Cases in Criminal Law

Published on July 2016 | Categories: Documents | Downloads: 50 | Comments: 0 | Views: 1414
of 88
Download PDF   Embed   Report

Comments

Content

Loney vs. PeopleG.R. No. 152644, Feb. 10, 2006 Facts: Petitioners John Eric Loney, Steven Paul Reid and Pedro B. Hernandez are the Pres.and CEO, Senior Manager, and Resident Manager for Mining Operations, respectively, of Marcopper Mining Corp., a corporation engaged in mining in the province of Marinduque.Marcopper had been storing tailings (mine waste) from its operations in a pit in Mt.Tapian, Marinduque. At the base of the pit ran a drainage tunnel leading to the Boac andMakulapnit rivers. It appears that Marcopper had placed a concrete plug at the tunnel¶s end.On March 24, 1994, tailings gushed out of or near the tunnel¶s end. In a few days, Mt. Tapianpit had discharged millions of tons of tailings in to the Boac and Makalupnit rivers.I n A u g u s t 1 9 9 6 , t he D O J s e p a r a t e l y c h a r g e d p e t it io n e r s i n t h e M T C o f B o a c , Marinduque with violation of Art. 91 (B), subparagraphs 5 and 6 of P.D. No. 1067 or theWater code of the Phil., Sec. 8 of P.D. No. 984 or the National Pollution Decree of 1976, Sec.108 of R.A. No. 7942 or the Phil. Mining Act of 1995, and Art. 365 of the RPC for RecklessImprudence Resulting to Damage to Property.In the Consolidated Order of MTC, granting partial reconsideration to its Joint Orderquashing the information for violation of PD 1067 and PD 984. The MTC maintained theInformations for violation of RA 7942 and Art. 365 of the RPC. Petitioners subsequently fileda petition for certiorari with the RTC assailing that the portion of the Consolidated Ordermaintaining the Informations for violation of RA 7942 and the petition was raffled to Br. 94while public respondent¶s appeal assailing that portion of the Consolidated Order quashingthe Info. for violation of P.D. 1067 and P.D. 984 and this appeal was consolidated withpetitioners petition.MTC Br. 94 granted the public respondent¶s appeal but denied petitioner¶s petition.Petitioners then filed for certiorari with the Court of Appeals alleging that Br. 94 acted withgrave abuse of discretion because 1.the Informations for violation of PD 1067, PD 984, RA7942 and the Art. 365 of the RPC ³proceeded from are based on a single act or incident of polluting the rivers thru dumping of mine tailings, and the charge for violation of Art 365 of the RPC absorbs the other charges since the element of ³lack of necessary or adequateprotection, negligence, recklessness and imprudence´ is common among them, 2. theduplicitous nature of the Informations contravenes the ruling in People v. Relova. The Courtof Appeals affirmed the Br. 94 ruling. Issue: 1. Whether or not all the charges filed against petitioners except one should bequashed for duplicity of charges and only the charge for Reckless Imprudence Resulting inDamage to Property should stand2. whether or not Br. 94¶s ruling, as affirmed by the Court of Appeals, contravenesPeople v. Relova. Ruling: The petition has no merit.Duplicity of charges simply means a single complaint or information charges morethan one offense, as Sec. 13 of Rule 110 of the 1985 Rules of Criminal Procedure. As early asthe start of the last century, the court ruled that a single act or incident might offend againsttwo or more entirely distinct and unrelated provisions of law thus justifying the prosecutionof the accused for more than one offense and the only limit is the Constitutional prohibitionthat no person shall be twice put in jeopardy of punishing for the same offense. In People vs.Doriquez, the court held that two or more offenses arising form the same act are not thesame. And so, double jeopardy is not an issue because not all its elements are present.On petitioners claim that the charges for violation of Art. 365 of the RPC ³absorbs´the charges for violation of PD 1067, PD 984 and RA 7942, suffice it to say that a mala

in sefelony (such as Reckless Imprudence Resulting to Damage in Property) cannot absorb malaprohibita crimes (such as those violating PD 1067, PD 984 and RA 7942). What makes theformer felony is criminal intent (dolo) or negligence (culpa) and what makes the lattercrimes are the special laws enacting them.Petitioners reiterate their contention in that their prosecution contravenes ruling inPeople vs. Relova. In particular, petitioners cite the court¶s statement in Relova that the lawseeks to prevent harassment of the accused by ³multiple prosecutions for offenses whichthough different from one another are nonetheless each constituted by a common set oroverlapping sets of technical elements. Thus, Relova is no authority for petitioners¶ claimagainst multiple prosecutions based on a single act not only because the question of doublejeopardy is not an issue here, but also because, as the Court of Appeals held, petitioners arebeing prosecuted for an act or incident punished by four national statutes and not by anordinance and a national statute. In short, petitioners, if ever fall under the first sentence of Sec. 21, Art. III which prohibits multiple prosecution for the same offense, and not, as inRelova, for offenses arising from the same incident.
G.R. No. 157171 March 14, 2006

ARSENIA B. GARCIA, Petitioner, vs. HON. COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, Respondents DEC ISION QUISUMBING, J.: This petition seeks the review of the judgment of the Court of Appeals in CA-G.R. CR No. 245471that affirmed the conviction of petitioner by the Regional Trial Court2of Alaminos City, Pangasinan, Branch 54, for violation of Section 27(b) of Republic Act No. 6646. 3 Based on the complaint-affidavit of Aquilino Q. Pimentel, Jr., who ran in the 1995 senatorial elections, an information dated March 30, 1998, was filed in the Regional Trial Court of Alaminos, charging Herminio R. Romero, Renato R. Viray, Rachel Palisoc and Francisca de Vera, and petitioner, with violation of Section 27(b). The information reads: That on or about May 11, 1995, which was within the canvassing period during the May 8, 1995 elections, in the Municipality of Alaminos, Province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, Election Officer Arsenia B. Garcia, Municipal Treasurer Herminio R. Romero, Public School District Supervisor Renato R. Viray, Chairman, Vice-Chairman, and Member-Secretary, respectively, of the Municipal Board of Canvassers of Alaminos, Pangasinan, tabulators Rachel Palisoc and Francisca de Vera, conspiring with, confederating together and mutually helping each other, did, then and there, willfully, and unlawfully decrease[d] the votes received by senatorial candidate Aquilino Q. Pimentel, Jr. from six thousand nine hundred ninety-eight (6,998) votes, as clearly disclosed in the total number of votes in the one hundred fifty-nine (159) precincts of the Statement of Votes by Precincts of said municipality, with Serial Nos. 008417, 008418, 008419, 008420, 008421, 008422 and 008423 to one thousand nine hundred twenty-one (1,921) votes as reflected in the Statement of Votes by Precincts with Serial No. 008423 and Certificate of Canvass with Serial No. 436156 with a difference of five thousand seventy-seven (5,077) votes. CONTRARY TO LAW.4 In a Decision dated September 11, 2000, the RTC acquitted all the accused for insufficiency of evidence, except petitioner who was convicted as follows: xxx 5. And finally, on the person of Arsenia B. Garcia, the Court pronounces her GUILTY beyond reasonable doubt, of the crime defined under Republic Act 6646, Section 27 (b) for decreasing the votes of Senator Pimentel in the total of 5,034 and in relation to BP Blg. 881, considering that this finding is a violation of Election Offense, she is thus sentenced to suffer an imprisonment of SIX (6) YEARS as maximum, but applying the INDETERMINATE SENTENCE LAW, the minimum penalty is the next degree lower which is SIX (6) MONTHS; however, accused Arsenia B. Garcia is not entitled to probation; further, she is sentenced to suffer disqualification to hold public office and she is also deprived of her right of suffrage. The bailbond posted by her is hereby ordered cancelled, and the Provincial Warden is ordered to commit her person to the Bureau of Correctional Institution for Women, at Metro Manila, until further orders from the court. No pronouncement as to costs.

IT IS SO ORDERED.5 Petitioner appealed before the Court of Appeals which affirmed with modification the RTC Decision, thus, WHEREFORE, foregoing considered, the appealed decision is hereby affirmed with modification, increasing the minimum penalty imposed by the trial court from six (6) months to one (1) year. SO ORDERED.6 The Court of Appeals likewise denied the motion for reconsideration. Hence, this appeal assigning the following as errors of the appellate court: I ON THE FIRST AND SECOND GROUNDS RELIED UPON BY THE RESPONDENT COURT, NAMELY, THAT IT COULD NOT HAVE BEEN SECRETARY VIRAY WHO DECREASED THE VOTES OF COMPLAINANT PIMENTEL SINCE HE MERELY RELIED ON WHAT THE PETITIONER DICTATED, AND THAT IT COULD NOT HAVE ALSO BEEN THE TABULATORS BECAUSE PETITIONER WAS THE ONE WHO READ THE ADDING [MACHINE] TAPE. II ON THE THIRD GROUND, NAMELY, THAT PETITIONER DID NOT PRODUCE THE TAPES DURING THE TRIAL BECAUSE IF PRODUCED, IT IS GOING TO BE ADVERSE TO HER. III ON THE FOURTH GROUND, NAMELY, THAT THE PETITIONER WAS THE ONE WHO ENTERED THE REDUCED FIGURE OF 1,921 IN THE CERTIFICATE OF CANVASS (COC), Exh. "7", WHEN THE DUTY WAS THAT OF THE SECRETARY OF THE BOARD. IV THE REDUCTION OF THE VOTES OF CANDIDATE PIMENTEL WAS CLEARLY NOT WILLFUL OR INTENTIONAL.7 Petitioner contends that (1) the Court of Appeals¶ judgment is erroneous, based on speculations, surmises and conjectures, instead of substantial evidence; and (2) there was no motive on her part to reduce the votes of private complainant. Respondent on the other hand contends that good faith is not a defense in the violation of an election law, which falls under the class of mala prohibita. The main issue is, Is a violation of Section 27(b) of Rep. Act No. 6646, classified under mala in se or mala prohibita? Could good faith and lack of criminal intent be valid defenses? Generally, mala in se felonies are defined and penalized in the Revised Penal Code. When the acts complained of are inherently immoral, they are deemed mala in se, even if they are punished by a special law.8Accordingly, criminal intent must be clearly established with the other elements of the crime; otherwise, no crime is committed. On the other hand, in crimes that are mala prohibita, the criminal acts are not inherently immoral but become punishable only because the law says they are forbidden. With these crimes, the sole issue is whether the law has been violated. 9Criminal intent is not necessary where the acts are prohibited for reasons of public policy.10 Section 27(b) of Republic Act No. 664611provides: SEC. 27. Election Offenses.- In addition to the prohibited acts and election offenses enumerated in Sections 261 and 262 of Batas Pambansa Blg. 881, as amended, the following shall be guilty of an election offense: xxx (b) Any member of the board of election inspectors or board of canvassers who tampers, increases, or decreases the votes received by a candidate in any election or any member of the board who refuses, after proper verification and hearing, to credit the correct votes or deduct such tampered votes. xxx Clearly, the acts prohibited in Section 27(b) are mala in se.12For otherwise, even errors and mistakes committed due to overwork and fatigue would be punishable. Given the volume of votes to be counted and canvassed within a limited amount of time, errors and miscalculations are bound to happen. And it could not be the intent of the law to punish unintentional election canvass errors. However, intentionally increasing or decreasing the number of votes received by a candidate is inherently immoral, since it is done with malice and intent to injure another.

Criminal intent is presumed to exist on the part of the person who executes an act which the law punishes, unless the contrary shall appear.13Thus, whoever invokes good faith as a defense has the burden of proving its existence. Records show that the canvassing of votes on May 11, 1995 before the Board of Canvassers of the Municipality of Alaminos, Pangasinan was conducted as follows: 1. After the votes in the 159 precincts of the municipality of Alaminos were tallied, the results thereof were sealed and forwarded to the Municipal Board of Canvassers for canvassing; 2. The number of votes received by each candidate in each precinct was then recorded in the Statement of Votes with appellant, in her capacity as Chairman, reading the figures appearing in the results from the precincts and accused Viray, in his capacity as secretary of the Board, entering the number in the Statements of Votes as read by the appellant. Six Statements of Votes were filled up to reflect the votes received by each candidate in the 159 precincts of the Municipality of Alaminos, Pangasinan. 3. After the number of votes received by each candidate for each precincts were entered by accused Viray in the Statements of Votes, these votes were added by the accused Palisoc and de Vera with the use of electrical adding machines. 4. After the tabulation by accused Palisoc and de Vera, the corresponding machine tapes were handed to appellant who reads the subtotal of votes received by each candidate in the precincts listed in each Statement of Votes. Accused Viray [then] records the subtotal in the proper column in the Statement of Votes. 5. After the subtotals had been entered by accused Viray, tabulators accused Palisoc and de Vera added all the subtotals appearing in all Statement of Votes. 6. After the computation, the corresponding machine tape on which the grand total was reflected was handed to appellant who reads the same and accused Viray enters the figure read by appellant in the column for grand total in the Statement of Votes.14 Neither the correctness of the number of votes entered in the Statement of Votes (SOV) for each precinct, nor of the number of votes entered as subtotals of votes received in the precincts listed in SOV Nos. 008417 to 008422 was raised as an issue. At first glance, however, there is a noticeable discrepancy in the addition of the subtotals to arrive at the grand total of votes received by each candidate for all 159 precincts in SOV No. 008423.15The grand total of the votes for private complainant, Senator Aquilino Pimentel, was only 1,921 instead of 6,921, or 5,000 votes less than the number of votes private complainant actually received. This error is also evident in the Certificate of Canvass (COC) No. 436156 signed by petitioner, Viray and Romero.16 During trial of this case, petitioner admitted that she was indeed the one who announced the figure of 1,921, which was subsequently entered by then accused Viray in his capacity as secretary of the board.17Petitioner likewise admitted that she was the one who prepared the COC (Exhibit A-7), though it was not her duty. To our mind, preparing the COC even if it was not her task, manifests an intention to perpetuate the erroneous entry in the COC.18 Neither can this Court accept petitioner¶s explanation that the Board of Canvassers had no idea how the SOV (Exhibit "6") and the COC reflected that private complainant had only 1,921 votes instead of 6,921 votes. As chairman of the Municipal Board of Canvassers, petitioner¶s concern was to assure accurate, correct and authentic entry of the votes. Her failure to exercise maximum efficiency and fidelity to her trust deserves not only censure but also the concomitant sanctions as a matter of criminal responsibility pursuant to the dictates of the law.19 The fact that the number of votes deducted from the actual votes received by private complainant, Sen. Aquilino Pimentel, Jr. was not added to any senatorial candidate does not relieve petitioner of liability under Section 27(b) of Rep. Act No. 6646. The mere decreasing of the votes received by a candidate in an election is already punishable under the said provision.20 At this point, we see no valid reason to disturb the factual conclusions of the appellate court. The Court has consistently held that factual findings of the trial court, as well as of the Court of Appeals are final and conclusive and may not be reviewed on appeal, particularly where the findings of both the trial court and the appellate court on the matter coincide.21 Public policy dictates that extraordinary diligence should be exercised by the members of the board of canvassers in canvassing the results of the elections. Any error on their part would result in the disenfranchisement of the voters. The Certificate of Canvass for senatorial candidates and its supporting statements of votes prepared by the municipal board of canvassers are sensitive election documents whose entries must be thoroughly scrutinized.22 In our review, the votes in the SOV should total 6,998.23 As between the grand total of votes alleged to have been received by private complainant of 6,921 votes and statement of his actual votes received of 6,998 is a difference of 77 votes. The discrepancy may be validly attributed to mistake or error due to fatigue. However, a decrease of 5,000 votes as reflected in the Statement of Votes and Certificate of Canvass is substantial, it cannot be allowed to remain on record unchallenged, especially when the error results from the mere transfer of totals from one document to another. WHEREFORE, the instant petition is DENIED. The assailed Decision of the Court of Appeals sustaining petitioner¶s conviction but increasing the minimum penalty in her sentence to one year instead of six months is AFFIRMED.

SO ORDERED.

PEOPLE vs ILIGAN FACTS: At around 2 in the morning Esmeraldo Quinones and his companions Zaldy Asis and Felix Lukban were walking home from barangay Sto. Domingo after attending a barrio fiesta. On the way they met the accused Fernando Iligan and his nephew Edmundo Asis and Juan Macandog. Edmundo Asis pushed them aside prompting Zaldy Asis to box him. Felix quickly said that they had no desire to fight. Upon seeing his nephew fall, Fernando Iligan drew from his back a bolo and hacked Zaldy but missed. Terrified the trio ran, pursued by the three accused. They ran for a good while and even passed the house of Quinones, when they noticed that they were no longer being chased the three decided to head back to Quinones house. On the way back the three accused suddenly emerged from the road side, Fernando Iligan then hacked Quinones Jr. on the forehead with his bolo causing him to fall down. Felix and Zaldy ran. Upon returning they saw that Quinones Jr. was already dead with his head busted. The postmortem examination report and the death certificate indicates that the victim died of ³ shock and massive cerebral hemorrhages due to vehicular accident.´ ISSUE: Whether or not the accused are liable for the victim¶s death given that it was due to a vehicular accident and not the hacking. HELD: YES. We are convinced beyond peradventure that indeed after Quinones, Jr. had fallen from the bolo hacking perpetrated by Iligan, he was run over by a vehicle. This finding, however, does not in any way exonerate Iligan from liability for the death of Quinones Jr. This being under ART 4 of the RPC which states that criminal liability shall be incurred by any person committing a felony although the wrongful act done be different from that which he intended. The essential requisites of Art 4 are: that an intentional felony has been committed and that the wrong done to the aggrieved party be the direct natural and logical consequence of the felony committed by the offender. It is held that the essential elements are present in this case. The intentional felony committed was the hacking of the head of Quinones the fact that it was considered superficial by the physician is immaterial. The location of the wound intended to do away with him. The hacking incident happened on the national highway where vehicles pass any moment, the hacking blow received by Quinones weakened him and was run over by a vehicle. The hacking by Iligan is thus deemed as the proximate cause of the victim¶s death. Iligan is held liable for homicide absent any qualifying circumstances Result is different from what was intended

G.R. No. 152133 February 9, 2006 ROLLIE CALIMUTAN, Petitioner,vs. PEOPLE OF THE PHILIPPINES, ET AL., RespondentsFACTS:That on or about February 4, 1996, in the morning thereof, at sitio Capsay, Barangay Panique,Municipality of Aroroy, Province of Masbate, Philippines Rollie Calimutan throw a stone at PHILIPCANTRE, hitting him at the back left portion of his body, resulting in laceration of spleen due toimpact which caused his death a day after.ISSUES:Whether or not Rollie

Calimutan is guilty beyond reasonable doubt of the crime of homicide under Article 249 of the Revised Penal Code.Held:Yes Rollie Calimutan is guilty of the crime of homicide, Since it is irrefragable that the stone thrownby petitioner Calimutan at the victim Cantre was the proximate cause of the latter¶s death, despitebeing done with reckless imprudence rather than with malicious intent, petitioner Calimutan remainscivilly liable for such death. INTENTIONAL FELONIES

DISTINGUISHED FROM CULPABLE FELONIES
Article 3 of the Revised Penal Code classifies felonies according to the means by which they are committed, in particular: (1) intentional felonies, and (2) culpable felonies. In the case of CALIMUTAN VS. PEOPLE, G.R. No. 152133, February 9, 2006, the Supreme Court distinguished intentional felonies from culpable felonies. These two types of felonies are distinguished from each other by the existence or absence of malicious intent of the offender ± In intentional felonies, the act or omission of the offender is malicious. In the language of Art. 3, the act is performed with deliberate intent (with malice). The offender, in performing the act or in incurring the omission, has the intention to cause an injury to another. In culpable felonies, the act or omission of the offender is not malicious. The injury caused by the offender to another person is ³unintentional, it being simply the incident of another act performed without malice.´ (People vs. Sara, 55 Phil. 939). As stated in Art. 3, the wrongful act results from imprudence, negligence, lack of foresight or lack of skill. In the Petition at bar, this Court cannot, in good conscience, attribute to petitioner Calimutan any malicious intent to injure, much less to kill, the victim Cantre; and in the absence of such intent, this Court cannot sustain the conviction of petitioner Calimutan for the intentional crime of homicide, as rendered by the RTC and affirmed by the Court of Appeals. Instead, this Court finds petitioner Calimutan guilty beyond reasonable doubt of the culpable felony of reckless imprudence resulting in homicide under Article 365 of the Revised Penal Code.

G.R. No. Nos. L-22160 & L-22161 January 21, 1974 THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. TEODORO TAMANI, Accused-Appellant. AQUINO, J.:
chanrobles virtual law library

This is an appeal of defendant Teodoro Tamani y Marinay from the decision of the Court of First Instance of Isabela, (a) sentencing him to "life imprisonment" for the murder of Jose Siyang and ordering him to indemnify the victim's heirs in the sum of P6,000 and (b) further sentencing him to an indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional to eight (8) years and twenty-one (21) days of prision mayor for the attempted murder of Eduardo Domingo and ordering him to indemnify the victim in the sum of P2,000 (Crim. Cases Nos. II-192 and II-198). Issue as to dismissal of the appeal.-After the appellant had filed his brief, the Solicitor General filed a motion to dismiss the appeal on the ground that the notice of appeal was forty-seven days late. Appellant's counsel de oficio did not oppose the motion. Action thereon was "deferred until this case is considered on the merits". (Resolution of March 7, 1967). The motion to dismiss is reiterated in appellee's brief. That preliminary question should first be resolved.
chanrobles virt ualawlibrary c hanrobles virt ual law l ibrary

The lower court's decision convicting defendant Tamani was promulgated on February 14, 1963. A copy thereof was served on his counsel on February 25, 1963. On March 1, 1963 he filed a motion for reconsideration. It was denied. A copy of the order of denial was served by registered mail on July 13, 1963 on defendant's counsel through his wife. He had eleven

days or up to July 24, 1963 within which to appeal (if the reglementary fifteen-day period for appeal should be computed from the date of notification and not from the date of promulgation of the decision). He filed his notice of appeal only on September 10, 1963 or forty eight days from July 24th.
chanrobles virtualaw library cha nrobles virtual law library

Silvestre B. Bello, defendant's counsel, filed a sworn statement, accompanying the notice of appeal. In that affidavit, he stated that the trial court's order, denying his motion for reconsideration, although admittedly received by his wife on July 13th, was never brought to his attention and that he came to know of the order only on September 7th when he verified the expediente of the case and discovered that an order of denial had been issued. He averred that his wife must have lost the envelope containing the order.
chanro bles virtualaw library cha nrobles virtua l law library

The trial court opined that the wife's affidavit should have been submitted and that the defendant should have filed a motion praying that the tardy appeal be given due course.
virtual law library

chanrobles virtualaw library cha nrobles

After considering the gravity of the two penalties imposed on the accused and the earnest plea of defense counsel, the trial court gave due course to the appeal without prejudice to the right of the Solicitor General to "raise the question of jurisdiction on the ground of a very much belated appeal".
chanrobles virtualawl ibrary chanro bles virtual law library

Rule 122 of the Rules of Court provides: SEC. 6. When appeal to be taken.-An appeal must be taken within fifteen (15) days from promulgation or notice of the judgment or order appealed from. This period for perfecting an appeal shall be interrupted from the time a motion for new trial is filed until notice of the order overruling the motion shall have been served upon the defendant or his attorney. The word "must" in section 6 is synonymous with "ought". It connotes compulsion or mandatoriness. The clear terms of section 6 leave no room for doubt that the appeal should be effected within fifteen days from the promulgation of the judgment.
chanrobles virtualawlibrary cha nrobles virt ual law li brary

The counsel for appellant Tamani must have so understood that import of section 6 (which is confirmed by the practice in trial courts) as evinced by the fact that his motion for reconsideration was filed on March 1st, which was the fifteenth or last day of the reglementary period.
chanrobles virtualaw library chanro bles virtual law library

The assumption that the fifteen-day period should be counted from February 25, 1963, when a copy of the decision was allegedly served on appellant's counsel by registered mail, is not well-taken. The word "promulgation" in section 6 should be construed as referring to "judgment" (see section 6 of Rule 120), while the word "notice" should be construed as referring to "order". That construction is sanctioned by the rule of reddendo singula singulis: "referring each to each; referring each phrase or expression to its appropriate object", or "let each be put in its proper place, that is, the words should be taken distributively" (76 C. J. S. 175).
chanrobles virtualawli brary chanrob les virtual law library

Therefore, when the order denying appellant's motion for reconsideration was served by registered mail on July 13th on appellant's counsel, he had only one (1) day within which to file his notice of appeal and not eleven days. That construction is an application by analogy or in a suppletory character of the rule governing appeals in civil cases which is embodied in section 3, Rule 41 of the Rules of Court.
chanrobles virt ualawli brary chanrobles virt ual law library

Appellant Tamani's notice of appeal, filed on September 10, 1963, was fifty-eight days late. A regoristic application of section 6 justifies the dismissal of his appeal, as prayed for by the prosecution.
chanrobles virtualawli brary chanro bles virtual l aw library

However, considering that appellants right to seek a review of his case was lost by reason of his counsel's inadvertence and considering further that the briefs have been submitted, the Court has resolved to review the record to obviate any possible miscarriage of justice (Cf. Marbury vs. Madison, 1 Cranch 135, 2 L. ed. 60, where Chief Justice Marshall discussed the merits of a mandamus action although the Court held that it had no power to issue that writ). Uncontroverted facts.-There is no dispute that sometime after twilight on the night of June 11, 1953 in the place called Centro at the commercial street of Angadanan, Isabela, Jose Siyang (Syang), the town assistant sanitary inspector, was mortally wounded by gunfire. Death resulted from internal hemorrhage caused by the following four (4) through and through gunshot wounds which followed an oblique direction from the point of entry to exit: 1. Entry, chest about 2- inches from level of the nipple. Exit, at the back level of twelfth dorsal vertebrae to the right side.
chanrobles virtualawlibrary cha nrobles virtual law library

2. Entry, above right clavicle (suprasternal notch) middle portion. Exit, at the back at the level of the right angle of scapula.
chanrobles virtua lawlibrary cha nrobles virtu al law li brary

3. Entry, anterior aspect of left shoulder. Exit, at the back of shoulder about 2- inches from tip of armpit (left side).
chanrobles virtualawl ibrary chanro bles virtual l aw library

4. Entry, anterior aspect of right forearm middle in slight oblique direction from the point of entry to exit. (Exh. F. Certificate issued by Pablo H. Gaffud, M.D.). By means of the same gunfire, an attempt was made to kill Mayor Eduardo Domingo. He sustained a through and through wound in the palm of his right hand which caused his confinement in the Isabela Provincial Hospital from June 11 to 22, 1953 (Exh. E, Certificate issued by J. L. Maddela, Sr., Resident Physician).
chanrobles virtualawlibrary chanro bles virtual l aw library

More than three years from the time that tragedy transpired, or on October 2 and 3, 1956, appellant Tamani signed and thumbmarked two sworn statements before the agents of the National Bureau of Investigation (NBI), wherein he confessed that he was the one who shot Siyang and Mayor Domingo; that his companion on the occasion of the shooting was Domingo Cadawan; that on the morning of June 11, 1953 he and Cadawan were dismissed

as policemen and that Vice-Mayor Villamor Tamani, Matias de la Fuente and Rufino de los Santos instigated him to liquidate Mayor Domingo (Exh. A and B). The two statements are in English, a language which Tamani understands (19 tsn II Valencia).
chanrobles virtualaw library cha nrobles virtua l law library

Inasmuch as the crimes, murder and attempted murder, have been proven, meaning that the corpus delicti had been established, and appellant Tamani had confessed having committed the same, there should be an airtight case against him. Rule 133 of the Rules of Court provides: SEC. 3. Extrajudicial confession, not sufficient ground for conviction.-An extrajudicial confession made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti. (Same as See. 96, Rule 123, 1940 Rules of Court). Tamani's confession is corroborated by the undisputed evidence of the corpus delicti.
chanrobles virtualawlibrary cha nrobles virtua l law li brary

However, during the trial, he repudiated his confession. He assailed its voluntariness. He set up the defense of alibi. Through his principal witness, Francisco Siyang, the father of the deceased Jose Siyang, he endeavored to prove that the latter was shot by Policemen Gaspar Ibarra and Melchor Tumaneng. Thus, a simple case, where the extrajudicial confession is corroborated by evidence of the corpus delicti, became controversial, complicated and perplexing. Version of the prosecution.-In addition to Tamani's extrajudicial confession (Exh. A and B), the prosecution offered the testimonies of complainant Domingo, Doctor Pablo H. Gaffud, Juana Vittori Vda. de Ibarra, Emiteria Ibarra, Ilustre D. Mendoza, Mariano G. Almeda, Teodoro Colobong and Martin Caniero.
chanrobles virtua lawlibrary cha nrobles virtu al law li brary

The prosecution's evidence discloses that Domingo was the mayor of Angadanan since 1947. Prior to June 11, 1953, he was suspended from office by the Governor. During Domingo's suspension, Villamor Tamani, the vice-mayor, functioned as acting mayor. He appointed as policeman his second cousin, appellant Teodoro Tamani who was then twenty-four years old. The vice-mayor used to appoint Teodoro Tamani as policeman whenever Domingo was suspended. Teodoro Tamani resigned as policeman shortly before June 11th. In the afternoon of June 10th, Domingo was reinstated and he reassumed the office of mayor.
chanrobles virt ualawli brary chanrob les virtual law library

The reinstatement of Domingo was obviously resented by Vice-Mayor Villamor Tamani because it meant the termination of his tenure as acting mayor. On June 10th Teodoro Tamani and Domingo Cadawan (also a former policeman like Teodoro Tamani) were summoned for a conference by the vice-mayor to his house at Barrio Aniog, Angadanan. Present at the conference were the vice-mayor and his men, Matias de la Fuente and Rufino de los Santos. It was decided at that meeting that Mayor Domingo should be liquidated. De la Fuente handed to Teodoro Tamani a carbine.
chanrobles virtualaw library cha nrobles virtua l law library

Appellant Tamani and Cadawan spent the night in the vice-mayor's house. On the following morning of June 11th, Cadawan was sent on a mission to the poblacion of Angadanan to ascertain the whereabouts of the quarry, Mayor Domingo. At around seven o'clock in the evening, Cadawan returned to the vice-mayor's house and apprised appellant Tamani that Domingo was in front of the store of Pedro Pua at the town's commercial street.
chanrobles virtualaw library chanro bles virtual law library

Cadawan and Teodoro Tamani proceeded with dispatch to the poblacion, making shortcuts by passing through the yards of neighboring houses. Tamani carried the carbine. On entering the yard of the house adjoining Pedro Pua's store, Cadawan stumbled. The resulting noise attracted the attention of the owner of the house, Mrs. Ibarra, who focused a flashlight at Tamani and, on recognizing him, uttered his nickname, Doro. She had known Doro since childhood. She saw that he was carrying a gun.
chanrobles virtualawlibrary c hanrobles virt ual law l ibrary

She had just taken her supper. She and her daughter, Emiteria Ibarra, were sitting on the veranda. It was while chewing her buyo that Mrs. Ibarra heard somebody trip in her yard on the cement floor intended as the base of a tank. Almost simultaneously, she heard the grunting (ngik-ngik) of her pig. When she trained her flashlight on the intruder and recognized Doro (appellant Tamani) with a gun and called him, the latter answered, "Tia" (Aunt).
chanrobles virtualawlibrary ch anrobles virt ual law li brary

Mrs. Ibarra saw that Teodoro Tamani passed under the eaves of her house, crossed the bamboo fence separating her from the vacant lot of Pedro Pua and proceeded to the corner of the vacant lot near the gate of galvanized iron sheets and the edge of the cemented pavement which was in front of Pedro Pua's store (see sketch, Exh. C). As appellant Tamani passed the fence, he produced a "cracking noise". Emiteria Ibarra testified: Q. Who say (saw) Teodoro Tamani? - A. My mother and myself, sir.
chanrobles virt ualawlibrary c hanrobles virt ual law l ibrary

Q. What was the appearance of Teodoro Tamani when you saw him after your mother lighted him with the light of the flashlight? - A. When my mother flashed the flashlight towards him at the same time my mother called, "Doro" and then he answered "TIA" and he was carrying a firearm, sir.
chanrob les virtualawli brary chanrob les virtual law library

Q. Why do you know that when you and your mother heard the cracking of the fence Teodoro Tamani went inside the fence? - A. We know it because of the cracking of the fence, besides that we saw him proceeded towards the fence, sir.
chanrobles virtuala wlibrary cha nrobles virtua l law li brary

Q. After Teodoro Tamani entered that fence as you say, what happened, if any? - A. He proceeded towards the gate of the Chinese, sir.
chanrobles virtua lawlibrary chanro bles virtual law library

Q. What happened, if any, after Teodoro Tamani went to that gate? - A. Upon arriving at the gate we heard the gun reports, sir.
chanrobles virt ualawli brary chanrob les virtual law library

Q. How many gun reports, if you remember? - A. Maybe eight (8) or nine (9), sir.

chanrobles virtualawl ibrary chanro bles virtual law library

Q. Do you know where the gun reports came from? - A. Yes, sir, because I saw the sparks of the bullets when they were fired, sir.
chanro bles virtualaw library cha nrobles virtua l law library

Q. Did you know who fired? - A. I know, sir.

chanrobles virtu alawlibrary ch anrobles vir tual law l ibrary

Q. Who? - A. Teodoro Tamani, because he was the only one who entered with a gun, sir (74-75 tsn Jan. 16, 1959).
chanrobles virtualawlibrary cha nrobles virtu al law li brary

Q. Who fired? - A. Teodoro Tamani, sir.

chanrobles virt ualawli brary chanrobles virt ual law l ibrary

Q. Why do you say that he was the one who fired? - A. Because the gun reports came from the place where he stood at the gate, sir (77 tsn Jan. 16, 1959). From the place where Cadawan and Tamani had positioned themselves, they had a good view, through the holes of the gate, of Mayor Domingo and his group in front of Pua's store (Exh. A). The mayor was engaged in conversation with a group of persons on the cemented pavement ( pasillo of sidewalk) in the front of the store in Centro at the town's commercial street. Standing near the wall of the store were Hermoso Alicam, Liberato Tanam, Primitivo Tallog, Martin Caniero, Toedoro Colobong, Gaspar Ibarra, Francisco Siyang and Gonzalo Siyang. Mayor Domingo was standing in front of the group, walking and gesticulating as he talked. Jose Siyang was leaning against a post somewhat apart from the group (Exh. C, 6 tsn March 3, 1959).
chanrobles virtualawlibrary cha nrobles virtu al law li brary

Mayor Domingo was recounting his experience in Manila during his suspension. He was standing on the culvert which bridged the canal separating the pasillo and the street (See Exh. C). As he talked, he gestured and swung his hands up and down with palms open, facing Pua's store and his audience. Jose Siyang, who was apart from the group of listeners, was about two to three meters on Mayor Domingo's right, leaning one of the post which supported the roof shading the pasillo or cemented pavement. Jose Siyang was in line with Mayor Domingo while, in contrast, the group of listeners was standing side by side close to the galvanized iron wall of the store, facing Mayor Domingo who was telling stories.
chanrobles virt ualawli brary chanrobles virt ual law l ibrary

In the meanwhile, Teodoro Tamani and Cadawan were standing on the vacant lot in close proximity to the gate of galvanized iron sheets where the pasillo ended. Cadawan opened a hole in the gate, about three inches in diameter, through which Teodoro Tamani inserted the barrel of the carbine. Tamani fired at Mayor Domingo who was the target. Jose Siyang, a second cousin of Teodoro Tamani, like Vice-Mayor Tamani, "was farther on the right side of Mayor Domingo along the line of fire" (Exh. A). Appellant Tamani fired two volleys. Mrs. Ibarra and her daughter saw from the veranda the flashes of fire emitted by the carbine of Teodoro Tamani. They left the veranda and went inside the house.
chanrobles virtualawlibrary cha nrobles virtu al law li brary

At the moment the first volley of gunshots was fired, which was between seven and seventhirty, Mayor Domingo had raised his right hand. The palm of his right hand was hit. Jose Siyang was also hit. Domingo and his listeners dispersed and sought refuge inside Pua's store. While Domingo ran for cover, a second volley was fired. The volley's came from

behind the iron gate on the vacant lot or "from the southwest end" of the cemented pavement behind the gate. While inside the store, Mayor Domingo heard the moaning of someone in an agony of pain. That person turned out to be Jose Siyang who had sustained four gunshot wounds and was hovering between life and death. Siyang died before eleven o'clock that same night.
chanrobles virtualawli brary chanrob les virtual law library

Constabulary soldiers and peace officers arrived at the scene of the shooting and conducted an investigation. Mayor Domingo was taken to the provincial hospital. Doctor Gaffud conducted an autopsy on the body of Jose Siyang in the municipal building. On the following day empty shells were found by the Constabulary soldiers near the galvanized iron gate (6 tsn. III Calixto).
chanrobles virt ualawlibrary c hanrobles virt ual law l ibrary

Teodoro Tamani and Cadawan left the scene of the shooting. They ran, passing the same route that they had taken in coming, and went direct to the house of Vice-Mayor Villamor Tamani in Barrio Aniog. Teodoro Tamani stayed overnight in the house of the vice-mayor. Cadawan, who reported to the vice-mayor that Mayor Domingo was dead, proceeded to Barrio Clakcab and returned the murder weapon to Matias de la Fuente.
chanrobles virtualawl ibrary chanro bles virtual l aw library

