprudence and negligence. — Any person who, by reckless imprudence, shall commit any act which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in its maximum period to prision correccional in its medium period; if it would have constituted a less grave felony, the penalty of arresto mayor in its minimum and medium periods shall be imposed; if it would have constituted a light felony, the penalty of arresto menor in its maximum period shall be imposed. Any person who, by simple imprudence or negligence, shall commit an act which would otherwise constitute a grave felony, shall suffer the penalty of arresto mayor in its medium and maximum periods; if it would have constituted a less serious felony, the penalty of arresto mayor in its minimum period shall be imposed. When the execution of the act covered by this article shall have only resulted in damage to the property of another, the offender shall be punished by a fine ranging from an amount equal to the value of said damages to three times such value, but which shall in no case be less than twenty-five pesos. A fine not exceeding two hundred pesos and censure shall be imposed upon any person who, by simple imprudence or negligence, shall cause some wrong which, if done maliciously, would have constituted a light felony. In the imposition of these penalties, the court shall exercise their sound discretion, without regard to the rules prescribed in Article sixty-four. The provisions contained in this article shall not be applicable: 1. When the penalty provided for the offense is equal to or lower than those provided in the first two paragraphs of this article, in which case the court shall impose the penalty next lower in degree than that which should be imposed in the period which they may deem proper to apply. 2. When, by imprudence or negligence and with violation of the Automobile Law, to death of a person shall be caused, in which case the defendant shall be punished by prision correccional in its medium and maximum

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periods. Reckless imprudence consists in voluntary, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place. Simple imprudence consists in the lack of precaution displayed in those cases in which the damage impending to be caused is not immediate nor the danger clearly manifest. The penalty next higher in degree to those provided for in this article shall be imposed upon the offender who fails to lend on the spot to the injured parties such help as may be in this hand to give. Structurally, these nine paragraphs are collapsible into four sub-groupings relating to (1) the penalties attached to the quasi-offenses of "imprudence" and "negligence" (paragraphs 1-2); (2) a modified penalty scheme for either or both quasioffenses (paragraphs 3-4, 6 and 9); (3) a generic rule for trial courts in imposing penalties (paragraph 5); and (4) the definition of "reckless imprudence" and "simple imprudence" (paragraphs 7-8). Conceptually, quasi-offenses penalize "the mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the imprudencia punible,"16 unlike willful offenses which punish the intentional criminal act. These structural and conceptual features of quasi-offenses set them apart from the mass of intentional crimes under the first 13 Titles of Book II of the Revised Penal Code, as amended. Indeed, the notion that quasi-offenses, whether reckless or simple, are distinct species of crime, separately defined and penalized under the framework of our penal laws, is nothing new. As early as the middle of the last century, we already sought to bring clarity to this field by rejecting in Quizon v. Justice of the Peace of Pampanga the proposition that "reckless imprudence is not a crime in itself but simply a way of committing it x x x"17 on three points of analysis: (1) the object of punishment in quasi-crimes (as opposed to intentional crimes); (2) the legislative intent to treat quasi-crimes as distinct offenses (as opposed to subsuming them under the mitigating circumstance of minimal intent) and; (3) the different penalty structures for quasi-crimes and intentional crimes: The proposition (inferred from Art. 3 of the Revised Penal Code) that "reckless imprudence" is not a crime in itself but simply a way of committing it and merely determines a lower degree of criminal liability is too broad to deserve unqualified assent. There are crimes that by their structure cannot be committed through imprudence: murder, treason, robbery, malicious mischief, etc. In truth, criminal negligence in our Revised Penal Code is treated as a mere quasi offense, and dealt with separately from willful offenses. It is not a mere question of classification or terminology. In intentional crimes, the act itself is punished; in negligence or imprudence, what is principally penalized is the mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the imprudencia punible. x x x x Were criminal negligence but a modality in the commission of felonies, operating only to reduce the penalty therefor, then it would be absorbed in the mitigating circumstances of Art. 13, specially the lack of intent to commit so grave a wrong as the one actually committed. Furthermore, the theory would require that the corresponding penalty should be fixed in proportion to the penalty prescribed for each crime when committed willfully. For each penalty for the willful offense, there would then be a corresponding penalty for the negligent variety. But instead, our Revised Penal Code (Art. 365) fixes the penalty for reckless imprudence at arresto mayor maximum, to prision correccional [medium], if the willful act would constitute a grave felony, notwithstanding that the penalty for the latter could range all the way from prision mayor to death, according to the case. It can be seen that the actual penalty for criminal negligence bears no relation to the individual willful crime, but is set in relation to a whole class, or series, of crimes.18 (Emphasis supplied) This explains why the technically correct way to allege quasi-crimes is to state that their commission results in damage, either to person or property.19 Accordingly, we found the Justice of the Peace in Quizon without jurisdiction to hear a case for "Damage to Property through Reckless Imprudence," its jurisdiction being limited to trying charges for Malicious Mischief, an intentional crime conceptually incompatible with the element of imprudence obtaining in quasi-crimes. Quizon, rooted in Spanish law20 (the normative ancestry of our present day penal code) and since repeatedly reiterated, 21 stands on solid conceptual foundation. The contrary doctrinal pronouncement in People v. Faller22 that "[r]eckless impudence is not a crime in itself x x x [but] simply a way of committing it x x x,"23 has long been abandoned when the Court en banc promulgated Quizon in 1955 nearly two decades after the Court decided Faller in 1939. Quizon rejected Faller’s conceptualization of quasi-crimes by holding that quasi-crimes under Article 365 are distinct species of crimes and not merely methods of committing crimes. Faller found expression in post-Quizon jurisprudence24 only by dint of lingering doctrinal confusion arising from an indiscriminate fusion of criminal law rules defining Article 365 crimes and the complexing of intentional crimes under Article 48 of the Revised Penal Code which, as will be shown shortly, rests on erroneous conception of quasi-crimes. Indeed, the Quizonian conception of quasi-crimes undergirded a related branch of jurisprudence applying the Double Jeopardy Clause to quasi-offenses, barring second prosecutions for a quasi-offense alleging one resulting act after a prior conviction or acquittal of a quasi-offense alleging another resulting act but arising from the same reckless act or omission upon which the second prosecution was based. Prior Conviction or Acquittal ofReckless Imprudence BarsSubsequent Prosecution for the Same Quasi-Offense The doctrine that reckless imprudence under Article 365 is a single quasi-offense by itself and not merely a means to commit other crimes such that conviction or acquittal of such quasi-offense bars subsequent prosecution for the same quasi-offense, regardless of its various resulting acts, undergirded this Court’s unbroken chain of jurisprudence on double jeopardy as applied to Article 365 starting with People v. Diaz,25 decided in 1954. There, a full Court, speaking through Mr. Justice Montemayor, ordered the dismissal of a case for "damage to property thru reckless imprudence" because a prior case against the same accused for "reckless driving," arising from the same act upon which the first prosecution was based, had been dismissed earlier. Since then, whenever the same legal question was brought before the Court, that is, whether prior conviction or acquittal of reckless imprudence bars subsequent prosecution for the same quasi-offense, regardless of the consequences alleged for both charges, the Court unfailingly and consistently answered in the affirmative in People v. Belga26 (promulgated in 1957 by the Court en banc, per Reyes, J.), Yap v. Lutero27 (promulgated in 1959, unreported, per Concepcion, J.), People v. Narvas28 (promulgated in 1960 by the Court en banc, per Bengzon J.), People v. Silva29 (promulgated in 1962 by the Court en banc, per Paredes, J.), People v. Macabuhay30 (promulgated in 1966 by the Court en banc, per Makalintal, J.), People v. Buan31 (promulgated in 1968 by the Court en banc, per Reyes, J.B.L., acting C. J.), Buerano v. Court of Appeals32 (promulgated in 1982 by the Court en banc, per Relova, J.), and People v. City Court of Manila33 (promulgated in 1983 by the First Division, per Relova, J.). These cases uniformly barred the second prosecutions as constitutionally impermissible under the Double Jeopardy Clause.