The trial court accepted the foregoing version as the basis of the judgment of conviction. It noted that in 1956 when NBI Agent Mariano G. Almeda arranged a confrontation between Teodoro Tamani and Mrs. Ibarra, she identified him as the person whom she saw in her yard in the evening of June 11, 1953. During the confrontation, Tamani trembled, became pale and remained silent.
chanrobles virtua lawlibrary cha nrobles virtu al law li brary

Teodoro Tamani sometime after the shooting went into hiding at Cabagan and Santo Tomas, Isabela, where he was arrested by Mayor Domingo by virtue of a warrant of arrest issued in Criminal Cases Nos. 245 and 246 of the justice of the peace court of Angadanan (Exh. 3, 4, 5 and 6, 11 tsn March 3, 1959). Appellant went into hiding although his wife was about to deliver her baby.
chanrobles virtualawli brary chanrobles virt ual law l ibrary

As to the motive for shooting Mayor Domingo, Teodoro Tamani explained that Vice-Mayor Villamor Tamani, his second cousin, ordered the liquidation of the mayor so that he could not assume office and the vice-mayor would become mayor (Exh. A). Appellant Tamani was chosen to execute that task because he had lost his job as policeman when Mayor Domingo was reinstated (Exh. A, p. 2).
chanrobles virtualawlibrary cha nrobles virtu al law li brary

On the other hand, Mayor Domingo said that when Teodoro Tamani was still a policeman, the mayor had scolded him for not reporting for work and for working as cook of ViceMayor Villamor Tamani and plowing his field. The other motive was that since Teodoro Tamani is a relative of the vice-mayor, who was a "political enemy" of the mayor, he (appellant Tamani) could act as a policeman when the vice-mayor became mayor after the elimination of the incumbent mayor (11 tsn March 3, 1959).
chanrobles virtualawlibrary chanro bles virtual law library

On the credibility of the prosecution eyewitness, Mrs. Ibarra, the trial judge made the following findings:

The Court concentrated attention on the attitude and observed the gestures, features, demeanor and manner of testifying and the emphasis, gestures and inflection of the voice of prosecution witness Juana Vitorri de Ibarra during all the time she was on the witness stand in the direct and cross-examination, and her answers were prompt, concise, responsive to interrogatories, outspoken, and entirely devoid of evasion or any semblance of shuffling, and her entire testimony was given with calm, self-possession, an erect front, and unhesitating accent. The Court is convinced of her sincerity and credibility and the truthfulness of her testimony, in great contrast with defendant's manner of testifying. (pp. 859-60, Record). The trial court concluded that the intended victim was Mayor Domingo and not Jose Siyang. Appellant's version and contentions.-In this appeal appellant's counsel de oficio argues that the trial court erred (1) in disbelieving Tamani's alibi; (2) in assuming that his extrajudicial confession was voluntary; (3) in not giving credence to the testimony of defense witness Francisco Siyang, that his son, Jose Siyang, was shot by Policemen Gaspar Ibarra and Melchor Tumaneng; (4) in giving credence to circumstantial evidence, and (5) in the alternative, in not holding that appellant Tamani committed the complex crime of homicide with lesiones grave.
chanrobles virtualawl ibrary chanro bles virtual l aw library

Appellant Tamani, having abjured his confession, gave the following version of the case by means of his testimony and the testimony of his other witness, Francisco Siyang(Syang):
chanrobles virtual law library

Francisco Siyang was the father of Jose Siyang, the town sanitary inspector, who with his wife and four children, resided with Francisco Siyang at his house in Centro, Angadanan. Francisco Siyang is an uncle of Vice-Mayor Villamor Tamani. At around six-thirty in the evening of June 11, 1953 Venancio Respicio dropped at the house of Jose Siyang and invited him for a walk. Francisco Siyang followed his son to the store of Pedro Pua which was around four blocks from their house.
chanrobles virtualaw library cha nrobles virtual law library

Francisco Siyang noticed that Jose Siyang was in front of Pua's store with Mayor Domingo, Policemen Alfonso Gomez, Gaspar Ibarra, Graciano Manguelod and Melchor Tumaneng, teachers Primitivo Tallog, Teodoro Colobong and Martin Caniero, Mariano Dalodad (a barber) and Juaning Aliangan, a farmer. Jose Siyang was leaning against a post, obliquely at the right of Mayor Domingo. Francisco Siyang allegedly approached Jose and told him that his wife and children were waiting for him so that they could take supper. Jose answered "yes, father".
chanrobles virt ualawli brary chanrobles virt ual law l ibrary

While Francisco Siyang and Jose Siyang were standing side by side in front of Pua's store, Mayor Domingo made a signal by stretching and raising his hand with open palm and bringing it down. Suddenly, Policeman Ibarra, who was standing in front of Jose Siyang, fired his carbine at the latter, hitting Jose Siyang in the chest. Policeman Tumaneng followed by firing with his carbine successive shots at Jose Siyang, hitting the latter in the breast. Tumaneng was on the right side of Ibarra, obliquely facing Jose Siyang.
chanrobles virtualawlibrary cha nrobles virtua l law library

After Jose Siyang fell, Francisco Siyang went to his succor and raised him. Jose Siyang told his father: "Father, I am dying, my children." When Jose Siyang was brought to the municipal building, he was breathing feebly. He could not talk anymore. He expired in the municipal building. His body was brought home by Francisco Siyang.
chanrobles virtualawl ibrary chanro bles virtual law library

In the morning of June 12th, Vice-Mayor Villamor Tamani with some Constabulary soldiers arrived at the house of Francisco Siyang while the remains of Jose Siyang still lay in state. After the burial of Jose Siyang in the afternoon, a Constabulary sergeant investigated Francisco Siyang and took him to Ilagan, where he was further investigated. He gave a sworn statement accusing Ibarra and Tumaneng of having killed Jose Siyang (Exh. 1).
chanrobles virtualawlibrary cha nrobles virtua l law li brary

On the basis of that statement, a criminal complaint for the murder of Jose Siyang was filed on June 20, 1953 by Constabulary Lieutenant Tomas P. Gonzales in the justice of the peace court of Angadanan against Venancio Respicio and Policemen Ibarra, Tumaneng and Manguelod (Exh. 2, Crim. Case No. 244). The complaint was dismissed on August 12, 1953.
chanrobles virtualawli brary chanrob les virtual law library

Other complaints for the murder of Jose Siyang and for frustrated murder perpetrated on Mayor Domingo were filed in the justice of the peace court against Villamor Tamani, Teodoro Tamani, Domingo Cadawan, Rufino de los Santos and Matias de la Fuente but they were later dismiss (Exh. 3 to 6, Crim. Cases Nos. 245 and 246).
chanrobles virtualawlibrary ch anrobles virt ual law li brary

In October, 1956 Mariano G. Almeda of the NBI headed a team of agents that investigated the shooting of Jose Siyang and Mayor Domingo. Francisco Siyang was investigated orally in Ilagan by Almeda. The investigation was interrupted by former Congressman Samuel Reyes. It was not finished.
chanrobles virtualawli brary chanrob les virtual law library

Appellant Tamani, in support of his alibi, testified that Jose Siyang was his second cousin. Tamani was a resident of Centro in the poblacion of Angadanan. At around three o'clock in the afternoon of June 11, 1953 he was in the house of Vice-Mayor Villamor Tamani in Barrio Aniog. He wanted a recommendation for a job in the Angadanan Sawmill. The place known as Centro in the poblacion, where Pedro Pua's store is located, is around two kilometers from Barrio Aniog. Vice-Mayor Tamani gave to Teodoro Tamani the recommendation between four and five o'clock. The vice-mayor prevailed upon Teodoro Tamani to stay and they agreed to go to town on the following day.
chanrobles virtualawli brary chanrob les virtual law library

So, Teodoro Tamani slept in the house of his cousin, the vice-mayor, on the night of June 11th. On the morning of June 12th, Vice-Mayor Tamani and Teodoro Tamani went together to Centro in the poblacion. When they reached Centro, they learned of Jose Siyang's death, for which reason they viewed his body in the house of Francisco Siyang. They arrived at Siyang's house at around eight and eight-thirty in the morning. They learned that Jose Siyang was shot in front of Pedro Pua's store.
chanrob les virtualawl ibrary chanro bles virtual l aw library

Teodoro Tamani did not go to the Angadanan Sawmill on June 12th. He delivered the letter of recommendation on June 13th to the manager of the sawmill. He worked in the

sawmill as laborer for two weeks only. He resigned due to the heavy work. He could not remember the name of the manager of the sawmill.
chanro bles virtualaw library chanro bles virtual law library

He denied that he shot Jose Siyang and Mayor Domingo. He did not participate in the commission of the crime. He said that he was in the house of Vice-Mayor Tamani on the night of June 11th.
chanrobles virtualawlibrary cha nrobles virtua l law li brary

On October 2, 1956 NBI Agent Almeda picked him up from his house for questioning in connection with the shooting of Siyang and Mayor Domingo. Almeda was accompanied by Alfonso Salvador, a Constabulary soldier. Tamani was brought to the municipal building. From there, he was taken to Ilagan. He was brought by Almeda to the provincial jail at Calamagui, Isabela, where he (Tamani) was delivered to Pedro Tamayo, a prisoner who was acted as mayor of the cell (brigada). Tamani was formally received by the provincial guard from Almeda at around six and six-thirty in the evening of October 2nd.
chanrobles virtualawlibrary cha nrobles virtual law library

Upon delivering Tamani to Tamayo, Almeda allegedly told Tamayo: "Bahala kayo rian, Tamayo, at ako ang bahala sa iyo". Twenty minutes later, Pedro Tamayo, Juanito Dassig, Juan Pecano, Ernesto Castaeda and other convicts started maltreating Tamani. The alleged maltreatment consisted of the following: First, they ordered Tamani to squat on the cemented floor inside the cell (brigada).
chanrobles virtualaw library chanro bles virtual law library

Second, after squatting on the cement floor, they ordered Tamani to stand and then started boxing him for one hour.
chanrobles virtualaw library cha nrobles virtua l law li brary

Third, they removed all his clothings and put Tamani inside a drum where prisoners dropped their human waste. He was required to stay inside the drum for five minutes, after which they brought him out and poured on him water to was his body from the human waste.
chanrobles virtualaw library cha nrobles virtua l law library

Fourth, they made Tamani pulverized pepper and they placed the pulverized pepper in his anus, penis and testicles. Tamani was maltreated because the tormentors wanted him to admit that he was the one who shot Jose Siyang and Mayor Domingo. As he could not endure the maltreatment he admitted he had shot Siyang and Domingo. The maltreatment was stopped after he made the admission.
chanrobles virtualawli brary chanrob les virtual law library

Around ten to ten-thirty on that same night, Almeda returned to the jail and asked Tamayo: "Does he admit now?" Tamayo answered in the affirmative. Almeda then took Tamani out of the jail and brought him to the second floor of Puring's Restaurant. Almeda called for NBI Agent No. 101 who came out of a room with a typewriter. Agent No. 101 placed his typewriter on a table. Almeda told Tamani "Now, I am going to take your statement that you shot Jose Siyang and Mayor Domingo."
chanrobles virtual l aw library

At first Tamani told Almeda that he knew nothing about the shooting because he was in Barrio Aniog when Domingo and Siyang were shot. Thereupon, Almeda told Tamani not to deny the shooting because Juana Vitorri Vda. de Ibarra recognized him when he stumbled before the shooting at a place near the fence between the lots of Pedro Pua and Mrs. Ibarra. Tamani maintained his innocence about the shooting.
chanrobles virtualawlibrary chanro bles virtual law library

Thereafter, Almeda and NBI Agent No. 101 slapped the face of Tamani. They brought him to a toilet. They pushed his head into the toilet bowl (iniodoro). They held his hair and pushed his face toward the mouth of the toilet bowl for five minutes. When Tamani could not endure the torture anymore, he told Almeda that he would admit the crime. Almeda and Agent No. 101 brought Tamani to the table on the second floor of Puring's Restaurant. Almeda told Tamani: "You better admit now that you shot the two victims, that you took the gun from Matias de la Fuente and that Villamor Tamani and Rufino de los Santos are the masterminds".
chanrobles virtua lawlibrary cha nrobles virtu al law li brary

Tamani admitted that version for fear that he would again be maltreated. His affidavit, Exhibit A, was signed at Puring's Restaurant on the night of October 2, 1956. The contents of Exhibit A "are all the versions of Director Almeda". Tamani admitted his signature and thumbmarks in Exhibit A. On the following morning of October 3rd, Almeda and Agent No. 101 brought back Tamani to the jail.
chanrobles virtualawlibrary cha nrobles virtua l law li brary

Tamani admits that he signed Exhibit B also, his supplementary confession. However, he insists that he signed it on the night of October 2nd and not on October 3rd. He said that he never excluded Domingo Cadawan and that he never incriminated himself as the triggerman. He might have signed Exhibit B in connection with his signing of Exhibit A on the night of October 2nd because when he signed Exhibit A, there were several sheets of paper which he signed and thumbmarked. He allegedly did not know the contents of Exhibit B when he affixed his signature thereon. He says that the incriminatory statements in Exhibits A and B are not true. (See pp. 3-4, 17-28, Appellant's Brief).
chanrobles virtual awlibrary cha nrobles virtua l law li brary

The trial court rejected the foregoing version of the defense after noting the improbabilities in Francisco Siyang's testimony and after concluding that the appellant had not overcome the presumption that his confession was voluntarily executed.
chanrobles virtual awlibrary cha nrobles virtua l law li brary

The shooting incident was undoubtedly another episode in the political rivalry between Mayor Domingo and Vice-Mayor Tamani. That circumstance has given a political complexion to these two cases. It may explain why the evidence has become muddled, if not baffling. It was to be expected that, to suit the ulterior motivations of the contending parties there would be same insidious manipulation of the evidence.
chanrobles virtualawlibrary cha nrobles virtual law library

Thus, on June 12th, the day following the shooting and before Jose Siyang was interred, Constabulary soldiers, accompanied by Vice-Mayor Villamor Tamani, investigated Francisco Siyang (51-52 tsn Aug. 26, 1960). On June 14, 1953, or four days after the shooting and while Mayor Domingo was in the hospital, Francisco Siyang (the uncle of Villamor Tamani and the star witness for the defense and the father of the victim, Jose Siyang) executed an affidavit in Ilagan about the shooting. He made it appear in that

statement that Patrolmen Ibarra and Tumaneng, two followers of Mayor Domingo, were the killers of Jose Siyang and that they commenced to shoot Siyang when Mayor Domingo made a prearranged signal (Exh. 1).
chanrobles virtualawlibrary cha nrobles virtua l law li brary

As already noted, on the basis of that affidavit, Constabulary Lieutenant Tomas P. Gonzales filed in the justice of the peace court of Angadanan a complaint for murder against Policemen Ibarra, Tumaneng and Manguelod and one Venancio Respicio, an alleged nephew of the mayor (Exh. 2, Crim. Case No. 244). According to Francisco Siyang's affidavit, Respicio, a compadre of Jose Siyang, acted as decoy in bringing Jose Siyang to the place where he was assassinated. Domingo repeatedly denied that Respicio was his relative by consanguinity or affinity. Francisco Siyang made it appear that his son was murdered because he testified against Domingo in the case where the latter was charged with theft. Because of that theft case Domingo was suspended. That murder complaint (Exh. 2) against the followers of Mayor Domingo was dismissed.
chanrobles virtuala wlibrary cha nrobles virtua l law li brary

After the mayor was released from the hospital, he and the chief of police investigated the shooting. The chief of the police filed a complaint for murder dated July 8, 1953 against Vice-Mayor Tamani, Teodoro Tamani, Rufino de los Santos, Matias de la Fuente, Arsenio Dayang and Medardo Tamani. The complaint was amended by including Domingo Cadawan as a defendant and excluding Dayang and Medardo Tamani (Exh. 3 and 4, Crim. Case No. 245). For the shooting of Mayor Domingo, a complaint for frustrated murder was filed by the chief of police against the same persons (Exh. 5 and 6, Crim. Case No. 246).
library

chanrobles virtualawli brary chanrobles virt ual law

Both complaints were dismissed apparently for lack of evidence. As the shooting was unsolved crime, the intervention of the NBI became necessary.
chanrobles virt ualawlibrary c hanrobles virt ual law l ibrary

On June 4, 1956 Francisco Siyang executed an affidavit in Ilagan before NBI Agent No. 39. He deviated from his 1953 affidavit by naming Melchor Tumaneng alone ("Melchor Tomines") as the assassin of his son, Jose Siyang. He stuck to his original theory that Mayor Domingo masterminded the assassination of his son (Exh. G).
chanrobles virtualawlibrary chanro bles virtual l aw library

As already noted, four months later, or on October 2 and 3, 1956, an NBI investigating team headed by Mariano G. Almeda, a lawyer and an assistant to the NBI Director, secured a confession from appellant Teodoro Tamani that he, with the assistance of Domingo Cadawan, shot Mayor Domingo and Jose Siyang (Exh. A and B). It may be assumed that the NBI was asked to handle the case so that political considerations would not color and influence the course and outcome of the investigation.
chanrobles virtualawlibrary cha nrobles virtua l law li brary

Before Tamani executed his confession, Almeda and his agents, assisted by Constabulary soldiers, interviewed several persons in Angadanan and made an ocular inspection of the scene of the crime. They investigated Mrs. Ibarra and her daughter. They learned that Teodoro Tamani had entered Mrs. Ibarra's yard and was recognized by her and that, immediately thereafter, she heard gunshots from the direction where Tamani had posted himself. Thus, Tamani became a prime suspect. He was apprehended and brought to the house of Mrs. Ibarra for a confrontation. Almeda testified:

Q. What did you do, if any, when Teodoro Tamani was brought to the house of Juana Vittori Vda. de Ibarra? - A. In the presence of Juana Vittori Vda. de Ibarra and her daughter I confronted them and asked Juana Vittori Vda. de Ibarra and her daughter whether they knew Teodoro Tamani and both claimed that he is the very same fellow who entered the yard that night with a gun and also they heard shots from the direction of the said accused Teodoro Tamani after which Teodoro Tamani was trembling and he became pale.
chanrobles virt ualawli brary chanrobles virt ual law l ibrary

Q. And did Teodoro Tamani say anything when he was pointed out by Juana Vittori Vda. de Ibarra and her daughter? - A. He did not utter anything. He simply became pale and trembling. (16 tsn June 12, 1958, II Valencia). Tamani's confession (Exh. A and B) was the basis of the information for murder and frustrated murder against him in these two cases. Findings: Appellant Tamani's defense of alibi, which can be fabricated with facility, cannot be given serious consideration. Assuming that he was in Barrio Aniog in the afternoon and night of June 11th, it was physically possible for him to be at the scene of the shooting at the time that it was perpetrated and return to the house of Vice-Mayor Tamani in Barrio Aniog. That place was only two kilometers from the store of Pedro Pua. The victim was shot in front of the store.
chanrobles virtualawl ibrary chanro bles virtual l aw library

The settled rule is that an alibi, to be tenable, must be such as to preclude the possibility of the presence of the accused at the scene of the crime or its immediate vicinity at the time of its commission. "The accused must show that he was at some other place for such period of time that it was impossible for him to have been at the place where the crime was committed at the time of its commission" (People vs. Lumantas, L-28355, July 17, 1969, 2 SCRA 764, 768).
chanrobles virtualawlibrary chanro bles virtual law library

Appellant's alibi does not satisfy that basic requirement. Moreover, it was not corroborated by Vice-Mayor Tamani or by any other person. Its concocted character is manifest.
chanrobles virtua lawlibrary cha nrobles virtu al law li brary

Appellant Tamani argues that he signed his confession, Exhibit A, because he was tortured or maltreated. He claim that he does not remember having signed his supplementary confession (Exh. B) although he admits the authenticity of his signature and thumbmark therein.
chanrobles virtu alawlibrary ch anrobles virt ual law li brary

NBI Agents Almeda and Mendoza testified that Tamani's sworn statements were freely executed. Tamani's testimony on the alleged maltreatment was not corroborated. As correctly noted by the Solicitor General, certain details in the confession, which only Tamani could have supplied, are indications of its voluntariness and give it spontaneity and coherence.
chanrobles virtu alawlibrary c hanrobles virt ual law l ibrary

Those details are (a) that Teodoro Tamani and Cadawan conferred with Vice-Mayor Villamor Tamani in the latter's house at Aniog at three o'clock in the afternoon of the day preceding the shooting; (b) that Matias de la Fuente and Rufino de los Santos were present

at the conference and it was decided to liquidate Mayor Domingo to enable the vice mayor to act as mayor; (c) that De la Fuente handed to Tamani and Cadawan the carbine to be used in the killing; (d) that Cadawan and Tamani slept in the vice-mayor's house on the night of June 10, 1953; (e) that Cadawan went to the poblacion in the morning of June 11th in order to ascertain the whereabouts of Mayor Domingo; (f) that Cadawan returned in the afternoon and informed Tamani that Domingo was at Pua's store; (g) that Cadawan stumbled in the yard of Mrs. Ibarra; (h) that after firing the shots, the two returned to the vice-mayor's house; (i) that Teodoro Tamani slept in the house of the vice-mayor after the assassination; (j) that Jose Siyang was standing on the right side of Mayor Domingo "along the line of fire"; (k) that Jose Siyang was his second cousin and the second cousin of the vice-mayor and (l) that the hole in the gate was three inches in diameter.
chanrob les virtualawli brary chanrob les virtual law library

Those circumstances might not have been known if the confession had been executed under duress. NBI Agents Almeda and Mendoza could not have manufactured all these details.
chanrobles virt ualawli brary chanrobles virtua l law library

There is one significant inconsistency in appellant Tamani's testimony on March 26, 1962 which impairs his credibility. He claimed that his supplementary confession, Exh. B, was translate to him in Tagalog but that he did not understand Tagalog on or before October 3, 1956 (117 tsn I Valencia). However, when he testified on January 11, 1962 and he was asked to repeat what NBI Agent Almeda told in Tagalog to the prisoner, Pedro Tamayo, Tamani was able to repeat verbatim the word: "Bahala kayo rian Tamayo at ako ang bahala sa iyo" (83 tsn II Calixto). He repeated the same Tagalog words in the later part of his testimony (86 tsn) and at the hearing on April 5, 1962 (127 tsn I Valencia).
chanrobles virtualawli brary chanrob les virtual law library

Agent Almeda testified that appellant Tamani understands English, being a former policeman, and that Tamani read Exhibit B, which is in English and which NBI Agent Mendoza translated to him in Ilocano. Tamani did not deny that he knows English. His petition to this Court that he be granted bail, which petition bears his signature, is in English. (See Rollo).
chanrobles virtualawlibrary chanro bles virtual law library

There is no merit in appellant Tamani's contention that the trial court erred in not giving credence to the testimony of Francisco Siyang (Syang) that Jose Siyang was shot by policemen Ibarra and Tumaneng, the latter being allegedly a houseboy of Mayor Domingo. The inconsistencies on vital details in Siyang's two affidavits and his testimony signify that he deliberately perverted the truth. His testimony exhibits the earmarks of untrustworthiness. It was squarely refuted by Martin Caniero and Teodoro Colobong. It should be underscored that Francisco Siyang is the uncle of the vice-mayor (58 tsn Aug. 26, 1960).
chanrobles virtualawlibrary cha nrobles virt ual law li brary

In his 1953 affidavit (Exh. 1) he declared that Policemen Ibarra and Tumaneng shot his son, Jose Siyang, whereas, in his 1965 affidavit (Exh. G) he alleged that only Tumaneng (Tomines) shot his son.
chanrobles virtualawlibrary cha nrobles virtua l law li brary

Francisco Siyang, a farmer, was already seventy-six years old when he testified in 1960. On direct examination he testified that his son was shot in the breast by Gaspar Ibarra, who was immediately followed by Melchor Tumaneng. Tumaneng allegedly hit Jose Siyang in

the left part of the breast below the clavicle (48 tsn I Valencia). That was also Francisco Siyang's declaration in his 1953 affidavit (Exh. 1): that Ibarra fired first.
chanrobles virtua lawlibrary cha nrobles virtu al law li brary

However, Francisco Siyang on cross-examination testified differently. He declared that Tumaneng fired first and that the second shot was fired by Ibarra. Francisco Siyang said that he was sure that Tumaneng fired first at his son (89, 92, 93 tsn I Valencia). The following is an example of his confusing testimony: Q. How many shots did Gaspar Ibarra fire at your son? - A. Only one, sir.
chanrobles virtualawli brary chanrob les virtual law library

Q. Who fired the two first shots, if you know? - A. Melchor Tumaneng, sir.

chanrob les virtualawl ibrary chanro bles virtual l aw library

Q. Did you actually see or not the two successive shots at your son? - A. I saw him, sir. Q. Who fired the other two shots which according to you your son was hit by five (5) gunshots - A. Gaspar Ibarra, sir.
chanrobles virtu alawlibrary ch anrobles virt ual law li brary

chanrob les virtualawli brary chanrob les virtual law library

Q. Do you mean to say that Gaspar Ibarra fired first one shot and then two shots, all in all three shots? - A. Gaspar Ibarra fired only one, sir. (93 tsn I Valencia).
chanrobles virtualawlibrary chanro bles virtual law library

Q. Who was the first who shot your son, according to you? - A. Melchor Tumaneng.

chanrobles virtual awlibrary cha nrobles virtua l law li brary

Q. Where was Melchor Tumaneng at the moment he shot you? - A. He was at the gate of the fence.
chanrobles virtualawl ibrary chanro bles virtual l aw library

Q. But he was inside with the group of persons at the media de agua of the store of Pedro Pua. Is it? - A. Yes, sir (21 tsn I Calixto). NBI Agent Almeda, after investigating Francisco Siyang, found his theory incredible. Almeda did not believe that Francisco Siyang could have seen or identified the assailant who was behind the fence. According to Almeda, Francisco Siyang merely suspected certain person as the killers of his son. He could not identify positively the killers.
cha nrobles virtual awlibrary cha nrobles virtua l law li brary

Other grave inconsistencies in Francisco Siyang's affidavits and testimony are discussed in the trial court's decision.
chanrob les virtualawl ibrary chanro bles virtual l aw library

Appellant Tamani further contends that the trial court erred in relying on thirteen circumstances in order to convince itself that Tamani was the culprit. Among those circumstances are that Tamani went into hiding sometime after the shooting and that the motive for the attempted murder of Mayor Domingo was to prevent his reinstatement and to enable the vice-mayor to become permanent mayor and ensure that appellant Tamani would again become a policemen.
chanrobles virt ualawli brary chanrobles virt ual law l ibrary

Judge Pedro C. Quinto's painstaking analysis of the evidence and his conscientious scrutiny of the discrepancies in the testimony and affidavits of Francisco Siyang demonstrate that the guilt of Tamani has been proven beyond reasonable doubt. A thorough perusal of the

record leads to the conclusion that the trial court did not commit the errors imputed to it by the appellant.
chanrobles virtual awlibrary cha nrobles virtua l law li brary

The act of shooting Siyang at a distance, without the least expectation on his part that he would be assaulted, is murder because of the attendance of the qualifying circumstance of treachery (alevosia). Appellant Tamani deliberately employed a mode of execution which tended directly and specially to ensure the consummation of the killing without any risk to himself arising from the defense which the victim could have made (Par. 16, Art. 14, Revised Penal Code). Siyang, unarmed and without any intimation that the gunshots intended for Mayor Domingo would hit him, was not in a position to defend himself against the unseen assailant. Treachery may be appreciated even if there was a mistake as to the victim (People vs. Mabug-at, 51 Phil. 967; People vs. Guillen, 85 Phil. 307).
chanrobles virtualawlibrary ch anrobles virt ual law li brary

As to Mayor Domingo, the accused was not able to perform all the acts of execution which would consummate the killing (Art. 6, Revised Penal Code). The accused was not able to do so, not because of his spontaneous desistance but because he failed to inflict on the mayor a mortal wound. The mayor was able to avoid the second volley by taking refuge in the store of Pedro Pua. But there is no doubt that the accused was animated by the intent to kill and that the shooting was perpetrated in a treacherous manner. Hence, the offense against the mayor is attempted murder (People vs. Kalalo, 59 Phil. 715).
chanrobles virtualawlibrary chanro bles virtual law library

The alternative contention of appellant Tamani that should be convicted of the complex crime of homicide with lesiones graves is not well-taken. As already pointed out, the killing of Siyang cannot be characterized as homicide. It was qualified by treachery. There was intent to kill in the shooting of the mayor. So, the wound inflicted on him cannot be regarded as a mere physical injury. It was overt act manifesting the willful design of the accused to liquidate the mayor.
chanrobles virtua lawlibrary cha nrobles virt ual law li brary

The infliction of the four fatal gunshot wounds on Siyang and of the wound in the palm of the mayor's right hand was not the result of a single act. The injuries were the consequences of two volley of gunshots. Hence, the assaults on Siyang and the mayor cannot be categorized as a complex crime.
chanrobles virt ualawli brary chanrob les virtual law library

To convict the accused of the complex crime of murder with attempted murder would result in the imposition of the death penalty. That eventuality would be worse for him.

chanro bles virtualaw library cha nrobles virtual law library

There being no mitigating nor aggravating circumstances, the penalty of reclusion perpetua should be imposed on the appellant for the killing of Siyang. (Arts. 64 [1] and 248, Revised Penal Code). The use of the term "life imprisonment" is not proper (People vs. Mobe, 81 Phil. 58).
chanrobles virtualawlibrary c hanrobles virt ual law l ibrary

WHEREFORE, the appeal is dismissed with costs against the appellant. So ordered.
G.R. No. 149492 January 20, 2003

JOEL LUCES, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

YNARES-SANTIAGO, J.: This is a petition for review seeking to annul and set aside the March 23, 2001 decision1 of the Court of Appeals2 in CA-G.R. CR No. 23581 which affirmed with modification the decision3 of the Regional Trial Court of Bugasong, Antique, Branch 64 finding petitioner Joel Luces guilty beyond reasonable doubt of the crime of homicide in Criminal Case No. 0249. Petitioner was originally charged with Murder under an information which reads: That on or about the 11th day of November 1997, in the Municipality of Patnongon, Province of Antique, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused being armed with a knife, with intent to kill and with treachery did then and there willfuly, unlawfully and feloniously, attack, assault and stab with said knife one Clemente Dela Gracia, thereby inflicting upon the latter fatal wound on the vital part of his body which caused his death shortly thereafter. Contrary to the provisions of Article 248 of the Revised Penal Code as amended by Republic Act 7659.4 Upon arraignment on April 22, 1998, petitioner pleaded not guilty.5 Trial on the merits thereafter followed. The facts, as testified to by prosecution witness Dante Reginio,6 reveal that at 6:30 in the evening of November 11, 1997, Dante Reginio, Nelson Magbanua, and the victim, Clemente Dela Gracia, were on their way to the house of Didoy Elican. As they were walking along the road at La Rioja, Patnongon, Antique, they met petitioner who collared the victim, saying, "Get it if you will not get it tonight, I will kill you."7 Thereafter, petitioner immediately stabbed the victim on the chest with a "Batangueño" knife. The place was illuminated by a street light 3 to 4 arm¶s length away from the petitioner, enabling Dante Reginio to easily recognize the latter who happened to be his barangay mate. The victim was rushed to the hospital while the petitioner fled from the crime scene.8 On November 14, 1997, Dante Reginio and Nelson Magbanua executed a sworn statement identifying the petitioner as the culprit.9 On cross-examination, Dante Reginio was confronted with an affidavit of desistance dated November 14, 1997 allegedly executed by him and Nelson Magbanua stating, among others, that: Long after the incident happened and after we have executed a sworn statement before the office of the PNP of Patnongon sometime in November of 1997, we have come to realize that after a thorough recollection and reflection of what had happened during the incident, that the person who stab[bed] to death Clemente Dela Gracia in the evening of November 11, 1997, at Brgy. La Rioja, Patnongon, Antique, was not Joel Luces but it might be some other persons because it was already quite dark in the evening and we [were] a little bit far from the scene of the incident.10 Dante Reginio, however, denied knowledge of the aforequoted affidavit and claimed that his signature appearing thereon was a forgery. 11 The examination conducted by Dr. Deogracias P. Solis on the cadaver of the victim revealed that the latter sustained the following injuries, to wit: Wound stab more or less oblique ... two (2) cms. long, chest anterior, mid-sternal line level of 4th rib, fracturing the fourth rib and directed posteriorly cephalad and left laterally and injuring the right auricle with a wound of about 1.3 cms. Wound incised, «3"« muscle deep more or less horizontal, palm left outer proximal quadrant. Conclusion: Cause of death was shock cardiogenic due to above-described wound.12 On the other hand, the defense evidence consisted of denial and alibi. Petitioner declared that at 6:00 pm. of November 11, 1997, he was in San Jose, Antique, waiting for the arrival of his wife from Iloilo City. When his wife arrived at 7:00 pm., they left for Brgy. La Rioja, Patnongon, Antique, and reached home at about 7:30 pm. The following day, November 12, 1997, his friend told him that he was the suspect in the killing of Clemente Dela Gracia. For fear that he might be incarcerated, he went into hiding, but his mother convinced him to surrender to the police station of San Jose Antique. On November 25, 1997, he finally surrendered to the authorities and denied authorship of the crime.13 Nelson Magbanua was presented as hostile witness for the defense. He admitted that he signed an affidavit of desistance stating, inter alia, that the person who stabbed the victim "«was not Joel Luces but it might be some other persons«"14 He stressed, however, that he knew it was the petitioner who stabbed the victim but he yielded to the pleas of petitioner¶s wife and signed the affidavit because he pitied her as she was then pregnant. He added that when he signed the document in the house of the petitioner, Dante Reginio, was not with him.15 Atty. Maribeth T. Padios, a branch Clerk of Court before whom the affidavit of desistance was allegedly subscribed, declared that two persons who represented themselves as Dante Reginio and Nelson Magbanua signed the affidavit in her presence. She claimed that she did not explain the contents of the affidavit to the affiants inasmuch as the same is no longer her duty.16 On July 16, 1999, the trial court rendered a decision finding the petitioner guilty beyond reasonable doubt of the crime of homicide. The dispositive portion thereof reads:

In [v]iew thereof, this Court finds the accused Joel Luces guilty beyond reasonable doubt of the offense of Homicide and in the absence of any aggravating or mitigating circumstance to offset each other, he is hereby sentenced to an indeterminate imprisonment of eight (8) years and one (1) day of prision mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum. Accused is ordered to pay the offended party the amount of P50,000.00 as indemnity for the death of Clemente dela Gracia; nominal damages of P10,000.00 and cost. The bailbond posted by the accused is cancelled. Accused is ordered remitted to the New Bilibid Prison, Muntinlupa City, within three (3) months from the finality of this decision, unless his continued detention in the Province of Antique is justified. SO ORDERED.17 On appeal, petitioner¶s conviction for the crime of homicide was affirmed but the penalty was modified as follows: WHEREFORE, the Decision appealed from is AFFIRMED with the MODIFICATION that the indeterminate penalty imposed is Eight (8) years and One (1) day of prision mayor minimum to Thirteen (13) years Nine (9) months and Ten (10) days of reclusion temporal as maximum. In all other respects, the Decision is AFFIRMED. SO ORDERED.18 Dissatisfied, petitioner interposed the instant petition for review anchored on the following assignment of errors: I THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONBLE DOUBT OF THE CRIME OF HOMICIDE. II THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT AND CREDENCE TO THE AFFIDAVIT OF DESISTANCE (EXHIBIT "1"). III THE COURT A QUO GRAVELY ERRED IN CONSIDERING THE FLIGHT OF ACCUSED-APPELLANT AS AN INDICATION OF HIS GUILT. IV THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT AND CREDENCE TO ACCUSED-APPELLANT¶S ALIBI.19 The instant petition is anchored mainly on the veracity of the affidavit of desistance allegedly executed by Dante Reginio and Nelson Magbanua. Petitioner contends that the statement in the said affidavit that the person who stabbed the victim "«was not Joel Luces but it might be some other persons«" shows that the prosecution failed to establish beyond reasonable doubt the identity of the culprit. The contention is without merit. The affidavit of desistance relied upon by petitioner as a means to exculpate himself from criminal liability was sufficiently impeached by the testimonial evidence of the very same persons who allegedly executed the affidavit. Dante Reginio declared that the signature appearing above his type-written name on the affidavit of desistance was not his, while Nelson Magbanua stated that he merely signed the affidavit out of pity for the petitioner¶s wife. As between the assailed affidavit of desistance and the sworn testimonies of the witnesses before the court, the latter should prevail. An affidavit of desistance obtained as an afterthought and through intimidation or undue pressure attains no probative value in light of the affiant¶s testimony to the contrary.20 Moreover, the reliance of petitioner on the testimony of Atty. Padios before whom the affidavit of desistance was allegedly subscribed is misplaced. The only participation of Atty. Padios was to administer the oath to the persons who signed the affidavit. From her testimony it appears that she did not ascertain if the persons who appeared before her and represented themselves as the affiants were indeed Dante Reginio and Nelson Magbanua. Moreover, she did not even explain the contents of the affidavit to determine whether the affiants voluntarily and knowingly executed the same. Hence, her testimony regarding the execution of the affidavit of desistance cannot outweigh the testimony of Dante Reginio and Nelson Magbanua denying the veracity of the said affidavit and unequivocally pointing to petitioner as the person who stabbed the victim. The Court of Appeals did not err in sustaining the conviction of the petitioner. A careful review of the records shows that the positive identification of petitioner by Dante Reginio is convincing and worthy of credence. Finding no ill-motive that would impel said witness to testify falsely against the petitioner, the trial court¶s assessment of his credibility must be affirmed.21 The settled rule is that the findings of fact of the trial court should not be

disturbed on appeal, unless some facts or circumstances of substance and value have been overlooked which, if considered, might well affect the result of the case. 22 We find no cogent reason to depart from this doctrine in the case at bar. The denial and alibi put up by petitioner cannot prosper. Such defenses are inherently weak and cannot prevail over the positive identification of petitioner.23 Moreover, San Jose, Antique where petitioner claimed to be staying at the approximate time of the commission of the offense is only a thirty-minute drive by a public utility vehicle from Patnongon, Antique. Thus, failing to meet the test that there must be clear and convincing proof of physical impossibility for the accused to be at the locus criminis at the time of the commission of the crime, his defense of alibi cannot prosper.24 Furthermore, we sustain the conclusion of the trial court that petitioner¶s act of hiding from the authorities when he learned that he was a suspect in the killing of the victim is inconsistent with his plea of innocence. Jurisprudence has held that the flight of an accused, in the absence of a credible explanation, would be a circumstance from which an inference of guilt may be established "for a truly innocent person would normally grasp the first available opportunity to defend himself and to assert his innocence."25 Regarding the qualifying circumstance of treachery, the trial court and the Court of Appeals correctly disregarded the attendance thereof in the instant case. Treachery (alevosia) is present when two conditions concur, namely: (1) that the means, methods, and forms of execution employed gave the person attacked no opportunity to defend himself or to retaliate; and (2) that such means, methods and forms of execution were deliberately and consciously adopted by the accused without danger to his person.26 In the case at bar, the victim was not deprived of a real chance to defend himself. Note that the attack in the instant case was frontal and that the victim sustained a defensive wound on his left palm.27 Moreover, the presence of the victim¶s companions, Dante Reginio and Nelson Magbanua, reveals that the victim was not completely helpless. Neither was there sufficient evidence to establish that appellant consciously adopted the mode of attack. The meeting between the victim and the petitioner was a casual encounter. Absent evidence showing that petitioner deliberately planned or adopted the mode of execution of the offense, treachery cannot be appreciated.28 Anent the mitigating circumstance of voluntary surrender, the Court of Appeals erred in appreciating the same in favor of the petitioner. To benefit an accused, the following requisites must be proven, namely: (1) the offender has not actually been arrested; (2) the offender surrendered himself to a person in authority; and (3) the surrender was voluntary. A surrender to be voluntary must be spontaneous, showing the intent of the accused to submit himself unconditionally to the authorities, either because he acknowledges his guilt, or he wishes to save them the trouble and expense necessarily incurred in his search and capture.29 Voluntary surrender presupposes repentance.30 In People v. Viernes,31 we held that going to the police station to clear one¶s name does not show any intent to surrender unconditionally to the authorities. In the case at bar, petitioner surrendered to the authorities in order to disclaim responsibility for the killing of the victim. This hardly shows any repentance or acknowledgment of the crime on the part of the petitioner. Moreover, at the time petitioner surrendered, there was already a pending warrant of arrest against him.32 His arrest by that time was imminent. Hence, he should not be credited with the mitigating circumstance of voluntary surrender.33 Article 249 of the Revised Penal Code imposes the penalty of reclusion temporal for homicide. Considering that there was neither mitigating nor aggravating circumstance present in the commission of the crime, the penalty has to be imposed in the medium period. Applying the Indeterminate Sentence Law, accused-appellant is therefore sentenced to suffer the penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years and eight (8) months of reclusion temporal, as maximum.The P50,000.00 civil indemnity and P10,000.00 nominal damages awarded by the trial court are hereby sustained being in accord with current jurisprudence.34 WHEREFORE, in view of all the foregoing, the decision of the Court of Appeals in CA-G.R. No. 23581, finding petitioner Joel Luces guilty beyond reasonable doubt of the crime of homicide, is AFFIRMED with the MODIFICATION that petitioner is sentenced to suffer the indeterminate penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years and eight (8) months of reclusion temporal, as maximum. Petitioner is further ordered to pay the heirs of the deceased Clemente dela Gracia the amounts of P50,000.00 as civil indemnity and P10,000.00 as nominal damages and the costs. SO ORDERED. G.R. No. L-27097 January 17, 1975 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO TOLING y ROVERO and JOSE TOLING y ROVERO, defendants-appellants. Office of the Solicitor General Felix V. Makasiar and Solicitor Dominador L. Quiroz for plaintiff-appellee. Santiago F. Alidio as counsel de oficio for defendants-appellants.

AQUINO, J.: Antonio Toling and Jose Toling, brothers, appealed from the decision of the Court of First Instance of Laguna, finding them guilty of multiple murder and attempted murder, sentencing them to death and ordering them to indemnify each set of heirs of (1) Teresita B. Escanan, (2) Antonio B. Mabisa, (3) Isabelo S. Dando, (4) Elena B. Erminio (5) Modesta R. Brondial (6) Isabel Felices and (7) Teodoro F. Bautista in the sum of P6,000 and to pay Amanda Mapa the sum of P500 (Criminal Case No. SC-966). The judgment of conviction was based on the following facts:

Antonio Toling and Jose Toling, twins, both married, are natives of Barrio Nenita which is about eighteen (or nine) kilometers away from Mondragon, Northern Samar. They are illiterate farmers tilling their own lands. They were forty-eight years old in 1966. Antonio is one hour older than Jose. Being twins, they look alike very much. However, Antonio has a distinguishing cut in his ear (44 tsn Jan. 14, 1966). Antonio's daughter, Leonora, was working in Manila as a laundrywoman since September, 1964. Jose's three children one girl and two boys, had stayed in Manila also since 1964. Antonio decided to go to Manila after receiving a letter from Leonora telling him that she would give him money. To have money for his expenses, Antonio killed a pig and sold the meat to Jose's wife for sixty pesos. Jose decided to go with Antonio in order to see his children. He was able to raise eighty-five pesos for his expenses. On January 6, 1965, with a bayong containing their pants and shirts, the twins left Barrio Nenita and took a bus to Allen. From there, they took a launch to Matnog, Sorsogon. From Matnog, they went to Daraga, Albay on board an Alatco bus, and from Daraga, they rode on the train, arriving at the Paco railroad station in Manila at about seven o'clock in the morning of January 8th. It was their first trip to the big city. At the Paco station, the twins took a jeepney which brought them to Tondo. By means of a letter which Aniano Espenola a labor-recruiter, had given them, they were able to locate an employment agency where they learned the address of the Eng Heng Glassware. Antonio's daughter was working in that store. Accompanied by Juan, an employee of the agency, they proceeded to her employer's establishment. Leonora gave her father fifty pesos. Sencio Rubis Antonio's grandson, gave him thirty pesos. Antonio placed the eighty pesos in the right pocket of his pants. It was then noontime. Jose was not able to find any of his children in the city. The twins returned to the agency where they ate their lunch at Juan's expense. From the agency, Juan took the twins to the Tutuban railroad station that same day, January 8th, for their homeward trip. After buying their tickets, they boarded the night Bicol express train at about five o'clock in the afternoon. The train left at six o'clock that evening. The twins were in coach No. 9 which was the third from the rear of the dining car. The coach had one row of two-passenger seats and another row of three- passenger seats. Each seat faced an opposite seat. An aisle separated the two rows. The brothers were seated side by side on the fourth threepassenger seat from the rear, facing the back door. Jose was seated between Antonio, who was near the window, and a three-year old boy. Beside the boy was a woman breast-feeding her baby who was near the aisle. That woman was Corazon Bernal. There were more than one hundred twenty passengers in the coach. Some passengers were standing on the aisle. Sitting on the third seat and facing the brothers were two men and an old woman who was sleeping with her head resting on the back of the seat (Exh. 2). on the two-passenger seat across the aisle in line with the seat where the brothers were sitting, there were seated a fat woman, who was near the window, and one Cipriano Reganet who was on her left. On the opposite seat were seated a woman, her daughter and Amanda Mapa with an eightmonth old baby. They were in front of Reganet. Two chico vendors entered the coach when the train stopped at Cabuyao, Laguna. The brothers bought some chicos which they put aside. The vendors alighted when the train started moving. It was around eight o'clock in the evening. Not long after the train had resumed its regular speed, Antonio stood up and with a pair of scissors (Exh. B) stabbed the man sitting directly in front of him. The victim stood up but soon collapsed on his seat. For his part, Jose stabbed with a knife (Exh. A) the sleeping old woman who was seated opposite him. She was not able to get up anymore. 1 Upon seeing what was happening, Amanda Mapa, with her baby, attempted to leave her seat, but before she could escape Jose stabbed her, hitting her on her right hand with which she was supporting her child (Exh. D-2). The blade entered the dorsal side and passed through the palm. Fortunately, the child was not injured. Most of the passengers scurried away for safety but the twins, who had run amuck, stabbed everyone whom they encountered inside the coach. 2 Among the passengers in the third coach was Constabulary Sergeant Vicente Z. Rayel, a train escort who, on that occasion, was not on duty. He was taking his wife and children to Calauag, Quezon. He was going to the dining car to drink coffee when someone informed him that there was a stabbing inside the coach where he had come from. He immediately proceeded to return to coach No. 9. Upon reaching coach 8, he saw a dead man sprawled on the floor near the toilet. At a distance of around nine meters, he saw a man on the platform separating coaches Nos. 8 and 9, holding a knife between the thumb and index finger of his right hand, with its blade pointed outward. He shouted to the man that he (Rayel) was a Constabularyman and a person in authority and Rayel ordered him to lay down his knife (Exh. A) upon the count of three, or he would be shot. Instead of obeying, the man changed his hold on the knife by clutching it between his palm and little finger (with the blade pointed inward) and, in a suicidal impulse, stabbed himself on his left breast. He slowly sank to the floor and was prostrate thereon. Near the platform where he had fallen, Rayel saw another man holding a pair of scissors (Exh. B). He retreated to the steps near the platform when he saw Rayel armed with a pistol. Rayel learned from his wife that the man sitting opposite her was stabbed to death. Constabulary Sergeant Vicente Aldea was also in the train. He was in the dining car when he received the information that there were killings in the third coach. He immediately went there and, while at the rear of the coach, he met Mrs. Mapa who was wounded. He saw Antonio stabbing with his scissors two women and a small girl and a woman who was later identified as Teresita B. Escanan (Exh. I to I-3). Antonio was not wounded. Those victims were prostrate on the seats of the coach and on the aisle.

Aldea shouted at Antonio to surrender but the latter made a thrust at him with the scissors. When Antonio was about to stab another person, Aldea stood on a seat and repeatedly struck Antonio on the head with the butt of his pistol, knocking him down. Aldea then jumped and stepped on Antonio's buttocks and wrested the scissors away from him. Antonio offered resistance despite the blows administered to him. When the train arrived at the Calamba station, four Constabulary soldiers escorted the twins from the train and turned them over to the custody of the Calamba police. Sergeant Rayel took down their names. The bloodstained scissors and knife were turned over to the Constabulary Criminal Investigation Service (CIS). Some of the victims were found dead in the coach while others were picked up along the railroad tracks between Cabuyao and Calamba. Those who were still alive were brought to different hospitals for first-aid treatment. The dead numbering twelve in all were brought to Funeraria Quiogue, the official morgue of the National Bureau of Investigation (NBI) in Manila, where their cadavers were autopsied (Exh. C to C-11). A Constabulary photographer took some pictures of the victims (Exh. G to I-2, J-1 and J-2). Of the twelve persons who perished, eight, whose bodies were found in the train, died from stab wounds, namely: (1) Isabel Felices, 60, housewife, Ginlajon, Sorsogon. (2) Antonio B. Mabisa, 28, married, laborer, Guinayangan, Quezon. (3) Isabelo S. Dando, 45, married, Paracale, Camarines Norte. (4) Susana C. Hernandez, 46, married, housekeeper, Jose Panganiban, Camarines Norte. (5) Teodoro F. Bautista, 72, married, Nawasa employee, San Juan, Rizal. (6) Modesta R. Brondial 58, married, housekeeper, Legaspi City. (7) Elena B. Erminio 10, student, 12 Liberty Avenue, Cubao, Quezon City and (8) Teresita B. Escanan, 25, housemaid, 66 Menlo Street, Pasay City (Exh. C to C-3, C-7, C-8, C-9, C-11, L to L-2, N to N-2, 0 to 0-2, P to P-2, Q to Q2, R to R-2 and T to T-2) Four dead persons were found near the railroad tracks. Apparently, they jumped from the moving train to avoid being killed. They were: (1) Timoteo U. Dimaano, 53 married, carpenter, Miguelin, Sampaloc, Manila. . (2) Miguel C. Oriarte, 45, married, Dalagan, Lopez, Quezon. (3) Salvador A. Maqueda 52, married, farmer, Lopez, Quezon and (4) Shirley A. Valenciano, 27, married, housekeeper, 657-D Jorge Street, Pasay City (Exh. C-4. C-5, C-6, C-10, J, J-1, J-2, K to K-2, M to M-3 and S to S-2). Among the injured were Lucila Pantoja, Baby X, Mrs. X, Mrs. Armanda Mapa-Dizon, Brigida Sarmiento-Palma, Cipriano Reganet and Corazon BernalAstrolavio (Exh. D to D-5). Mrs. Astrolavio supposedly died later (43 tsn January 14, 1966). Mrs. Mapa declared that because of the stab wound inflicted upon her right hand by Jose Toling, she was first brought to the Calamba Emergency Hospital. Later, she was transferred to the hospital of the Philippine National Railways at Caloocan City where she was confined for thirteen days free of charge. As a result of her injury, she was not able to engage in her occupation of selling fish for one month, thereby losing an expected earning of one hundred fifty pesos. When she ran for safety with her child, she lost clothing materials valued at three hundred pesos aside from two hundred pesos cash in a paper bag which was lost. The case was investigated by the Criminal Investigation Service of the Second Constabulary Zone headquarters at Camp Vicente Lim, Canlubang, Laguna. On January 9, 1965 Constabulary investigators took down the statements of Mrs. Mapa-Dizon, Cipriano Reganet, Corazon Bernal, Brigida de Sarmiento and Sergeant Aldea. On that date, the statements of the Toling brothers were taken at the North General Hospital. Sergeant Rayel also gave a statement. Antonio Toling told the investigators that while in the train he was stabbed by a person "from the station" who wanted to get his money. He retaliated by stabbing his assailant. He said that he stabbed somebody "who might have died and others that might not". He clarified that in the train four persons were asking money from him. He stabbed one of them. "It was a hold-up". He revealed that after stabbing the person who wanted to rob him, he stabbed other persons because, inasmuch as he "was already bound to die", he wanted "to kill everybody" (Exh. X or 8, 49 tsn Sept. 3, 1965).

Jose Toling, in his statement, said that he was wounded because he was stabbed by a person "from Camarines" who was taking his money. He retaliated by stabbing his assailant with the scissors. He said that he stabbed two persons who were demanding money from him and who were armed with knives and iron bars. When Jose Toling was informed that several persons died due to the stabbing, he commented that everybody was trying "to kill each other" (Exh. I-A). According to Jose Toling, two persons grabbed the scissors in his pocket and stabbed him in the back with the scissors and then escaped. Antonio allegedly pulled out the scissors from his back, gave them to him and told him to avenge himself with the scissors. On January 20, 1965 a Constabulary sergeant filed against the Toling brothers in the municipal court of Cabuyao, Laguna a criminal complaint for multiple murder and multiple frustrated murder. Through counsel, the accused waived the second stage of the preliminary investigation. The case was elevated to the Court of First Instance of Laguna where the Provincial Fiscal on March 10, 1965 filed against the Toling brothers an information for multiple murder (nine victims), multiple frustrated murder (six victims) and triple homicide (as to three persons who died after jumping from the running train to avoid being stabbed). At the arraignment, the accused, assisted by their counsel de oficio pleaded not guilty. After trial, Judge Arsenio Nañawa rendered the judgment of conviction already mentioned. The Toling brothers appealed. In this appeal, appellants' counsel de oficio assails the credibility of the prosecution witnesses, argues that the appellants acted in self-defense and contends, in the alternative, that their criminal liability was only for two homicides and for physical injuries. According to the evidence for the defense (as distinguished from appellants' statements, Exhibits 1 and 8), when the Toling twins were at the Tutuban Railroad Station in the afternoon of January 8, 1965, Antonio went to the ticket counter to buy tickets for himself and Jose. To pay for the tickets, he took out his money from the right pocket of his pants and later put back the remainder in the same pocket. The two brothers noticed that four men at some distance from them were allegedly observing them, whispering among themselves and making signs. The twins suspected that the four men harbored evil intentions towards them. When the twins boarded the train, the four men followed them. They were facing the twins. They were talking in a low voice. The twins sat on a two passenger seat facing the front door of the coach, the window being on the right of Antonio and Jose being to his left. Two of the four men, whom they were suspecting of having evil intentions towards them, sat on the seat facing them, while the other two seated themselves behind them. Some old women were near them. When the train was already running, the man sitting near the aisle allegedly stood up, approached Antonio and pointed a balisong knife at his throat while the other man who was sitting near the window and who was holding also a balisong knife attempted to pick Antonio's right pocket, threatening him with death if he would not hand over the money. Antonio answered that he would give only one-half of his money provided the man would not hurt him, adding that his (Antonio's) place was still very far. When Antonio felt some pain in his throat, he suddenly drew out his hunting knife or small bolo (eight inches long including the handle) from the back pocket of his pants and stabbed the man with it, causing him to fall to the floor with his balisong. He also stabbed the man who was picking his pocket. Antonio identified the two men whom he had stabbed as those shown in the photographs of Antonio B. Mabisa (Exh. L-1 and L-2 or 5-A and 5-B) and Isabelo S. Dando (Exh. N-1 and N-2 or 7-A and 7-B). While Antonio was stabbing the second man, another person from behind allegedly stabbed him on the forehead, causing him to lose consciousness and to fall on the floor (Antonio has two scars on his forehead and a scar on his chest and left forearm, 85, 87 tsn). He regained consciousness when two Constabulary soldiers raised him. His money was gone. Seeing his brother in a serious condition, Jose stabbed with the scissors the man who had wounded his brother. Jose hit the man in the abdomen. Jose was stabbed in the back by somebody. Jose stabbed also that assailant in the middle part of the abdomen, inflicting a deep wound. However, Jose did not see what happened to the two men whom he had stabbed because he was already weak. He fell down and became unconscious. He identified Exhibit A as the knife used by Antonio and Exhibit B as the scissors which he himself had used. He recovered consciousness when a Constabulary soldier brought him out of the train. The brothers presented Doctor Leonardo del Rosario, a physician of the North General Hospital who treated them during the early hours of January 9, 1965 and who testified that he found the following injuries on Antonio Toling: Wound, incised, 1-1/4 inches (sutured), frontal, right; 3-1/2 inches each, mid-frontal (wound on the forehead) and Wound, stabbed, 3/4 inch, 1 inch medial to anterior axillary line level of 3rd ICS right, penetrating thoracic cavity (chest wound (Exh. 11). and on Jose Toling a stab wound, one inch long on the paravertebral level of the fifth rib on the left, penetrating the thoracic cavity (Exh. 10). The wound was on the spinal column in line with the armpit or "about one inch from the midline to the left" (113 tsn). The twins were discharged from the hospital on January 17th. The trial court, in its endeavor to ascertain the motive for the twins' rampageous behavior, which resulted in the macabre deaths of several innocent persons, made the following observations: What could be the reason or motive that actuated the accused to run amuck? It appears that the accused travelled long over land and sea spending their hard earned money and suffering privations, even to the extent of foregoing their breakfast, only to receive as recompense with respect to Antonio the meager sum of P50 from his daughter and P30 from his grandson and with respect to Jose to receive nothing at all from any of his three children whom he could not locate in Manila.

It also appears that the accused, who are twins, are queerly alike, a fact which could easily invite some people to stare or gaze at them and wonder at their very close resemblance. Like some persons who easily get angry when stared at, however, the accused, when stared at by the persons in front of them, immediately suspected them as having evil intention towards them (accused). To the mind of the Court, therefore, it is despondency on the part of the accused coupled with their unfounded suspicion of evil intention on the part of those who happened to stare at them that broke the limit of their self-control and actuated them to run amuck. We surmise that to the captive spectators in coach No. 9 the spectacle of middle-aged rustic twins, whom, in the limited space of the coach, their copassengers had no choice but to notice and gaze at, was a novelty. Through some telepathic or extra-sensory perception the twins must have sensed that their co-passengers were talking about them in whispers and making depreciatory remarks or jokes about their humble persons. In their parochial minds, they might have entertained the notion or suspicion that their male companions, taking advantage of their ignorance and naivete, might victimize them by stealing their little money. Hence, they became hostile to their co-passengers. Their pent-up hostility erupted into violence and murderous fury. A painstaking examination of the evidence leads to the conclusion that the trial court and the prosecution witnesses confounded one twin for the other. Such a confusion was unavoidable because the twins, according to a Constabulary investigator, are "very identical". Thus, on the witness stand CIS Sergeants Alfredo C. Orbase and Liberato Tamundong after pointing to the twins, refused to take the risk of identifying who was Antonio and who was Jose. They confessed that they might be mistaken in making such a specific identification (28 tsn September 3, 1965; 32 tsn November 5, 1965). In our opinion, to ascertain who is Antonio and who is Jose, the reliable guides would be their sworn statements (Exh. 1 and 8), executed one day after the killing, their own testimonies and the medical certificates (Exh. 10 and 11). Those parts of the evidence reveal that the one who was armed with the knife was Antonio and the one who was armed with the scissors was Jose. The prosecution witnesses and the trial court assumed that Antonio was armed with the scissors (Exh. B) and Jose was armed with the knife (Exh. A). That assumption is erroneous. In his statement and testimony, Antonio declared that he was armed with a knife, while Jose declared that he was armed with the scissors which Antonio had purchased at the Tutuban station, before he boarded the train and which he gave to Jose because the latter is a barber whose old pair of scissors was already rusty. As thus clarified, the person whom Sergeant Rayel espied as having attempted to commit suicide on the platform of the train by stabbing himself on the chest would be Antonio (not Jose). That conclusion is confirmed by the medical certificate, Exhibit 11, wherein it is attested that Antonio had a wound in the chest. And the person whom Sergeant Aldea subdued after the former had stabbed several persons with a pair of scissors (not with a knife) was Jose and not Antonio. That fact is contained in his statement of January 9, 1965 (p. 9, Record). The mistake of the prosecution witnesses in taking Antonio for Jose and vice-versa does not detract from their credibility. The controlling fact is that those witnesses confirmed the admission of the twins that they stabbed several passengers. Appellants' counsel based his arguments on the summaries of the evidence found in the trial court's decision. He argues that the testimonies of Sergeants Rayel and Aldea are contradictory but he does not particularize on the supposed contradictions. The testimonies of the two witnesses do not cancel each other. The main point of Rayel's testimony is that he saw one of the twins stabbing himself in the chest and apparently trying to commit suicide. Aldea's testimony is that he knocked down the other twin, disabled him and prevented him from committing other killings. It may be admitted that Rayel's testimony that Aldea took the knife of Jose Toling was not corroborated by Aldea. Neither did Aldea testify that Antonio was near Jose on the platform of the train. Those discrepancies do not render Rayel and Aldea unworthy of belief. They signify that Aldea and Rayel did not give rehearsed testimonies or did not compare notes. Where, as in this case, the events transpired in rapid succession in the coach of the train and it was nighttime, it is not surprising that Rayel and Aldea would not give identical testimonies (See 6 Moran's Comments on the Rules of Court, 1970 Ed. 139-140; People vs. Resayaga, L-23234, December 26, 1963, 54 SCRA 350). There is no doubt that Aldea and Rayel witnessed some of the acts of the twins but they did not observe the same events and their powers of perception and recollection are not the same. Appellants' counsel assails the testimony of Mrs. Mapa. He contends that no one corroborated her testimony that one of the twins stabbed a man and a sleeping woman sitting on the seat opposite the seat occupied by the twins. The truth is that Mrs. Mapa's testimony was confirmed by the necropsy reports and by the twins themselves who admitted that they stabbed some persons. On the other hand, the defense failed to prove that persons, other than the twins, could have inflicted the stab wounds. There is no doubt as to the corpus delicti. And there can be no doubt that the twins, from their own admissions (Exh. 1 and 8) and their testimonies, not to mention the testimonies of Rayel, Aldea, Mrs. Mapa and the CIS investigators, were the authors of the killings. Apparently, because there was no doubt on the twins' culpability, since they were caught in flagrante delicto the CIS investigators did not bother to get the statements of the other passengers in Coach No. 9. It is probable that no one actually saw the acts of the twins from beginning to end because everyone in Coach No. 9 was trying to leave it in order to save his life. The ensuing commotion and confusion prevented the passengers from having a full personal knowledge of how the twins consummated all the killings. On the other hand, the twins' theory of self-defense is highly incredible. In that crowded coach No. 9, which was lighted, it was improbable that two or more persons could have held up the twins without being readily perceived by the other passengers. The twins would have made an outcry had there really been an attempt to rob them. The injuries, which they sustained, could be attributed to the blows which the other passengers inflicted on them to stop their murderous rampage.

Appellants' view is that they should be held liable only for two homicides, because they admittedly killed Antonio B. Mabisa and Isabelo S. Dando, and for physical injuries because they did not deny that Jose Toling stabbed Mrs. Mapa. We have to reject that view. Confronted as we are with the grave task of passing judgment on the aberrant behavior of two yokels from the Samar hinterland who reached manhood without coming into contact with the mainstream of civilization in urban areas, we exercised utmost care and solicitude in reviewing the evidence. We are convinced that the record conclusively establishes appellants' responsibility for the eight killings. To the seven dead persons whose heirs should be indemnified, according to the trial court, because they died due to stab wounds, should be added the name of Susana C. Hernandez (Exh. P, P-1 and P-2). The omission of her name in judgment was probably due to inadvertence. According to the necropsy reports, four persons, namely, Shirley A. Valenciano, Salvador A. Maqueda, Miguel C. Oriarte and Timoteo U. Dimaano, died due to multiple traumatic injuries consisting of abrasions, contusions, lacerations and fractures on the head, body and extremities (Exh. J to J-2, K to K-2, M to M-2 and S to S-2). The conjecture is that they jumped from the moving tracing to avoid being killed but in so doing they met their untimely and horrible deaths. The trial court did not adjudge them as victims whose heirs should be indemnified. As to three of them, the information charges that the accused committed homicide. The trial court dismissed that charge for lack of evidence. No one testified that those four victims jumped from the train. Had the necropsy reports been reinforced by testimony showing that the proximate cause of their deaths was the violent and murderous conduct of the twins, then the latter would be criminally responsible for their deaths. Article 4 of the Revised Penal Code provides that "criminal liability shall be incurred by any person committing a felony (delito) although the wrongful act done be different from that which he intended". The presumption is that "a person intends the ordinary consequences of his voluntary act" (Sec. 5[c], Rule 131, Rules of Court). The rule is that "if a man creates in another man's mind an immediate sense of danger which causes such person to try to escape, and in so doing he injures himself, the person who creates such a state of mind is responsible for the injuries which result" (Reg. vs. Halliday 61 L. T. Rep. [N.S.] 701, cited in U.S. vs. Valdez, 41 Phil. 4911, 500). Following that rule, is was held that "if a person against whom a criminal assault is directed reasonably believes himself to be in danger of death or great bodily harm and in order to escape jumps into the water, impelled by the instinct of self-preservation, the assailant is responsible for homicide in case death results by drowning" (Syllabus, U.S. vs. Valdez, supra, See People vs. Buhay, 79 Phil. 371). The absence of eyewitness-testimony as to the jumping from the train of the four victims already named precludes the imputation of criminal responsibility to the appellants for the ghastly deaths of the said victims. The same observation applies to the injuries suffered by the other victims. The charge of multiple frustrated murder based on the injuries suffered by Cipriano Pantoja, Dinna Nosal, Corazon Bernal and Brigida Sarmiento (Exh. D, D-3 to D-5) was dismissed by the trial court for lack of evidence. Unlike Mrs. Mapa, the offended parties involved did not testify on the injuries inflicted on them. The eight killings and the attempted killing should be treated as separate crimes of murder and attempted murder qualified be treachery (alevosia) (Art. 14[16], Revised Penal Code). The unexpected, surprise assaults perpetrated by the twins upon their co-passengers, who did not anticipate that the twins would act like juramentados and who were unable to defend themselves (even if some of them might have had weapons on their persons) was a mode of execution that insured the consummation of the twins' diabolical objective to butcher their co-passengers. The conduct of the twins evinced conspiracy and community of design. The eight killings and the attempted murder were perpetrated by means of different acts. Hence, they cannot be regarded as constituting a complex crime under article 48 of the Revised Penal Code which refers to cases where "a single act constitutes two or more grave felonies, or when an offense is a necessary means for committing the other". As noted by Cuello Calon, the so-called "concurso formal o ideal de delitos reviste dos formas: (a) cuando un solo hecho constituye dos o mas delitos (el llamado delito compuesto); (b) cuando uno de ellos sea medio necesario para cometer otro (el llamado delito complejo)." (1 Derecho Penal, 12th Ed. 650). On the other hand, "en al concurso real de delitos", the rule, when there is "acumulacion material de las penas", is that "si son varios los resultados, si son varias las acciones, esta conforme con la logica y con la justicia que el agente soporte la carga de cada uno de los delitos" (Ibid, p. 652, People vs. Mori, L-23511, January 31, 1974, 55 SCRA 382, 403). The twins are liable for eight (8) murders and one attempted murder. (See People vs. Salazar, 105 Phil. 1058 where the accused Moro, who ran amuck, killed sixteen persons and wounded others, was convicted of sixteen separate murders, one frustrated murder and two attempted murders; People vs. Mortero, 108 Phil. 31, the Panampunan massacre case, where six defendants were convicted of fourteen separate murders; People vs. Remollino, 109 Phil. 607, where a person who fired successively at six victims was convicted of six separate homicides; U. S. Beecham, 15 Phil. 272, involving four murders; People vs. Macaso, 85 Phil. 819, 828, involving eleven murders; U.S. vs. Jamad, 37 Phil. 305; U.S. vs. Balaba, 37 Phil. 260, 271. Contra: People vs. Cabrera, 43 Phil. 82, 102-103; People vs. Floresca, 99 Phil. 1044; People vs. Sakam, 61 Phil. 27; People vs. Lawas, 97 Phil. 975; People vs. Manantan, 94 Phil. 831; People vs. Umali, 96 Phil. 185; People vs. Cu Unjiengi, 61 Phil. 236; People vs. Penas, 66 Phil. 682; People vs. De Leon, 49 Phil. 437, where the crimes committed by means of separate acts were held to be complex on the theory that they were the product of a single criminal impulse or intent). As no generic mitigating and aggravating circumstances were proven in this case, the penalty for murder should be imposed in its medium period or reclusion perpetua (Arts. 64[l] and 248, Revised Penal Code. The death penalty imposed by the trial court was not warranted.

A separate penalty for attempted murder should be imposed on the appellants. No modifying circumstances can be appreciated in the attempted murder case. WHEREFORE, the trial court's judgment is modified by setting aside the death sentence. Defendants-appellants Antonio Toling and Jose Toling are found guilty, as co-principals, of eight (8) separate murders and one attempted murder. Each one of them is sentenced to eight (8) reclusion perpetuas for the eight murders and to an indeterminate penalty of one (1) year of prision correccional as minimum to six (6) years and one (1) day of prision mayor as maximum for the attempted murder and to pay solidarily an indemnity of P12,000 to each set of heirs of the seven victims named in the dispositive part of the trial court's decision and of the eight victim, Susana C. Hernandez, or a total indemnity of P96,000, and an indemnity of P500 to Amanda Mapa. In the service of the penalties, the forty-year limit fixed in the penultimate paragraph of article 70 of the Revised Penal Code should be observed. Costs against the appellants. SO ORDERED. G.R. No. L-37507 June 7, 1977 THE PEOPLE OF THE PHILIPPINES, plaintiff- appellee, vs. WILLIAM PAGE, defendant- appellant.

AQUINO, J.: William Page appealed from the decision of the Court of First Instance of Rizal dated July 21, 1973, convicting him of robbery with homicide, sentencing him to reclusion perpetua, and ordering him to pay the heirs of Veronica Villaverde-Balacapo an indemnity of P12,000 plus P20,000 as moral damages (Criminal Case No. 5396). The judgment of conviction was based on the following facts: According to Page's confession (Exh. C), at around four o'clock in the afternoon of February 13, 1972 Crisanto Camposano, alias Boy Sangkay, a resident of Bagong Ilog, Baclaran, Parañaque , Rizal, went to the house of William Page y Ubina located at 143 Pildira Street, near the Manila International Airport, Pasay City, They were friends since boyhood. Page was an eighteen-year old third year high school student at the Arellano' University in Pasay City (Exh. H). From Page's house, the two went to Camposano's house, where they met the latter's father who was drinking with a companion. Camposano's father gave Page some liquor to drink. Page and Camposano stayed at the latter's house up to ten o'clock in the evening (Exh. C). At past ten o'clock, Page and Camposano went to the rotonda or intersection of Taft Avenue and F. B. Harrison Boulevard, where they boarded a Manila-bound jeepney. Page was armed with a balisong knife. Camposano had a revolver. According to Page's confession, he seated himself beside a male passenger who was near the driver on the front seat. Camposano took a seat at the back of the jeepney where two female passengers were seated. (The male passenger turned out to be Randolf Scot, a thirty-year old employee of the Hyatt Regency Hotel who was on his way to work. The female passengers were the sisters, Veronica Villaverde-Balacapo and Cesarean Villaverde). With the jeepney was in front of the San Antonio Savings Bank on Harrison Boulevard, Page and Camposano told the driver to turn left on Russel Avenue, going to M. Roxas Boulevard, and then to turn left going to Parañaque . There, they held up the driver and the three passengers. They got the money and pieces of jewelry of the passengers and the driver. From the rear view mirror of the jeepney, Page saw Camposano dumping the two female passengers on Roxas Boulevard in front of Casa Marcos. Then, the two directed the driver to proceed to the airport. They left the jeepney at Pildira Street (where Page resided). Camposano gave Page a watch and a woman's ring as his share of the loot. Page admitted that he had been charged with theft but the case was dismissed in the municipal court. He knew certain hoodlums named Remy, Manoling, Cuerson and Edgar whose specialty was holding up taxicabs (Exh. C). Scot gave a slightly different version of the holdup. He testified that when the jeepney reached that portion of Harrison Boulevard in front of the San Antonio Savings Bank, Page pressed a knife at the neck of Scot and shouted: "This is a holdup. Don't move." Page got Scot's diary book containing a one peso bill. Page ordered the driver, Eduardo Dilla, to shut off the lights of the jeepney, to turn left on Russel Avenue, and to proceed to Roxas Boulevard. Page and Camposano covered their faces with pieces of cloth. Camposano told the women passengers to bring out their money and not to shout "or else there will be shots". They replied that they had already given everything to Camposano. When the jeepney was in front of Casa Marcos and El Presidente Hotel, one of the women jumped out of the jeepney. (The husband of one of the women was a waiter at Casa Marcos). The other woman shouted. Camposano kicked her, thus causing her to fall out of the jeepney. Camposano noticed that a car was following the jeepney. Believing that it was a police car, he ordered Villa (Dilla) to drive at full speed. According to Scot, at an isolated place called Baltao Street near the airport, Page and Camposano told the driver to stop. Page robbed Scot of his other one peso bill and divested the driver of his earnings after boxing him for making some resistance. Then, the two malefactors fled to a dark alley. Scot and the driver reported the holdup to the police of Parañaque . It was already eleven o'clock.