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The reason for this consistent stance of extending the constitutional protection under the Double Jeopardy Clause to quasi-offenses was best articulated by Mr. Justice J.B.L. Reyes in Buan, where, in barring a subsequent prosecution for "serious physical injuries and damage to property thru reckless imprudence" because of the accused’s prior acquittal of "slight physical injuries thru reckless imprudence," with both charges grounded on the same act, the Court explained:34 Reason and precedent both coincide in that once convicted or acquitted of a specific act of reckless imprudence, the accused may not be prosecuted again for that same act. For the essence of the quasi offense of criminal negligence under article 365 of the Revised Penal Code lies in the execution of an imprudent or negligent act that, if intentionally done, would be punishable as a felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine the penalty, it does not qualify the substance of the offense. And, as the careless act is single, whether the injurious result should affect one person or several persons, the offense (criminal negligence) remains one and the same, and can not be split into different crimes and prosecutions.35 x x x (Emphasis supplied) Evidently, the Diaz line of jurisprudence on double jeopardy merely extended to its logical conclusion the reasoning of Quizon. There is in our jurisprudence only one ruling going against this unbroken line of authority. Preceding Diaz by more than a decade, El Pueblo de Filipinas v. Estipona,36 decided by the pre-war colonial Court in November 1940, allowed the subsequent prosecution of an accused for reckless imprudence resulting in damage to property despite his previous conviction for multiple physical injuries arising from the same reckless operation of a motor vehicle upon which the second prosecution was based. Estipona’s inconsistency with the post-war Diaz chain of jurisprudence suffices to impliedly overrule it. At any rate, all doubts on this matter were laid to rest in 1982 in Buerano.37 There, we reviewed the Court of Appeals’ conviction of an accused for "damage to property for reckless imprudence" despite his prior conviction for "slight and less serious physical injuries thru reckless imprudence," arising from the same act upon which the second charge was based. The Court of Appeals had relied on Estipona. We reversed on the strength of Buan:38 Th[e] view of the Court of Appeals was inspired by the ruling of this Court in the pre-war case of People vs. Estipona decided on November 14, 1940. However, in the case of People vs. Buan, 22 SCRA 1383 (March 29, 1968), this Court, speaking thru Justice J. B. L. Reyes, held that – Reason and precedent both coincide in that once convicted or acquitted of a specific act of reckless imprudence, the accused may not be prosecuted again for that same act. For the essence of the quasi offense of criminal negligence under Article 365 of the Revised Penal Code lies in the execution of an imprudent or negligent act that, if intentionally done, would be punishable as a felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine the penalty, it does not qualify the substance of the offense. And, as the careless act is single, whether the injurious result should affect one person or several persons, the offense (criminal negligence) remains one and the same, and can not be split into different crimes and prosecutions. xxxx . . . the exoneration of this appellant, Jose Buan, by the Justice of the Peace (now Municipal) Court of Guiguinto, Bulacan, of the charge of slight physical injuries through reckless imprudence, prevents his being prosecuted for serious physical injuries through reckless imprudence in the Court of First Instance of the province, where both charges are derived from the consequences of one and the same vehicular accident, because the second accusation places the appellant in second jeopardy for the same offense.39 (Emphasis supplied) Thus, for all intents and purposes, Buerano had effectively overruled Estipona. It is noteworthy that the Solicitor General in Buerano, in a reversal of his earlier stance in Silva, joined causes with the accused, a fact which did not escape the Court’s attention: Then Solicitor General, now Justice Felix V. Makasiar, in his MANIFESTATION dated December 12, 1969 (page 82 of the Rollo) admits that the Court of Appeals erred in not sustaining petitioner’s plea of double jeopardy and submits that "its affirmatory decision dated January 28, 1969, in Criminal Case No. 05123-CR finding petitioner guilty of damage to property through reckless imprudence should be set aside, without costs." He stressed that "if double jeopardy exists where the reckless act resulted into homicide and physical injuries. then the same consequence must perforce follow where the same reckless act caused merely damage to property-not death-and physical injuries. Verily, the value of a human life lost as a result of a vehicular collision cannot be equated with any amount of damages caused to a motors vehicle arising from the same mishap."40 (Emphasis supplied) Hence, we find merit in petitioner’s submission that the lower courts erred in refusing to extend in his favor the mantle of protection afforded by the Double Jeopardy Clause. A more fitting jurisprudence could not be tailored to petitioner’s case than People v. Silva, 41 a Diaz progeny. There, the accused, who was also involved in a vehicular collision, was charged in two separate Informations with "Slight Physical Injuries thru Reckless Imprudence" and "Homicide with Serious Physical Injuries thru Reckless Imprudence." Following his acquittal of the former, the accused sought the quashal of the latter, invoking the Double Jeopardy Clause. The trial court initially denied relief, but, on reconsideration, found merit in the accused’s claim and dismissed the second case. In affirming the trial court, we quoted with approval its analysis of the issue following Diaz and its progeny People v. Belga:42 On June 26, 1959, the lower court reconsidered its Order of May 2, 1959 and dismissed the case, holding: — [T]he Court believes that the case falls squarely within the doctrine of double jeopardy enunciated in People v. Belga, x x x In the case cited, Ciriaco Belga and Jose Belga were charged in the Justice of the Peace Court of Malilipot, Albay, with the crime of physical injuries through reckless imprudence arising from a collision between the two automobiles driven by them (Crim. Case No. 88). Without the aforesaid complaint having been dismissed or otherwise disposed of, two other criminal complaints were filed in the same justice of the peace court, in connection with the same collision one for damage to property through reckless imprudence (Crim. Case No. 95) signed by the owner of one of the vehicles involved in the collision, and another for multiple physical injuries through reckless imprudence (Crim. Case No. 96) signed by the passengers injured in the accident. Both of these two complaints were filed against Jose Belga only. After trial, both defendants were acquitted of the charge against them in Crim. Case No. 88. Following his acquittal, Jose Belga moved to quash the complaint for multiple physical injuries through reckless imprudence filed against him by the injured passengers, contending that the case was just a duplication of the one filed by the Chief of Police wherein he had just been acquitted. The motion to quash was denied and after trial Jose Belga was convicted, whereupon he appealed to the Court of First Instance of Albay. In the meantime, the case for damage to property through reckless imprudence filed by one of the owners of the vehicles involved in the collision had been remanded to the Court of First Instance of Albay after Jose Belga had waived the second stage of the preliminary investigation. After such remand, the Provincial Fiscal filed in the Court of First Instance two informations against Jose Belga, one for physical injuries through reckless imprudence,