Lieutenant Casiano Eugenio the precinct commander, showed them a photograph of Camposano. Dilla and Scot Identified him as one of the two hoodlums. Eugenio and the two robbery victims repaired to the residence of Camposano at Bagong Ilog Baclaran. They saw Camposano, whom Dilla fingered, but Camposano fired shots at them and was able to elude pursuit due to the darkness of the night. He was killed by the Pasay City policemen while he was committing another crime. The next day policemen went to Page's residence near the airport to apprehend him. He was not there. His father, in the presence of his aunt, promised to surrender him. Page was arrested in the morning of February 24, 1972 at the Jose Abad Santos High School of the Arellano University in Pasay City. In the afternoon of that day, his statement was taken down by Patrolman C. Prepena and sworn to before the municipal judge (Exh. C). The woman, who jumped from the jeepney (according to Scot's story), was Veronica Balacapo. She was brought to the Philippine General Hospital by a good Samaritan, Manolo Daval, Santos. She was already dead when she reached the hospital. The other woman, Cesarea Villaverde (the sister of Veronica), who was pushed by Camposano out of the jeepney, was brought to the Ospital ng Maynila. The record is not clear as to whether she survived. The postmortem examination of the body of Veronica Balacapo, a forty-two year old married woman, revealed that she suffered (1) abrasions on the left eyebrow, left shoulder, left elbow and sacral region; (2) bilateral severe hematoma on the occipital region of the scalp; (3) fractures on the base of the cranial fossa and the fourth and fifth ribs along the midclavicular line, and (4) hemorrhage in the posterior cranial fossa. Death was caused by the severe and traumatic meningeal hemorrhage (Exh. A and F). On February 15, 1972 or before Page was arrested, the chief of police filed a complaint for robbery with murder in the municipal court of Parañaque against Camposano and John Doe (Criminal Case No. 30039). The complaint was based on the investigation of Dilla and Scot. Page did not present any evidence at the preliminary investigation. The case was remanded to the Court of First Instance where the fiscal filed an information for robbery with homicide against Page and Camposano. After trial, the trial court rendered the judgment of conviction already mentioned. In this appeal, appellant Page contends that the trial court erred (1) in relying on his repudiated confession, (2) in convicting him although he was not Identified by Randolf Scot, the prosecution's eyewitness, and (3) in convicting him on the basis of weak circumstantial evidence. 1. Patrolman Prepena who took Page's confession, testified on its voluntariness. Lieutenant Eugenia the precinct commander, and Patrolmen Manolito Miranda and Jose Elquiero, the arresting officer, denied that Page was maltreated while he was in the custody of the police. Page admitted that when he was brought before the municipal judge for the administration of the oath on his confession, he could have complained to the latter about the alleged maltreatment. He did not complain. His aunt, Prudencia Alupit, and his own lawyer visited him in jail. He allegedly confided to them that he was maltreated. He requested them to take action against the policemen. They did not complain to the proper authorities about the alleged maltreatment. The learned trial court made a searching and conscientious analysis of appellant's evidence on the alleged duress employed by the police in extracting his confession. It concluded that the confession was voluntary. We find no error in that conclusion. Page's confession, having been taken before the new Constitution took effect, is admissible although the requisites in section 20 of article IV were not observed (Magtoto vs. Manguera, L-37201-2, March 3, 1975, 63 SCRA 4). Certain details found in the confession are strong indicia of its authenticity. Page specified therein that his residence was at 143 Pildira Street, an address which jibes with the address in his school record (Exh. I); that his maternal surname is Ubina; that he met Camposano at four o'clock in the afternoon of February 13, 1972; that they went to Camposano's residence, where he (Page) was given liquor by Camposano's father; that he directed the driver to follow a certain route; that Camposano was from Sorsogon; that Page was acquainted with some hoodlums, and that he (Page) was charged with theft. These details would not have been embodied in the confession had not Page freely disclosed them to the police. 2. It is true that Scot during the trial did not point to Page as the person who sat beside him on the front seat of the jeepney and who pressed an open knife at his neck. Testifying nine months after the occurrence, Scot could not remember the face of Page. He recalled only that Page's hair was thick. Patrolman Ruben Crue Santiago, one of those who investigated Page, testified that the latter was sporting long hair and looked like a hippie at the time of the investigation (2 tsn November 21, 1972). The photographs of Page taken in July, 1971, or about seven months before the holdup, when Page was booked for theft, show that he had long hair (Exh. G). Scot's failure to identify Page during the trial is of no moment because the crucial fact is that Page in his own confession admitted his participation in the holdup. Page stated in his confession: Iyong jeep na pampasahero na aming sinakyan sa may Rotonda ng Baclaran patungong Maynila, biaheng Harrison, ay may sakay na dalawang babae sa hulihan at isang lalaki sa unahan sa tabi ng driver at ako ay naupo sa harapan katabi ko iyong lalaki at si Boy Sangkay (Camposano) ay sa gawing hulihan.

Pagdating namin sa may tapat ng San Antonio Bank ay hinoldup namin iyong jeep pati ng mga pasahero at pinaliko namin sa Russel Avenue patungong M. Roxas Blvd. Pagdating namin sa M. Roxas Blvd., ay pinakaliwa namin patungong Parañaque at noong kami'y nasa M. Roxas Blvd. na, ay kinuha namin ang mga pera at alahas noong mga pasahero at tsuper ng jeep at matapos noon any nakita ko na lang sa salamin na inihulog ni Boy Sangkay iyong dalawang babae sa may tapat ng Casa Marcos sa M. Roxas Blvd. At pagkatapos ay nagpahatid kami patungong MIA at bumaba kami sa Pildira sa Pasay City. (No. 13, Exh. C). Scot's testimony and the necropsy report (Exh. A) prove the corpus delicti or the fact that robbery with homicide was committed. Page's extrajudicial confession was corroborated by the evidence on the corpus delicti (Sec. 3, Rule 133, Rules of Court). 3. Appellant's third contention that his guilt was not proven beyond reasonable doubt, because the prosecution's evidence is mainly circumstantial, is not meritorious. Once it is conceded that his confession is voluntary then there cannot be any doubt as to his guilt. We have already shown that his confession was not vitiated by compulsion or constraint. The alibi, which Page interposed during the trial and which his counsel did not bother to discuss in his brief, appears to be a complete fabrication. Page testified that at the time of the commission of the holdup, he was residing with his aunt at 26 Simbo Street, Fort Bonifacio, Makati, Rizal and that he was sick. That testimony was squarely belied by Page's school record (Exh. 1) which shows that, when the holdup was perpetrated, he was residing with his father at 143 Pildira Street, Pasay City near the airport (or at 101 Interior Rivera Village near the airport, Exh. H) and that on February 11, 1972, or two days before the holdup was committed, he was not sick because on that date he was not absent from school. In any event, even if he was a Makati resident at the time of the holdup, that would not have precluded his participation in the commission of that offense at Baclaran, Parañaque , which is not very far from Fort Bonifacio. To establish an alibi, the accused must show that he was in another place for such a period of time that it was impossible for him to have been at the place where the crime was committed at the time of its commission (People vs. Resayaga, L-23234, December 26, 1973, 54 SCRA 350, 354). Page's alibi does not satisfy that requirement. The more important point to consider is whether the trial court correctly ruled that Page, as a fellow conspirator of Camposano, could be held liable for robbery with homicide or for robbery only. In his letters to this Court, Page, not being a lawyer and not knowing the rules on conspiracy, insisted that he had nothing to do with the death of Veronica Villaverde Balacapo. Of course, it was Camposano alone who directly brought about Veronica's death. Whether Veronica jumped from the jeepney, as testified by Scot, or whether Camposano kicked and pushed her and her sister, Cesarean out of the jeepney, as stated by Page in his confession, Camposano's culpability for that flagitious deed cannot be disputed. If Veronica jumped out of the jeepney, it must have been because she was in mortal dread that Camposano would shoot her. As fear gripped Veronica, she, in desperation, thought of scampering out of the moving jeepney. Her head struck the pavement. It was broken. A hemorrhage ensued. She died before medical assistance could be extended to her. The rule is that if a man creates in another person's mind an immediate sense of danger, which causes such person to try to escape, and, in so doing, the latter injures himself, the man who creates such a state of mind is responsible for the resulting injuries (People vs. Toling, L-27097, January 17, 1975, 62 SCRA 17,33). We find that the trial court's conclusion as to conspiracy is borne out by the evidence. Page and Camposano were boyhood friends. About six hours before the crime was committed, they were already together. They were in the Baclaran rotonda at around ten o'clock in the evening or shortly before the holdup was committed. They boarded the jeepney in that place. Inside the jeepney, they coordinated their actions. They directed the jeepney driver to go near the airport or in the vicinity of Page's residence, a place which was well-known to the two malefactors. They left the jeepney together and fled in the same direction. There is not a scintilla of doubt that a conspiracy to commit robbery existed between Page and Camposano. The fact that the two armed themselves with deadly weapons, a knife and a revolver, signified that they were determined to kill their victims in order to consummate their nefarious objective. The conspiracy may be inferred from the acts of Page and Camposano. Those acts reveal that they had agreed to commit robbery inside a passenger jeepney (Art. 8, Revised Penal Code). This Court may take judicial notice that that kind of robbery has been frequently committed since the liberation when the jeepney came into existence as a public conveyance. Page and Camposano implemented their agreement when they waited for a passenger jeepney at the Baclaran rotonda and boarded it at the same time. If they had no evil intention, they could have sat together at the back. But, they did not do so. Obviously, as previously planned by them, Page took the front seat so that he could control the driver and at the same time extort money from him and the other passenger in the front seat. Camposano took a seat at the back of the jeepney so that he could rob the two female passengers.

The behavior of Page and Camposano inside the jeepney disclosed a synchronization of their actions, evincing a prior concert and plan to commit robbery with violence against and intimidation of persons. Page should answer for all the consequences of the conspiracy, including the homicide which was intertwined with the robbery committed by his conspirator. The homicide was committed on the occasion or by reason of the robbery. The rule is that where the conspirarcy to commit robbery was conclusively shown by the concurrent and coordinate acts of the accused, and homicide was committed as consequence, or on the occasion, of the robbery, all of the accused are guilty of robo con homicidio whether or not they actually participated in the killing (People vs. Lingad, 98 Phil. 5; People vs. Puno, L-31594, April 29, 1974, 56 SCRA 659, 663). Generally, when robo con homicidio has been proven. all those who had taken part int the robbery are guilty of the special complex crime unless it appears that they endoevored to prevent the homicide (U.S. vs. Macalalad, 9 Phil. 1). tha same rule is followed is Spanish jurisprudence. Son resonsables de este delito (robo con homicidio) en concepto de autor no solo todos los que cooperen a la muerte, siquiera sea con supresencia, sino tabien todos los que intevienen en la ejecucion del robo aun cuando no temon parte en el homicidio: (2 Cuello Calon, Derecho Penal, 1975 Edition, p. 976). Cuestion II. Comedio un robo con violencia e intimidacion e las personas por dos sujetos, uno de los cuales dispara un trbuco, dejando muerto en el acto a un tercero que acude en auxilo de llos rabalos, el que no disparo sera solo responsable del robo, o al igual que su consorte, incurrira en la pena del robo con homicido, previsto en el numero 10 del art. 516 que comentamos? El Tribunal Supremo ha declarado que siendo ambos procesados autores del robo, lo son igualmente del homicido que ocurrio en el ultimo delito esta de tal manera enlazado con el de robo, que a no prestarselo el tercero hubiese sido muerto como lo fue; y que por ambos procesados, son autores uno y otro, segun el art. 13 del Codigo penal, y por lo lmismo responsables los dos de todas las consequencias de su accion." (Sentencia de 30 de Abril de 1872; 3 Viada, Codigo Penal 347). El propio Tribunal Supremo ha resulto; 'que si resulta probado la delincuencia del procesado en el hecho generador, que es el robo, con ocasion del que se cometio un homijcidio, basta esto, en conformidad a lo dispuesto en, el num. 1.º del art. 516, para conderearle tambien responsable de homicidio; resolucion cuya justicia evidencia aun mas al parrafo segundo del art. 518, en el que se declara que los malchechores presentes a la ejecucion de un robo en despoblado y en cuadrilla so autores de cualquera de los atentados que esta cometa. si on constare que procuraron impedirios. (Sentencia de 23 de Febrero de 1872; 3 Viada, Codigo Penal, Cuarta Edicion, p. 347). It may be added that the presence of Page in the front seat, armed with a balisong, must have emboldened Camposano to threaten Veronica Balacapo and to cause her death with impunity. The lower court failed to order the accused to pay the sum of P95 as the value of the things taken by Camposano from the deceased victim. The case of Page, a former high school student, now twenty four years old, the child of estranged parents (he lived with his father), who, at the age of eighteen years, was implicated in robbery with homicide, undoubtedly by reason of poverty, should ordinarily excite some sympathy and might evoke compassionate justice. Pressed by his lawyer to examine his conscience and to state truthfully whether he was implicated in the holdup, Page cried and said: "Before the eyes of God, I really do not have anything to do with it. That is why I am very sad, sir. I am being charged for a crime which I have not done. I have been in jail. I have nothing to do with it" (19 tsn December 19, 1972). Of course, he did not kill the victim. But, under the rules of conspiracy, he is deemed to be a co-principal in the robbery with homicide. He testified that he was single, However, Rosita Lareza, claiming to be his wife, and Teresita Cordero, posing as his girl friend, filed written requests for the early disposition of his case (pp. 125 and 140, Rollo). We have already mentioned that he was charged with theft in the municipal court but the case was dismissed. At the time the instant case was filed in 1972, he was charged also in the municipal court with simple robbery and two cases of robbery with murder (Criminal Cases Nos. 30000, 30001 and 30038) (p. 12, Expediente of Criminal Case No. 5396). He was also charged in Criminal Cases Nos. 5395 and 9765 of the Court of First Instance of Rizal. (See I. S. No. 73-5054 for robbery filed in the fiscal's office at Pasig, Rizal, pp. 63, 70 and 78 of Rollo). What happened to those cases is not shown in the record. His behavior in prison has not been exemplary. On October 7, 1975 Page and five other prisoners comandered the truck, which was delivering foodstuffs at the prison compound, held as hostages the driver and the kitchen supervisor, and tried to escape. Page and four others were recaptured (p. 119, Rollo). Page in his letter to the Chief Justice dated April 14, 1977 manifested that, inasmuch as he could not endure the discomforts of prolonged confinement, he was amenable to be electrocuted (he was only sentenced to reclusion perpetua by the trial court). This is a case where considerations of leniency are out of place. The full force of retributive justice should be brought to bear upon the accused. Many persons have been victimized in extortions or holdups committed in buses, taxicabs and jeepneys. The court should cooperate with the agents of the law in making these public conveyances a safe means of travel.

WHEREFORE, the lower court's judgment is affirmed with slight modification that appellant should further pay-the heirs of the victim the sum of P95 representing the value of the watch, earrings and necklace taken from her. Costs against the defendant-appellant. SO ORDERED. G.R. No. 118992 October 9, 1997 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CELERINO CASTROMERO, accused-appellant.

PANGANIBAN, J.: Rape is consummated by the slightest touching of the lips of the female organ or of the labia of the pudendum. Complete penetration is not required. The rapist is likewise liable for the injury suffered by the rape victim as a result of her attempt to escape the assault. The Case This is an appeal from the August 17, 1994 Decision 1 of the Regional Trial Court, Fourth Judicial Region, Branch 10 2 stationed in Balayan, Batangas in Criminal Case No. 3509 finding appellant guilty of rape with serious physical injuries. The Complaint 3 against Appellant Celerino Castromero reads: The undersigned offended party under oath accuses Celerino Castromero of the Complex Crime of Rape with Serious Physical Injuries, defined and penalized under Article 335, in relation to Article 48 and 263 of the Revised Penal Code, committed as follows: That on or about the 6th day of February, 1993, at about 2:00 o'clock in the morning, at Barangay Tanggoy, Municipality of Balayan, Province of Batangas, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with a knife (balisong) and by means of force and intimidation did then and there wilfully, unlawfully and feloniously have carnal knowledge with the offended party Josephine Baon against her will and consent and as a consequence thereof, the said offended party suffered serious physical injuries which injuries required medical attendance and incapacitated her from performing her customary work for a period of more than ninety (90) days by jumping down through the window of her house. Contrary to law. The Complaint 4 was treated as the Information with the approval of Provincial Prosecutor Carmelo Q. Quizon, after Fourth Asst. Provincial Prosecutor Rolando E. Silang added his sworn certification that a "preliminary investigation was conducted in accordance" with law. When arraigned on July 20, 1993, the accused-appellant, assisted by Counsel de Oficio Hermogenes De Castro, pleaded not guilty. 5 After a pre-trial conference, trial ensued in due course. Subsequently, the trial court rendered the assailed Judgment, the dispositive portion of which reads: WHEREFORE, the Court finds the accused Celerino Castromero GUILTY beyond reasonable doubt of the crime of Rape With Serious Physical Injuries and hereby sentences him to reclusion perpetua, to indemnify the victim Josephine Baon in the sum of P40,000.00, to pay Josephine Baon the sum of P20,378.95 representing actual damages and to pay the costs. Considering that the accused is a detention prisoner, he shall be credited with the period of his detention during his preventive imprisonment. SO ORDERED.
6

The Facts Version of the Prosecution The prosecution presented three witnesses, namely: (1) Josephine Baon, the victim; (2) her husband, Esmeraldo Baon, who testified on the medical expenses for the injuries his wife suffered because of the crime; and (3) Felipa Baon. The facts gleaned by the trial court from their testimonies are as follows: Felipa Baon is the mother-in-law of the alleged victim and was presented to prove circumstances of the incident which form part of the "res gestae." She testified that the accused is her nephew because the accused's father is her first cousin. On February

6, 1993 at around 2:00 o'clock in the morning while asleep in their house in Barangay Tangoy, Balayan, Batangas, she was awakened by a scream of her daughter-in-law whose house is situated just five (5) armslength away from theirs. When she came out to help her daughter-in-law (Josephine Baon), the latter was lying in front of the window so, she and her husband carried Josephine into their house. Thereat, Josephine related what happened to her. According to Josephine, the accused forcibly entered her room, placed himself on top of her and made his penis touch her vagina for several times. The accused was then holding a knife. When Josephine was able to free herself from the accused, she jumped out of the window where she fell into the ground. Thereafter, the assistance of Barangay Captain Codizal was sought who reported the incident to the police. Felipa Baon executed a sworn statement when investigated by one SPO2 William C. Dimaala in the Philippine Orthopedic Hospital where Josephine was confined for treatment. The next witness was the private complainant who gave her testimony while lying on a bamboo bed. She averred that she knows the accused because the latter is the nephew of her mother-in-law. On February 6, 1993, at around 2:00 o'clock in the morning while asleep, she was awakened by the slam of the kitchen door. She rose and went out of the bedroom to check what happened and outside the room she met the accused. The accused pointed a knife at her and warned her not to shout or else she would be killed. She got scared. The accused, while holding a knife on the right hand, embraced her behind the neck, kissed her cheek, and touched her breasts. Then he pulled her panty until the garter got loose and touched her private parts. Next, accused pulled down his jogging pants and brief. She kept herself still because of the accused's threat to kill her. Accused then removed her skirt, placed himself on top of her, and tried to insert his penis into her vagina. Because of the accused' movement sideways and her struggle, his penis touched her private parts. When she noticed that the accused was no longer holding the knife, she pushed him away. As she rose up, the accused grabbed her hands and was about to stab her. So, she immediately jumped out of the window. When she fell down, she yelled for help from her in-laws who responded and carried her to their house because she could not move her feet. She requested her mother-in-law to bring her to the emergency hospital because of the intense pain she was then suffering. Her in-laws reported the incident to the barangay captain who looked for the accused and to whom the accused surrendered. From the emergency hospital, she was later transferred to the Philippine Orthopedic Hospital. Upon examination, it was found out that her spinal column was broken which required her to undergo surgical operation. (Exhs. "E", "E-1" to "E-5"). On cross-examination, private complainant averred that it is her habit to sleep at night with lights on in and out of her room especially when her husband is not around. In the night of February 5, 1993 she slept with the lights on together with her children, namely: Joanna Marie and Romualdo. It was at around 2:00 o'clock the following morning when she was awakened by a slam of the door, reason for her to rise-up to check what happened and she met the accused just outside her room as she went out. The accused then pulled her and pointed a knife on the left side of her neck and touched her private parts while they were both standing with the accused in front of her. When she was already lying down (upon the orders of the accused) the accused went on top of her embracing her with his right arm which also held a knife and touched her private parts. The accused tried to insert with his left hand his penis into her vagina. As the knife was pointed at her, the accused warned her not to shout or she would be killed. It was the accused's left hand that touched her breast because his right hand held the knife. The accused used both hands in removing her panty with the knife still on his hand. The accused removed his jogging pants and brief and the knife was still pointed in her neck. When the accused tried to insert his penis, it touched her vagina as she put up resistance and as both of them moved sideways. The next witness was Esmeraldo Baon, the husband of the offended party whose gist of the testimony relates to the civil aspect of the crime charged. He testified on the hospital and surgical expenses and cost of medicines incurred on account of the injury suffered by the offended party caused by her jumping out of the window. The witness also identified the receipts and other relevant documents in support of the expenses incurred. Although he claimed having incurred expenses in the amount of P242,198.00, the witness was able to present receipts covering P20,378.95 only (Exhs. "D-1" to "D-25"). 7 Version of the Defense Raising denial and alibi, the defense presented two witnesses in the person of Appellant Celerino Castromero and his wife Juliana. The appellant, through the Public Attorney's Office, narrated the following version of the facts: 8 Juliana Castromero testified that she is the wife of the accused. She said that at around 6 o'clock in the evening of February 5, 1993 she was with her husband (accused) and their three (3) children at their house in Tanggoy, Balayan, Batangas. They took their dinner. At about 7 o'clock of the same night her husband went out. Her husband returned before midnight and slept right away. She was awake till 1 o'clock because one of their children had a stomach ache. When she woke up at 5 o'clock in the morning, her husband was still sleeping. Her husband woke up at 6:00 A.M. After taking his breakfast, her husband went to his work in Dalig, Balayan, Batangas. Her husband is a threshing machine operator. While her husband was on his job, some policemen came to their house and were looking for him. Her husband was being suspected of entering other's (sic) dwelling. (TSN, pp. 2-8, April 7, 1994 and pp. 2-9, April 28, 1994) Celerino Castromero testified that at around 6 o'clock in the evening of February 5, 1993 he took his supper together with his wife and children. At about 7 P.M. he left and played (or gambled) in a nearby house. At 11:30 P.M., he went home. After his arrival at their house, he went to sleep right away. He woke up at 5 o'clock of the following morning. He reported for work in

Dalig, Balayan, Batangas being a threshing machine operator. When he went home at 12 o'clock noon, their barangay captain arrived and informed him that he was being suspected of having committed a crime. The police invited him to the police station. And at the police station, the police did not conduct any investigation. He was merely placed or locked up in the jail. He went to the police station, together with their barangay captain, to explain his side and not to surrender. He denied vehemently to have committed any crime. (TSN, pp. 2-18, May 19, 1994). Error Assigned The defense raises one error; " the court a quo erred in not acquitting the accused-appellant of the crime charged." 9 Appellant denies the accusation against him and insists that he was inside his own house at the time of the alleged rape. The Court's Ruling The appeal is not meritorious. Credibility of Witnesses In his brief, the appellant simply denies the charge of rape with serious physical injuries and insists on his alibi. 10 He also alludes to the following as indications of his innocence: he voluntarily went to the police station with the barangay captain; 11 he pleaded not guilty to the charge; 12 and he vehemently denied committing the crime. 13 Finally, he adds, "if a reasonable doubt exists, the verdict must be one of acquittal." 14 In deciding this appeal, we are guided by the following principles formulated specifically for the review of rape cases: (1) an accusation of rape, while easy to make, is difficult to prove and even harder for the person accused, though innocent, to disprove; (2) because rape, by its very nature, involves only two persons, the testimony of the complainant should be scrutinized with the greatest caution; (3) the evidence for the prosecution must stand or fall on its own merits and must not be allowed to draw strength from the weakness of the evidence for the defense. 15 On the other hand, the complainant's credibility assumes paramount importance because her testimony, if credible, is sufficient to support the conviction of the accused. 16 After a thorough review of the records in the case at bar, we see no reason to reverse the trial court's factual finding and conclusion on the credibility of Josephine Baon's testimony; 17 we are likewise unpersuaded by accused-appellant's asseverations. "Well-settled is the rule that the assessment of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court, because of its unique opportunity to observe the witnesses firsthand and to note their demeanor, conduct and attitude under grilling examination. Findings of the trial court on such matters are binding and conclusive on the appellate court, unless some facts or circumstances of weight and substance have been overlooked, misapprehended or misinterpreted." 18 Josephine Baon's testimony on how her honor was defiled by appellant that early dawn was clear, direct and honest. 19 Josephine never wavered in her account of the rape in spite of the long browbeating she received during her cross-examination. 20 Her identification of Appellant Castromero as her violator cannot be disputed because she personally knew appellant who, aside from being a neighbor, was also a relative of her mother-in-law. Moreover, she had the opportunity to identify her assailant, since the crime scene was illuminated by the lights inside and outside her room which she usually left on, specially in the absence of her husband as was the case that night. 21 Besides, it is inconceivable that complainant, a decent 26-year old married Filipina with two young children, would suffer the embarrassment of having to reveal intimate details of her violation and to undergo all the difficulties and indignities of a rape prosecution, if her sole motivation was not to have the real culprit arrested and punished for the outrage committed against her. Indeed, a rape victim "will not come out in the open if her motive [is] not to obtain justice." 22 In any event, it was not shown that complainant had any ill motive to falsely testify against Accused Castromero. The accused himself and his wife Juliana both admitted during trial that they had no knowledge of any "bad blood" between them and Josephine Baon or her family. 23 Hence, Josephine's testimony, which we find credible and worthy of belief, is sufficient to convict the accused-appellant of the crime charged. The reliability and credibility of her testimony are bolstered by her narration of the sordid incident immediately thereafter to her mother-in-law, Felipa Baon. Based on the foregoing, we are convinced that appellant sexually assaulted Complainant Josephine Baon. Appellant Castromero's defense of denial and alibi is inherently weak and certainly insufficient to outweigh Josephine's positive and categorical assertion of her violation by the former. 24 Furthermore, "(f)or alibi to serve as basis for acquittal, it must be established with clear and convincing evidence. The requisites of time and place must be strictly met. Appellant must convincingly demonstrate that it was physically impossible for him to have been at the scene of the crime at the time of its commission." 25 Appellant's evidence falls far short of this requirement because his house, where he was allegedly sleeping at the time the crime committed, was a mere fifty meters from the crime scene. 26 Hence, it was not at all physically impossible or even difficult for appellant to have been at complainant's home at the time of the crime. It seems to this Court that the defense of denial and alibi was routinely raised faute de mieux. Was Rape Committed? In determining whether the rape was consummated or merely attempted, we observe that in this case there was no complete or perfect penetration of the complainant's sex organ. The salient portions of her testimony are as follows: Q While he was on top of you, what was he doing? A He tried to insert his penis to my vagina Q When he was trying to insert his private part to your private part, what happened?

A His penis touched my vagina. FISCAL CASTILLO: May I request Your Honor, that the Tagalog word "Ang kanyang pag-aari ay lumapat sa aking pag-aari)." Q What happened next? A Because of the movement sideways his penis touched my private parts. 27

(Emphasis

supplied.)
On cross-examination, Eden stated further: Q Mrs. witness, you testified that while the accused was on top of you, he tried to insert his penis, did the accused insert his penis on your private part? A Yes sir, the opening of my vagina was touched. 28 Felipa Baon, on the other hand, declared: Q When Josefina Baon asked your help and the first time you see (sic) her at that morning, what was her physical condition? A She was lying in front of the window. Q And what did she tell you if she told you anything? A Josephine Baon told me that the accused forcibly enter her room and placed himself on top of her and the penis of the accused was made to touch the vagina for several times. "Idinuldol ng idinuldol ang kanyang pag-aari sa harap, ni Josephine Baon". 29

(Emphasis supplied.)

(Emphasis supplied.)

To consummate rape, perfect or complete penetration of the complainant's private organ is not essential. Even the slightest penetration by the male organ of the lips of the female organ, or labia of the pudendum, is sufficient. 30 In People vs. Dela Pena, 31 this Court held that "the mere touching of the external genitalia by a penis capable of the consummating the sexual act constitutes carnal knowledge." Josephine's testimony that appellant's organ touched the opening of her vagina can lead to no other conclusion than that the appellant's manhood legally invaded, however slightly, the lips of her private organ. Clearly, rape was consummated in this case. Because the sexual assault was perpetrated by force and intimidation, Appellant Castromero is thus guilty of rape pursuant to Article 335 of the Revised Penal Code. In relation to the charge that rape was complexed with the crime of serious physical injuries, we stress the settled principle that a person who creates in another's mind an immediate sense of danger that causes the latter to try to escape is responsible for whatever the other person may consequently suffer. 32 In this case, Josephine jumped from a window of her house to escape from Appellant Castromero; as a result, she suffered serious physical injuries, specifically a broken vertebra which required medical attention and surgery for more than ninety days. This being the case, the court a quo correctly convicted Appellant Castromero of the complex crime of rape with serious physical injuries. WHEREFORE, the assailed Decision of the trial court is hereby AFFIRMED. However, the indemnity in favor of Josephine Baon is hereby INCREASED to fifty thousand pesos (P50,000.00) in line with current jurisprudence. 33 SO ORDERED. G.R. No. L-26789 April 25, 1969

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DICTO ARPA and MAALUM ARPA defendants-appellants. Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Felicisimo R. Rosete and Solicitor Antonio M. Martinez for plaintiffappellee. Antonio L. Africa for defendants-appellants. TEEHANKEE, J.: Automatic review by this Court of the death penalty imposed by the trial court on the accused for the crime of Robbery with Triple Homicide.

In the information filed before the Court of First Instance of Davao, the accused, Dicto Arpa and Maalum Arpa, were charged with the crime of Robbery with Triple Homicide (Criminal Case No. 9694); alleged to have been committed as follows: That on or about February 20, 1966, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the abovementioned accused, having boarded a motor banca named "MAMI I", owned by Epimaco Mola together with other passengers bound for Talicud Island, Davao, and once the motor banca was in the middle of the sea and when it developed engine trouble, the accused, conspiring together and helping one another, with intent to steal the motor banca and by means of intimidation, the accused Dicto Arpa firing his .22 cal. revolver to scare the passengers of the banca, and fired at one of the passengers, hitting the said passenger at the right shoulder, wilfully, unlawfully and feloniously took and carried away the said motor banca "MAMI I" belonging to the said Epimaco Mola valued at P2,100.00, to the damage and prejudice of the above-named owner in the aforementioned amount of P2,100.00, and as a result of the jumping into the sea of all the passengers of the motor banca, Alfonso Villegas, Bernardo Villegas and Lourdes Villegas, all passengers of the motor banca were drowned and died. On the scheduled date of arraignment on March 7, 1966, the accused, through their counsel de oficio, Atty. Bernardino Bolcan Jr., manifested their desire to plead guilty only as to the fact of "the killing of one of the persons mentioned in the information," 1 denying the killing of the two other persons. The fiscal, however, manifested that the State could not agree to the accused's offer to plead guilty to only one homicide, since "the two other persons were lost on the same occasion, ... because of the incident. They jumped overboard after the firing at one of the victims, ..." 2 The trial judge, Hon. Manases G. Reyes, accordingly did not accept the plea and reset the arraignment for the next day, informing the accused that as the prosecution was not agreeable to their qualified plea, they would have to enter into trial. When the case was called on the following day, the information was read to the accused in the dialect they understood, and both accused pleaded guilty, their counsel de oficio invoking, in their favor two mitigating circumstances of plea of guilty and lack of intent to commit so grave a wrong. The fiscal objected to the appreciation of the latter circumstance, demonstrating that "there could be no lack of intent when they immediately fired at one of the victims point blank with a pistol, that is fatal." 3 The case was submitted and the trial court rendered thereafter on March 11, 19661, its decision, crediting the accused with the mitigating circumstance of their voluntary plea of guilty, but rejecting the claimed mitigating circumstance of lack of intent to commit so grave a wrong, in view of "the nature and gravity of the offense committed." The trial court further found two aggravating circumstances against the accused, as follows; A perusal of the information reveals the following, allegation in the information: ...and once the motor banca was in the middle of the sea and when it developed engine trouble.... These allegations to the mind of the Court constitute two aggravating circumstances. The first underlined portion constitutes the aggravating circumstance that the crime was committed in an uninhabited place. (People vs. Rubia 52 Phil. 172). And the second constitutes the aggravating circumstance that the crime is committed on the occasion of conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune. The Court believes that the development of engine trouble in the middle of the sea is a misfortune which tends to create confusion and apprehensions of the passengers and, thereby, to commit a crime such a time the accused manifested greater perversity and instead of rendering help increased their affliction by taking advantage of the said misfortune. As it is, therefore, the accused in the commission of this crime has one mitigating circumstance in their favor and two aggravating circumstances against them, and offsetting one another there is still remaining one aggravating circumstance to the accused.4 Consequently, the trial court sentenced each of the accused to the penalty of death and order both of them, jointly and severally, to indemnify the heirs of the deceased Alfonso Villegas, Bernardo Villegas and Lourdes Villegas in the amount of P6,000.00 for each of them, without subsidiary imprisonment in case of insolvency by reason of the penalty imposed, and to indemnify Epimaco Mola in the sum of P2,100.00, and to pay the costs proportionately. For purposes of this review, Atty. Antonio L. Africa was appointed counsel de oficio for the accused, upon the latter's request for such counsel. Said Counsel urges the reversal of the death sentence, and the Solicitor-General recommends the affirmance thereof. Counsel for the accused in a well-prepared brief, assigns the following errors: ² I. THE LOWER COURT ERRED IN HOLDING THAT THE CRIME COMMITTED IS ROBBERY WITH TRIPLE HOMICIDE. II. THE LOWER COURT ERRED IN HOLDING THAT THE CRIME COMMITTED WAS ATTENDED BY THE AGGRAVATING CIRCUMSTANCES OF UNINHABITED PLACE AND ON THE OCCASION OF A MISFORTUNE. III. THE LOWER COURT ERRED IN NOT CONSIDERING THE MITIGATING CIRCUMSTANCE OF LACK OF INTENT TO COMMIT SO GRAVE A WRONG AS THAT COMMITTED. IV. THE LOWER COURT ERRED IN IMPOSING UPON THE ACCUSED THE SUPREME PENALTY OF DEATH. The accused, leaving voluntarily pleaded guilty to the information, come under the firmly settled doctrine of being deemed to have admitted all the material facts alleged in the information, including the aggravating circumstances therein alleged. 5

The first error assigned that "if the original criminal design does not clearly comprehend homicide, (in view of the allegations in the information that the accused's intent was to steal the motor banca and that accused Dicto Arpa fired his 22 cal. revolver to scare the passengers of the banca), but homicide follows the robbery as an incident of the latter, the criminal acts should be viewed as constitutive of two offenses, and not as a single special offense (of robbery with homicide)" 6 is without merit. Article 294, paragraph 1 of the Revised Penal Code which defines the special, single and indivisible crime of robbery with homicide with the use of violence against, or intimidation of any person, imposes one distinct penalty of reclusion perpetua to death "when by reason or on occasion of the robbery, the crime of homicide shall have been committed." In the case of People vs. Mangulabnan, et al., 7 this Court pointed out that the "English version of the Code is a poor translation of the prevailing Spanish text of sale paragraph, which reads as follows:
lawphi1.nêt

I. o Con la pena de reclusion perpetua a muerte cuando con motivo o' con occasion del robo resultare homicidio. We see, therefore, that in order to determine the existence of the crime of robbery with homicide it is enough that a homicide would result by reason or on the occasion of the robbery (Decision of the Supreme Court of Spain of November 26, 1892, and January 7, 1878, quoted in 2 Hidalgo's Penal code, p. 267 and 259-260, respectively). This High Tribunal speaking of the accessory character of the circumstances leading to the homicide, has also held that it is immaterial that the death would supervene by mere accident (Decision of September 9, 1886; October 22, 1907; April 30, 1910 and July 14, 1917), provided that the homicide be produced by reason or on occasion of the robbery, inasmuch as it is only the result obtained, without reference or distinction as to the circumstances, causes, modes or persons intervening in commission of the crime, that has to be taken into consideration (Decision of January 12, 1889 ² see Cuello Calon's Codigo Penal p. 501-502). In that case, one of the two unidentified co-participants of the appellant Mangulabnan climbed up a table and fired at the ceiling, which was conceded to be "an unpremeditated act that surged on the spur of the moment and possibly without any idea that Vicente Pacson was hiding therein" that resulted in the killing of said Vicente Pacson, but said appellant having been shown to have participated in the criminal design to commit the robbery with his co-defendants was held guilty of the crime of robbery with homicide. Here, upon the accused carrying out their criminal design to steal the motor banca, one of them, Dicto Arpa, started firing his revolver to scare the passengers and fired directly at one of the passengers, hitting him at the right shoulder, and as a result, the three passengers jumped into the sea and met their death by drowning. Even if we were to concede appellants' contention that their original criminal design did not clearly comprehend homicide, and that homicide followed the robbery "as an incident of the latter", still the deaths clearly resulted by reason of or on the occasion of the robbery and the trial court therefore correctly found them guilty of the crime of robbery with triple homicide. The remaining errors assigned concern the trial court's appreciation and finding of two aggravating circumstances as against one mitigating circumstance of a voluntary plea of guilty in the commission of the crime and the mandatory imposition, as a consequence, of the penalty of death. We hold that the trial court correctly held that the crime committed was attended by the aggravating circumstance of uninhabited place. The accused, in having boarded at Davao City the motor banca, together with other passengers bound for Talicud Island, Davao, and carrying out their criminal design of stealing the said motor banca, once it was in the middle of the sea and when it developed engine trouble, with one of them firing revolver shots in order to forestall any resistance, certainly cannot disclaim that they sought the isolation of the sea to attain their criminal objective without interference. As held by this Court in People vs. Rubia, 8 the aggravating circumstance of the crime of homicide having been committed in an uninhabited place must be considered, where the deed was committed at sea, where it was difficult for the offended party to receive any help, while the assailants could easily have escaped punishment, and the purely accidental circumstance that another banca carrying the eyewitnesses to the crime was also at sea in the vicinity at the time without the assailants' knowledge is no argument against the appreciation of said circumstance. We hold, however, against the trial court's finding of a second aggravating circumstance in that the crime was committed "on the occasion of a conflagration, shipwreck, earthquake, epidemic, or other calamity or misfortune." 9 In so holding, the trial Court reasoned: The Court believes that the development of engine trouble in the middle of the sea is a misfortune which tends to create confusions and apprehensions of the passengers and, thereby, to commit a crime at such a time the accused manifested greater perversity and instead of rendering help increased their affliction by taking advantage of the said misfortune. (Decision, p. 3). The development of engine trouble at sea is a misfortune, but it does not come within the context of the phrase "other calamity or misfortune" as used in Article 14, paragraph 7 of the Revised Penal Code, which refer to other conditions of distress similar to those precedingly enumerated therein, namely, "configuration, shipwreck, earthquake, epidemic", such as the chaotic conditions resulting from war or the liberation of the Philippines during the last World War. The reason for the provision of this aggravating circumstance "is found in the debased form of criminality met in one who, in the midst of a great calamity, instead of lending aid to the afflicted adds to their suffering by taking advantage of their misfortune to despoil them." 10 Clearly, no such condition of great calamity or misfortune existed when the motor banca developed engine trouble. It should be added that there is nothing in the record whatever to indicate that the engine trouble developed was a serious one such as to create confusion and apprehension on the part of the passengers as perceived by the trial court, and that the same was not easily repaired; if at all, the indications are to the contrary, for as alleged in the information, the accused succeeded in stealing the motor banca at sea. We hold also against the accused's claim of a second mitigating circumstance of lack of intent to commit so grave a wrong. The trial court correctly held that this circumstance could not properly be appreciated in favor of the accused "viewed from the nature and gravity of the offense committed." As previously pointed out by this Court in the case of People vs. Boyles, 11 the true nature of this circumstance "addresses itself to the intention of the offender at the particular moment when he executes or commits the criminal act; not to his intention during the planning stage. Therefore, when, as in the case under review the original plan was only to rob, but which plan, on account of the resistance offered by the victim, was compounded into the more serious crime of robbery with homicide, the plea of lack of intention to commit so grave a wrong cannot be rightly granted." In the present case, the accused embarked on their most reprehensible criminal design of pirating a motor banca at sea, firing a volley of shots at the passengers notwithstanding the lack of indications of any resistance, thus forcing them to jump overboard in a desperate act of self-preservation only to be swallowed by the sea. The accused cannot now disclaim their lack of criminal intent and responsibility for the direct, logical and fearsome consequences of their unlawful acts.