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and another for damage to property through reckless imprudence. Both cases were dismissed by the Court of First Instance, upon motion of the defendant Jose Belga who alleged double jeopardy in a motion to quash. On appeal by the Prov. Fiscal, the order of dismissal was affirmed by the Supreme Court in the following language: . The question for determination is whether the acquittal of Jose Belga in the case filed by the chief of police constitutes a bar to his subsequent prosecution for multiple physical injuries and damage to property through reckless imprudence. In the case of Peo[ple] v. F. Diaz, G. R. No. L-6518, prom. March 30, 1954, the accused was charged in the municipal court of Pasay City with reckless driving under sec. 52 of the Revised Motor Vehicle Law, for having driven an automobile in a ῾fast and reckless manner ... thereby causing an accident.’ After the accused had pleaded not guilty the case was dismissed in that court ῾for failure of the Government to prosecute’. But some time thereafter the city attorney filed an information in the Court of First Instance of Rizal, charging the same accused with damage to property thru reckless imprudence. The amount of the damage was alleged to be P249.50. Pleading double jeopardy, the accused filed a motion, and on appeal by the Government we affirmed the ruling. Among other things we there said through Mr. Justice Montemayor — The next question to determine is the relation between the first offense of violation of the Motor Vehicle Law prosecuted before the Pasay City Municipal Court and the offense of damage to property thru reckless imprudence charged in the Rizal Court of First Instance. One of the tests of double jeopardy is whether or not the second offense charged necessarily includes or is necessarily included in the offense charged in the former complaint or information (Rule 113, Sec. 9). Another test is whether the evidence which proves one would prove the other that is to say whether the facts alleged in the first charge if proven, would have been sufficient to support the second charge and vice versa; or whether one crime is an ingredient of the other. x x x xxxx The foregoing language of the Supreme Court also disposes of the contention of the prosecuting attorney that the charge for slight physical injuries through reckless imprudence could not have been joined with the charge for homicide with serious physical injuries through reckless imprudence in this case, in view of the provisions of Art. 48 of the Revised Penal Code, as amended. The prosecution’s contention might be true. But neither was the prosecution obliged to first prosecute the accused for slight physical injuries through reckless imprudence before pressing the more serious charge of homicide with serious physical injuries through reckless imprudence. Having first prosecuted the defendant for the lesser offense in the Justice of the Peace Court of Meycauayan, Bulacan, which acquitted the defendant, the prosecuting attorney is not now in a position to press in this case the more serious charge of homicide with serious physical injuries through reckless imprudence which arose out of the same alleged reckless imprudence of which the defendant have been previously cleared by the inferior court.43 Significantly, the Solicitor General had urged us in Silva to reexamine Belga (and hence, Diaz) "for the purpose of delimiting or clarifying its application."44 We declined the invitation, thus: The State in its appeal claims that the lower court erred in dismissing the case, on the ground of double jeopardy, upon the basis of the acquittal of the accused in the JP court for Slight Physical Injuries, thru Reckless Imprudence. In the same breath said State, thru the Solicitor General, admits that the facts of the case at bar, fall squarely on the ruling of the Belga case x x x, upon which the order of dismissal of the lower court was anchored. The Solicitor General, however, urges a reexamination of said ruling, upon certain considerations for the purpose of delimiting or clarifying its application. We find, nevertheless, that further elucidation or disquisition on the ruling in the Belga case, the facts of which are analogous or similar to those in the present case, will yield no practical advantage to the government. On one hand, there is nothing which would warrant a delimitation or clarification of the applicability of the Belga case. It was clear. On the other, this Court has reiterated the views expressed in the Belga case, in the identical case of Yap v. Hon. Lutero, etc., L-12669, April 30, 1959.45 (Emphasis supplied) Article 48 Does not Apply to Acts Penalized Under Article 365 of the Revised Penal Code The confusion bedeviling the question posed in this petition, to which the MeTC succumbed, stems from persistent but awkward attempts to harmonize conceptually incompatible substantive and procedural rules in criminal law, namely, Article 365 defining and penalizing quasi-offenses and Article 48 on complexing of crimes, both under the Revised Penal Code. Article 48 is a procedural device allowing single prosecution of multiple felonies falling under either of two categories: (1) when a single act constitutes two or more grave or less grave felonies (thus excluding from its operation light felonies46); and (2) when an offense is a necessary means for committing the other. The legislature crafted this procedural tool to benefit the accused who, in lieu of serving multiple penalties, will only serve the maximum of the penalty for the most serious crime. In contrast, Article 365 is a substantive rule penalizing not an act defined as a felony but "the mental attitude x x x behind the act, the dangerous recklessness, lack of care or foresight x x x,"47 a single mental attitude regardless of the resulting consequences. Thus, Article 365 was crafted as one quasi-crime resulting in one or more consequences. Ordinarily, these two provisions will operate smoothly. Article 48 works to combine in a single prosecution multiple intentional crimes falling under Titles 1-13, Book II of the Revised Penal Code, when proper; Article 365 governs the prosecution of imprudent acts and their consequences. However, the complexities of human interaction can produce a hybrid quasi-offense not falling under either models – that of a single criminal negligence resulting in multiple non-crime damages to persons and property with varying penalties corresponding to light, less grave or grave offenses. The ensuing prosecutorial dilemma is obvious: how should such a quasi-crime be prosecuted? Should Article 48’s framework apply to "complex" the single quasi-offense with its multiple (non-criminal) consequences (excluding those amounting to light offenses which will be tried separately)? Or should the prosecution proceed under a single charge, collectively alleging all the consequences of the single quasi-crime, to be penalized separately following the scheme of penalties under Article 365? Jurisprudence adopts both approaches. Thus, one line of rulings (none of which involved the issue of double jeopardy) applied Article 48 by "complexing" one quasi-crime with its multiple consequences48 unless one consequence amounts to a light felony, in which case charges were split by grouping, on the one hand, resulting acts amounting to grave or less grave felonies and filing the charge with the second level courts and, on the other hand, resulting acts amounting to light felonies and filing the charge with the first level courts.49 Expectedly, this is the approach the MeTC impliedly sanctioned (and respondent Ponce invokes), even though under Republic Act No. 7691,50 the MeTC has now exclusive original jurisdiction to impose the most serious penalty under Article 365 which is prision correccional in its medium period. Under this approach, the issue of double jeopardy will not arise if the "complexing" of acts penalized under Article 365 involves only resulting acts penalized as grave or less grave felonies because there will be a single prosecution of all the resulting acts. The issue of double jeopardy arises if one of the resulting acts is penalized as a light offense and the other

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acts are penalized as grave or less grave offenses, in which case Article 48 is not deemed to apply and the act penalized as a light offense is tried separately from the resulting acts penalized as grave or less grave offenses. The second jurisprudential path nixes Article 48 and sanctions a single prosecution of all the effects of the quasi-crime collectively alleged in one charge, regardless of their number or severity,51 penalizing each consequence separately. Thus, in Angeles v. Jose,52 we interpreted paragraph three of Article 365, in relation to a charge alleging "reckless imprudence resulting in damage to property and less serious physical injuries," as follows: [T]he third paragraph of said article, x x x reads as follows: When the execution of the act covered by this article shall have only resulted in damage to the property of another, the offender shall be punished by a fine ranging from an amount equal to the value of said damage to three times such value, but which shall in no case be less than 25 pesos. The above-quoted provision simply means that if there is only damage to property the amount fixed therein shall be imposed, but if there are also physical injuries there should be an additional penalty for the latter. The information cannot be split into two; one for the physical injuries, and another for the damage to property, x x x.53 (Emphasis supplied) By "additional penalty," the Court meant, logically, the penalty scheme under Article 365. Evidently, these approaches, while parallel, are irreconcilable. Coherence in this field demands choosing one framework over the other. Either (1) we allow the "complexing" of a single quasi-crime by breaking its resulting acts into separate offenses (except for light felonies), thus re-conceptualize a quasi-crime, abandon its present framing under Article 365, discard its conception under the Quizon and Diaz lines of cases, and treat the multiple consequences of a quasi-crime as separate intentional felonies defined under Titles 1-13, Book II under the penal code; or (2) we forbid the application of Article 48 in the prosecution and sentencing of quasi-crimes, require single prosecution of all the resulting acts regardless of their number and severity, separately penalize each as provided in Article 365, and thus maintain the distinct concept of quasi-crimes as crafted under Article 365, articulated in Quizon and applied to double jeopardy adjudication in the Diaz line of cases.1avvphi1 A becoming regard of this Court’s place in our scheme of government denying it the power to make laws constrains us to keep inviolate the conceptual distinction between quasi-crimes and intentional felonies under our penal code. Article 48 is incongruent to the notion of quasi-crimes under Article 365. It is conceptually impossible for a quasi-offense to stand for (1) a single act constituting two or more grave or less grave felonies; or (2) an offense which is a necessary means for committing another. This is why, way back in 1968 in Buan, we rejected the Solicitor General’s argument that double jeopardy does not bar a second prosecution for slight physical injuries through reckless imprudence allegedly because the charge for that offense could not be joined with the other charge for serious physical injuries through reckless imprudence following Article 48 of the Revised Penal Code: The Solicitor General stresses in his brief that the charge for slight physical injuries through reckless imprudence could not be joined with the accusation for serious physical injuries through reckless imprudence, because Article 48 of the Revised Penal Code allows only the complexing of grave or less grave felonies. This same argument was considered and rejected by this Court in the case of People vs. [Silva] x x x: [T]he prosecution’s contention might be true. But neither was the prosecution obliged to first prosecute the accused for slight physical injuries through reckless imprudence before pressing the more serious charge of homicide with serious physical injuries through reckless imprudence. Having first prosecuted the defendant for the lesser offense in the Justice of the Peace Court of Meycauayan, Bulacan, which acquitted the defendant, the prosecuting attorney is not now in a position to press in this case the more serious charge of homicide with serious physical injuries through reckless imprudence which arose out of the same alleged reckless imprudence of which the defendant has been previously cleared by the inferior court. [W]e must perforce rule that the exoneration of this appellant x x x by the Justice of the Peace x x x of the charge of slight physical injuries through reckless imprudence, prevents his being prosecuted for serious physical injuries through reckless imprudence in the Court of First Instance of the province, where both charges are derived from the consequences of one and the same vehicular accident, because the second accusation places the appellant in second jeopardy for the same offense.54 (Emphasis supplied) Indeed, this is a constitutionally compelled choice. By prohibiting the splitting of charges under Article 365, irrespective of the number and severity of the resulting acts, rampant occasions of constitutionally impermissible second prosecutions are avoided, not to mention that scarce state resources are conserved and diverted to proper use. Hence, we hold that prosecutions under Article 365 should proceed from a single charge regardless of the number or severity of the consequences. In imposing penalties, the judge will do no more than apply the penalties under Article 365 for each consequence alleged and proven. In short, there shall be no splitting of charges under Article 365, and only one information shall be filed in the same first level court.55 Our ruling today secures for the accused facing an Article 365 charge a stronger and simpler protection of their constitutional right under the Double Jeopardy Clause. True, they are thereby denied the beneficent effect of the favorable sentencing formula under Article 48, but any disadvantage thus caused is more than compensated by the certainty of nonprosecution for quasi-crime effects qualifying as "light offenses" (or, as here, for the more serious consequence prosecuted belatedly). If it is so minded, Congress can re-craft Article 365 by extending to quasi-crimes the sentencing formula of Article 48 so that only the most severe penalty shall be imposed under a single prosecution of all resulting acts, whether penalized as grave, less grave or light offenses. This will still keep intact the distinct concept of quasi-offenses. Meanwhile, the lenient schedule of penalties under Article 365, befitting crimes occupying a lower rung of culpability, should cushion the effect of this ruling. WHEREFORE, we GRANT the petition. We REVERSE the Orders dated 2 February 2006 and 2 May 2006 of the Regional Trial Court of Pasig City, Branch 157. We DISMISS the Information in Criminal Case No. 82366 against petitioner Jason Ivler y Aguilar pending with the Metropolitan Trial Court of Pasig City, Branch 71 on the ground of double jeopardy. Let a copy of this ruling be served on the President of the Senate and the Speaker of the House of Representatives. SO ORDERED.

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SECOND DIVISION

G.R. No. 111193 January 28, 1997 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FERDINAND SUAREZ, alias "Jojo", LORETO REYES, alias "Dondon" and "Larry" WILFREDO LARA alias "Cortal" and Willy"; MARIA VICTORIA G. SUAREZ; NOLI LICSI, alias "Niño"; VICENTE RODRIGUEZ, alias "Waway"; and MORRIS SANTOS, alias. "Wanky", accused, WILFREDO LARA, accused-appellant.

REGALADO, J.: In the early hours of December 8, 1987, Arlene Tuyor was awakened by loud knocking sounds on the door of her room. She was a domestic helper at that time, working in the household of Estrellita Guzman at 22 Sta. Teresita Street, Barrio Capitolyo, Pasig, Metro Manila. Also in the house then were the nieces of Estrellita, namely, Maria Prescilla Guzman (Babyruth), Maria Cristina Guzman (Cristy) and Maria Victoria Suarez (Marivic). Babyruth and Marivic had been adopted by Estrellita as her own daughters. Marivic's husband, Ferdinand Suarez (Jojo), and her three children likewise lived in Estrellita's bungalow-type house. Upon opening the door, Tuyor was surprised to see Ferdinand Suarez, her "Señorito Jojo," surrounded by two men wearing black nylon cloths over their heads and faces. One of the men had a big body frame while the other had a small physique. The men immediately entered her room, tied her up land asked for her money. She was also asked if she knew Jojo. Getting no response from Tuyor, the intruders left her room bringing Suarez with them. From her room, Tuyor heard the sound of the microwave oven located in the kitchen. She also heard the main door of the house slamming and someone crying in the house. When Tuyor went out of her room, she saw Marivic weeping in the living room. She proceeded to her employer's bedroom and found Estrellita bleeding and lying on her bed. All this time, accused Suarez was just sitting on the chair of the piano. 1 Estrellita later died due to severe hemorrhage secondary to stab wounds. Post-mortem examinations revealed that she had sustained an elliptical and gaping wound on the right side of her abdomen and another wound of the same nature on the left side of her back. Further examination also disclosed that the deceased suffered an incised wound on her left thumb. 2 When police investigators arrived at the scene of the crime, they found a half-eaten chicken on the dining table, 3 four pieces of black nylon cloth, 4 pieces of blue and white ropes, 5 three pieces of cloth, 6 and two strands of ordinarywire. 7 They initially surmised that the intruders had forcibly entered the house through its back door located in the kitchen. 8 They arrived at this conclusion after finding a piece of wire inserted in the knob of the kitchen door 9 and its chain lock's anchor detached from the doorjamb. However, the door's dead bolt lock was intact and in perfect condition. 10 Ferdinand Suarez narrated to Patrolman Pablo Roxas 11 of the Eastern Police District (EPD) at Meralco Avenue, Pasig what he claimed to have experienced on that fateful day, in this wise: At around 3:00 A.M. of December 8, 1987, he was awakened by someone holding his hands and putting a piece of rag in his mouth. When he opened his eyes, he saw somebody pointing a knife at him and another at his wife. He saw inside their room six men with nylon cloths over their faces. When he was about to resist, one of the men hit him on the face and threatened to kill him, his wife and his children. After they had tied and gagged him and also covered his eyes, the men brought him out to the dining room. He heard the door of Estrellita being pushed open, and then Estrellita shouting. Afterwards, he was brought to the room shared by Cristy and Babyruth and mauled in front of them. After that, he was brought to the room of Arlene Tuyor. From the maid's room, he was again brought-to the dining room where he was tied to one of the chairs of the dining table. From there, he heard the men cooking with the use of the microwave oven in the