As thus established, therefore, the crime committed was Robbery with Triple Homicide, attended by the aggravating circumstance of the same having been committed in an uninhabited place which is offset by the accused's voluntary plea of guilty, and the proper imposable penalty is the lesser penalty of reclusion perpetua. (Article 294, paragraph 1 in relation to Article 3, Revised Penal Code.) The compensatory damages awarded to the heirs of the victims should properly be increased to P12,000.00. (People vs. Pantoja, G.R. L-18793, Oct. 11, 1968.) It may be noted that even if the accused were to be granted the additional claimed mitigating circumstance of lack of intent, the said imposable penalty would still be the same. 12 The question of the fact of death of the two other passengers, since the accused deny knowledge of the fact of their death, as their counsel in the lower court claimed that there was no showing of such fact, 13 although both counsels in this Court as well as in the lower court do not dispute the "judicial admission by the accused appellants of the fact of killing (death) of one of the persons named in the information" 14 would not affect the nature of the single and indivisible crime of Robbery with Homicide committed by the accused nor the proper imposable penalty as herein established, since all the homicides perpetrated by reason or occasion of the robbery are merged in the composite, integrated whole that constitutes the crime of robbery with homicide. 15 Nevertheless, we feel constrained to add that in reviewing the records of the case, we were struck with the paucity of facts and evidence attending the commission of the crime other than those stated in the information and other circumstances that would aid the Court in its ordained task of passing en consulta upon the legality and propriety of the death penalty imposed by the trial court, e.g. the age and education or lack thereof of the accused, and whether there were other passengers who survived, aside from the three persons named in the information as having drowned, as well as what the crew did, if anything, during the commission of the crime. Were it not for the conclusion here reached of imposing the lesser penalty of reclusion perpetua, by virtue of our disallowance of the additional aggravating circumstance of calamity or misfortune found by the trial court, we might have been constrained to remand the case for new trial to the court a quo in order to satisfy ourselves as to the degree of culpability of the accused in relation to the death penalty imposed, especially since the information did not expressly designate as such the aggravating circumstances found by the trial court and there was no discussion nor spelling out thereof whatever in the eight-page transcript of the entire proceedings. We therefore reiterate the rule of practice recommended since the early cases of U.S. vs. Talbanos 16 and U.S. vs. Rota. 17 set out in Rule 118 section 5 of the Rules of Court, 18 and thereafter suggested a number of cases, lastly, in the case of People vs. Bulalake, 19 where this Court said: It is of course true that the taking of such evidence is a matter left to the discretion of the trial court. Nevertheless, inasmuch as judgments of conviction imposing the extreme penalty of death are subject to review by the Supreme Court as law and justice shall dictate, whether the defendant appeals or not, which automatic review neither the Court nor the accused could waive or evade it would seem that the proper and prudent course to follow where the accused enters a plea of 'guilty' to capital offenses specially where he is an ignorant person with little or no education, is to take testimony not only to satisfy the trial judge himself but to aid the Supreme Court in determining whether the accused really and truly understood and comprehended the meaning, full significance and consequences of his plea. WHEREFORE, the decision under review is modified: the accused are imposed the penalty of reclusion perpetua and ordered, jointly and severally, to indemnify the heirs of the deceased Alfonso Villegas, Bernardo Villegas and Lourdes Villegas in the amount of P12,000.00 for each of them, and Epimaco Mola in the sum of P2,100.00, and proportionately to pay the costs. G.R. No. L-27046 and L-27047 March 30, 1981 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARIANO ESTEBAN Y MOLINA and LUIS CAMAYA Y ROCHA, accused-appellants.

AQUINO, J.: This is a review of the decision of the Court of First Instance of Rizal, Pasay City Branch VII, dated October 11, 1966, convicting Mariano Esteban and Luis Camaya of murder, sentencing them to death and ordering them to pay solidarity to the heirs of Maria Pascua an indemnity of six thousand pesos (Criminal Case No. 6058-P). In the same decision, Esteban and Camaya were convicted of frustrated murder with respect to the assault upon Antonio Maravilia. They were each sentenced to a straight penalty of seventeen years and four months of reclusion temporal No indemnity was imposed (Criminal Case No. 6059-P). In 1963, there resided in the vicinity of Protacio Street Extension and Gamban Street (Bukid), Pasay City Antonio Maravilla (Landicho), 34; his querida, Loreta Alega (Lulu); Mariano Esteban (Totoy), 42; Tomas Ablola (Arbiola or Mati Exh. 3 Esteban, p. 290, Record; 16 tsn March 19, 1964) and the spouses Maria Pascua and Apolonio Lozano. They were neighbors. Luis Camaya, 27, used to reside in that vicinity. Later, he transferred to 2641 Zamora Street. Camaya, Esteban and Ablola called each other compadre. Sometime in 1961, the husband of Lulu Alega was killed. Four persons, among whom were Esteban, Ablola and Camaya, were implicated in the killing. Camaya was the alleged killer. The case was compromised. It was agreed that the four accused would pay Lulu Pl,500 as settlement of the case (Exh. 3 Esteban, pp. 290-1, Record). About three o'clock in the afternoon of May 1, 1963, Maravilla and Lulu went to the house of Camaya to collect the sum of P47 as the balance still due on the compromise settlement. They had an altercation. Camaya said that Esteban would advance ("magaabono") the payment of the Sum of P47 (pp. 334 and 337), Record; Exh. E-2, p. 227, Record).

At about six-thirty in the evening of that same day, May 1, Maravilla repaired to the house of Esteban to collect the balance of P47. Esteban promised to pay twenty pesos the next day. Maravilla reminded Esteban that the criminal case was only provisionally dismissed and that nonpayment of the balance might prejudice him. Esteban said that he would pay that balance and then seek reimbursement from Camaya (Exh. 3-Esteban pp. 290-291, Record). Thereafter, Maravilla returned to the yard of the house of Maria Pascua where he and other persons had been having a drinking spree. The yard was inclosed by a mat and woven coconut leaves (See Exh. F, p. 229, Record). At about seven o'clock in the evening, Maravilla saw Esteban and Ablola or Mati passing by Maria Pascua's house but they did not come in and did not take part in the drinking bout. Then, at eleven o'clock, when Maravilla and his six companions had finished drinking and were singing in the yard, successive gunshots were fired at the group. Maravilla stood up and looked over the partition in the direction where the shots originated. Maravilla saw three men about to leave the place, two of whom were Esteban and Mati. The latter was holding an automatic rifle which looked like a Thompson submachinegun and which he was handing to his companion ("nagaabutan sila "). At that juncture, Maravilla realized that he had been wounded in the shoulder and below the nape at the top of his spinal column. Blood was oozing from his wounds. lie felt weak and dizzy. He told Ben Junior to call a policeman. The gunshots penetrated the house. Maria Pascua, who was sleeping inside the house, was mortally wounded in the head by means of a metal jacketed bullet (Exh. 1). The policemen found three empty shells on the spot near the partition, where Maravilla saw three intruders, and a slug inside the house near the corpse of Maria Pascua. Maravilla managed to get out of the house and emerged on the street where he collapsed. He was found by the policemen sprawled at the corner of M. de la Cruz and Protacio Streets. When he was asked as to who had shot him, he identified his assailants as "sina Totoy Kangkong, sina Mate" (referring to E steban and Ablola (I 17 tsn December 3, 1965). Maravilla had an entrance gunshot wound on the left shoulder. The bullet caused paralysis from the waist down, blocked his cervical canal and injured his spinal cord and lungs and fractured his ribs. There was no exit wound. The bullet remained inside his chest. (He was hospitalized for more than fifteen months.) Without medical intervention, Maravilla would have died because of those injuries. Maravilla was brought to the Manila Sanitarium on that same evening of May 1, 1963. He had difficulty in breathing. Patrolman Cayetano Cedilla, who interviewed Maravilla at twelve-quarter in the morning, or about an hour after the shooting, observed that the latter was on the threshold of death. Cedilla took down Maravilla's dying declaration in the presence of two patrolmen. It was thumbmarked by Maravilla (Exh. C, p. 223, Record). In that statement (a res gestae declaration), Maravilla pointed to Esteban and Mati as the gunwielders near the coconut palm who shot him at around eleven-thirty in the evening. Maravilla said that earlier in the day he had an altercation with Esteban (Exh. C). After taking down Maravilia's statement, Patrolman Cedilla picked up Esteban and brought him to the hospital where Maravilla, in the presence of his mother, a patrolman and some nurses, fingered Esteban as his assailant nicknamed Totoy. "Iyan nga ho, si Totoy", Maravilla assured Cedilla. "Sila ho ang magkasama nina Mate kanina" (12 tsn February 26, 1964; 115-117,125 tsn December 3, 1965). A parafin test was made on Esteban's hands on the following day at the forensic chemistry division of the National Bureau of Investigation. They were found to he "positive with nitrate specks (Exh. H p. 230, Record). On May 3, 1963, or less than forty-eight hours after the shooting, Special Counsel Carlos Rustia of the Pasay City fiscal's office filed in the Court of First Instance two informations against Esteban and two unidentified persons, charging them with murder for the killing of Maria Pascua and frustrated murder for the assault on Maravilla. About six and a half months after the incident, while Maravilla was confined at the Saint Luke's hospital, Patrolman Cedilla showed him the photographs of Camaya and Ablola. Maravilla Identified them as the companions of Esteban on the night when he (Maravilla) was shot. The assailants fired the shots when they were four to five meters away from Maravilla (Exh. E, pp- 225-28, Record). In December, 1963, or after Maravilla had executed his statement of November 15, 1963, implicating Camaya as one of the three assailants (Exh. E), the informations were amended so as to include him as one of the accused (p. 8, Record of Criminal Case No. 6059- P for frustrated murder. No copy of the amended information for murder is found in the record of Criminal Case No. 6058-P for murder.) Camaya was arrested on December 22 or 23, 1963 (Exh 2, p. 19, Record of Criminal Case No. 6059-P). At his arraignment on January 10, 1964, he pleaded not guilty. The two cases were tried jointly by Judge Angel H. Mojica. As already stated, the judgment of conviction was rendered by Judge Francisco de la Rosa in 1966.

Case of Camaya ² His alibi was that at the time the shooting occurred he was working in the city slaughterhouse located at Pinagbarilan Street, Pasay City. The distance between that place and the house of Maria Pascua could be traversed by walking in seven or eight minutes J64-65 tsn September 22, 1965). The next day Camaya learned from a pork vendor that his compadre, Esteban, was implicated in the killing of Maria Pascua. That information allegedly did not make Camaya apprehensive that the police would be looking for him. Certain circumstances may indicate that Camaya would most likely be involved in the assault on Maravilla. Camaya was a friend or comrade of Esteban and Mati (Mate) and he had some connection with the motive for the liquidation of Maravilla. Camaya was accused of having taken part in the killing of Lulu's husband in 1961. A few hours before the shooting, he had a sort of altercation with Maravilla and his common-law wife, Lulu, who made threatening remarks against Camaya because of the latter's failure to complete the payment of the indemnity or compromise settlement for the killing of Lulu's husband. Camaya's alibi does not exclude the possibility of his having taken part in the shooting of Maravilla. Notwithstanding these circumstances, it cannot be said that Camaya's complicity in the shooting was established beyond reasonable doubt. It should be borne in mind that the only eyewitness to the shooting was Maravilla and he did not implicate at all Camaya in his (Maravilla's) statement (Exh. C). That is the fatal weakness in the prosecution's evidence against Camaya which engenders doubts as to his guilt. If Maravilla recognized Camaya as one of the three assailants or as the companion of Esteban and Mati, then, why did not Maravilla name him as one of the culprits in Maravilla's res gestae declarations made immediately after the shooting? The prosecution was not able to explain that gap in its evidence. It was only more than six months or on November 15, 1963 when Maravilla implicated Camaya. That belated denunciation, which lacks spontaenity , is not credible, it has the earmarks of an afterthought or a frameup induced by a grudge or other ulterior motivation. Consequently, due to the inconclusive evidence against Camaya, he has to be acquitted. His guilt was not establishto a moral certainty. As enunciated by Alfonso X (El Sabio), king of Castille and Leon, the compiler of Las Siete Pattidus "mas vale que queden sin castigar diez reos presuntos que se castigue uno inocente (Cited in People vs. Cunanan, 65 O.G 9012, L-17599, April 24, 1967, 19 SCRA 769, 784). Case of Esteban. ² the factual complexion of his case is different from that of fits compadre Camaya. Esteban's alibi was that he was in his house at the time of the shooting. On that evening, he was supposed to work in the slaughterhouse with Camaya from eleven o'clock to six o'clock in the morning (Exh. 3-Esteban). Esteban's house was six lots away from the scene of the shooting (3 t.s.n. October 5, 1965). But, according to his version, he (lid not work and he preferred to sleep because Camaya did not pay him the five pesos which he owed to Esteban and which the latter would use to pay his electric bill. 'That flimsy pretext is not credible. Esteban was sufficiently identified by Maravilla in the latter's res gestae declarations as one of the three assailants who fired the shots that killed Maria Pascua and seriously wounded Maravilla The paraffin test proved that he fired a gun shortly before his arrest. At the confrontation in the hospital, when Maravilia and the policemen fingered him as the gunwielder Esteban did not say anything. Because of his silence the policemen confined him in jail instead of releasing him. Esteban was infuriated by Maravilla's threat five hours before the shooting that the dismissal of the homicide case against Esteban for his complicity in the killing of Lulu's husband was only provisional. Knowing Maravilia to be a criminal character (he was charged with murder in 1962 in the Court of First Instance at Pasay City for having killed Zosimo Priego Exh. 3-Deposition, p. 289, Record), Esteban feared that Maravilla was capable of asking for the revival of that homicide case. So, Esteban liquidated Maravilla to prevent the resurrection of the homicide case. Manuel S. Tonogbanua, counsel de oficio, who made an able presentation of the case for the appellants, meticulously and conscientiously scrutinized Maravilla's testimony and vehemently assailed his credibility. Counsel contended that Maravilla could not have identified Esteban as one of the assailants because the partition which enclosed the yard where Maravilla and his companions were drinking, had a height exceeding Maravilla's height. That contention is not correct. Maravilla testified that his height was more than the height of the partition. He is six feet and one inch tall while the height of the partition was only five feet and ten inches (7- 8 tsn April 8, 1964; 87 tsn April 3, 1965; 6 tsn March 19, 1964). Counsel stressed that Maravilla was already very nebriated when he was shot and, therefore, he did not have sufficient consciousness to recognize his nocturnal assailants who were about five meters away from him. It is true that Maravilla had imbibed much beer and gin but the fact is that he was able to come out of the yard and he collapsed on the street where a policeman extracted from him the statement that he was shot by Totoy and Mati (referring to Esteban and Ablola). There is no reason to doubt the veracity of the policeman's testimony on this point.

And that testimony signifies that Maravilla, in spite of his wounds and his intoxication, still retained sufficient consciousness or awareness of what had happened to him and had the capacity to articulate intelligently what was in his mind. We have painstakingly reviewed the evidence. We agree with the trial court that Esteban was sufficiently identified by Maravilla as one of the three assailants and that his guilt was established beyond reasonable doubt. As to Maria Pascua, who was killed while asleep, the killing is murder qualified by treachery which absorbs nocturnity Dwelling should be appreciated as an aggravating circumstance. As no extenuating circumstances were present, the penalty imposable upon Esteban is death (Arts. 64 and 248, Revised Penal Code). The fact that Esteban intended to kill Maravilla and in the course of the assault incidentally killed Maria Pascua makes him liable for murder just the same because a person committing a felony is criminally liable although the wrongful act done be different from that which he intended (Art. 4, Revised, Penal Code). This rule covers aberratio ictus or mistake as to victim. As to Maravilla, Esteban is guilty of frustrated murder. The trial court erred in imposing upon him a straight penalty of seventeen years and four months. Esteban is entitled to an indeterminate sentence the maximum of which should be taken from reclusion temporal minimum and the minimum from the range of prision correccional maximum to prision mayor medium since no generic mitigating and aggravating circumstances can be appreciated in connection with that offense. WHEREFORE, (1) the judgment of conviction as to Luis Camaya is set aside. He is acquitted on the ground of reasonable doubt. (2) The trial court's judgment convicting Mariano Esteban of murder is affirmed with the modification that the indemnity which he should pay to the heirs of the victim, Maria Pascua, is increased to twelve thousand pesos. For lack of necessary votes, the death penalty imposable upon him is commuted to reclusion perpetua For the frustrated murder, Esteban is sentenced to an indeterminate penalty of ten (10) years of prision mayor as minimum to fourteen (14) years of reclusion temporal as maximum, in lieu of the straight penalty of seventeen years and four months of reclusion temporary imposed by the trial court. Esteban is further ordered to pay Antonio Maravilla an indemnity of ten thousand pesos. Costs de oficio in the two cases. SO ORDERED. G.R. No. 138645 January 16, 2001.

PEOPLE OF THE PHILIPPINES,appelle, vs. WILBERT CABAREÑO, appellant. PANGANIBAN, J.: Treachery is appreciated when it is shown that an assailant deliberately and consciously adopted a means of attack without risk to himself. In the present case, it was not shown that the attack had been deliberately adopted, or that it had entailed no risk to appellant. The Case Wilbert Cabareño appeals the November 23, 1998 "Judgement"1 of the Regional Trial Court (RTC) of Iloilo City in Criminal Case No. 48852, finding him guilty beyond reasonable doubt of murder sentencing him to reclusion perpetua. In an Information dated January 20, 1998, Second Asistant Provincial Prosecutor Portia T. Cabalum charged appellant as follows: "That on or about the 13th day of December, 1997, in the Municipality of Lambunao, Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with an unlicensed firearm, with deliberate intent and decided purpose to kill and by means of treachery, did then and there willfully, unlawfully and feloniously shoot Nerio Casaquite with the firearm which the accused was then provided, hitting the victim on the back portion of his body which caused his death."2

assisted by Atty. Manuel Casumpang, pleaded not guilty. After trial in due course, the court a quo rendered its Decision, the dispositive portion of which reads:
"WHEREFORE, premises considered, there being sufficient and satisfactory proof shown to establish the guilt of the accused, Wilbert Carabeño alias "Bebot", beyond reasonable doubt of the crime of murder with which he stands charged, he is therefore hereby sentenced to suffer the penalty of reclusion perpetua with such accessory penalties as provided in Article 41 of the Revised Penal Code and, moreover, to indemnity the family of the victim [in] the amount of P50,000.00 as well as reimburse the family [in] the amount of P89,000.00 for the expenses [for] the wake and burial of the victim, and [to] pay the cost."4 The Facts Version of the Prosecution

Upon hi arraignment of February 27, 1998, 3 appellant,

In its Brief,5 the Office of the Solicitor General presents the following narration of facts: "December 13, 1997, [was] the barangay fiesta of Jayobo, Lambunao, Iloilo (TSN, April 24, 1998, p. 4). At around 9;00 [o]n the evening of the same day festivities, a disco was going on near the house of Barangay Chairman Aurelio Catedrilla (Ibid., pp. 5-6). Suddenly, there was a commotion near the store that was located a few arm's length away form the venue of the disco (Ibid., p.7). It involved a certain Pestilo and the younger brother of a certain Manolo (Ibid., pp.8-9). The younger brother of Manolo splashed beer on Pestilo (Ibid.,p. 9.). Then, Aurelio Catedrilla went to the place where the trouble was to pacify them (Ibid., pp. 9-10). He was followed by Nerio Casaquite (Ibid). When Aurelio Catedrilla reached the place, Wilbert Cabareño, alias Bebot , shot him at the back with 10 inch long firearm (Ibid., pp. 10 and 12). However, instead of the bullet hitting Aurelio Cabareño was about two arm's length away from them when he pulled the trigger (Ibid., p.11).
1âw phi1. nêt

"Nerio Casaquite fell to the ground, while Wilbert Cabareño fled the scene (Ibid., p.13). The Barangay tanod came to Nerio Casaquite's aid and brought him to the hospital (Ibid.). "However, Nerio Casaquite later succumbed to the gunshot wound he sustained (Ibid., pp. 23-25)."6 Version of the Defense Denying the charge against him, appellant narrates the facts in the following manner:7 "On December 12 and 13, 1997, Barangay Jayobo, Lambunao, Iloilo, was celebrating its Barangay Fiesta. As additional come ons to liven the celebration, a disco dance was held every night from December 12 and 13, 1997 near the house of the incumbent [b]arangay [c]aptain, Aurelio Catedrilla. On December 113, 1997 at about 9:00 o'clock in the evening, while the disco dance was in progress, a certain Tayok Estiba and Pablo Sanchez were having a drinking spree at the nearby store about two (2) armslength [sic] from the "discohan". Probably as a sign of having reconciled after their quarrel the night before December 12, 1997, which was succesfully pacified by Nerio Casaquite and Barangay Captain Aurelio Catedrilla. At that particular time, accused-appellant while passing by the store towards the 'discohan" was invited by Pablo Sanchez and Tayok Estiva and [he] obliged himself to join in their drinking spree. Thereafter, Pablo Sanchez and Tayok Estiva being drunk again quarreled with each other. As before, Nerio Casaquite came to pacify them[;] however, this time, the protagonists would not listen to him. Consequently, he requested the [b]arangay [t]anod present to fetch the [b]arangay [c]aptain, Aurelio Catedrilla to help him in pacifying the quarelling Pablo Sanchez and Tayok Estiva. A few minutes later, Barangay Captian Aurelio Catedrilla arrived with his tanods and a militray man. Immediately, the said military man hit Tayok Estiva with the butt of his armalite rifle, forcing Barangay Captain Aurelio Catedrilla to admonish him not to hurt Tayok Estiva being his grand nephew. In obedience, the said military man now turned his ire against Pablo Sanchez. To prevent the latter from being further hurt by the military man, Nerio Casaquite now ushered Pablo Sanchez out of the store and persuaded him to go home. Meanwhile, Tayok Estiva, not yet fully assua[ged] of his anger against Pablo Sanchez, was seen grappling with his uncle, Barangay Captain Aurelio Catedrilla, for possession and control of a 12 gauge shot gun inside the store and in the presence of accused-appellant. White thus in that situation, the gun accidentally fired[,] hitting Nerio Casaquite at his back causing his death. Afterwards Barangay Captain Aurelio Catedrilla told his grand nephew, Tayok Estiva, to leave the place. When he finally left the scene of the accident, accused-appellant followed and also went home. The next morning, Barangay Captain Aurelio Catedrilla was arrested at his house as the primary suspect in the shooting and killing of Nerio Casaquite on the night of December 13, 1997. Despite the said arrest of Barangay Captain Aurelio Catedrilla being duly witnessed by his cousin, guest Absalon Lego, however, the latter never told the arresting police authorities that it was accused-appellant who actually shot Nerio Casaquite. It was only 3 days later, and while Barangay Captain Aurelio was already jailed, when Absalon Lego, who was fetched from his house by the younger brother of the Barangay Captain, conveniently executed a sworn statement inculpating accused-appellant as the one who really shot Nerio Casaquite on the night of December 13, 1997. As a result, accused-appellant, Wilbert Carabeño was arrested on December 19, 1997. Despite his protestation, however, the arresting police dismissed his claim of innocence, without even giving him the benefit of the doubt, in fairness and in the interest of law and justice [which] the police were sworn to uphold and protect." Ruling of the Trial Court In its Decision, the trial court found the testimony of the prosecution witness, Absalon Lego, to be "positive and straightforward, hence persuasive and credible."8 Lego, who personally knew appellant, positively identified him as the shooter. Moreover, the witness had a good view of the incident because he was only a few meters away from the locus criminis, which was well-lighted at the time. The trial court also rejected appellant's claim that Tayok Estiva was the killer. It held that this defense was improbable because the person in front of Estiva was Aurelio Catedrilla, not the deceased. It also ruled that the killing was qualified by treachery. Hence, this appeal.9 Issues In his Brief, appellant cites the following alleged errors: "I

The lower court erred in finding the defense of accused-appellant that it was Tayok Estiva who fired the gun that hit Nerio Casaquite, highly improbable. "II The lower court likewise erred in finding the uncorroborated testimony of prosecution witness, Absalon Lego, sufficient to prove the guilt of the accused-appellant beyond reasonable doubt."10 In the main, appellant questions the credibility of the prosecution eyewitness. The Court, in addition, will also determine the character of the crime and the presence of treachery as a qualifying circumstance. The Court's Ruling The appeal is partly meritorious. Appellants should be convicted of homicide, not murder. Main Issue: Credibility of Lone Eyewitness The defense assails the credibility of the lone prosecution witness, Absalon Lego, claiming that he was outside the store where the incident occurred. Moreover, his attention was focused on the nearby disco, not on the store, thus rendering his account highly improbable. Moreover, when he saw the police arrest Catedrilla, the former did not readily point to appellant as the malefactor. It was only three days later that he came forward, stating that he had seen what happened and that appellant had fired the fatal shot. Time and again, this Court has ruled that the evaluation of the credibility of witnesses is a matter that particularly falls within the authority of the trial court, as it had the opportunity to observe the demeanor of the witnesses on the stand. For this reason, appellate courts accord its factual findings and assessments of witnesses with great weight and even finality, barring arbitrariness or oversight of some fact or circumstance of weight and substance.11 In this case, the trial court, which had the opportunity to hear and examine the testimony of the lone prosecution eyewitness, was convinced of his credibility. Eyewitness Lego narrated that he was only a few meters away from the incident and positively stated that it was appellant who had fired the shot that killed the victim: "Q A Q A Q A Q A xxx Q A Q A Where [was] this Aurelio going followed by Nerio Casaquite? He was intending to pacify the trouble. Was he able to go where the trouble was? Yes, sir. And when he reached the place what did Aurelio Catedrilla do? He was shot by Bebot. When you said Bebot are you referring to the accused in this case Wilbert Carabeño? Yes, sir. xxx xxx

When Bebot shot Aurelio who was hit? Nong Nerio Casaquite was hit. And what was Nerio Casquite doing when he was hit? He had his back towards the accused also?

COURT; Q How many times did the accused shoot Aurelio?

A Q A Q A xxxA

One time. What kind of weapon did he use? A 12 gauge gun. How long [was] that gun which he used in shooting Nerio? Like this. xxx xxx

COURT: Q A Q A Q A Q A xxx So, there was no exchange of words between Nerio and tha accused when the gun was fired? No, there was none. And what happened to Nerio when you said he was shot? He fell to the ground. Right there at all place where he was shot? He was about to walk back first before he fell to the ground. How far [was] that place where he fell [from] the place where he was shot/ About one (1) arm's length." xxx xxx

PROS. GEDUSPAN: Q A Q A Q A Q A How about Wilbert Cabareño alias Bebot, what did he do after shot Aurelio? He fled. And what happened to Nerio Casaquite after he fell down? The Barangay Tanods came to Nerio's aid. Where did they bring Nerio Casaquite? To the hospital. How about you, what did you do? I also fled."12

Moreover, Lego had a clear view of the incident, which happened, in a sufficiently illuminated area. "Q A Q A So, the place where the trouble ensued was two (2) arms length [sic] away from you/ Yes, sir. Was that place near the store or near the dance hall? It was near the store and near the disco place.

Q A Q A Q A

What about the place where the commotion took place, was that lighted? Lighted. What kind of light? It was lighted by an electric bulb. Where was that bulb placed in relation to the store? It was inside the store."

Indeed, appellant has given us no sufficient reason to overturn the factual findings of the trial court. Futile is his claim that Lego, whose attention ought to have been focused on the disco instead, could not have witnessed the shooting incident. First, Lego had a clear view of the store because it was only a few meters away and was open on three sides, having only one wall at the back. Second, it was natural for him to look in that direction, because of the commotion that had occurred prior to the actual shooting and the arrival of Catedrilla with three companions, one of whom had a long firearm. In fact, Lego's attention would have been focused on the store, because Catedrilla even hit one Pablo Sanchez with the butt of a firearm. That Lego reported to the authorities what he had seen only after a delay of three days is of no moment. In People v. Lapay, 13 this Court ruled that a witness' non-disclosure to police of crime is not entirely against human experience. Delay in revealing the names of malefactors does not, by itself, impair the credibility of prosecution witnesses and their testimonies. 14 In this case, Lego readily admitted that he was afraid to report to the authorities. His failure to specify the object of his fear 15 did not make his testimony less credible. Estiva Not the Shooter Appellant further claims that it was Estiva who shot the victim and that the RTC erred in rejecting this claim. Allegedly, the trial court merely stated that said defense was highly improbable because it was not the victim who should have been hit. Rather, it should have been Catedrilla, being directly in front of Estiva who was allegedly grappling for possession of the gun at the time. It must be pointed out that the conviction of appellant was based primarily on the testimony of Prosecution Witness Lego, who had positively identified the former. The trial court, which had the opportunity to observe the manner and demeanor of all the witnesses, gave credence to Lego's testimony and rejected appellant's claim. Its ruling on this point is clear and unassailable. Crime and Punishment Paragraph 1, Article 4 of the Revised Penal Code, provides: " Art. 4 Criminal Liability.--- Criminal liability shall be incurred: 1. By any person committing a felony although the wrongful act done be different from that which he intended." In the present case, appellant is responsible for the death of Nerio Casaquite, even if the former's intended target when he fired the gun was supposedly Catedrillo. Criminal liability is incurred by any person committing a felony, although the actual victim be different from the one intended. 16 As held in US v. Diana 17 decided by the Court as early as 1915, "The same crime would have been committed if the injured man and the deceased had been Dionisio Legara, instead of the defendant's nephew, xxx; the crime of homicide would have been committed just the same and one man would have been deprived of his life by the criminal act of another." Treachery The trial court ruled that the killing was qualified by treachery.18 It failed to explain, however, the basis of said ruling. Indeed, the proven facts do not adequately establish the presence of this qualifying circumstance. Treachery is present when the means, methods or form of execution gives the person attacked no opportunity for self-defense or retaliation. It must be proven that such means, method or form of execution is deliberately and consciously adopted without danger to the accused.19 In this case, the prosecution proved that appellant fired at the back of the victim. It was not able to show, however, that appellant had deliberately adopted the attack, considering that it was executed during a commotion and a s result of it. Moreover, it could not be said that the attack was without risk to himself, because the victim was then in the company of three other persons, all of whom were alert and one was even armed. Indeed, the Court has held thus:20 "xxx. The qualifying circumstance of treachery can not logically be appreciated because the accused did not make any preparation to kill the deceased in such a manner as to insure the commission of the crime or to make it impossible or hard for the person attacked to defend himself or retaliate. This circumstance can only be applied, according to the tenor of Article 13, Sub-section 16 of the Revised Penal Code, when the culprit employs means, methods or forms of execution which tend directly and specially to insure the commission of the crime and at the same time to eliminate or diminish the risk to his own person from defense which the other party might offer. IN United States vs.

Namit, 38 Phil. 926, it was held that the circumstance that an attack was sudden and unexpected to the person assaulted did not constitute the element of alevosia necessary to raise a homicide to murder, where it did not appear that the aggressor had consciously adopted a mode of attack intended to facilitate the perpetration of the homicide without risk to himself." Well-settled is the rule that a qualifying circumstance must be established as clearly as the elements of a crime. 21 In this case, treachery was not proven beyond reasonable doubt. Absent any other qualifying circumstance, appellant should therefore be convicted only of homicide, 22 not

murder.
Civil Liability We affirm the award of P50,000.00 as indemnity ex delicto, which is granted without need of proof other than the commission of a crime. 23 Likewise, the trial court correctly awarded the sum of P89,000.00 as actual damages, which we find to be supported by evidence.
1 âwphi1 .nêt

WHEREFORE, the appealed Decision is hereby MODIFIED. Appellant is CONVICTED of homicide and SENTENCED to an indeterminate penalty of eight years and one day of prision mayor, as minimum, to fourteen years, eight months and one day of reclusion temporal as maximum. The award of civil indemnities is AFFIRMED. SO OREDERED G.R. No. L-47722 July 27, 1943

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants. Antonio Z. Oanis in his own behalf. Maximo L. Valenzuela for appellant Galanta. Acting Solicitor-General Ibañez and Assistant Attorney Torres for appellee. MORAN, J.: Charged with the crime of murder of one Serapio Tecson, the accused Antonio Z. Oanis and Alberto Galanta, chief of police of Cabanatuan and corporal of the Philippine Constabulary, respectively, were, after due trial, found guilty by the lower court of homicide through reckless imprudence and were sentenced each to an indeterminate penalty of from one year and six months to two years and two months of prison correccional and to indemnify jointly and severally the heirs of the deceased in the amount of P1,000. Defendants appealed separately from this judgment. In the afternoon of December 24, 1938. Captain Godofredo Monsod, Constabulary Provincial Inspector at Cabanatuan, Nueva Ecija, received from Major Guido a telegram of the following tenor: "Information received escaped convict Anselmo Balagtas with bailarina and Irene in Cabanatuan get him dead or alive." Captain Monsod accordingly called for his first sergeant and asked that he be given four men. Defendant corporal Alberto Galanta, and privates Nicomedes Oralo, Venancio Serna and D. Fernandez, upon order of their sergeant, reported at the office of the Provincial Inspector where they were shown a copy of the above-quoted telegram and a newspaper clipping containing a picture of Balagtas. They were instructed to arrest Balagtas and, if overpowered, to follow the instruction contained in the telegram. The same instruction was given to the chief of police Oanis who was likewise called by the Provincial Inspector. When the chief of police was asked whether he knew one Irene, a bailarina, he answered that he knew one of loose morals of the same name. Upon request of the Provincial Inspector, the chief of police tried to locate some of his men to guide the constabulary soldiers in ascertaining Balagtas' whereabouts, and failing to see anyone of them he volunteered to go with the party. The Provincial Inspector divided the party into two groups with defendants Oanis and Galanta, and private Fernandez taking the route to Rizal street leading to the house where Irene was supposedly living. When this group arrived at Irene's house, Oanis approached one Brigida Mallare, who was then stripping banana stalks, and asked her where Irene's room was. Brigida indicated the place and upon further inquiry also said that Irene was sleeping with her paramour. Brigida trembling, immediately returned to her own room which was very near that occupied by Irene and her paramour. Defendants Oanis and Galanta then went to the room of Irene, and an seeing a man sleeping with his back towards the door where they were, simultaneously or successively fired at him with their .32 and .45 caliber revolvers. Awakened by the gunshots, Irene saw her paramour already wounded, and looking at the door where the shots came, she saw the defendants still firing at him. Shocked by the entire scene. Irene fainted; it turned out later that the person shot and killed was not the notorious criminal Anselmo Balagtas but a peaceful and innocent citizen named Serapio Tecson, Irene's paramour. The Provincial Inspector, informed of the killing, repaired to the scene and when he asked as to who killed the deceased. Galanta, referring to himself and to Oanis, answered: "We two, sir." The corpse was thereafter brought to the provincial hospital and upon autopsy by Dr. Ricardo de Castro, multiple gunshot wounds inflicted by a .32 and a .45 caliber revolvers were found on Tecson's body which caused his death. These are the facts as found by the trial court and fully supported by the evidence, particularly by the testimony of Irene Requinea. Appellants gave, however, a different version of the tragedy. According to Appellant Galanta, when he and chief of police Oanis arrived at the house, the latter asked Brigida where Irene's room was. Brigida indicated the place, and upon further inquiry as to the whereabouts of Anselmo Balagtas, she said that he too was sleeping in the same room. Oanis went to the room thus indicated and upon opening the curtain covering the door, he said: "If you are Balagtas, stand up." Tecson, the supposed Balagtas, and Irene woke up and as the former was about to sit up in bed. Oanis fired at him. Wounded, Tecson leaned towards the door, and Oanis receded and shouted: "That is Balagtas." Galanta then fired at Tecson. On the other hand, Oanis testified that after he had opened the curtain covering the door and after having said, "if you are Balagtas stand up." Galanta at once fired at Tecson, the supposed Balagtas, while the latter was still lying on bed, and continued firing until he had exhausted his bullets: that it was only thereafter that he, Oanis, entered the door and upon seeing the supposed Balagtas, who was then apparently watching and picking up something from the floor, he fired at him.