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kitchen. After a while, Estrellita cried loudly and called for Marivic. He later heard the running of the engine of one of their cars and the main door being slammed shut. After the men left at about five o'clock in the morning, he discovered that the trespassers had taken some things in the house such as a television set, a radio, a betamax and other household items. As the police were getting no leads about the identity of the malefactors, the lawyer of the family of the deceased sought the help of the National Bureau of Investigation (NBI). The case was assigned to Atty. Salvador Ranin. Atty. Ranin concluded that the perpetrators could not have entered the house without the aid of somebody inside as the bolt lock of the kitchen door can only be released from within. He had one suspect in mind, that is, Ferdinand Suarez, or Jojo. 12 Ranin had discovered in the course of his investigation that there were no signs of injuries or rope marks on Suarez and that he was not on good terms with Estrellita when the crime happened. He was even found positive for deception after taking the polygraph test at the NBI. Suarez eventually revealed to Ranin his involvement in the commission of the crime after Ranin told him that he had damaging information to the effect that Suarez had left the house in the evening of December 7, 1987. In his sworn statement 13 before the NBI, Suarez said that one Loreto Reyes, alias "Dondon" or Larry, approached him during the last week of November, 1987 and talked to him to allow Reyes and his group to rob their house as they badly needed money for the Christmas season. It was only after the group threatened to kill him that Suarez acceded to their demand, on the condition that they would only steal but should not kill him. On November 29, 1987, Suarez gave to Reyes and his gang the keys to the door of the house, the door of Babyruth's and Cristy's room, and the door of Estrellita's room in order to have them duplicated. He returned to Reyes and the others on December 5, 1987 to receive instructions on what to do. He was told that the group would go to their place in the early morning of December 8, 1987. On the agreed date, at around twelve o'clock noon, Suarez disengaged the bolt lock of the kitchen door and unlocked the door of their rooms as earlier instructed by the gang. The felons arrived at the house at around two o'clock in the morning and proceeded to Suarez and Marivic's room. Suarez saw four men with covers on their faces, but he recognized one of them as Reyes through his voice and build. They immediately bound Marivic and when one of the members of the gang was about to tie up Suarez, Reyes stopped him. After Suarez was dragged out of the room, he told the group who were the occupants of the different rooms in the house. Two men entered the room of Babyruth and Cristy while Reyes and the fourth man went to Estrellita's room. They were able to enter Estrellita's room with the use of their duplicate key and after they had kicked open the door of her room.; Estrellita shrieked when they went inside her room. The two men brought Suarez to his sisters-in-law's room to point out to them what they could get from that room. Afterwards, he was brought to the dining table. From there, he saw the men asking Estrellita for the keys of the gate of the house and the car. After they brought Estrellita back to her room, two of the men brought Suarez to the maid's quarters. Reyes asked Suarez to cook a chicken he found in the refrigerator While Suarez was cooking the chicken in the microwave oven, the men took off the covers on their faces, smoked marijuana and drank liquor. They were not able to finish eating the chicken because it was not evenly cooked. When Estrellita shouted the name of Marivic, Rodriguez, one of the companions of Reyes, went to her room. Suarez heard only soft and fading moans from Estrellita after that. Before they left, the marauders told Suarez not to tell the police or the NBI or else they would kill his mother, They slammed the front door shut and used the car of Estrellita to leave the house at around five o'clock in the morning. The NBI soon found out that "Dondon" or Larry is Loreto Reyes, a former neighbor of Suarez in San Miguel, Pasig where he used to live before he transferred to his wife's residence at Barrio Capitolyo. 14 Reyes also admitted his participation in the commission of the crime and gave a written statement 15 to the NBI. He began his confession by implicating Wilfredo Lara in the crime. He said that while he, Arthur Lara, Morris Santos, and Eduardo Lozada were doing nothing in their place in San Miguel, Pasig, Lara approached them and told them that he had some good news. Lara told them that he was asked by Suarez to look for some men who could kill his Auntie Estrellita. Reyes could not believe what he heard, so Lara called Suarez to let him tell the gang about his offer. Apparently, Suarez wanted his aunt killed so that he and his wife could get at once any property that Marivic might inherit from Estrellita upon the latter's demise. In exchange for the job, Suarez would allow them to steal what they wanted from the house, in addition to giving them P100,000.00 after one month from the killing of Estrellita. They initially planned to carry out the criminal plot on December 5, 1987 but the group of Reyes backed out on the agreed date when they felt unsure about the plan. However, they had duplicates made of the keys to the house, which keys had been left by Suarez under one of Estrellita's cars. The plan finally materialized on December 8, 1987 at about two o'clock in the morning. The persons who were to execute the plan were Noli Licsi, Vicente Rodriguez, Morris Santos, and Reyes. Before they went to Capitolyo, the group took some prohibited drugs and smoked marijuana. Aided by the sketch of the house provided by Suarez, the group went directly to the back of the house and opened the back door with their duplicate key. As agreed upon earlier, Suarez had released the bolt and chain lock of the said door to facilitate their entry into the house. Once inside, Suarez, who was waiting for them there, instructed them to tie him and his wife. After doing so, they opened the bedrooms of Babyruth, Cristy and Estrellita. The men then tied them up inside their respective rooms. Since Santos and Licsi were the ones who entered Cristy's and Babyruth's room, Reyes could not be sure what they got from those rooms. Reyes further revealed that before they went into the house, Suarez had earlier loosened the screws of the chain lock on the door of Estrellita's room. So, with their duplicate key and a little push from outside, Reyes and Rodriguez were able to easily enter Estrellita's room. As Estrellita was surprised by the entry of the two men, she instinctively held the knife being brandished by Reyes which thereby cut her thumb. The two men then tied Estrellita. It was after the gang was able to tie all the occupants of the house that they started taking the betamax, jewelry, computer machine, camera, watches and other things inside the house. Estrellita Guzman pointed out to them where they could find her jewelry. They brought Suarez inside her room so that he could also show them where Estrellita's other jewelry and valuables were, and then they covered her with a blanket. After taking what they wanted, the scoundrels ate the chicken Suarez had cooked for them and drank the imported liquor he offered. They also smoked marijuana.·While they were drinking, Suarez remembered the maid, Tuyor, so he and two men went to her room and staged a show of their mauling Suarez in front of her. They then tied the maid and continued drinking outside. Thereafter, Suarez told the gang to kill Estrellita. Reyes said that Santos and Rodriguez were the ones who stabbed Estrellita because they told him later that each of them stabbed the old lady once.

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Before Reyes and the gang left the place, Marivic told them to get their television ranger and to disarrange the things in their room to show that the couple was not spared by the criminals. Suarez ordered them to cut the telephone line and Reyes did so. Then, Suarez told Reyes to pull the chain lock of the kitchen door to make it appear that the door had been forced open from outside. Reyes complied with Suarez instructions. To hide the fact that a duplicate key was used in opening the kitchen door, the perpetrators inserted a wire in the doorknob keyhole of the kitchen door upon the prodding of Suarez. The intruders left the house at around four o'clock in the morning. In getting out of the house, the gang used the front door and rode in one of the cars of Estrellita. From the statement of Reyes, it appears that the cabal wore black nylon cloths over their heads and faces when they committed the despicable crime. Atty. Ranin was able to retrieve the duplicate keys used by the gang 16 from the father of Reyes 17 after Reyes had admitted that the keys could be found in his father's house in Montalban. Wilfredo Lara was arrested by the NBI at the house of his parents-in-law in Northern Samar. When brought to the NBI office at Taft Avenue, Manila, he likewise confessed his participation in the crime and gave a sworn statement. 18 According to Lara, Suarez went to his house at San Miguel, Pasig on December 2, 1987 to ask him if he knew people who would be willing and capable of robbing a house. Lara told him that there were some persons he knew who could do the job and he brought Suarez to the group of Larry Reyes, Noli Licsi, Morris Santos and Vicente Rodriguez at Dr. Pilapil Street, San Miguel, Pasig. When Reyes and Suarez started talking, Lara left the place. On December 4, 1987, Lara saw Suarez talking with the same group in front of a store. He overheard them planning the robbery .of a house in Barrio Capitolyo on December 8, 1987. On December 7, 1987, he again saw Suarez and the gang when they agreed to consummate their earlier plan. Lara denied that he joined the group that robbed the house in Barrio Capitolyo and added that he never received any share of the loot from them. He did not report the matter to the police for fear of reprisal. He even went to the place of his in-laws at Nabas, Samar to avoid the group. Based on the foregoing statements and on other evidence submitted by the NBI to the then provincial fiscal of the former municipality of Pasig, an information for the crime of robbery with homicide was filed against Ferdinand Suarez, Loreto Reyes, Wilfredo Lara, Maria Victoria G. Suarez, Noli Licsi, Vicente Rodriguez, and Morris Santos. The case was raffled to Branch 152 of the Regional Trial Court of Pasig 19 and docketed as Criminal Case No. 72249. As stated in the information, which was twice amended, the felony was allegedly committed as follows: That on or about the 8th day of December, 1987 in the Municipality of Pasig, Metro Manila, Philippines a place within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together with one Mauro Santos whose true identity and present whereabout is still unknown and mutually helping and aiding with one another, by means of force, violence and intimidation employed upon the person of one Estrellita Guzman did then and there willfully, unlawfully and feloniously take, rob and carry away from the house of said Estrellita Guzman the following articles, to wit: a. Jewelryb. Computer machinec. TC Sony Rangerd. Radio Cassettee. Five (5) assorted cameras and other valuables all in the total amount of P650,000.00 more or less; that on the occasion of the said robbery and for the purpose of enabling them to take, rob and carry away the articles above-mentioned, herein accused; conspiring and confederating together and mutually helping and aiding with one another, armed with bladed weapons, with intent to kill, did then and there willfully, unlawfully and feloniously stab said Estrellita Guzman, thereby causing the latter to sustain fatal injuries which directly caused herdeath. 20 Only accused Suarez, Reyes and Lara were brought within the jurisdiction of the lower court as the other accused went into hiding and were able to evade the joint manhunt set up by the police and the NBI. Suarez, Reyes and Lara pleaded not guilty despite their earlier confessions before the NBI. Although they admitted that they signed and placed their thumbmarks on their respective statements, they tried to show during their trial that those statements were procured through coercion, intimidation and violence by the NBI agents and without the assistance of counsel. Accused Suarez reiterated the earlier version he gave to the EPD, while accused Reyes and Lara raised the defense of alibi by claiming that they were respectively at Montalban, Rizal and Samar at the time the crime was committed. The prosecution however, presented witnesses who were present during the taking of the statements of the accused and they testified that those statements were given freely and voluntarily, and were take with observance of the constitutional guarantees, during the custodial investigation. Relying on the extrajudicial confessions of the accused and on the circumstantial evidence adduced by the prosecution, the trial court found the three accused guilty beyond reasonable doubt of robbery with homicide, and sentenced them to suffer the penalty of reclusion perpetua and to solidarily pay to the heirs of the victim P30,000.00 as death indemnity, P420,00.00 for loss of earning capacity, and the costs. 21 While Suarez and Reyes have already accepted the trial court's verdict, Lara now questions the lower court's decision by challenging the admissibility of their extrajudicial declarations marked as Exhibits O, P and Q. He claims that their extrajudicial confessions were obtained through force and intimidation and without the benefit of an effective counsel. 22 It is important to note at the outset that this Court has no jurisdiction to review the judgment of conviction imposed upon Suarez and Reyes for they have not filed any notice of appeal for themselves. 23 And while we are cognizant of the rule that the right to claim the inadmissibility of an extrajudicial confession is personal in nature, in the sense that only the confessant whose rights during an investigation were violated can raise an objection, 24 we deem it necessary to discuss in this appeal the circumstances surrounding the execution of Reyes's sworn statement in evaluating appellant Lara's own extra curia declaration. Although an extrajudicial confession is admissible only against the confessant, jurisprudence makes it admissible as corroborative evidence of other facts that tend to establish the guilt of his co-accused. 25 The lower court treated the confessions of the three accused as interlocking confessions sufficient to corroborate and bolster the truth of each accused's own incriminating statements. This doctrine of interlocking confessions has been accepted and recognized in numerous decisions of this Court as an exception to the res incer alios acta rule and the hearsay rule. 26 Reyes' confession is thus admissible against Lara to show the probable involvement of the latter in the perpetration of the crime. Where the confession is used as circumstantial evidence to show the probability of participation by an accused co-conspirator, that confession is receivable as evidence against him. 27 But while herein appellant does not deny the validity and operation of the above rule in his situation, he maintains that his co-accused's confessions must comply with the requirements found in Section 12, Article III of the Constitution before they can be considered probative of his guilt. 28 We see no need to rule on the admissibility of Suarez' statement because