The trial court refused to believe the appellants. Their testimonies are certainly incredible not only because they are vitiated by a natural urge to exculpate themselves of the crime, but also because they are materially contradictory. Oasis averred that be fired at Tecson when the latter was apparently watching somebody in an attitudes of picking up something from the floor; on the other hand, Galanta testified that Oasis shot Tecson while the latter was about to sit up in bed immediately after he was awakened by a noise. Galanta testified that he fired at Tecson, the supposed Balagtas, when the latter was rushing at him. But Oanis assured that when Galanta shot Tecson, the latter was still lying on bed. It is apparent from these contradictions that when each of the appellants tries to exculpate himself of the crime charged, he is at once belied by the other; but their mutual incriminating averments dovetail with and corroborate substantially, the testimony of Irene Requinea. It should be recalled that, according to Requinea, Tecson was still sleeping in bed when he was shot to death by appellants. And this, to a certain extent, is confirmed by both appellants themselves in their mutual recriminations. According, to Galanta, Oanis shot Tecson when the latter was still in bed about to sit up just after he was awakened by a noise. And Oanis assured that when Galanta shot Tecson, the latter was still lying in bed. Thus corroborated, and considering that the trial court had the opportunity to observe her demeanor on the stand, we believe and so hold that no error was committed in accepting her testimony and in rejecting the exculpatory pretensions of the two appellants. Furthermore, a careful examination of Irene's testimony will show not only that her version of the tragedy is not concocted but that it contains all indicia of veracity. In her cross-examination, even misleading questions had been put which were unsuccessful, the witness having stuck to the truth in every detail of the occurrence. Under these circumstances, we do not feel ourselves justified in disturbing the findings of fact made by the trial court. The true fact, therefore, of the case is that, while Tecson was sleeping in his room with his back towards the door, Oanis and Galanta, on sight, fired at him simultaneously or successively, believing him to be Anselmo Balagtas but without having made previously any reasonable inquiry as to his identity. And the question is whether or not they may, upon such fact, be held responsible for the death thus caused to Tecson. It is contended that, as appellants acted in innocent mistake of fact in the honest performance of their official duties, both of them believing that Tecson was Balagtas, they incur no criminal liability. Sustaining this theory in part, the lower court held and so declared them guilty of the crime of homicide through reckless imprudence. We are of the opinion, however, that, under the circumstances of the case, the crime committed by appellants is murder through specially mitigated by circumstances to be mentioned below. In support of the theory of non-liability by reasons of honest mistake of fact, appellants rely on the case of U.S. v. Ah Chong, 15 Phil., 488. The maxim is ignorantia facti excusat, but this applies only when the mistake is committed without fault or carelessness. In the Ah Chong case, defendant therein after having gone to bed was awakened by someone trying to open the door. He called out twice, "who is there," but received no answer. Fearing that the intruder was a robber, he leaped from his bed and called out again., "If you enter the room I will kill you." But at that precise moment, he was struck by a chair which had been placed against the door and believing that he was then being attacked, he seized a kitchen knife and struck and fatally wounded the intruder who turned out to be his room-mate. A common illustration of innocent mistake of fact is the case of a man who was marked as a footpad at night and in a lonely road held up a friend in a spirit of mischief, and with leveled, pistol demanded his money or life. He was killed by his friend under the mistaken belief that the attack was real, that the pistol leveled at his head was loaded and that his life and property were in imminent danger at the hands of the aggressor. In these instances, there is an innocent mistake of fact committed without any fault or carelessness because the accused, having no time or opportunity to make a further inquiry, and being pressed by circumstances to act immediately, had no alternative but to take the facts as they then appeared to him, and such facts justified his act of killing. In the instant case, appellants, unlike the accused in the instances cited, found no circumstances whatsoever which would press them to immediate action. The person in the room being then asleep, appellants had ample time and opportunity to ascertain his identity without hazard to themselves, and could even effect a bloodless arrest if any reasonable effort to that end had been made, as the victim was unarmed, according to Irene Requinea. This, indeed, is the only legitimate course of action for appellants to follow even if the victim was really Balagtas, as they were instructed not to kill Balagtas at sight but to arrest him, and to get him dead or alive only if resistance or aggression is offered by him. Although an officer in making a lawful arrest is justified in using such force as is reasonably necessary to secure and detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes, and protect himself from bodily harm (People vs. Delima, 46 Phil, 738), yet he is never justified in using unnecessary force or in treating him with wanton violence, or in resorting to dangerous means when the arrest could be effected otherwise (6 C.J.S., par. 13, p. 612). The doctrine is restated in the new Rules of Court thus: "No unnecessary or unreasonable force shall be used in making an arrest, and the person arrested shall not be subject to any greater restraint than is necessary for his detention." (Rule 109, sec. 2, par. 2). And a peace officer cannot claim exemption from criminal liability if he uses unnecessary force or violence in making an arrest (5 C.J., p. 753; U.S. vs. Mendoza, 2 Phil., 109). It may be true that Anselmo Balagtas was a notorious criminal, a life-termer, a fugitive from justice and a menace to the peace of the community, but these facts alone constitute no justification for killing him when in effecting his arrest, he offers no resistance or in fact no resistance can be offered, as when he is asleep. This, in effect, is the principle laid down, although upon different facts, in U.S. vs. Donoso (3 Phil., 234, 242). It is, however, suggested that a notorious criminal "must be taken by storm" without regard to his right to life which he has by such notoriety already forfeited. We may approve of this standard of official conduct where the criminal offers resistance or does something which places his captors in danger of imminent attack. Otherwise we cannot see how, as in the present case, the mere fact of notoriety can make the life of a criminal a mere trifle in the hands of the officers of the law. Notoriety rightly supplies a basis for redoubled official alertness and vigilance; it never can justify precipitate action at the cost of human life. Where, as here, the precipitate action of the appellants has cost an innocent life and there exist no circumstances whatsoever to warrant action of such character in the mind of a reasonably prudent man, condemnation ² not condonation ² should be the rule; otherwise we should offer a premium to crime in the shelter of official actuation. The crime committed by appellants is not merely criminal negligence, the killing being intentional and not accidental. In criminal negligence, the injury caused to another should be unintentional, it being simply the incident of another act performed without malice. (People vs. Sara, 55 Phil., 939). In the words of Viada, "para que se celifique un hecho de imprudencia es preciso que no haya mediado en el malicia ni intencion alguna de dañar; existiendo esa intencion, debera calificarse el hecho del delito que ha producido, por mas que no haya sido la intencion del agente el causar un mal de tanta gravedad como el que se produjo." (Tomo 7, Viada Codigo Penal Comentado, 5.a ed. pag. 7). And, as once held by this Court, a deliberate intent to do an unlawful act is essentially inconsistent with the idea of reckless imprudence (People vs. Nanquil, 43 Phil., 232; People vs. Bindor, 56 Phil., 16), and where such unlawful act is wilfully done, a mistake in the identity of the intended victim cannot be considered as reckless imprudence (People vs. Gona, 54 Phil., 605) to support a plea of mitigated liability. As the deceased was killed while asleep, the crime committed is murder with the qualifying circumstance of alevosia. There is, however, a mitigating circumstance of weight consisting in the incomplete justifying circumstance defined in article 11, No. 5, of the Revised Penal Code. According to such legal provision, a person incurs no criminal liability when he acts in the fulfillment of a duty or in the lawful exercise of a right or office. There are two requisites in order that the circumstance may be taken as a justifying one: (a) that the offender acted in the performance of a duty or in the lawful exercise of a right; and (b) that the injury or offense committed be the necessary consequence of the due performance of such duty or the lawful exercise of such right or office. In the instance case, only the first requisite is present ² appellants have acted in the performance of a duty. The second requisite is wanting for the crime by them committed is not the necessary consequence of a due performance of their duty. Their duty was to

arrest Balagtas or to get him dead or alive if resistance is offered by him and they are overpowered. But through impatience or over-anxiety or in their desire to take no chances, they have exceeded in the fulfillment of such duty by killing the person whom they believed to be Balagtas without any resistance from him and without making any previous inquiry as to his identity. According to article 69 of the Revised Penal Code, the penalty lower by one or two degrees than that prescribed by law shall, in such case, be imposed. For all the foregoing, the judgment is modified and appellants are hereby declared guilty of murder with the mitigating circumstance above mentioned, and accordingly sentenced to an indeterminate penalty of from five (5) years of prision correctional to fifteen (15) years of reclusion temporal, with the accessories of the law, and to pay the heirs of the deceased Serapio Tecson jointly and severally an indemnity of P2,000, with costs. G.R. No. 123485 August 31, 1998 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLUSAPE SABALONES alias "Roling," ARTEMIO TIMOTEO BERONGA, TEODULO ALEGARBES and EUFEMIO CABANERO, accused, ROLUSAPE SABALONES alias "Roling" and ARTEMIO TIMOTEO BERONGA, accused-appellants.

PANGANIBAN, J.: Factual findings of trial courts which are affirmed by the Court of Appeals are, as a general rule, binding and conclusive upon the Supreme Court. Alibi, on the other hand, cannot prevail over positive identification by credible witnesses. Furthermore, alleged violations of constitutional rights during custodial investigation are relevant only when the conviction of the accused by the trial court is based on the evidence obtained during such investigation. The Case These are the principles relied upon by the Court in resolving this appeal from the Court of Appeals (CA) 1

Decision 2 dated September 28, 1995, convicting Rolusape Sabalones and Timoteo Beronga of murder and frustrated murder. The convictions arose from a shooting incident on June 1, 1985 in Talisay, Cebu, which resulted in the killing of two persons and the wounding of three others, who were all riding in two vehicles which were allegedly ambushed by appellants.
After conducting a preliminary investigation, Second Assistant Provincial Prosecutor Juanito M. Gabiana Sr. filed before the Regional Trial Court (RTC) of Cebu City, Branch 7,

five amended Informations charging four "John Does," who were later identified as Rolusape Sabalones, Artemio Timoteo Beronga, Teodulo Alegarbes and Eufemio Cabanero, with two counts of murder and three counts of frustrated murder. The Informations are quoted hereunder.
3

1) Crim Case No. CBU-9257 for murder: That on the 1st day of June, 1985, at 11:45 o'clock in the evening, more or less, at Mansueto Village, Bulacao, Municipality of Talisay, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, armed with high-powered firearms, with intent to kill and treachery, did then and there wilfully, unlawfully and feloniously attack, assault and shoot GLENN TIEMPO, who was riding [i]n a jeep and who gave no provocation, thereby inflicting upon the latter several gunshot wounds, thereby causing his instantaneous death. CONTRARY TO Article 248 of the Revised Penal Code. 2) Criminal Case No. 9258 for murder: That on the 1st day of June, 1985 at 11:45 o'clock in the evening, more or less at Mansueto Village, Barangay Bulacao, Municipality of Talisay, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, armed with high-powered firearms, with intent to kill and treachery, did [then] and there wilfully, unlawfully and feloniously attack, assault and shoot ALFREDO NARDO, who was riding on a jeep and who gave no provocation, thereby inflicting upon the latter several gunshot wounds, thereby causing his instantaneous death. CONTRARY TO Article 248 of the Revised Penal Code. 3) Crim Case No. CBU-9259 for frustrated murder: That on the 1st day of June, 1985 at 11:45 o'clock in the evening, more or less, at Mansueto Village, Barangay Bulacao, Municipality of Talisay, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and mutually helping one another, armed with high-powered firearms, with intent to kill and

treachery, did and there wilfully, unlawfully and feloniously attack, assault and shoot REY BOLO who was riding in a car and who gave no provocation, thereby inflicting upon the latter the following injuries to wit: laceration, mouth due to gunshot wound, gunshot wound (L) shoulder penetrating (L) chest; gunshot wound (R) hand (palm); open fracture (L) clavicle (L) scapula; contusion (L) lung; thereby performing all the acts of execution which would produce the crime of [m]urder as a consequence but which, nevertheless, did not produce it by reason of causes independent of the will of the perpetrator, i.e. the timely medical attendance. IN VIOLATION of Article 248 of the Revised Penal Code. 4) Criminal Case No. 9260 for frustrated murder: That on the 1st day of June, 1985 at 11:45 o'clock in the evening, more or less, at Mansueto Village, Barangay Bulacao, Municipality of Talisay, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and mutually helping one another, armed with high-powered firearms, with intent to kill and treachery, did then and there wilfully, unlawfully and feloniously attack, assault and shoot ROGELIO PRESORES, who was riding in a car and who gave no provocation, thereby inflicting upon the latter the following injuries, to wit: gunshot wound, thru and thru right chest thereby performing all the acts of execution which would produce the crime of [m]urder as a consequence but which, nevertheless, did not produce it by reason of causes independent of the will of the perpetrator, i.e. the timely medical attendance. IN VIOLATION of Article 248 of the Revised Penal Code. 5) Criminal Case No. 9261 for frustrated murder: That on the 1st day of June, 1985 at 11:45 o'clock in the evening, more or less, at Mansueto Village, Barangay Bulacao, Municipality of Talisay, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and mutually helping one another, armed with high-powered firearms, with intent to kill and treachery, did then and there wilfully, unlawfully and feloniously attack, assault and shoot NELSON TIEMPO, who was riding in a car and who gave no provocation, thereby inflicting upon the latter the following injuries, to wit: Gunshot wound neck penetrating wound perforating trachea (cricoid) thereby performing all the acts of execution which would produce the crime of [m]urder as a consequence but which nevertheless, did not produce it by reason of causes independent of the will of the perpetrator, i.e. the timely medical attendance. IN VIOLATION of Article 248 of the Revised Penal Code. Of the four indictees in the five Informations, Teodulo Alegarbes and Artemio Timoteo Beronga were the first to be arraigned. Upon the arrest of the two, the Informations were amended by the public prosecutor, with the conformity of the defense counsel, by substituting the names of the two accused for the "John Does" appearing in the original Informations. When arraigned, said accused, assisted by their respective lawyers, pleaded not guilty to the five Informations. Alegarbes died in the course of trial; thus, the cases against him were dismissed. Accused Cabanero remained at large. Sabalones, on the other hand, was eventually arrested. Subsequently, he jumped bail but was recaptured in 1988 and thereafter pleaded not guilty during his arraignment. The cases against Sabalones and Beronga were jointly tried. Thereafter, the lower court found them guilty beyond reasonable doubt of the crimes charged. The RTC disposed as follows: WHEREFORE, premises above-set forth, the Court finds accused ROLUSAPE SABALONES and (ARTEMIO) TIMOTEO BERONGA, [g]uilty beyond reasonable doubt, as principals: In Crim. Case No. CBU-9257, for MURDER, defined and penalized in Art. 248 of the Revised Penal Code, hereby sentences each said accused to suffer the penalty of [f]ourteen (14) years, [e]ight (8) months and [o]ne (1) day, as minimum, to [s]eventeen (17) years, [f]our (4) months and [o]ne (1) day, of [r]eclusion [t]emporal, as maximum, to indemnify the heirs of deceased, Glenn Tiempo, the sum of P50,000.00; In Crim. Case No. CBU-9258, for MURDER, defined and penalized in Art. 248 of the Revised Penal Code, hereby sentences each said accused to suffer the penalty of [f]ourteen (14) years, [e]ight (8) months and [o]ne (1) day, as minimum, to [s]eventeen (17) years, [f]our (4) months and [o]ne (1) day, of [r]eclusion [t]emporal, as maximum, to indemnify the heirs of deceased, Alfredo Nardo, the sum of P50,000.00;

In Crim. Case No. CBU-9259, for FRUSTRATED MURDER, defined and penalized in Art. 248 in relation to Art. 50 of the Revised Penal Code, hereby sentences each said accused to suffer the penalty of [e]ight (8) years of prision mayor, as minimum, to [f]ourteen (14) years and [e]ight (8) months of [re]clusion [t]emporal, as maximum, to indemnify the victim, Rey Bolo, the sum of P20,000.00; In Crim. Case No. CBU-9260, for FRUSTRATED MURDER, defined and penalized in Art. 248 in relation to Art. 50 of the Revised Penal Code, hereby sentences each said accused to suffer the penalty of [e]ight (8) years of prision mayor, as minimum, to [f]ourteen (14) years and [e]ight months of [r]eclusion [t]emporal, as maximum, to indemnify the victim, Rogelio Presores, the sum of P20,000.00; In Crim. Case No. CBU-9261, for FRUSTRATED MURDER, defined and penalized in Art. 248 in relation to Art. 50 of the Revised Penal Code, hereby sentences each said accused to suffer the penalty of [e]ight (8) years of prision mayor, as minimum, to [f]ourteen (14) years and [e]ight (8) months of [r]eclusion [t]emporal, as maximum, to indemnify the victim, Nelson Tiempo, the sum of P20,000.00; and To pay the costs in all instances. The period of their preventive imprisonment shall be credited to each accused in full. SO ORDERED.
4

Appellants filed a notice of appeal to the Court of Appeals. Thereafter, the CA affirmed their conviction but sentenced them to reclusion perpetua for the murders they were found guilty of. Accordingly, the appellate court, without entering judgment, certified the case to the Supreme Court in accordance with Section 13, Rule 124 of the Rules of Court. The dispositive portion of the CA Decision reads: WHEREFORE, the Decision of the trial court convicting accused-appellants Rolusa[p]e Sabalones and Artemio Timoteo Beronga for murder in Crim. Cases Nos. CBU-9257 and CBU-9258, and [f]rustrated [m]urder in Crim. Cases Nos. CBU-9259, CBU-9260, and CBU-9261 is hereby AFFIRMED; however, the penalties in the [f]rustrated [m]urder and [m]urder cases are hereby MODIFIED, such that both accused-appellants are each sentenced to imprisonment of TEN (10) YEARS of [p]rision [m]ayor medium as minimum to SEVENTEEN (17) YEARS and FOUR (4) MONTHS of [r]eclusion [t]emporal medium as maximum in each of the three [f]rustrated [m]urder cases (Crim. Cases Nos. CBU-9259, CBU-9260 and CBU-9261); and are each sentenced to [r]eclusion [p]erpetua in each of the two [m]urder cases (Crim. Cases Nos. CBU-9257 and CBU-9258). The indemnity to the victim in each [f]rustrated [m]urder case shall remain. In conformity with Rule 124, Section 13 of the Rules of Court, however, this Court refrains from entering judgment, and hereby certifies the case and orders that the entire record hereof be elevated to the Supreme Court for review. 5 After the Court of Appeals certified the case to this Court, we required appellants to file supplemental briefs. Appellants failed to comply within the
6 Thus, in resolving this case, this Court will address primarily the arguments raised by the appellants in their Brief before the Court of Appeals, which assailed the RTC Decision.

prescribed period and were deemed to have waived their right to do so.

The Facts Version of the Prosecution The solicitor general 7

quoted the following factual findings of the trial court:
Edwin Santos, a resident of Mambaling, Cebu City stated that on June 1, 1985 at 6:00 o'clock in the evening, he was at the residence of Inday Presores, sister of Rogelio Presores, located at Rizal Ave., Cebu City to attend a wedding. He stayed until 9:00 o'clock in the evening and proceeded to the house of Maj. Tiempo at Basak, Mambaling, Cebu City where a small gathering was also taking place. (pp. 3-6, tsn, April 7, 1987) Arriving thereat, he saw Nelson and Glenn Tiempo as well as Rogelio Presores, Rogelio Oliveros, Junior Villoria, Rey Bolo and Alfredo Nardo. (p. 7, ibid.) At about 11:00 o'clock in the evening, Stephen Lim, who was also at the party, called their group and requested them to push his car. When the engine started, the former asked them to drive his car home. (pp. 7-11, ibid.) Together with Nelson Tiempo, who was at the wheel, Rogelio Presores, Rogelio Oliveros and Junior Villoria, they drove to the residence of Stephen Lim at Mansueto Compound, Bulacao, Talisay, Cebu. (p. 12, ibid.) Glenn Tiempo, Rey Bolo and Alfredo Nardo also went with them riding in an owner-type jeep, driven by the latter, in order to bring back the group [as] soon as the car of Mr. Lim was parked in his home. (p. 21, ibid.) The two vehicles traveled in convoy with the jeep 3 to 4 meters ahead of the car. When they arrived at the gate of the house of Stephen Lim, they were met with a sudden burst of gunfire. He looked at the direction where the gunfire came, and saw [the] persons [who] fired at the jeep. He identified accused, Teodulo Alegarbes, Rolusape Sabalones and Timoteo Beronga as the

persons who fired at the vehicle. Except for Teodulo Alegarbes, who was naked from [the] waist up, the gunmen wore clothes. (pp. 21-23; 13-16; 33, ibid.) After firing at the jeep, the assailants shot the ear they were riding[,] hitting Nelson Tiempo on the throat and Rogelio Presores on the breast. Despite the injury he sustained, Nelson Tiempo was able to maneuver the car back to their residence. (pp. 17-19, ibid.) He immediately informed Maj. Tiempo about the incident and the lat[t]er brought the victims to the Cebu Doctor's Hospital. (p. 20, ibid.) Rogelio Presores corroborated in substance the testimony of Edwin Santos, being one of those who were in the car driven by Nelson Tiempo to the residence of Stephen Lim. (pp. 4-6, tsn, Aug. 14, 1987) He further testified that when the jeep driven by Alfredo Nardo with Rey Bolo and Glenn Tiempo as passengers arrived at the front gate of Lim's residence and while their car was 3 meters from the rear end of the jeep, there was a volley of gunfire. He glanced at the direction of the gunfire and saw the jeep being fired at by four persons, who were standing behind a concrete wall, 42 inches in height, and armed with long firearms. Thenceforth, he saw Alfredo Nardo, Glenn Tiempo and Rey Bolo f[a]ll to the ground. (pp. 6-7, ibid.) He recognized accused, Rolusape Sabalones, as one of those who fired at the jeep. He also identified in Court accused, Teodulo Alegarbes, Timoteo Beronga and another person, whom he recognized only through his facial appearance. (pp. 7-8, ibid.) When the shots were directed [at] their car[,] they were able to bend their heads low. When the firing stopped, he directed Nelson Tiempo to back out from the place. As the latter was maneuvering the car, the shooting continued and he was hit in the breast while Nelson Tiempo, in the neck, and the windshield of the vehicle was shattered. (p. 10, ibid.) Arriving at the house of Maj. Tiempo, they were brought to Cebu Doctor's Hospital. He and Nelson Tiempo were operated on. He had incurred hospital expenses in the sum of P5,412.69, (Exh. "I", "K"). (pp. 11-12, ibid.) Ladislao Diola, Jr., [m]edico-[l]egal [o]fficer of the PC Crime Laboratory, Regional Unit 7 stationed at Camp Sotero Cabahug, Cebu City remembered having performed a post-mortem examination on the dead body of Glenn Tiempo on June 2, 1985 at the Cosmopolitan Funeral Homes, Cebu City. (p. 7, tsn, Nov. 11, 1987) He issued the necessary Death Certificate, (Exh. "D") and Necropsy Report, (Exh. "F") and indicated therein that the victim's cause of death was "[c]ardio respiratory arrest due to [s]hock and [h]emorrhage [s]econdary to [g]unshot wounds to the trunk." (p. 8, ibid.) The victim sustained gunshot wounds in the right chest and left lumbar area. (pp. 10-11, ibid.) He explained that in gunshot wound no. 1, the wound entrance[,] which [was] characterized by invaginated edges and contusion collar[,] was located in the right chest and the bullet went up to the left clavicle hitting a bone which incompletely fractured it causing the navigation of the bullet to the left and to the anterior side of the body. He recovered a slug, (Exh. "G") below the muscles of the left clavicle. (p. 21, ibid.) Based on the trajectory of the bullet, the assailant could have been [o]n the right side of the victim or in front of the victim but [o]n a lower level than the latter. In both gunshot wounds, he did not find any powder burns which would indicate that the muzzle of the gun was beyond a distance of 12 inches from the target. (p. 15, ibid.) At the time he conducted the autopsy, he noted that rigor mortis in its early stage had already set in which denote[s] that death had occurred 5 to 6 hours earlier. (pp. 34-5, ibid.) Maj. Juan Tiempo, father of the victims, Glenn and Nelson Tiempo, testified that when he learned about the incident in question, he immediately summoned military soldiers and together they proceeded to the scene. (pp. 4-6, tsn, Nov. 12, 1988) Arriving thereat, he saw the lifeless body of his son, Glenn. He immediately carried him in his arms and rushed him to the hospital but the victim was pronounced Dead on Arrival. (pp. 6-7, ibid.) They buried his son, who was then barely 14 years old, at Cebu Memorial Park and had incurred funeral expenses (Exhs. "K", "L", "O"). (pp. 7-8, ibid.) His other son, Nelson, then 21 years old and a graduate of [m]edical [t]echology, was admitted at the Cebu Doctor's Hospital for gunshot wound in the neck. The latter survived but could hardly talk as a result of the injuries he sustained. He had incurred medical and hospitalization expenses in the sum of P21,594.22, (Exh. "H"), (pp. 8-10, ibid.)

He had also incurred expenses in connection with the hospitalization of the injured victims, Rogelio Presores and Rey Bolo in the amount[s] of P5,412.69, (exh. "I") and P9,431.10, (Exh. "J"), respectively. (p. 11, ibid.) He further stated that he [was] familiar the accused, Roling Sabalones, because the latter had a criminal record in their office in connection with the kidnapping of a certain Zabate and Macaraya. (p. 16, ibid.) xxx xxx xxx Dr. Jesus P. Cerna, [m]edico-[l]egal [o]fficer of the PC/INP, Cebu Metrodiscom, had conducted an autopsy on the dead body of Alfredo Nardo, who sustained two (2) gunshot wounds in the lower lip and left intraclavicular region, upon the request of the [c]hief of the Homicide Section of Cebu Metrodiscom. He issued the victim's Necropsy Report, (Exh. "F:") and Death Certificate, (Exh. "G"). (pp. 5-8, tsn, Dec. 4, 1987; pp. 4-6, tsn, Nov. 29, 1988) He stated that the wound of entrance in gunshot wound no. 1 was located in the lower lip, more or less[,] on the left side making an exit in the left mandibular region. (pp. 9-11, tsn, Dec. 4, 1987; pp. 6-8, tsn, Nov. 29, 1988) In gunshot wound no. 2, the wound of entrance was in the left intraclavicular region exiting at the back as reflected in the sketch, (Exh. "F-2"). This wound was fatal and [could] almost cause an instantaneous death considering that the bullet penetrated the thoracic cavity, lacerating the lungs and perforating the heart before making an exit. (pp. 11-13, tsn, Dec. 4, 1987; pp. 13-15, tsn, Nov. 29, 1988) He found no tattooing around the wound of entrance in both gunshot wounds. (pp. 8-9, tsn, Nov. 29, 1988) He prepared and issued th[e] Necropsy Report, (Exh. "F") and Death Certificate, (Exh. "G") of Alfredo Nardo who was identified to him by the latter's daughter, Anita Nardo. (pp. 26-27, ibid.) Rey Bolo, one of the victims, testified that when the jeep he was riding [in] together with Glenn Tiempo and Alfredo Nardo, reached the gate of the residence of Stephen Lim, they were suddenly fired upon. (pp. 5-8, tsn, March 6, 1989) He was hit in the right palm and left cheek. He jumped out of the vehicle and ran towards the car which was behind them but he was again shot at [,] [and hit] in the left scapular region. He was still able to reach the road despite the injuries he sustained and tried to ask help from the people who were in the vicinity but nobody dared to help him, [they] simply disappeared from the scene, instead: (pp. 8-9, ibid.) He took a passenger jeepney to the city and had himself treated at the Cebu Doctor's Hospital, and incurred medical expenses in the sum of P9,000.00. (p. 9, ibid.) He was issued a Medical Certificate, (Exh. "N") by his attending physician. Dr. Miguel Mancao, a [p]hysician-[s]urgeon, recalled having attended [to] the victims, Nelson Tiempo, Rey Bolo and Rogelio Presores at the Cebu Doctor's Hospital on June 2, 1985. (pp. 7-8, 11, 14, tsn, May 30, 1989) Nelson Tiempo sustained gunshot wound[s] in the neck and in the right chest but the bullet did not penetrate the chest cavity but only the left axilla. He was not able to recover any slugs because the same disintegrated while the other was thru and thru. The wound could have proved fatal but the victim miraculously survived. As a consequence of the injury he sustained, Nelson Tiempo permanently lost his voice because his trachea was shattered. His only chance of recovery is by coaching and speech therapy. He issued his Medical Certificate. (Exh. "O"). (pp. 8-11, ibid.) With regard to the patient, Rey Bolo, the latter suffered multiple gunshot wounds in the left shoulder penetrating the chest and fracturing the 2nd, 3rd, and 4th ribs in the process, in the right hand fracturing the proximal right thumb and in the mouth lacerating its soft tissues, per Medical Certificate, (Exh. "N") which he issued. (pp. 11-16, ibid.) Based on the trajectory of the bullet, the gunman could have been in front of the victim, when gunshot would no. 1 was inflicted. (p. 30, ibid.) With respect to the patient, Rogelio Presores, the latter suffered [a] gunshot wound in the chest with the wound of entrance in the right anterior chest exiting at the back which was slightly lower than the wound of entrance. He issued the victim's Medical Certificate, (Exh. "M"). (pp. 34-35, ibid.) Based on the location of the wound, the gunman could have been in front of the victim but [o]n a slightly higher elevation than the latter. (pp. 35-36, ibid.) 8 Version of the Defense Appellants interposed denial and alibi. Their version of the facts is summarized by the trial court 9

thus:

. . . Timoteo Beronga, a cristo or bet caller in the cockpit, testified that in the afternoon of June 1, 1985, he was in the Talisay Sports Complex located at Tabunok, Talisay, Cebu to attend a cock-derby. At about 7:00 o'clock in the evening, he was fetched by his wife and they left taking a taxicab going to their residence in Lapulapu City. After passing by the market place, they took a tricycle and arrived home at 8:00 o'clock in the evening. After taking his supper with his family, he went home to sleep at 10:30 in the evening. The following morning, after preparing breakfast, he went back to sleep until 11:00 in the morning. On February 24, 1987, while he was playing mahjong at the corner of R.R. Landon and D. Jakosalem Sts., Cebu City, complainant, Maj. Juan Tiempo with some companions, arrived and after knowing that he [was] "Timmy," [which was] his nickname, the former immediately held him by the neck. He ran away but the latter chased him and kicked the door of the house where he hid. He was able to escape through the back door and took refuge in Mandaue at the residence of Nito Seno, a driver of Gen. Emilio Narcissi. (Tsn-Abangan, pp. 4-17, October 19, 1989) On February 27, 1987, upon the advi[c]e of his friend, they approached Gen. Narcissi and informed him of the incident. The latter brought him to the Provincial Command Headquarters in Lahug, Cebu City to confront Maj. Juan Tiempo. After several days, he was brought by Maj. Tiempo to the PC Headquarter[s] in Jones Ave., Cebu City where he was provided with a lawyer to defend him but he was instructed that he should assent to whatever his lawyer would ask of him. He was introduced to Atty. Marcelo Guinto, his lawyer, who made him sign an Affidavit, (Exh. "U") the contents of which, co[u]ched in the dialect, were read to him. He also testified that before he was detained at the CPDRC, complainant brought him inside the shop of a certain Den Ong, where he was again mauled after he denied having any knowledge of the whereabouts of Roling Sabalones and the carbine. At the instance of Col. Medija, he was physically examined at the Southern Islands Hospital, Cebu City and was issued a [M]edical Certificate. (Tsn-Formentera, pp. 3-36, Jan. 18, 1990). Justiniano Cuizon, [a]ccount [o]fficer of the Visayan Electric Company (VECO) South Extension Office, who is in charge of the billing, disconnection and reconnection of electric current, testified that based on the entries in their logbook, (Exh. "3") made by their checker, Remigio Villaver, the electrical supply at the Mansueto Compound, Bulacao, Talisay, Cebu, particularly the Mansueto Homeowners covered by Account No. 465-293000-0, (Exh. "4-B") was disconnected on January 10, 1985, (Exh. "3A") for non-payment of electric bills from March 1984 to January 1985 and was reconnected only on June 17, 1985 (Exh. "4", "4-A"). (Tsn-Abangan, pp. 22-27, Jan. 31, 1990). Remigio Villaver, a checker of VECO, whose area of responsibility cover[ed] the towns of Talisay and San Fernando, Cebu had kept the record of disconnection of electrical supply of Mansueto Subdivision in Bulacao, Talisay, Cebu and the same showed that on January 10, 1985, (Exh. "3-A"), a service order was issued by their office to the Mansueto Homeowners for the permanent disconnection of their electric lights due to non-payment of their electric bills from March 1984 until January 1985. The actual disconnection took place on December 29, 1984. Witness Fredo Canete made efforts to corroborate their testimony. (Tsn-Formentera, pp. 3-5, Apr. 20, 1990). Vicente Cabanero, a resident of Mansueto Compound in Talisay, Cebu since 1957 until the present, remembered that on June 1, 1985, between 10:00 o'clock and 11:00 o'clock in the evening, he heard a burst of gunfire about 15 to 20 armslength [sic] from his residence. He did not bother to verify because he was scared since the whole place was in total darkness. (Tsn-Abangan, pp. 18-23, Feb. 22, 1990). Marilyn Boc, another witness for the accused, stated that on the date and time of the incident in question, while she was at the wake of Junior Sabalones, younger brother of Roling Sabalones, who died on May 26, 1985, a sudden burst of gunfire occurred more or less 60 meters away. Frightened, she went inside a room to hide and saw accused, Roling Sabalones, sound asleep. She came to know accused, Timoteo Beronga, only during one of the hearings of this case and during the entire period that the body of the late Junior Sabalones [lay] in state at his residence, she never saw said accused. She was requested to testify in this case by Thelma Beronga, wife of Timoteo Beronga. (Tsn-Abangan, pp. 9-13, February 28, 1990).

Dr. Daniel Medina, while then the [r]esident [p]hysician of Southern Islands Hospital, Cebu City had treated the patient, Timoteo Beronga on March 18, 1987. Upon examination, he found out that the patient sustained linear abrasion, linear laceration and hematoma in the different parts of the body. Except for the linear laceration which he believed to have been inflicted two or three days prior to [the] date of examination, all the other injuries were already healed indicating that the same were inflicted 10 to 12 days earlier. He issued the corresponding Medical Certificate (Exh. "2") to the patient. (Tsn-Abangan, pp. 9-13, May 21, 1990). Atty. Jesus Pono, counsel for accused Beronga, mounted the witness stand and averred that he [was] a resident of Mansueto Compound, Bulacao, Talisay, Cebu. As shown in the pictures, (Exhs. "3", "4" & "5" with submarkings) his house is enclosed by a concrete fence about 5 feet 6 inches tall. It is situated 6 meters from the residence of accused, Roling Sabalones, which was then being rented by Stephen Lim. Outside the fence [are] shrubs and at the left side is a lamp post provided with 200 watts fluorescent bulb. On June 1, 1985 at about 7:00 o'clock in the evening, he saw Roling Sabalones, whom he personally [knew] because they used to be neighbors in Talisay, Cebu, at the wake of his brother, Federico Sabalones, Jr. or Junior Sabalones, as mentioned repeatedly hereabout. They even had a talk and he noticed accused to be physically indisposed being gravely affected by the loss of his only brother, who met a violent death in the hands of an unknown hitman on May 26,1985. He went home after he saw accused [lie] down on a bamboo bench to rest. At about 12:00 o'clock midnight, he was awakened by a rapid burst of gunfire which emanated near his house. He did not attempt to go down or look outside. He [was] in no position to tell whether or not the street light was lighted. When he verified the following morning, he noticed bloodstains on the ground as well as inside the jeep which was parked 2 to 3 meters from his fence and 50 to 70 meters from the house where Junior Sabalones [lay] in state. He observed that the jeep was riddled with bullets and its windshield shattered. (Tsn-Abangan, pp. 3-16, June 6, 1990). He admitted that he used to be a counsel of accused, Roling Sabalones, in several cases, among which involved the death of a certain Garces and Macaraya, which cases were however, dismissed by the Office of the Provincial Fiscal of Cebu. (TsnTumarao, pp. 2-3, June 13, 1990). Doroteo Ejares, a relative of accused, testified that when he attended the wake of Junior Sabalones on June 1, 1985 at 8:00 o'clock in the evening, he saw accused lying on a bamboo bench in the yard of the house of the deceased. At past 10:00 o'clock in the evening, accused excused himself as he was not feeling well and entered a room to rest while he remained by the door and slept. At almost 12:00 o'clock midnight, he was awakened by a burst of gunfire which took place more or less 20 meters away and saw the people scamper[ing] for safety. He hid inside the room where accused was sleeping and peeped thru the door. Not long after, Marilyn Boc entered and in a low voice talked about the incident. They decided to wake up the accused to inform him of what was happening, but the latter merely opened his eyes and realizing that accused was too weak, they allowed him to go back to sleep. When he went home at past 5:00 o'clock in the morning of June 2, 1985, he saw a jeep outside of the compound. He did not bother to investigate or inquire about the incident as he was in a hurry to go home and prepare for the burial of Junior Sabalones. He was requested to testify in this case by his aunt and mother of accused Rolusape Sabalones. (Tsn-Tumarao, pp. 10-15, June 13, 1990). Russo Sabalones, uncle of accused, Sabalones, averred that the latter was once, one of his undercover agents while he was then the [c]hief of the Intelligence Service of the PC from 1966 until 1968. As part of their intelligence tradition, an undercover agent is not allowed to carry his real name. In the case of his nephew and accused, Rolusape Sabalones, the latter chose the name "Paciano Laput" which name was recorded in their code of names. When he retired in 1968, the accused ceased to be an agent and . . . likewise ceased to have the authority to use the name Paciano Laput. (Tsn-Abangan, p. 12, July 23, 1990). Alfonso Allere, a distant relative of the accused, remembered having received a call from Roling Sabalones, one morning after the burial of the latter's brother, asking for his advise because of the threats [to] his life which he received thru telephone from the group of Nabing Velez and the group of the military.