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Lara was never mentioned or implicated therein. What interests us is that of Reyes, since appellant Lara claims alleged violence, torture and maltreatment suffered by him and Reyes at the hands of the NBI agents. After a thorough review of the records of the case, we agree with the lower court's factual finding and conclusion that the extrajudicial confessions of accused Reyes and appellant Lara were freely and voluntarily given and that their retraction and claims of violence and coercion were merely belated contrivances and efforts at exculpation. Their claim that they were forced to sign their respective statements was sufficiently refuted by the witnesses for the prosecution who were present on the day and time the duo gave and signed their sworn statements. 29 Once the prosecution has shown that there was compliance with the constitutional requirement on pre-interrogation advisories, a confession is presumed to be voluntary and the declarant bears the burden of proving that his confession is involuntary and untrue. 30 The burden is on the accused to destroy this presumption. 31 A confession is admissible until the accused successfully proves that it was given as a result of violence, intimidation, threat, or promise of reward or leniency. 32 The sworn statements signed by accused Reyes and appellant Lara state that they had been informed of their rights guaranteed under the Constitution. Reyes stated that he had been assisted by counsel during the custodial investigation and appellant Lara confirmed that he was assisted by a lawyer when he waived his constitutional rights. Additionally, several witnesses for the People testified before the lower court that the constitutional mandates were observed during their investigation. Reyes and Lara were not even able to show any evil or dubious motive corrosive of the credibility of these witnesses whom the court a quo found more worthy of belief than the witnesses for the defense. Accused failed to submit any evidence, apart from their own testimony, that violence and intimidation had been inflicted upon them to extort their sworn confessions. They never complained to Prosecutor Capistrano nor to anyone else about the physical beatings that they claim had been inflicted upon them. They did not ask for medical assistance and there was no proof that any such request was denied. Although Reyes submitted a medical certificate to attest to supposed injuries, the court below did not believe it and accepted it merely to prove its existence. 33 Extrajudicial confessions independently made without collusion, almost identical with each other in their essential details which could have been known only to the declarants, and corroborated by other evidence against the person or persons implicated to show the probability of the latter's actual participation in the commission of the crime, are thus impressed with features of voluntariness in their execution. 34 Also, the failure of an accused to complain to the swearing officer 35 or to file charges against the persons who allegedly maltreated him, although he had all the chances to do so, manifests voluntariness in the execution of the confession. 36 We find no merit in herein appellant's contention that Atty. Saunar was not Reyes' own choice as counsel for the interrogation. While the initial choice of the lawyer in cases where a person under custodial investigation cannot afford the services of a lawyer is naturally lodged in the police investigators, the accused really has the final choice as he may reject the counsel chosen for him and ask for another one. A lawyer provided by the investigators is deemed engaged by the accused where he never raised any objection against the former's appointment during the course of the investigation and the accused thereafter subscribes to the veracity of his statement before the swearing officer. 37 Here, while the lawyers of the accused were provided by the NBI, the accused never signified their desire to have a lawyer of their own choice. Thus, we also disagree with appellant's claim that the lawyer who assisted him in his waiver came in only after he had executed his waiver. His own statements shows that he waived his rights in the presence and with the advice of Atty. Rodolfo Dahiroc. To be an effective counsel, a lawyer need not challenge all the questions being propounded to his client. The presence of a lawyer is not intended to stop an accused from saying anything which might incriminate him but, rather, it was adopted in our Constitution to preclude the slightest coercion as would lead the accused to admit something false. 38 The counsel, however, should never prevent an accused from freely and voluntarily telling the truth. 39 Hence, absent any showing that the lawyers who assisted the accused were remiss in their duties, it can be safely concluded that the custodial investigation of Reyes and Lara were regularly conducted. 40 Even disregarding for a moment Reyes' extrajudicial declaration, appellant Lara can still be held accountable under his own sworn statement. Well-entrenched is the rule that it is not necessary that an eyewitness should testify to having seen the accused committing the crime or had seen him under circumstances indicating his having committed the crime, before the accused may be held liable under his confession. 41 This is how much weight and credence our jurisprudence gives to a confession. The Rules of Court 42 provide that "(t)he declaration of an accused acknowledging his guilt of the offense charged, or any offense necessarily included therein, may be given in evidence against him." Of course, when the confession is made outside of court proceedings, it must be accompanied by evidence of the corpus delicit to be sufficient for conviction. 43 If it is made freely and voluntarily, a confession constitutes evidence of a high order since it is supported by the strong presumption that no sane person or one of a normal mind will deliberately and knowingly confess himself to be the perpetrator of a crime unless prompted by truth andconscience. 44 Withal, appellant Lara did not appeal in vain. Although he himself admitted his role in the crime of robbery with homicide, we deem it just and equitable to delineate in this decision his exact criminal liability even though he failed to clearly raise it before us. We reject the prosecution's theory and the trial court's conclusion that appellant acted as a lookout during the commission of the special complex crime. The prosecution did not present any evidence showing that he took part in the planning or execution of the crime nor any proof indicating that he profited from the fruits of the crime, or of acts indicative of confederacy on his part. The pictures of the reenactment depicting Lara's role in the commission of the crime 45 cannot be utilized as evidence of his participation as a principal therein as that reenactment was conducted without any lawyer assisting appellant. We have held that reenactments are covered by the right against self-incrimination. 46 Atty. Ranin himself admitted on the witness stand that no lawyer assisted Lara during the reenactment because he could not find any available lawyer at that time who could act as his counsel. 47 From Reyes and appellant's confessions, which we believe bear the mark of truth and credibility, it can only be inferred that Lara merely introduced the group of Reyes to Suarez. With such a nominal role, we cannot conscientiously declare that Lara was a co-conspirator or a principal by inducement or indispensable cooperation in the crime of robbery with homicide. Where the accused does not fall under any of the three concepts of principals defined in Article 17 of the Revised Penal Code, he may only be considered guilty as an accomplice. 48 And where there is no showing of conspiracy or confabulation on his part, and the extent of the accused's participation in the crime is uncertain, he should be given the benefit of the doubt and be declared as a mere accomplice therein. 49 We are sufficiently persuaded to declare appellant as a mere accomplice in the crime charged.

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WHEREFORE, the penalty imposed upon accused-appellant Wilfredo Lara is hereby MODIFIED and he is sentenced to suffer an indeterminate penalty of ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum. The death indemnity awarded by the court a quo is hereby INCREASED to Fifty Thousand Pesos (P50,000.00) in line with present case law and policy, to be assessed against the accused and herein appellant in accordance with Article 110 of the Revised Penal Code. In all other respects, the judgment of the lower court is hereby AFFIRMED. SO ORDERED.















THIRD DIVISION

G.R. No. 108488 July 21, 1997 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RODENCIO NARCA Y GAGARIN, BENJAMIN NARCA Y GAGARIN, RODELIO NARCA Y GAGARIN, and JAIME BALDELAMAR Y SELMO, defendants-appellants.