After he had advised accused to lie low, he had not heard of him, since then. Godofredo Mainegro of the Public Assistance and Complaint Action Office of the Regional Unified Command 7, received a complaint from one Inocencia Sabalones on March 13, 1986. He recorded the complaint in their Complaint Sheet, (Exh. "6") and let complainant affix her signature. After the document was subscribed and sworn to before him, (Exh. "6-C"), he indorsed it to their [c]ommanding [o]fficer, Apolinario Castano. (Tsn-Formentera, pp. 3-10, July 24, 1990). Ret. Col. Apolinario Castano, recalled that while he was then with the Regional Unified Command 7, his niece, Racquel Sabalones together with her husband Roling Sabalones, came to him for advi[c]e because the latter was afraid of his life brought about by the rampant killings of which his brother and the son of Maj. Tiempo were victims. Considering that accused's problem matter, they approached Gen. Ecarma, the then [c]ommander of the PC/INP, Recom 7, and the latter referred them to his [c]hief of [s]taff, Col. Roger Denia, who informed them that there was no case filed against the accused. Nevertheless, the latter was advised to be careful and consult a lawyer. Inocencia Sabalones, mother of accused, Roling Sabalones, narrated that on March 12, 1986 at past 10:00 o'clock in the evening, she was roused from sleep by a shout of a man demanding for Roling Sabalones. Upon hearing the name of her son, she immediately stood up and peeped through the door of her store and saw men in fatigue uniforms carrying long firearms. Thenceforth, these men boarded a vehicle and left. On the following morning, she was again awakened by the persistent shouts and pushing of the gate. When she verified, the man who introduced himself to her as Maj. Tiempo, ordered her to open the gate. Once opened, the men of Maj. Tiempo entered the house and proceeded to search for Roling Sabalones, whom Maj. Tiempo suspected to have killed his son and shot another to near death. When she demanded for a search warrant, she was only shown a piece of paper but was not given the chance to read its contents. Racquel Sabalones, wife of accused, Rolusape Sabalones, maintained that on June 1, 1985 at 1.00 o'clock in the afternoon, she was at the wake of her brother-in-law, Junior Sabalones, at his residence in Bulacao, Talisay, Cebu. At 11:00 o'clock in the evening of the same day, together with her 3 daughters as well as Marlyn Sabarita, Rose Lapasaran and Gloria Mondejar, left the place in order to sleep in an unoccupied apartment situated 30 meters away from the house where her deceased, brother-in-law, Junior, was lying in state, as shown in the Sketch, (Exh. "7" and submarkings) prepared by her. They brought with them a flashlight because the whole place was in total darkness. As they were about to enter the gate leading to her apartment she noticed a sedan car coming towards them. She waited for the car to come nearer as she thought that the same belong[ed] to her friend, but the vehicle instead stopped at the corner of the road, (Exh. "7-F") and then proceeded to the end portion of Mansueto Compound, (Exh. "7-G"). As it moved slowly towards the highway, she rushed inside the apartment. Few minutes later, she heard a burst of gunfire outside their gate. She immediately gathered her children and instructed Marlyn Sabarita to use the phone situated at the third door apartment and call the police. After the lull of gunfire, she went to the terrace and saw people in civilian and in fatigue uniforms with firearms, gathered around the place. One of these men even asked her about the whereabouts of her husband, whom she left sleeping in the house of the deceased. At 8:30 in the morning of June 2, 1985, during the burial of Junior Sabalones, they were informed by Pedro Cabanero that Roling Sabalones was a suspect for the death of Nabing Velez and the son of Maj. Tiempo. She believed that the reason why her husband was implicated in the killing of Nabing Velez was because of the slapping incident involving her father-in-law, Federico Sabalones, Sr. and Nabing Velez which took place prior to the death of Junior Sabalones. After the funeral, she began to receive mysterious calls at their residence in Sikatuna St., Cebu City where they began staying since 1978. She also noticed cars with tinted windows strangely parked in front of their residence. Frightened and cowed, they decided to seek the advice of Col. Apolinario Castano, who after relating to him their fears, advised her husband to lie low and to consult a lawyer. To allay their apprehension, accused, Roling Sabalones, left Cebu City for Iligan, Manila and other cities to avoid those who were after him. When she learned about the threat made by Maj. Tiempo on her husband, she forewarned the latter not to return to Cebu.

Marlyn Sabarita, an illegitimate daughter of Rolusape Sabalones, stated that in the night in question, she was at the wake of Junior Sabalones and saw her Papa Roling, the herein accused, lying on the lawn of the house of the deceased. She was already in the apartment with her Mama Racquel when she heard a burst of gunfire. Upon instructions of the latter, she went out to call the police thru the phone located [in] the third apartment occupied by a certain Jet. (Tsn-Tumarao, pp. 3-15, Oct. 15, 1990). Edward Gutang, [a]sst. lay-out [e]ditor and [a]sst. [s]ports [e]ditor of Sun-Star Daily, while then a military and police reporter had covered the shooting incident which took place on June 1, 1985 at the Mansueto Compound, Bulacao, Talisay, Cebu. At past 1:00 o'clock dawn, together with their newspaper photographer, Almario Bitang, they went to the crime scene boarding the vehicle of the Cosmopolitan Funeral Homes. Arriving thereat, they decided not to proceed inside the compound because of fear. The place was then incomplete darkness. Upon being informed that the victims were brought to Cebu City Medical Center, they rushed to the place and met Maj. Tiempo hugging the dead body of his 14-year old son. His photographer took a picture of that pathetic scene. (Exh. "8-B"). Samson Sabalones, a retired [a]mbassador and uncle of Rolusape Sabalones, posted a bail bond for his nephew with Eastern Insurance Company, when a warrant for his arrest was issued by the Municipal Court, on March 12, 1986 because he was bothered by the fact that the latter was being unreasonably hunted by several groups. He even advised the accused to appear in [c]ourt to clarify the nature of the case filed against him. Virgincita Pajigal, a resident of Butuan City, met accused, Rolusape Sabalones, who introduced himself to her as "Paciano Laput" nicknamed, Ondo, in a massage clinic where she was working. For less than a year, they lived together as husband and wife without the benefit of marriage because according to her the accused was married but separated from his wife, whose name was never mentioned to her. For such a short span of time being together, her love for the accused developed to the extent that whatever happen[ed] to him, she [would] always be there to defend him. With the help of Maj. delos Santos, who advised her to always stay close [to] the accused, she was able to board the same vessel. She saw the latter clad in green T-shirt, (Exh. "14") and pants, handcuffed and guarded. Reaching Cebu City, they took a taxicab and as the vehicle went around the city, she was instructed by Maj. Tiempo to place the towel, (Exh. "15") which she found inside her bag, on the head of the accused. They stopped at the Reclamation Area and Maj. Tiempo pulled them out of the vehicle but she held on tightly to Ondo, ripping his shirt. This pulling incident happened for several times but complainant failed to let them out of the vehicle. The accused was finally brought to the Provincial Jail while she stayed in the residence of the accused. She returned to Butuan after a week. (Tsn-Formentera, pp. 5-33, Jan. 22, 1991). Accused, Rolusape Sabalones, alias "Roling", in his defense, with ancillary incidental narrations, testified, that on June 1, 1985 at 6:00 o'clock in the evening, he was at the wake of his only brother, Junior Sabalones, who was killed on May 26, 1985. He had no idea as to who was responsible for the killing of his brother inasmuch as the latter had plenty of enemies. He also did not exert effort to look into the case and to place it under police authority since he had lost faith in the capabilities of the police. The matter was however reported by his uncle, Ambassador Sabalones, to the authorities. He stayed at the wake until 10:00 o'clock in the evening because he was not feeling well. He retired in a small room adjacent to the sala of the house of the deceased. Not long after, he felt somebody waking him up but he merely opened his eyes and went back to sleep as he was really exhausted. At 6:30 the following morning, he was roused by his wife so he could prepare for the burial. He came to know about the burst of gunfire which took place the previous night upon the information of his wife. He did not take the news seriously as he was busy preparing for the burial of his deceased brother, Jun. The funeral started at past 8:00 o'clock in the morning and he noticed the presence of Maj. Eddie Ricardo and his men, who were sent by Col. Castano purposely to provide the burial with military security, upon the request of his wife. He had a conversation with Maj. Ricardo who inquired about the shooting incident which resulted in the death of the son of Maj. Tiempo and others in his company. Also in the course of their conversation, he came to know that Nabing Velez was killed earlier on that same night in Labangon, Cebu [C]ity. On the same occasion, Pedro Cabanero also notified him that he was a suspect in the killing of Nabing Velez, a radio commentator of ferocious character, who was engaged in a protection racket with several under his control.

He remembered that a month prior to the death of Nabing Velez, his father, Federico Sabalones, Sr. and the deceased while matching their fighting cocks at the Talisay Sports Complex, had an altercation and the latter slapped his paralytic father and challenged him to ask one of his sons to avenge what he had done to him. He came to know about the incident only after a week. He did not deny the fact that he was hurt by the actuation of the deceased for humiliating his father but it did not occur to him to file a case or take any action against the deceased because he was too busy with his business and with his work as a bet caller in the cockpit. He advised his father to stay in Bohol to avoid further trouble because he knew that the latter would frequent the cockpit[,] being a cockfight aficionado. Likewise, during the burial, he was informed by a PC soldier, Roger Capuyan, that he was also a suspect in the killing of the son of Maj. Tiempo and even advised him to leave the place. On the following days after the burial, his wife started to notice cars suspiciously parked in front of their house and [she] also received mysterious calls. Together with his wife, they decided to see Col. Apolinario Castaño to seek his advise. The latter verified from the Cebu Metrodiscom and learned that there was no case filed against him. In the evening of June 6, 1985, he left for Iligan and after a month, he transferred to Ozamis and ten to Pagadian. He likewise went to Manila especially when he learned that his uncle, Samson Sabalones, had arrived from abroad. The latter posted a bond for his temporary liberty immediately after being informed that a case was filed against him, before the Municipal Court of Talisay. Despite . . . the bond put up his uncle, he did not return to Cebu City because it came to his knowledge that Maj. Tiempo inquired from the bonding company as to his address. He also stayed in Marikina in the house of his friend and during his stay in the said place, he registered as a voter and was issue a Voter's Affidavit, (Exh. "19"; Exh. "R" for the prosecution) which bore the name "Paciano Mendoza Laput" which [was] his baptismal name. He explained that the name[s] Mendoza and Laput [were] the middle name and surname, respectively of his mother. The name "Rolusape" was given to him by his father and the same [was] not his registered name because during the old days, priests would not allow parents to name their children with names not found in the Almanac; thus, Paciano [was] his chosen name and the same appeared in his Baptismal Certificate, (Exh. "20") issued by the Parish of the Blessed Trinity of Talibon, Bohol. In his Birth Certificate, it [was] the name "Rolusape" which appeared based upon the data supplied by his father. He had used the name Paciano during the time when he [was] still a secret agent under his uncle, Gen. Russo Sabalones, when the latter was still the [c]hief of the C-2 in 1966 until 1967 and as such, he was issued a firearm. He likewise used said name at the time he was employed at the Governor's Office in Agusan and when he registered in the Civil Service Commission to conceal his identity to protect himself from those who were after him. From Marikina he proceeded to Davao and then to Butuan City where he was made to campaign for the candidacy of Gov. Eddie Rama. When the latter won in the election, he was given a job at the Provincial Capitol and later became an agent of the PC in Butuan using the name, "Paciano Laput." During his stay in Butuan, he met Virgie Pajigal, a manicurist who became his live-in partner. On October 23, 1988 while he was at the Octagon Cockpit in Butuan with Sgt. Tambok, he was arrested by Capt. Ochate and was brought to the PC Headquarter[s] in Libertad, Butuan City and was detained. Among the papers confiscated from him was his Identification Card No. 028-88, (Exh. "21") issued by the PC Command bearing the name Paciano Laput. On October 26, 1988 he was taken from the City Jail by Capt. Ochate and some soldiers, one of whom was Maj. Tiempo whom he met for the first time. On their way to Nasipit to board a vessel bound for Cebu City, Maj. Tiempo made him lie flat on his belly and stepped on his back and handcuffed him. He cried in pain because of his sprained shoulder. A certain soldier also took his watch and ring. Arriving in Cebu at 7:00 o'clock in the morning, he and Virgie Pajigal, who followed him in the boat, were made to board a taxicab. Maj. Tiempo alighted in certain place and talked to a certain guy. Thereafter, they were brought to the Reclamation Area and were forced to go down from the vehicle but Virgie Pajigal held him tightly. They were again pulled out of the taxi but they resisted. From the Capitol Building, they proceeded to CPDRC and on their way thereto, Maj. Tiempo sat beside him inside the taxi and boxed him on the right cheek below the ear and pulled his cuffed hands apart.

At the Provincial Jail, he was physically examined by its resident physician, Dr. Dionisio Sadaya, and was also fingerprinted and photographed, (Exh. "21"). He was issued a Medical Certificate, (Exh. "22"). He further stated that he [was] acquainted with his co-accused Timoteo Beronga, known to him as "Timmy" being also a bet caller in the cockpit. (Tsn-Formentera, pp. 5-23, Feb. 26, 1991; Tsn-Abangan, pp. 3-33, Feb. 27, 1991; Tsn-Abangan, pp. 4-18, Apr. 10, 1991). As surrebuttal witness, accused Rolusape Sabalones denied that he bribed a certain soldier because at the time he was arrested, his wallet as well as his wristwatch and ring worth P2,000.00 each were confiscated and his hands tied behind his back. He also denied the allegation of Maj. Tiempo that he offered the latter the amount of P1,000,000.00 to drop the case against him, the truth being that while they were on board a vessel bound for Cebu City, Maj. Tiempo compelled him to tell [who] the real killers of his son [were] because he knew that he (Rolusape Sabalones) was not responsible. The former also inquired from him as to the whereabouts of the carbine. He also rebutted complainant's testimony that upon their arrival here in Cebu City and while on board a taxicab, he directed the former [to] first go around the city to locate a certain Romeo Cabañero, whom he did not know personally. 10 Ruling of the Court of Appeals Giving full credence to the evidence of the prosecution, the Court of Appeals affirmed the trial court's Decision convicting appellants of two counts of murder and three counts of frustrated murder. Like the trial court, it appreciated the qualifying circumstance of treachery and rejected appellants' defense of alibi. The Court of Appeals, however, ruled that the penalties imposed by the trial court were erroneous. Hence, for each count of murder, it sentenced appellants to reclusion perpetua. For each count of frustrated murder, it imposed the following penalty: ten years (10) of prision mayor (medium), as minimum, to seventeen years (17) years and four (4) months of reclusion temporal (medium), as maximum. Sustaining the trial court, the Court of Appeals awarded indemnity of P20,000 to each of the victims of frustrated murder. However, it was silent on the indemnity of P50,000 awarded by the trial court to the heirs of each of the two deceased. Having imposed reclusion perpetua on the appellants, the Court of Appeals, as earlier noted, refrained from entering judgment and certified the case to the Supreme Court for review, in conformity with Section 13, Rule 124 of the Rules of Court. Hence, this appeal before this Court. 11 The Issues In his Brief, 12

Appellant Sabalones raised the following errors allegedly committed by the trial court:
I The court a quo erred in finding that accused Sabalones and his friends left the house where his brother Sabalones Junior was lying in state and "went to their grisly destination amidst the dark and positioned themselves in defense of his turf against the invasion of a revengeful gang of the supporters of Nabing Velez. II The court a quo erred in finding that accused Sabalones and his two co-accused were identified as among the four gunmen who fired at the victims. III The court a quo erred in overlooking or disregarding physical evidence that would have contradicted the testimony of prosecution witnesses Edwin Santos and Rogelio Presores that the gunmen were shooting at them from a standing position. IV The court a quo erred in holding that the instant case is "one of aberratio ictus", which is not a defense, and that the "defense of alibi" interposed by the accused may not be considered. V

The court a quo erred in not finding that the evidence of the prosecution has not overcome the constitutional presumption of innocence in favor of the accused. VI The court a quo erred in not acquitting the accused on ground of reasonable doubt. In a Manifestation dated December 20, 1995, Appellant Beronga, through counsel, adopted as his own the Brief of Sabalones. 13 The foregoing assignment of errors shall be reformulated by the Court into these three issues or topics: (1) credibility of the witnesses and sufficiency of the prosecution evidence, (2) defense of denial and alibi, and (3) characterization of the crimes committed and the penalty therefor. The Court's Ruling The appeal is devoid of merit. First Issue: Credibility of Witnesses and Sufficiency of Evidence Well-entrenched is the tenet that this Court will not interfere with the trial court's assessment of the credibility of the witnesses, absent any indication or

especially where, as in this case, such assessment is affirmed by the Court of Appeals. "As this Court has reiterated often enough, the matter of assigning values to declarations at the witness stand is best and most competently performed or carried out by a trial judge who, unlike appellate magistrates, can weigh such testimony in light of the accused's behavior, demeanor, conduct and attitude at the trial." 15 Giving credence to the testimonies of the prosecution witnesses, the trial court concluded:
showing that the trial court has overlooked some material facts or gravely abused its discretion, 14 Stripped of unnecessary verbiage, this Court, given the evidence, finds that there is more realism in the conclusion based on a keener and realistic appraisal of events, circumstances and evidentiary facts on record, that the gun slaying and violent deaths of Glenn Tiempo and Alfredo Nardo, and the near fatal injuries of Nelson Tiempo, Rey Bolo and Rogelio Presores, resulted from the felonious and wanton acts of the herein accused for mistaking said victims for the persons [who were] objects of their wrath. 16 We stress that "factual findings of the lower courts, the trial court and the Court of Appeals are, as a general rule, binding and conclusive upon the

We find nothing in the instant case to justify a reversal or modification of the findings of the trial court and the Court of Appeals that appellants committed two counts of murder and three counts of frustrated murder.
Supreme Court."
17

Edwin Santos, a survivor of the assault, positively pointed to and identified the appellants as the authors of the crime. His categorical and straightforward testimony is quoted hereunder: 18 COURT: Q You stated there was a gun fired. What happened next? WITNESS: A There was a rapid fire in succession. Q When you heard this rapid firing, what did you do? A I tried to look from where the firing came from. Q After that, what did you find? A I saw persons firing towards us. Q Where were these persons situated when they were firing towards you? A Near the foot of the electric post and close to the cemented wall.

Q This electric post, was that lighted at that moment? A Yes, sir, it was lighted. Q How far were these persons firing, to the place where you were? A From here to there (The witness indicating the distance by pointing to a place inside the courtroom, indicating a distance of about 6 to 7 meters, making the witness stand as the point of reference). Q Were you able to know how many persons fired towards you? A I only saw 3 to 4 persons. Q How long did these persons fire the guns at you? A Until we went home. The persons were still firing, until we went home. Q You stated that you saw these persons who were firing at you. Do you know these persons? A I can identify [them] when I [see] them. Q Try to look around this courtroom, if these persons you saw who were firing at you are present in the courtroom[.] A Yes, sir. Q Can you point to these persons? A Yes, sir. Q Point at them. COURT INTERPRETER: The Court directed the witness to go down from the witness stand and [point] at them, Beronga and Alegarbes. FISCAL GABIANA: I would like to make it of record that on the bench of prisoner, only the two accused were seated. COURT: Make it of record that only two prisoners were present. Q Now, Mr. Santos, aside from these two accused you identified as among those who fired [at] you on that evening, were there other persons that you saw on that particular occasion who fired at you? A Yes, sir, there were[;] if I can see them, I can identify them. Corroborating the foregoing, Rogelio Presores, another survivor, also pointed to Timoteo Beronga, Teodulo Alegarbes and Roling Sabalones as the perpetrators of the crime. His testimony proceeded in this manner: 19 Q When you arrived at the residence of Stephen Lim, can you remember of any unusual incident that took place? A Yes, sir. Q What was that?

A When the jeep arrived, the car was following. Q What happened next? A When the jeep was near the gate, the car was following. Q The car was following the jeep, at what distance? A 3 to 4 meters. Q While the car was following the jeep at that distance of 3 to 4 meters, what happened? A All of a sudden, we heard the burst of gunfire. Q From what direction was the gunfire? A Through the direction of the jeep. Q After hearing the gunfire, what happened? A We looked at the jeep. Q What did you see? A We saw Alfredo Nardo and Glenn Tiempo and Rey Bolo f[a]ll to the ground. There were only 3. Q Who was driving the jeep at that time? A Alfredo Nardo. Q What happened after that? A So, I looked, whence the burst of gunfire came from. Q What did you see from that gunfire? A I saw 4 persons standing at the back of the fence. Q What were those 4 persons doing when they were standing at the back of the fence? A They were bringing long firearms. Q Did you recognize these persons? A I can clearly recognize one and the 3 persons[.] I can identify them, if I can see them again. Q If you are shown these persons, can you recognize them? Can you name these persons? A No, sir. Only their facial appearance. Q What about the 3 persons? A That's why the 3 persons, I do not know them. I can recognize only their facial appearance. Q What about one person? A Yes, sir. Q What is the name of the person?

A Roling Sabalones. Q If Roling Sabalones is inside the courtroom, can you recognize Roling Sabalones? A Yes, sir, he is around. Q Can you point to Roling Sabalones? A Yes, he is there (The witness pointing to the person who answered the name of Roling Sabalones). Q I would like [you] again to please look around and see, if those persons whom you know through their faces, if they are here around? A The two of them (The witness pointing to the 2 persons, who, when asked, answered that his name [was] Teofilo Beronga and the other [was] Alegarbes). Indeed, we have carefully waded through the voluminous records of this case and the testimonies of all the fifty-nine witnesses, and we find that the prosecution has presented the required quantum of proof to establish that appellants are indeed guilty as charged. Appellants' arguments, as we shall now discuss, fail to rebut this conclusion. Positive Identification Appellants allege that the two witnesses could not have properly identified the appellants because, after the first burst of shooting, they both crouched down, such that they could not have seen the faces of their assailants. This contention does not persuade. Both eyewitnesses testified that the firing was not continuous; thus, during a lull in the firing, they raised their heads and managed a peek at the perpetrators. Edwin Santos testified as follows: Atty. Albino, counsel for accused Beronga: Q You mean to say that when you bent you heard the successive shots, [and] you again raised your head. Is that correct? A There, were times that the shots were not in succession and continuous and that was the time I raised my head again. 20 Like Santos, Rogelio Presores also stooped down when the firing started, but he raised his head during a break in the gunfire: Atty. Albino: Q So, what did you do when you first heard that one shot? A So, after the first shot, we looked towards the direction we were facing and when we heard the second shot, that was the time we stooped down. 21 He further testified: Atty. Acido: [Counsel for Appellant Sabalones] Q And you said you stooped down inside the car when you heard the first firing to the jeep. Is that what you want the Court to understand[?] Presores: A Yes, sir. Q So, you never saw who fired the successive shots to the car as you said you stooped down inside the car? A The bursts of gunfire stopped for a while and that was the time I reared of [sic] my head. Q And that was the first time you saw them? A Yes, sir. 22

The records clearly show that two vehicles proceeded to the house of Stephen Lim on that fateful day. The first was the jeep where Alfredo Nardo, Glenn Tiempo and Rey Bolo were riding. About three to four meters behind was the second car carrying Nelson Tiempo, Guillermo Viloria, Rogelio

As stated earlier, said witnesses attested to the fact that after the first volley of shots directed at the jeep, they both looked at the direction where the shots were coming from, and they saw their friends in the jeep falling to the ground, as well as the faces of the perpetrators. 24 It was only then that a rapid succession of gunshots were directed at them, upon which they started crouching to avoid being hit.
Oliveros and the two prosecution witnesses ² Edwin Santos and Rogelio Presores. 23 Hence, they were able to see and identify the appellants, having had a good look at them after the initial burst of shots. We stress that the normal

"the most natural reaction for victims of criminal violence is to strive to see the looks and faces of their assailants and to observe the manner in which the crime is committed.
reaction of a person is to direct his sights towards the source of a startling shout or occurrence. As held in People v. Dolar, 25 In bolstering their claim that it was impossible for the witnesses to have identified them, appellants further aver that the crime scene was dark, there being no light in the lampposts at the time. To prove that the service wire to the street lamps at the Mansueto Compound was disconnected as early as

Remigio Villaver, 27 Fredo Canete and Edward Gutang. The trial court, however, did not lend weight to said testimonies, preferring to believe the statement of other prosecution witnesses that the place was lighted during that time.
December 1984 and reconnected only on June 27, 1985, they presented the testimonies of Vicente Cabanero,
28 29 26

The Court of Appeals sustained said findings by citing the testimonies of defense witnesses. Fredo Canete of the Visayan Electric Company (VECO), for instance, admitted that it was so easy to connect and disconnect the lights. He testified thus: Atty. Kintanar: Q Now, as a cutter, what instruments do you usually use in cutting the electrical connection of a certain place? Canete: A Pliers and screw driver. Q Does it need . . . very sophisticated instruments to disconnect the lights? A No, these are the only instruments we use. Q Ordinary pliers and ordinary screw driver? A Yes, sir. Q And does [one] need to be an expert in electronic [sic] in order to conduct the disconnection? A No, sir. Q In other words, Mr. Canete, any ordinary electrician can cut it? A That is if they are connected with the Visayan Electric Company. Q What I mean is that, can the cutting be done by any ordinary electrician? A Yes, sir. 30

The Court of Appeals further noted that "none of the above witnesses were at the crime scene at or about the exact time that the ambush occurred. Thus, none was in a position to state with absolute certainty that there was allegedly no light to illuminate the gunmen when they rained bullets on the victims. 32
Said witness even admitted that he could not recall if he did in fact cut the electrical connection of the Mansueto Compound. 31 Even assuming arguendo that the lampposts were not functioning at the time, the headlights of the jeep and the car were more than sufficient to illuminate the crime scene. 33

The Court has previously held that the light from the stars or the moon, an oven, or a

wick lamp or gasera can give ample illumination to enable a person to identify or recognize another. 34 In the same vein, the headlights of a car or a jeep are sufficient to enable eyewitnesses to identify appellants at the distance of 4 to 10 meters.
Extrajudicial Statement of Beronga Appellants insist that Beronga's extrajudicial statement was obtained through violence and intimidation. Citing the res inter alios acta rule, they also argue that the said statement is inadmissible against Sabalones. Specifically, they challenge the trial court's reliance on the following portions of Beronga's statement: Q After Roling knew that Na[b]ing Velez was killed, have you observed [if] Roling and his companions prepared themselves for any eventuality? A It did not take long after we knew that Na[b]ing was killed, somebody called up by telephone looking for Roling, and this was answered by Roling but we did not know what they were conversing about and then Roling went back to the house of Junior after answering the phone. And after more than two hours, we heard the sound of engines of vehicles arriving, and then Meo, the man who was told by Roling to guard, shouted saying: "They are already here[;]" after that, Roling came out carrying a carbine accompanied by Tsupe, and not long after we heard gunshots and because of that we ran towards the house where the wake was. But before the gun-shots, I heard Pedring Sabalones father of Roling saying: "You clarify, [t]hat you watch out for mistake[n] in identity," and after that shout, gunshots followed. [sic] Then after the gun-shots Roling went back inside still carrying the carbine and shouted: "GATHER THE EMPTY SHELLS AND MEO[,] YOU BRING A FLASHLIGHT," and then I was called by Meo to help him gather the empty shells of the carbine and also our third companion to gather the empty shells. These arguments have no merit. In the first place, it is well to stress that appellants were convicted based primarily on the positive identification of the two survivors, Edwin Santos and Rogelio Presores, and not only on the extrajudicial statement, which merely corroborates the eyewitness testimonies. Thus, said arguments have no relevance to this case. As the Court held in People vs. Tidula: 35

"Any allegation of violation of rights during custodial investigation is relevant and material only to cases in which an extrajudicial admission or confession extracted from the accused becomes the basis of their conviction."
In any case, we sustain the trial court's holding, as affirmed by the Court of Appeals, that the extrajudicial statement of Beronga was executed in

"Extrajudicial confessions, especially those which are adverse to the declarant's interests are presumed voluntary, and in the absence of conclusive evidence showing that the declarant's consent in executing the same has been vitiated, such confession shall be upheld." 37
compliance with the constitutional requirements. 36 The exhaustive testimony of Sgt. Miasco, who undertook the investigation, shows that the appellant was apprised of his constitutional rights to remain

Said witness also stated that Beronga was assisted by Atty. Marcelo Guinto during the custodial investigation. 39 In fact, Atty. Guinto also took the witness stand and confirmed that Appellant Beronga was informed of his rights, and that the investigation was proper, legal and not objectionable. Indeed, other than appellants' bare allegations, there was no showing that Beronga's statement was obtained by force or duress. 40
silent and to have competent and independent counsel of his own choice. 38 Equally unavailing is appellants' reliance on the res inter alios acta rule under Section 30, Rule 130 of the Rules of Court, which provides: The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration. Appellants assert that the admission referred to in the above provision is considered to be against a co-conspirator only when it is given during the existence of the conspiracy. They argue that Beronga's statement was made after the termination of the conspiracy; thus, it should not be admitted and used against Sabalones. The well-settled rule is that the extrajudicial confession of an accused is binding only upon himself and is nor admissible as evidence against his co-

But this rule admits of exception. It does not apply when the confession, as in this case, is used as circumstantial evidence to show the probability of participation of the co-accused in the killing of the victims 42 or when the confession of the co-accused is corroborated by other evidence. 43
accused, it being mere hearsay evidence as far as the other accused are concerned. 41 Beronga's extrajudicial statement is, in fact, corroborated by the testimony of Prosecution Witness Jennifer Binghoy. Pertinent portions of said testimony are reproduced hereunder:

Q While you were at the wake of Jun Sabalones and the group were sitting with Roling Sabalones, what were they doing? A They were gathered in one table and they were conversing with each other. xxx xxx xxx Q On that same date, time and place, at about 10:00 [i]n the evening, can you remember if there was unusual incident that took place? A I heard over the radio at the Sabalones Family that a certain Nabing Velez was shot. Q That [a] certain Nabing Velez was shot? What else . . . transpired? A I observed that their reactions were so queer, ² as if they were running. xxx xxx xxx Q In that evening of June 1, 1985, when you went there at the house of Jun Sabalones, have you seen an armalite? A Yes, sir. Q Where aid you see this armalite? A At the table where they were conversing. Q How many armalites or guns [did you see] that evening in that place? A Two (2). xxx xxx xxx Q This armalite that you saw, ² how far was this in relation to the groups of Sabalones? A There (The witness indicating a distance of about 4 to 5 meters). ATTY. KINTANAR: Q When you looked . . . through the window and saw there were two vehicles and there were bursts of gunfire, what happened after that? A I did not proceed to look . . . through the window because I stooped down. Q When you stooped down, what happened? A After the burst of gunfire, I again opened the window. Q And when again you opened the window, what happened? A I saw two persons going towards the jeep. Q What transpired next after [you saw] those 2 persons? A When they arrived there, they nodded their head[s]. Q After that, what happened? A So, they went back to the direction where they came from, going to the house of Sabalones.

Q While they were going to the direction of the house of Sabalones, what transpired? A I saw 5 to 6 persons coming from the highway and looking to the jeep, and before they reached the jeep, somebody shouted that "it's ours". Q Who shouted? A The voice was very familiar to me. Q Whose voice? A The voice of Roling Sabalones. Q What else have you noticed during the commotion [when] wives were advising their husbands to go home? A They were really in chaos. 44 A careful reading of her testimony buttresses the finding of the trial court that Rolusape Sabalones and his friends were gathered at one table, conversing in whispers with each other, that there were two rifles on top of the table, and that they became panicky after hearing of the death of Nabing Velez on the radio. Hence, the observation of the trial court that "they went to their grisly destination amidst the dark and positioned themselves in defense of his turf against the invasion of a revengeful gang of supporters of the recently slain Nabing Velez." 45 Alleged Inconsistencies Appellants also allege that the prosecution account had inconsistencies relating to the number of shots heard, the interval between gunshots and the victims' positions when they were killed. These, however, are minor and inconsequential flaws which strengthen, rather than impair, the credibility of said eyewitnesses. Such harmless errors are indicative of truth, not falsehood, and do not cast serious doubt on the veracity and reliability of complainant's testimony. 46 Appellants further claim that the relative positions of the gunmen, as testified to by the eyewitnesses, were incompatible with the wounds sustained by the victims. They cite the testimony of Dr. Ladislao Diola, who conducted the autopsy on Glenn Tiempo. He declared that the victim must necessarily be on a higher level than the assailant, in the light of the path of the bullet from the entrance wound to where the slug was extracted. This finding, according to appellant, negates the prosecution's account that the appellants were standing side by side behind a wall when they fired at the victims. If standing, appellants must have been on a level higher than that of the occupants of the vehicles; if beside each other, they could not have inflicted wounds which were supposed to have come from opposite angles. We are not persuaded. The defense presumes that the victims were sitting still when they were fired upon, and that they froze in the same position during and after the shooting. This has no testimonial foundation. On the contrary, it was shown that the victims ducked and hid themselves, albeit in vain, when the firing began. After the first volley, they crouched and tried to take cover from the hail of bullets. It would have been unnatural for them to remain upright and still in their seat. Hence, it is not difficult to imagine that the trajectories of the bullet wounds varied as the victims shifted their positions. We agree with the following explanation of the Court of Appeals: The locations of the entry wounds can readily be explained, . . . Glenn Tiempo, after looking in the direction of the explosion, turned his body around; and since the ambushers were between the jeep and the car, he received a bullet in his right chest (wound no. 1) which traveled to the left. As to wound No. 2, it can be explained by the spot where Major Tiempo found his fallen son. Atty. Kintanar: Q: Upon being informed by these occupants who were ambushed and [you] were able to return the car, what did you do? Major Tiempo: A: I immediately got soldiers and we immediately proceeded to the area or to the place where my fallen son was located and when we reached . . . the place, I saw my fallen son [in] a kneeling position where both knees [were] touching the ground and the toes also and the forehead was touching towards the ground. (TSN, Feb. 12, 1988, p. 6) In such position the second bullet necessarily traveled upwards in relation to the body, and thus the entry wound should be lower than the exit wound. There is no showing that both wounds were inflicted at the same time. 47 In any event, the witnesses saw that the appellants were the gunmen who were standing side by side firing at them. They could have been in a different position and in another hiding place when they first fired, but this is not important. They were present at the crime scene, and they were shooting their rifles at the victims.

Aberratio Ictus Appellants likewise accuse the trial court of engaging in "conjecture" in ruling that there was aberratio ictus in this case. This allegation does not advance the cause of the appellants. It must be stressed that the trial court relied on the concept of aberratio ictus to explain why the appellants staged the ambush, not to prove that appellants did in fact commit the crimes. Even assuming that the trial court did err in explaining the motive of the appellants, this does not detract from its findings, as affirmed by the Court of Appeals and sustained by this Court in the discussion above, that the guilt of the appellants was proven beyond reasonable doubt. In any event, the trial court was not engaging in conjecture in so ruling. The conclusion of the trial court and the Court of Appeals that the appellants killed the wrong persons was based on the extrajudicial statement of Appellant Beronga and the testimony of Jennifer Binghoy. These pieces of evidence sufficiently show that appellants believed that they were suspected of having killed the recently slain Nabing Velez, and that they expected his group to retaliate against them. Hence, upon the arrival of the victims' vehicles which they mistook to be carrying the avenging men of Nabing Velez, appellants opened fire. Nonetheless, the fact that they were mistaken does not diminish their culpability. The Court has held that "mistake in the identity of the victim carries the same gravity as when the accused zeroes in on his intended victim." 48 Be that as it may, the observation of the solicitor general on this point is well-taken. The case is better characterized as error personae or mistake in the identity of the victims, rather than aberratio ictus which means mistake in the blow, characterized by aiming at one but hitting the other due to imprecision in the blow. Second Issue: Denial and Alibi Appellants decry the lower courts' disregard of their defense of alibi. We disagree. As constantly enunciated by this Court, the established doctrine requires the accused to prove not only that he was at some other place at the time of the commission of the crime, but that it was physically impossible for him at the time to have been present at the locus criminis or its immediate vicinity. 49

This the appellants miserably failed to do.