FRANCISCO, J.: For the death of Mauro Reglos, Jr. (hereinafter victim), defendants-appellants Rodencio @ "Rudy", Benjamin, Rogelio all surnamed Narca and their brother-in-law Jaime @ Benjamin Baldelamar were charged 1 with the following information for murder: That on or about the 10th day of March, 1990, between 7:00 and 8:00 in the evening, at barangay Cavite, municipality of Guimba, province of Nueva Ecija, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and evident premeditation, by conspiring, confederating and helping one another, and taking advantage of the darkness of the night, did then and there, willfully, unlawfully and feloniously attack, assault and hack with bolos one MAURO REGLOS, JR., inflicting upon said victim fatal hack wounds that caused his instantaneous death. 2 When appellants' failed in their motion to quash the above information, they filed a motion for bail. 3 During the bail hearings on September 19, 1990, the victim's wife Elizabeth Reglos, who was with him on that fateful night, testified on direct examination. Defense counsel requested the court that his cross-examination of Elizabeth be conducted on the next

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hearing, October 4, 1990. 4 Such cross-examination on said date never took place because Elizabeth and her son were bludgeoned to death on September 28, 1990. 5 After hearing, the lower court denied bail. 6 During arraignment, appellants pleaded "not guilty". 7 Trial ensued and the lower court thereafter rendered judgment 8 convicting appellants, the dispositive portion of which reads: WHEREFORE, premises considered, judgment is hereby rendered, finding the accused Benjamin Narca y Gagarin, Rodencio "Rudy" Narca y Gagarin, Rogelio Narca y Gagarin and Jaime "Benjamin" Baldelamar y Selmo, guilty beyond reasonable doubt of the crime of Murder, defined and penalized under Article 248 of the Revised Penal Code, and hereby sentences EACH of them to suffer the penalty of LIFE IMPRISONMENT. The said accused are likewise ordered to pay, jointly and severally, the heirs of the deceased Mauro Reglos, Jr., the sum of P50,000.00 as indemnification fee, the sum of P29,000.00 as actual damages and expenses, without subsidiary imprisonment in case of insolvency, and to pay the costs. IT IS SO ORDERED. 9 The facts given credence by the trial court are as follows: 10 . . . (O)n March 10, 1990, between 7:00 to 8:00 o'clock in the evening, after spouses Mauro Reglos, Jr. and Elizabeth Reglos have just come from the house of the father of Mauro Reglos, Jr. at Barangay Cavite Plum, Guimba, Nueva Ecija, who was then sick, and on their way home to Sta. Ana, Guimba, Nueva Ecija, accused Benjamin Narca suddenly hacked Mauro Reglos, Jr. at the back portion of his head with a long bolo known as "panabas". When Mauro was about to fall at his back, Jaime Baldelamar, Rogelio Narca and Rodencio "Rudy" Narca suddenly appeared, and they took turns in hacking Mauro with bolos. When Mauro was being hacked, his wife Elizabeth screamed for help, and Arturo Reglos and Dante Reglos responded and arrived at the scene of the incident. They saw Benjamin, Rodencio "Rudy" and Rogelio, all surnamed Narca, and Jaime Baldelamar, all armed with bolos, guarding their brother Mauro Reglos, Jr. who was lying face downward, soaked with blood, but still alive. Arturo Reglos and Dante Reglos and Elizabeth Reglos cannot approach Mauro Reglos, Jr. because they were threatened by the Narca brothers and Jaime Baldelamar. Two minutes after Arturo and Dante Reglos arrived, all the accused left, but accused Rogelio Narca returned and hacked Mauro Reglos once more at his back. On appeal to this court, appellants by way of defense (1) assail the validity of the preliminary investigation because they were not represented therein by counsel and was therefore deprived of due process, (2) argue that the testimony of Elizabeth Reglos in the bail hearings should not be given credence since she was not cross-examined, and (3) claim that pending this appeal, appellant Benjamin executed an affidavit assuming full and sole responsibility for the victim's death but nonetheless invokes self-defense while the other appellants in their respective affidavits state that they were not in the scene of the crime. 11 All these defenses must fail. On the first defense, there is nothing in the Rules which renders invalid a preliminary investigation held without defendant's counsel. Not being a part of the due process clause 12 but a right merely created by law, preliminary investigation if held within the statutory limitations cannot be voided. Appellant's argument, if sustained, would make a mockery of criminal procedure, since all that a party has to do to thwart the validity of the preliminary investigation is for their counsel not to attend the investigation. It must be emphasized that the preliminary investigation is not the venue for the full exercise of the rights of the parties. This is why preliminary investigation is not considered as a part of trial but merely preparatory thereto 13 and that the records therein shall not form part of the records of the case in court. 14 Parties may submit affidavits but have no right to examine witnesses though they can propound questions through the investigating officer. 15 In fact, a preliminary investigation may even be conducted ex-parte in certain cases. 16 Moreover, in Section 1 of Rule 112, the purpose of a preliminary investigation is only to determine a well grounded belief if a crime was "probably" committed by an accused. 17 In any case, the invalidity or absence of a preliminary investigation does not affect the jurisdiction of the court which may have taken cognizance of the information nor impair the validity of the information or otherwise render it defective. 18 On their second defense, it is to be noted that the defense's failure to cross-examine Elizabeth Reglos was occasioned by her supervening death. Lack of cross-examination due to the death of the witness does not necessarily render the deceased's previous testimony expungible. Thus, this Court in Republic v. Sandiganbayan, 19 citing Fulgado v. CA. 20 said that: The wholesale exclusion of testimonies was too inflexible a solution to the procedural impasse because it prejudiced the party whose only fault was to die before he could be cross-examined. The prudent alternative should have been to admit the direct examination so far as the loss of cross-examination could have been shown to be not in that instance a material loss. And more compelling so in the instant case where it has become evident that the adverse party was afforded a reasonable chance for crossexamination but through his own fault failed to cross-examine the witness. Where death prevents cross-examination under such circumstances that no responsibility of any sort can be ascribed to the plaintiff or the witness, it seems a harsh measure to strike out all that has obtained in the direct examination. (Emphasis supplied) Besides, mere opportunity and not actual cross-examination is the essence of the right to cross-examine. 21 Appellants lost such opportunity when they sought the deferment of their cross-examination of Elizabeth, and they only have themselves to blame in forever losing that right by reason of Elizabeth's demise. This Court hold that the right to cross-examination is a personal one which may be waived expressly or impliedly by conduct amounting to a renunciation of the right of cross-examination. Thus, where a party has had the opportunity to cross-examine a witness but failed to avail himself of it, he necessarily forfeits the right to cross-examine and the testimony given on direct examination of the witness will be received or allowed to remain in the record. . . . (W)aiver of the right to cross-examine may take various forms. But the common basic principle underlying the application of the rule on implied waiver is that the party was given the opportunity to confront and crossexamine an opposing witness but failed to fake advantage of if for reasons attributable to himself alone. 22 (Emphasis supplied) We also find unmeritorious appellants' argument that Elizabeth's testimony, having been taken during the bail hearings, cannot be used against them. Section 1(f) of Rule 115 provides that "either party may utilize as part of its evidence the testimony of a witness who is deceased . . . given in another case or proceeding", and under Section 8 Rule 114 23 as

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amended by Circular 12-94 24, "evidence presented during the bail hearings," like the testimony of deceased witness Elizabeth, are "considered automatically reproduced at the trial" subject only to the possible recall of the "witness for additional examination unless the witness is dead outside the Philippines or otherwise unable to testify." On their third defense, appellant Benjamin admits that he killed the victim but only in self-defense and that his coappellants, who are invoking alibi, had nothing to do with the crime. One who claims self-defense must prove: (a) unlawful aggression, (b) reasonable necessity of the means employed to prevent or repel it and (c) lack of sufficient provocation on the part of the person defending himself. 25 In the case at bench, the foremost element of unlawful aggression is absent. Unlawful aggression presupposes an actual or imminent danger on the life or limb of a person. Mere shouting, intimidating or threatening attitude of the victim, assuming that to be true, does not constitute unlawful aggression. 26 If there be any such aggression, it obviously came from appellants. Evidence on record shows that the victim was only walking with his wife, when he was suddenly and without warning attacked by appellants with "panabas" and bolos. He was hit at the back of his head chopping off a part of his skull exposing his brain. 27 Where the attack is perpetrated suddenly and without warning, there is treachery. 28 Due to appellants' treacherous acts, the outnumbered victim was caught by surprise and had no whimper of a chance to defend himself. 29 This satisfies the two conditions of treachery: (a) employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate, and (b) that said means of execution be deliberately and consciously adopted. 30 Once the fact of alevosia was established and proven, any claim of self defense cannot prosper for being inconsistent with treachery. In addition, the location and severity of the fatal wounds on the head exposing the brain 31 and the numerous other wounds suffered by the victim belie the claim of self-defense but is indicative of a determined effort to kill. 32 Absent unlawful aggression, there would be no occasion for the second and third elements to be present. Thus, appellant Benjamin failed to discharge his burden of proving by clear and convincing evidence the exculpatory cause he invokes. 33 He must rely on the strength of his own evidence and not on the weakness of that for the prosecution, for even if the latter's evidence is weak, it could not be disbelieved after he himself admitted the killing. 34 Accordingly, his conviction will follow from his admission as author of the crime as well as his failure to prove self defense by the required quantum of evidence. 35 With respect to the defense of alibi by the other appellants — such defense, aside from being inherently weak and easy to fabricate, crumbles in the face of their positive identification 36 by prosecution witnesses as being present in the scene of the crime as well as the victim's dying declaration pointing to appellants as his assailants. Appellants Rogelio and Rodencio's contention that they were irrigating their farm up to the late hour of 9:00 P.M. on that fatal night is unbelievable since farm workers do not usually work up to that late hours. They had not strictly complied with the requirements of time and place in their alibi by failing to show that they were somewhere else when the crime occurred and that it was physically impossible for them to be at the scene at the covered time. 37 Worth noting is that the distance of the houses of all appellants to the crime scene ranges from as near as 3 meters to as far as 1,500 meters, and their field is about 800 meters away or a mere 15 minute walk therefrom. 38 Although none among the prosecution witnesses presented in the trial proper saw the actual assault by appellants on the victim, yet one witness (Arturo Reglos) testified that appellant Rogelio after leaving the scene returned thereto and hacked the victim on his back one more time. 39 Appellant Jaime's denial of his participation in the killing cannot stand against his positive identification in the scene holding a "panabas" together with other appellants. The denial like alibi is weakened by the overwhelming evidence on record supporting a judgment of conviction. The circumstantial evidence on record also points to appellants' guilt. Pursuant to Section 3 of Rule 133 conviction may be had on circumstantial evidence considering that the requisites thereof were satisfied herein, to wit: — there is more than one circumstance — the facts from which the inference are derived are proven; and — the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. 40 The following undisputed facts when combined produce a logical conclusion pointing to appellants' culpability: (a) their presence in the scene of the crime at about 6:30 to 7:00 PM, (b) they were holding sharp instruments like bolos or "panabas", (c) they were talking to each other after the hacking of the victim with appellant Benjamin telling his co-appellants that he will be the only one who will admit responsibility, (d) they prevented and threatened the rescuing wife and brothers of the victim to come near the latter's prostrate body. 41 (e) they all left together, (f) they were positively identified by prosecution witnesses, (g) the medical examination showed that the victim's wounds were caused by sharp or sharpened instruments 42 — like the blood-stained "panabas" appellants were seen holding. Further damaging appellants avowed innocence is the testimony of Arturo Reglos that when he approached the victim who was already lying on the ground soaked in his own blood, the latter told the former that he was hacked and attacked by appellants. The victim even told witness Arturo why the appellants did this to him when he had no fault. This is a clear case of a dying declaration the elements for its admissibility are as follows: (a) the declaration must concern the crime and surrounding circumstances of the declarant's death; (b) it was made at a time when the declarant was under a consciousness of an impending death; (c) the declarant would have been competent to testify had he survived; (d) the declaration is offered in any case in which the decedent is the victim. 43 All these elements are present in this case. The victim's declaration pertains to the hacking incident particularly the identity of his assailants. Such declaration was made when the declarant is certain that his death is at hand,

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considering the degree or the wounds in his opened skull and that death supervened shortly afterwards. The rules does not require that the declarant must first state explicitly his perception of the inevitability of his death so long as the circumstances would justify a conclusion that the is conscious of his condition. 44 Further, the declarant was not incompetent to testify since he possess personal knowledge of the facts and could make known such knowledge to others — just what he did. Competency to testify means ability to perceive, to retain what has been perceived and to express what has been retained. Thus, the statement of the victim has the vestiges of a dying declaration and even if not, there can be no doubt about its admissibility as part of the res gestae. 45 With respect to the qualifying circumstances of evident premeditation and nighttime, the same were not proven and are not supported by evidence on record. To appreciate evident premeditation three elements must be established: (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that the offender had clung to his determination; and (3) a sufficient lapse of time between the determination to commit the crime and the execution thereof, to allow the offender to reflect upon the consequences of his act. 46 The records are bereft of direct evidence that appellants concocted and deliberately executed any plan or preparation to kill the victim. 47 The prosecution failed to prove evident premeditation by evidence as clear as the crime itself. 48 With respect to the circumstance of nighttime, the mere fact that the crime was committed at about 6:30-7:00 p.m. does not prove that appellants used the darkness of the night to facilitate their evil design. 49 Again the record is silent whether appellants took advantage of or purposely sought 50 nocturnity or that it facilitated the perpetration of their felonious acts. 51 Be that as it may, nighttime is absorbed in treachery. 52 As to the allegation of conspiracy, this is sustained by evidence on record. The victim was first hacked on the back by appellant Benjamin and then almost simultaneously by the other appellants. After the victim fell to the ground with blood oozing from his wounds, appellants were seen talking with each other and even left the crime scene together. Although, conspiracy like the crime must be proven beyond doubt, 53 it need not be established by direct proof. 54 So long as the acts of the conspirators are characterize by unity of purpose, intent anddesign 55 in order to effect a common unlawful objective 56 — conspiracy exists as such fact may be inferred from the coordinated acts and movements of the coconspirators. 57 Appellants' action implicitly showed unity of purpose among them — a concerted effort to bring about the death of the victim. 58 Having established conspiracy, all the appellants are answerable as co-principals regardless of their degree of participation. 59 Thus, it becomes secondary 60 and unnecessary to determine who inflicted the fatal wounds 61 — the act of one is the act of all and that all must suffer for their acts. 62 At any rate, the appeal assails the factual findings of the trial court which are generally accorded great weight and respect on appeal, especially since in this case, such findings are supported by substantial evidence on record. 63 Likewise, the evaluation and assessment of credibility of witness is best left to the trial court judge because of his unique position of having observed that elusive and incommunicable evidence of the witnesses deportment on the stand, which opportunity is denied to the reviewing court. 64 As aptly observed by the trial court: [T]he testimonies of the accused and their witnesses, aside from being self-serving, improbable, hard to believe, and (sic) not in accordance with common knowledge and experience of mankind. On the other hand, the testimonies of prosecution witness Elizabeth Reglos and the other witnesses Arturo Reglos and Dante Reglos are very revealing, straight to the point, probable and consistent. 65 No cogent reasons or material circumstances were shown to have been overlooked, misunderstood or disregarded by the trial court, which if considered will vary the outcome of the case. 66 Before we conclude, it is erroneous for the trial court to impose on appellants "life imprisonment" as it is nowhere in the scheme of penalties in the Revised Penal Code 67 nor is it a penalty similar to "reclusion perpetua". 68 The appealed judgment is dated September 1992. As early as 1948, the Court had made it clear that reclusion perpetua is not the same as life imprisonment, and that "no trial judge should mistake one for the other". 69 This ruling was reiterated in the case of People v. Baguio promulgated on April 30, 1991. 70 It is for this reason that Supreme Court Administrative Circular 6-A-92 (dated June 21, 1993) which amended Circular 6-92 (dated October 12, 1992) enjoins trial judges to strictly observe the distinction between life imprisonment and reclusion perpetua in order to curb the erroneous practice of using them interchangeably in the imposition of penalty in serious offenses like murder. Prior to the Heinous Crimes Law (R.A. 7659) the penalty for murder was "reclusion temporal maximum to death". 71 In accordance with the graduation of penalties in Article 63, when there is neither mitigating nor aggravating circumstance, as in this case, the penalty is the medium period which is reclusion perpetua. WHEREFORE, subject to the modification that each appellant shall suffer the penalty of reclusion perpetua and not life imprisonment, the appealed decision of the Regional Trial Court of Guimba, Nueva Ecija convicting appellants Rodencio, Benjamin, Rogelio all surnamed Narca and Jaime Baldelamar of murder and the imposition of the monetary awards are AFFIRMED. SO ORDERED.



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