Appellant Beronga testified that, at the time of the incident, he was in his residence in Lapulapu City, which was not shown to be so remote and inaccessible that it precluded his presence in Mansueto Subdivision. The alibi of Sabalones is even more unworthy of belief; he sought to establish that he was a mere 20-25 meters away from the scene of the crime. He was allegedly in the house of his brother who was lying in state, which was so near the ambush site that some of the defense witnesses even testified that they were terrified by the gunfire. Clearly, appellants failed to establish the requisites of alibi. Furthermore, the defense of alibi cannot overcome the positive identification of the appellants. 50

As aptly held by this Court in People

v. Nescio: 51
Alibi is not credible when the accused-appellant is only a short distance from the scene of the crime. The defense of alibi is further offset by the positive identification made by the prosecution witnesses. Alibi, to reiterate a well-settled doctrine, is accepted only upon the clearest proof that the accused-appellant was not or could not have been at the crime scene when it was committed. Flight Appellants further object to the finding that Sabalones, after the incident, "made himself scarce from the place of commission. He left for Manila, thence Mindanao on the supposition that he want[ed] to escape from the wrath of Maj. Tiempo and his men for the death of Glenn Tiempo and the near fatal shooting of the other son or from the supporters of Nabing Velez. . . . On his supposedly borrowed freedom, he jumped bail and hid himself deeper into Mindanao, under a cloak of an assumed name. Why, did his conscience bother him for comfort?" 52 Appellants rationalized that Sabalones was forced to jump bail in order to escape two groups, who were allegedly out to get him, one of Nabing Velez and the other of Major Tiempo. Their ratiocination is futile. It is well-established that "the flight of an accused is competent evidence to indicate his guilt,

It must be stressed, nonetheless, that appellants were not convicted based on legal inference alone but on the overwhelming evidence presented against them.
and flight, when unexplained, is a circumstance from which an inference of guilt may be drawn." 53 Third Issue: Crime and Punishment We agree with the appellate court that accused-appellants are guilty of murder for the deaths of Glenn Tiempo end Alfredo Nardo. The allegation of treachery as charged in the Information was duly proven by the prosecution. "Treachery is committed when two conditions concur, namely, that the means, methods, and forms of execution employed gave the person attacked no opportunity to defend himself or to retaliate; and that such means, methods and forms of execution were deliberately and consciously adopted by the accused without danger to his person."

These requisites were evidently present when the accused, swiftly and unexpectedly, fired at the victims who were inside their vehicles and were in no position and without any means to defend themselves.
54

The appellate court also correctly convicted them of frustrated murder for the injuries sustained by Nelson Tiempo, Rey Bolo and Rogelio Presores. As evidenced by the medical certificates and the testimony of Dr. Miguel Mancao who attended to the victims, Nelson Tiempo sustained a neck wound

which completely shattered his trachea and rendered him voiceless, as well as a wound on the right chest which penetrated his axilla but not his chest

Rey Bolo sustained three injuries which affected his clavicle, ribs and lungs. 56 Rogelio Presores, on the other hand, sustained an injury to his lungs from a bullet wound which entered his right chest and exited through his back. 57
cavity. 55 The wounds sustained by these survivors would have caused their death had it not been for the timely medical intervention. Hence, we sustain the ruling of the Court of Appeals that appellants are guilty of three counts of frustrated murder. We also uphold the Court of Appeals' modification of the penalty for murder, but not its computation of the sentence for frustrated murder. For each of the two counts of murder, the trial court imposed the penalty of fourteen (14) years, eight (8) months and one (1) day of reclusion temporal (medium), as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal (maximum), as maximum. This is incorrect. Under Article 248 of the Ravised Penal Code, the imposable penalty is reclusion temporal, in its maximum period, to death. There being no aggravating or mitigating circumstance, aside from the qualifying circumstance of treachery, the appellate court correctly imposed reclusion perpetua for murder. The Court of Appeals, however, erred in computing the penalty for each of the three counts of frustrated murder. It sentenced appellants to imprisonment of ten years of prision mayor (medium) as minimum to seventeen years and four months of reclusion temporal (medium) as maximum. It modified the trial court's computation of eight (8) years of prision mayor (minimum), as minimum, to fourteen (14) years and eight (8) months of reclusion temporal (minimum) as maximum. Under Article 50 of the Revised Penal Code, the penalty for a frustrated felony is the "next lower in degree than that prescribed by law for the consummated felony . . . ." The imposable penalty for frustrated murder, therefore, is prision mayor in its maximum period to reclusion temporal in its

Because there are no aggravating or mitigating circumstance as the Court of Appeals itself held, 59 the penalty prescribed by law should be imposed in its medium period. With the application of the Indeterminate Sentence Law, the penalty for frustrated murder should be 8 years of prision mayor (minimum), as minimum, to 14 years and 8 months of reclusion temporal (minimum) as maximum.
medium period. 58 Although the Court of Appeals was silent on this point, the trial court correctly ordered the payment of P50,000 as indemnity to the heirs of each of the

The trial court and the CA, however, erred in awarding indemnity of P20,000 each to Nelson Tiempo, Rogelio Presores and Rey Bolo. There is no basis, statutory or jurisprudential, for the award of a fixed amount to victims of frustrated murder. Hence, they are entitled only to the amounts of actual expenses duly proven during the trial.
two murdered victims. In light of current jurisprudence, this amount is awarded without need of proof other than the fact of the victim's death. 60 Thus, Nelson Tiempo, who was treated for a gunshot wound on the neck which shattered his trachea, should be awarded indemnity of P21,594.22 for his medical expenses. This is evidenced by a statement of account from Cebu Doctor's Hospital. 61 Rogelio Presores, who was likewise treated for gunshot wound in the same hospital, presented a statement of account amounting to P5,412.69 for his hospitalization. 62

Hence, he is likewise entitled to indemnity in the said amount. This amount should be awarded to him as indemnity.

Rey Bolo, on the other hand, incurred an expense of P9,431.10 for the treatment of his gunshot wounds, as evidenced by a statement of account from the same hospital. 63

WHEREFORE, the appeal is DENIED and the assailed Decision is AFFIRMED. However, the penalties are hereby MODIFIED as follows: 1) In Crim. Case No. CBU-9257, for MURDER, the accused-appellants are each hereby sentenced to reclusion perpetua and to indemnify, jointly and severally, the heirs of the deceased, Glenn Tiempo, in the sum of P50,000; 2) In Crim. Case No. CBU-9258, for MURDER, the accused-appellants are each hereby sentenced to reclusion perpetua and to indemnify, jointly and severally, the heirs of the deceased, Alfredo Nardo, in the sum of P50,000; 3) In Crim. Case No. CBU-9259, for FRUSTRATED MURDER, the accused-appellants are each hereby sentenced to suffer the penalty of 8 years of prision mayor (minimum), as minimum, to 14 years and 8 months of reclusion temporal (minimum) as maximum; and to jointly and severally pay the victim, Rey Bolo, in the sum of P9,431.10 as actual damages; 4) In Crim Case No. CBU-9260, for FRUSTRATED MURDER, the accused-appellants are hereby sentenced to suffer the penalty of 8 years of prision mayor (minimum), as minimum, to 14 years and 8 months of reclusion temporal (minimum) as maximum; and to jointly and severally indemnify the victim, Rogelio Presores, in the sum of P5,412.69 for actual damages; 5) In Crim. Case No. CBU-9261 for FRUSTRATED MURDER, the accused-appellants are hereby sentenced to suffer the penalty of 8 years of prision mayor (minimum), as minimum, to 14 years and 8 months of reclusion temporal (minimum) as maximum; and to jointly and severally indemnify the victim, Nelson Tiempo, in the sum of P21,594.22 as actual damages.

Let copies of this Decision be furnished the Secretary of Interior and Local Government and the Secretary of Justice so that Accused Eufemio Cabanero may be brought to justice. Costs against appellants. SO ORDERED. G.R. No. 39519 November 21, 1991 PEOPLE OF THE PHILIPPINES, petitioner-appellee vs. DANIEL PINTO, JR. and NARCISO BUENAFLOR, JR., defendants-appellants. The Solicitor General for petitioner-appellee. K.V. Faylona & Associates for defendants-appellants.

FERNAN, C.J.:p As an aftermath of the mission of the Legazpi City Police Department to serve on Christmas day in 1970 a search warrant on Francisco Bello who was allegedly training a private army, patrolmen Daniel Pinto, Jr. and Narciso Buenaflor, Jr. were found guilty beyond reasonable doubt by the then Circuit Criminal Court in said city, of killing not only Bello but also 9-year-old Richard Tiongson and Rosalio Andes and seriously wounding Maria Theresa Tiongson. The dispositive portion of the decision of June 13, 1974. 1 reads: WHEREFORE, the Court finds the accused Narciso Buenaflor, Jr. and Daniel Pinto, Jr. GUILTY beyond reasonable doubt of crime of: (a) MURDER in CCC-X-288-Albay, and hereby sentences each of them to suffer imprisonment for the rest of their lives (Reclusion Perpetua); to indemnify the heir of Rosalie Andes in the amount of Twentyfive Thousand (P25,000.00) Pesos, jointly and severally; and to pay the costs; (b) MURDER in CCC-X-289-Albay, and hereby sentences each of them to suffer imprisonment for the rest of their lives (Reclusion Perpetua); to indemnify the heirs of Francisco Bello in the amount of Twenty-five Thousand (P25,000.00) Pesos, jointly and severally; and to pay the costs; (c) MURDER in CCC-X-298-Legazpi City, and hereby sentences each of them to suffer imprisonment for the rest of their lives (Reclusion Perpetua); to indemnify the heirs of Richard Tiongson in the amount of Twenty-five Thousand (P25,000.00) Pesos, jointly and severally; and to pay the costs; (d) FRUSTRATED MURDER in CCC-X-299 Legazpi City, and hereby sentences each of them to imprisonment of from Six (6) Years and One (1) Day of Prision Mayor as Minimum, to Twelve (12) Years and One (1) Day of Reclusion Temporal as Maximum; to indemnify the victim, Maria Theresa Tiongson, in the amount of Eight Thousand (P8,000.00) Pesos, jointly and severally; and to pay the costs. In addition to the foregoing the accused are sentenced to suffer perpetual disqualification from public office. According to the prosecution, on December 25, 1970, the Legazpi City Police secured from the City Court of Legazpi a warrant for the search of the house and premises of Francisco Bello in Mariawa, Legazpi City on the ground that the police had probable cause to believe that Bello illegally possessed a garand rifle, a thompson submachinegun and two automatic pistols. 2 The police had earlier undertaken a surveillance of Bello on the basis of information it had received that he was conducting an "obstacle course" or training men for combat since October, 1970. 3 Upon receipt of the search warrant, the Chief of Police, Dr. Solomon Adornado, 4 called his officers to a "confidential conference" at the residence of Mayor Gregorio Imperial. Present at the said conference were the mayor, his secretary, and the officers of the patrol division, secret service and the administration of the city police. The Chief of Police was assisted by Major Alfredo Molo, head of the intelligence division of the city police, in briefing the group on how to serve the search warrant and to arrest Bello as the latter had been identified as the one who shot Salustiano Botin the night before. At the time of the briefing, no warrant of arrest had yet been issued against Bello. 5 The policemen were divided into three teams and around five members of the Philippine Constabulary (PC) who were also present were assigned to the different teams. 6 Team 3 was placed under the charge of Sgt. Salvador de la Paz with a policeman named Luna and appellants Buenaflor and Pinto as members. Wilfredo Romero was the PC member assigned to the team. 7 Except for Romero and Pinto who were each armed with a carbine, the policemen of Team 3 each carried a .38 caliber pistol. 8

Loaded in four vehicles, the three teams proceeded from the residence of the Mayor to barrio Homapon arriving there at around seven o'clock in the evening. The four vehicles met at the junction of Homapon and the road to Mariawa. They had decided to ride on the way to Mariawa when one of the jeeps bogged down because of the muddy road. Hence, the three teams had to walk in single file on the right side of the road with the teams had to walk in single file on the right side of the road with the teams maintaining a distance o around ten meters between them. 9 Suddenly, Romero noticed the members of his team running. He ran with them and then he heard someone shout, "Pondo!" (stop). The shout was followed by a shot and then a burst of gunfire. The team had by then deployed to the right side of the road. When Romero checked the men by shouting the agreed password of "bayawas" for which the person challenged answered "santol", 10 he found that Buenaflor was 5 meters in front of him "at the bank of the road", Pinto was two meters to the right of Buenaflor, Sgt. de la Paz was two meters to his (Romero's) right, Luna who was holding a walkie-talkie was to his left and another policeman was in front of Luna. 11 When Romero heard the gunburst, he saw "flashes of fire" "just in front" of him or from the place where Buenaflor was. 12 The area where the team deployed was lower in elevation than the road but Romero heard the rumbling of a jeep going towards the direction of Homapon when he heard the burst of gunfire and saw the flashes of fire from the direction of Buenaflor. 13 On the jeep which passed by the deployed policemen were Fr. Felix Cappellan, Mrs. Zenaida Stilianopolous Tiongson, her six children and the driver. They had just come from a lechonada party in the hacienda in Mariawa of Mrs. Purificacion Napal Anduiza, the mother of Francisco Bello. Fr. Capellan had celebrated mass to commemorate the death anniversary of Mrs. Anduiza's father. When Fr. Capellan decided to go back to his parish, the Anduiza's offered their jeep for his transportation. 14 Seated on the front seat of the "McArthur type" jeep which had only a canvass top but no cover on the sides and back, 15 were the driver, Mrs. Tiongson with a child on her lap and Fr. Capellan. 16 Richard Tiongson was seated on the steel seat behind the driver while his sister Maria Theresa was beside him. 17 The three other children were also seated at the back. After crossing the creek on their way to Homapon and as the driver "changed to high gear with a dual", 18 Mrs. Tiongson saw blinking lights some 300 yards ahead. 19 Fearing that there might be "people with bad intentions" or hold-uppers, Fr. Capellan told the driver to go faster. 20 Then Fr. Capellan heard one shot and after a few seconds and around 50 meters ahead, there was rapid firing with some of the bullets hitting the jeep. 21 According to Mrs. Tiongson, the widow of Col. Angel Tiongson of the PC, the rapid firing sounded "automatic". 22 The firing came from the left rear side of the jeep.

23
Before they were fired upon, Maria Theresa saw a man lying flat on his stomach while holding a gun on the left side of the road just ahead of the jeep. 24 Through the light of the jeep, Maria Theresa noticed that the man was wearing a jacket and a hat and he was on the shoulder of the road. 25 After passing the man, the rapid firing ensued. Richard said "ugh" and fell on the floor of the jeep. Maria Theresa was about to hold Richard when she felt herself hit at the buttocks. Then they all screamed. 26 The jeep continued its fast uphill climb until it reached a level area and almost fell into a ditch were it not for a clump of banana plants. The jeep came to a full stop. Fr. Capellan saw three men with flashlights but he could not distinguish their faces as it was dark and their flashlights were focused on the ground. 27 Mrs. Tiongson saw a PC jeep and some cars and, believing that one of the cars was that of the Mayor, she called Tia Citang, the mother of the mayor, at the same time identifying herself. 28 She must have managed to take Richard from the jeep and was cuddling him on the ground near the left rear end of the jeep when she requested Fr. Capellan to administer extreme unction on Richard. As Fr. Capellan had no holy oil, he gave the boy absolution. 29 Even after Mrs. Tiongson had identified herself as the widow of Col. Tiongson to the men around, nobody listened to her appeal for help. When she approached Chief of Police Adornado, she hit him and asked him why they shot her and her companions. The Chief of Police replied that the shooting was no longer his fault because Mrs. Tiongson and her companions did not stop when told to do so. She requested the Chief of Police for a car in which to take Richard to the hospital or for a driver and even for a walkie-talkie so she could talk to Mayor Imperial but the Chief of Police did not heed her pleas. 30 (TSN, February 9, 1972, pp. 17-22). A few minutes later, a jeep driven by Fernando Anduiza arrived. Mrs. Tiongson and her children boarded the jeep. At the intersection of the road to Legazpi City proper and the road to Mariawa, the area was brightly lighted and armed men ordered them to put their hands up. They were told to alight from the jeep to be searched but Mrs. Tiongson begged the lieutenant manning the area to let them pass so they could bring her two children to the hospital. 31 Richard and Maria Theresa were brought to the Sacred Heart Clinic in Legazpi City. Thirteen-year-old Maria Theresa was treated for a gunshot wound at the "right upper quadrant of the right buttocks." 32 Her pelvis and abdomen were x-rayed. One of the x-ray plates 33 revealed an oval spot indicating a foreign body in Maria Theresa's pelvis. The attending physician decided not to extract the foreign body as Maria Theresa was not a "very good surgical risk".34 The hospital charged P282.90 for Theresa's hospitalization. 35 She was later brought by an army plane to the PC Station Hospital in Camp Crame, Quezon City for further treatment and hospitalization 36 but the foreign body was never removed from her pelvic area. Richard sustained a gunshot wound at the back about the level of the 5th lumbar vertebrae. The bullet travelled obliquely to the left kidney, the lesser sac, the liver and the right auricle.37 Richard was operated at the hospital but he died at 8:45 the following morning due to massive hemorrhage caused by the gunshot wound. 38 When he was autopsied, a lead slug was found embedded in his heart.39 His mother paid P862.35 40 for his hospitalization and was charged P200 by the church. Mayor Imperial paid P500 to Funeraria Oro for Richard's burial.41 Meanwhile, according to Chief of Police Adornado, after the shooting incident involving the Tiongsons, the police pursued their mission to serve the search warrant on Bello. When they reached Bello's residence in Mariawa, they were met by a "volley of fire." Suddenly, the house was lighted and a certain Escober met him. Although Bello and his parents, Mr. and Mrs. Anduiza, were not around, the police searched the area and found a Japanese Springfield rifle, ammunition of a garand rifle, ammunition of a carbine, live ammunition for a .38 caliber pistol and 380 bullets for an automatic pistol. 42 Thereafter, the Chief of Police declared the search terminated and the entire searching party left for headquarters. 43 The following day, he issued Special Order No. 24 which states:

D e c e m b e r 2 6 , 1 9 7 0 To All Concerned: The following men mentioned below are hereby assigned at Homapon until their mission is accomplished, effective as of today, December 26, 1970: 1 Sgt. Salvador de la Paz, In-charge 2. Pfc. Carlos Barbin, member 3. Pat. Eduardo Arcinue, member 4. Pat. Juan Luna, member 5. Pat. Daniel Pinto, member 6. Pat. Celedonio Abordo, member 7. Pat. Narciso Buenaflor, member Report progress of mission any time of day through the radio system. For strict compliance. ( S g d . ) SOLOMON B. ADORNAD O Chief of Police Copy furnished: The Honorable City Mayor, The Patrol Command, LCPD, the OIC and file .44 The mission was to keep peace and order in the specified place and to determine the whereabouts of Bello.45 It was not necessary to specify the mission in the order itself because the Chief of Police "had a close understanding with the squad that went to Homapon". 46 For a "convenient tactical deployment," Sgt. De la Paz further divided Team 3 into three groups with patrolmen Buenaflor and Pinto composing Group II. 47 At noontime of December 26, 1970, Francisco Bello, more popularly known as Paquito, arrived at the residence of Inocencia Malbas in sitio Ando, Talahib, Daraga, Albay. He was with Inocencia's brother, Francisco Andes, Francisco's son Ananias, and Leoncio Mostoles. Rosalio, another son of Francisco, also arrived with the group. 48 Bello requested Inocencia and her husband that he and his group be allowed to spend the night in Inocencia's house. 49 Inocencia woke up at around 5:00 o'clock in the morning of December 27, 1970. At the sala, on her way from her room to the kitchen, she saw Bello sleeping alone. From the kitchen, Inocencia went to the balcony through the sala. On her way back to the kitchen, she noticed that Bello, who was wearing a red shirt and an underwear, had awakened. Bello opened the window, spat out and went to the balcony. He reentered the sala and saying

that it was cold, Bello put on his clothes and pants. He also wore his jacket. He went back to the balcony and asked for water. Inocencia's husband gave Bello a glass of water. After gurgling, Bello placed the glass on the window sill and ask Inocencia's husband for a cup of coffee. 50 Inocencia's husband was about to offer Bello a cup of coffee when she heard a successive burst of gunfire. Bello, who was the balcony facing the copra kiln ("agonan") with his back towards the pili tree, gradually fell to the floor with his hands above his head. Then there was another burst of gunfire. From the kitchen, Inocencia rushed to the door from where she saw a man holding a long firearm, whom she later identified as Pinto, near the pili tree which was around eight meters from where Bello was, and another man, also holding a gun, crouching near the stairs. 51 Inocencia, with her two-year-old child in her arms, 52 was about to rush to Bello when her husband pulled her. Just then a man, whom Inocencia identified as Buenaflor, came up the house, pointed a gun at Inocencia and her husband and told them to lay flat on the floor. The man asked them where the gun was. Inocencia told him that there was no gun in the house but then, when she looked around, she saw a long firearm with its muzzle pointed upward leaning against the wall near the door around two meters from where Bello laid flat on his back. Bello himself had a gun but it was in its holster tucked on his waist. 53 It was Buenaflor who took both the long firearm and the gun in Bello's holster.54 When Francisco Andes went up the house, he told Inocencia that Rosalio was dead. 55 Inocencia went near the pili tree where Rosalio's body was, knelt down and asked the man with a long firearm why he killed Rosalio. The man answered that Rosalio fought back. However, Inocencia did not notice any weapon near Rosalio's body. 56 Bello's hands and feet were tied together and a bamboo pole was inserted between them so that two men, one of them being Francisco Andes, could carry the cadaver. 57 Bello died because of "shock secondary to massive hemorrhage due to multiple gunshot wounds". 58 A former pilot and 28 years old at the time of his death, Bello sustained a gunshot wound at the left temple, an inch above the highest point of the pinna of the left ear. The bullet which entered his head through the squamous temporal bone travelled towards the occipital region down to the floor of the left middle cranial fosa until it reached the base of the tongue. Bello had three gunshot wounds on his chest. One bullet entered the superior part of the right scapular area about the level of the third thoracic vertebrae. The bullet travelled to the right inna in a slightly upward direction making its exit at the lateral part of the right supraclavicular fossa above the clavicle. The second gunshot wound was at the left side interscapular area. The bullet travelled upwards and to the right fracturing the 7th rib, entered the lower lobe of the left lung, punctured the pulmonary conus, went through the junction of the right auricular appendage and the right auricle, the anteromedial side of the pericardium, grazed the medial surface of the middle lobe of the right lung and exited at the right side of the chest. The third gunshot wound was below the right nipple. The bullet went to the chest cavity, the lower lobe of the right lung, the dome of the diaphragm, the right lobe of the liver, the 8th thoracic vertebrae and exited at the left of the midline at the inferior interscapular area. 59 While Bellos corpse was being autopsied, a slug fell from his jacket. A bullet jacket and lead fragments were found at the base of his skull and a slug was extracted from the floor of his mouth. 60 Rosalio Andes, 23 years old, also died of shock due to multiple gunshot wounds. A bullet entered his right temporal area, macerated the brain, fractured both parietal bones and exited at the left parietal bone. Another bullet entered the left scapular area below the level of the 6th rib, travelled to the dome of the left diaphragm, the left lobe of the liver, the pancreas, the small intestines, and the perineum below the ramus of the right pubis. The slug was found at the gluteoperineal junction about 2 inches below the tip of the coccys and 2 1/2 inches above the gluteal line. A third bullet entered the left knee and exited at the medial side of the leg. 61 The slugs and parts of bullets which were extracted from the bodies of the victims were turned over to the National Bureau of Investigation (NBI) on December 29, 1970 by Fiscal Aquilino Bonto for safekeeping purposes. 62 The empty shells and slugs which both the PC and the Legazpi City police found in Talahib were also turned over to the NBI 63 in the same manner that the four empty carbine shells 64 found by the PC near the coconut tree a meter from the shoulder of the road to Mariawa were also turned over to the NBI. 65 Also submitted to the NBI for ballistic examination were twelve Smith & Wesson caliber .38 revolvers, two Smith & Wesson "paltik" caliber .22, four Tell caliber revolvers, one Bosque automatic pistol caliber .380, four carbine Inland rifles caliber .30, three US Springfield rifles caliber.30, one Thompson submachine gun caliber .45 and one Colt automatic pistol caliber.45. 66 Defendants Pinto and Buenaflor both denied having fired at the jeep bearing the Tiongson family.67 Pinto, who admitted carrying a caliber .30 carbine during the incident, 68 testified that the shooting occurred because the Tiongsons' jeep "was going towards" them. 69 According to Pinto, when they reached Mariawa, it was he who fired one shot in the air. 70 After the search had been conducted in Bello's premises, Team 3 was instrued by a "superior officer" "to remain and maintain peace and order in (the) vicinity including Mariawa". 71 While he and Buenaflor were patrolling the area, at around midnight, they "chanced upon a house" wherein Bello and his group were staying. They captured four of Bello's bodyguards and tied them to a pili tree with the torn shirt of one of the captives. 72 At daybreak, Pinto saw Bello smoking at the porch. Buenaflor, who was behind him, called Bello. Then a single shot coming from the house rang out. It was answered by a burst of fire which Pinto "presumed" came from Buenaflor. By reflex action, Pinto transferred from the pili tree to a nearby coconut tree. But before he reached the coconut tree, he saw a man with a bolo in his hand running towards him. As the man was menacingly near him, Pinto shot him. 73 After a lull in the firing, he went up the house to look for Bello's other companions. He saw the body of Bello on the porch and "near" it was a garand which he took. He also got Bello's short firearm "from a holster." He turned over both the garand and the short firearm to Buenaflor. One of the captured persons kicked Bello's body saying that if not for Bello, his son would not have been killed. Thereafter, the two dead persons were carried by the captured bodyguards to Mariawa. 74 In Mariawa, Pinto contacted (through the radio) police outpost No. 5 in Banquerohan and two jeeps arrived. When they reached the junction in Homapon, Major Molo, who was with Fiscal Benito Se, told Pinto to go back with him to Talahib. Although Pinto warned Major Molo that it would be

dangerous to go back because one of Bello's men had escaped, they nevertheless proceeded to Talahib. With three other policemen, they arrived there between eight and nine in the morning where they were instructed to "look for evidence specifically . . . for a thompson." He found in the porch two shells and the others found a hat and a flashlight. Thereafter, they returned to Mariawa and later, to Legazpi City proper. 75 On cross-examination, Pinto stated that he did not know that they found Bello in an area which was beyond the jurisdiction of Legazpi City. He admitted that while they were instructed patrol the area, they were also told to effect the arrest of Bello even if no complaint had been lodged against him. 76 According to Pinto, of the fifteen bullets in the magazine of his carbine, only two remained. He fired "most" of the thirteen shots during the "Bello incident". 77 Pinto shot the man later identified as Rosalio Andes when he was at a distance of around three meters. Rosalio was "face to face" with him when Pinto shot him. As Rosalio did not fall from the first shot, Pinto continued shooting him. 78 When he went up the porch he saw the garand "lying on the floor" but the gun tucked on Bello's waist was still in its holster. 79 On the Tiongson incident, Pinto asserted that he did not fire his carbine. 80 When he saw the headlight of the Tiongsons' jeep, he also saw a flashlight being waved. A little later, he heard a shout ordering the jeep to stop. Then he heard one shot and immediately after, the volley of fire as the jeep was going towards his direction. As it passed by him, he heard the jeep's passengers shriek. 81 For his part, Buenaflor declared that during the mission to serve the search warrant on Bello, he carried the ".38 caliber revolver Tel." (sic) which had been issued to him by the Legazpi City Police Department. He did not fire his gun at the Tiongsons and, "as a matter of fact," he surrendered his firearm for ballistic examination. 82 In the afternoon of December 26, however, Major Molo issued him a Thompson submachinegun. 83 While patrolling Homapon, he and Pinto "chanced upon" some persons who told them that they could guide them to where Bello was. At the place which they later found to be Talahib, they went near a pili tree from where they saw a house "below." Then he saw a man who turned out to be Mostoles. Buenaflor apprehended Mostoles because the latter was Bello's bodyguard and he had a .22 caliber firearm with him. He came by another man with a bolo, named "Banteque" and apprehended him also. Then, from behind the pili tree, Pinto appeared with yet another man. They waited for a while until another man, who turned out to be Francisco Andes, came within four meters of him. Buenaflor pointed his submachinegun at him so Andes approached him. Buenaflor confiscated Andes' .22 caliber firearm. 84 From the group, Buenaflor learned that Bello provided them with firearms and that Bello himself had a pistol tucked in his holster as well as a garand. He and Pinto then tied the men to the pili tree. Later, he saw a person in the balcony of the house below and Buenaflor shouted twice: "Paquito, magsurrender ka!" Then Buenaflor heard a "a shot coming from the direction of the balcony followed by successive shots." He sought cover behind the pili tree and, while in a crouching position, fired his submachinegun towards the balcony. Pinto was then behind him. As Pinto shifted his position while firing his carbine, Buenaflor went down to the "elevated portion going down to the nipa shack" until he was near the coconut tree. There he found a person lying with his face down. He later found out that the person was the son of Francisco Andes. 85 After the firing had stopped, Pinto told him that Bello was dead. Pinto then went up the house. Buenaflor went back to the pili tree, untied the four persons they had captured, and told them to do something so they could carry the bodies of Bello and (Rosalio) Andes. 86 Like Pinto, on cross-examination, Buenaflor also asserted that he did not fire his gun at the jeep carrying the Tiongsons. 87 While admitting that the person who led them to Bello had told them that the latter was in Talahib, Buenaflor did not know that Talahib was a barrio of Daraga, Albay and not of Legazpi City.88 He reiterated that he shouted at Bello urging him to surrender 89 but he was not able to fire a warning shot or identify himself as a member of the police force "because after the second shot there was already a burst of gunfire".90 Buenaflor affirmed that the first shot emanating from the balcony of the house in Talalib which was around fifteen meters from the pili tree, came from a "high caliber firearm". 91 After they had found out that Bello was dead, Pinto went up the house. Later, Pinto gave him Bello's 380 automatic pistol and garand. 92 Although he looked at those firearms, he did not determine whether they had been fired. 93 He noticed, however, that the magazine of the garand was "intact". 94 Aside from Bello's firearms, Buenaflor and Pinto confiscated two .22 caliber revolvers and two bolos found on Bello's bodyguards. 95 Buenaflor stated that his Thompson submachinegun had two clips with each clip containing 30 bullets. When he gave back the firearm to Major Molo, only four bullets were left of the one clip he had used. 96 He remembered having squeezed twice the trigger of his Thompson submachinegun or automatic rifle in Talahib.97 His service revolver was still with him then. 98 As a result of this series of events, four separate informations were filed against Pinto and Buenaflor. The information charging Pinto and Buenaflor for the murder of Andes which was filed on July 26, 1971 reads: That on or about the 27th day of December, 1970, in sitio Ando, Barrio Talahib, Daraga, Albay and within the jurisdiction of this Honorable Court the accused, conspiring and confederating together and mutually helping one another, without any justifiable cause or motive, with intent to kill, did, then and there, willfully, unlawfully and feloniously, with treachery and evident premeditation, accused Pat. Narciso Buenaflor, Jr. and Pat. Daniel Pinto, Jr., and by means of a Cal. 45 Thompson SubMachine Gun, SN-213436 and a US Carbin Inland, Cal. 30, SN-5099407, owned respectively by said accused, shoot one Rosalio Andes, inflicting upon him gunshot wounds as described in the attached Autopsy Report marked as Annex "A" and being made an integral part of this Information, thereby causing upon said Rosalio Andes serious and mortal wounds which led to his instantaneous death. Contrary to law.

The information charging Pinto and Buenaflor with having murdered Bello contains basically the same allegations as the above and it was filed on the same date. On August 24, 1971 two other informations were filed against Pinto and Buenaflor: one for the murder of Richard Tiongson and another for the frustrated murder of Maria Theresa Tiongson. On arraignment, Pinto and Buenaflor both pleaded not guilty to all the charges. After trial, the trial court rendered the aforementioned judgment of conviction. For the killing of Bello and Andes, the trial court appreciated evident premeditation as a qualifying circilmstance and treachery, nighttime and use of public position as aggravating circumstances. For the incident involving the Tiongson children, it considered the crimes as qualified by treachery and aggravated by the use of public position. Pinto and Buenaflor instituted the instant appeal praying for exoneration mainly on the basis of their claim that the killings were perpetrated in the course of the performance of their official duties as peace officers in obedience to the lawful order of their superiors. In order that the justifying circumstance of fulfillment of a duty under Article 11 of the Revised Penal Code may be successfully invoked, the defense has to prove that these two requisites are present: (a) the offender acted in the performance of a duty and (b) the injury or offense committed be the necessary consequence of the due performance or lawful exercise of such duty. In the absence of the second requisite, the justification becomes an incomplete one thereby converting it into a mitigating circumstance under Articles 13 and 69 of the same Code. 99 Admittedly, the appellants and the rest of the police force involved, originally set out to perform a legal duty: the service of a search warrant on Bello. In the process, however, appellants abused their authority resulting in unauthorized and unlawful moves and consequences. Armed with only a search warrant and the oral order to apprehend Bello, they went beyond the ambit of their mission and deprived Bello and two other persons of their lives. While the defense presented proofs that Bello had a string of record in the police blotter for misdeeds ranging from taking the harvest of their hacienda without the permission of his parents to assaulting his stepfather, and that he was "dangerous while under the influence of liquor", 100 there was no proof that he had been convicted of any offense or that he was a dangerous fugitive from justice which would warrant a "shoot to-kill" order from police authorities. Proof of bad moral character of the victim only establishes a probability that he committed a crime but it certainly cannot be the reason for annihilating him nor may it prevail over facts proven showing that the same victim had been cold-bloodedly killed. 101 As such, the suspicion that Bello was maintaining a private army was not a sufficient justification for his being rubbed out without due process of law. The police theory that Bello authored the shooting of one Salustiano Botin on Christmas eve is neither a justification for his arrest without a warrant. It should be observed that while the police had obtained a search warrant for illegal possession of firearms against Bello even on Christmas day which was supposed to be a holiday, no such effort was made in securing warrant of arrest for Bello's alleged frustrated killing of Botin. The improbability of the defense evidence through the testimony of Botin himself that Bello had shot him in the evening of December 24, 1970 is bolstered by the same testimony showing that while he was shot by Bello in the presence of the police force who were converging at the junction of Homapon and Mariawa, the same law enforcers were unable to arrest Bello. Besides the fact that no other eyewitness corroborated Botin's testimony even in the face of his own admission that Bello had no reason to shoot him, no complaint was ever lodged against Bello for the alleged shooting. 102 On the other hand, the prosecution, through eyewitness Rogelio Escober, tried to establish that during said shooting incident the police were looking for Bello at the store of a certain Serrano. 103 Unable to find Bello, the police, specifically Pinto, mauled Escober while asking him to testify against Bello for allegedly shooting Botin. 104 The police had focused their vehicles' headlights near the bodega of ex-Mayor Los Baños in their effort to flush out Bello who, unknown to the police, had earlier left the vicinity. It was when the police fired at the said bodega that Botin must have been accidentally shot. 105 This story was uncorroborated but if true, would show the police's dangerous propensity for using otherwise official operations in an unlawful manner. A propensity for rash judgment was likewise amply shown at the incident involving the Tiongson children. Since the jeep coming towards them was owned by the Anduizas, the appellants acted obviously in the belief that Bello was its passenger and posthaste they fired upon it even without any inquiry as to the identity of its passengers. 106 Granting that the police indeed fired a warning shot, sound discretion and restraint dictated that, there being no responding shots from its passengers after the alleged warning shot and considering the condition of the road which was not only muddy but uphill, instead of directing aimless gunburst at the jeep, the most that they could have done was to render the jeep immobile by shooting its tires. That way, they could have verified the identity of the passengers. As it were, they riddled the jeep with bullets injuring in the process innocent passengers who were completely unaware of what they were up against. Appellants' stark denial of firing their guns upon the Tiongson family falls flat in the face of various circumstantial evidence which point to their culpability. There is the unflinching testimony of Sgt. Romero that he saw "flashes of fire" from the direction of Buenaflor as the jeep bearing the Tiongsons passed by. Said testimony was corroborated by that of Rafael Jacob, the PC member of team 2, that while no one in his team fired his gun, the "sporadic firing" came from team 3 after the first of fire which occurred while the jeep was "abreast of team 2". 107 Even defense witness Mariano Rico, a policeman who led team 1, was "sure" that he heard gunshots at the moment when "the jeep had just passed team 2". 108 Then there are the four empty .30 caliber carbine shells which were found near the coconut tree where, according to Romero, Pinto was deployed. While he himself carried a carbine, Romero did not fire it and his testimony was never contradicted. The four empty shells were compared with the test shells which were fired from the US carbine, caliber .30 Inland Division, SN-5099407, which, according to the aforequoted information charging appellant with having killed Andes, was used by Pinto, they were found to have "significant similar individual characteristics". 109 While it is true that the ballistic report reveals that the lead bullet taken from the body of Richard was fired from a Smith & Wesson type firearm 110 and Buenaflor was proven to be carrying a .38 caliber Tell revolver, the findings of expert witnesses or, in this case, the ballistic report pointing to another kind of caliber .38 weapon as the source of Richard's wound only serves as a guide for the courts after considering all the facts of the case.111 The undisputed fact is that Buenaflor was specifically pointed by Romero as the one who fired his firearm as the Anduiza jeep bearing the Tiongsons passed by. Inasmuch as no evidence that Romero would prevaricate to pin responsibility on Buenaflor was ever presented, there is, therefore, no reason to discredit his testimony. 112 In addition to all these, Buenaflor's motive for wanting to do away with Bello has been established. Such motive provided a circumstantial evidence leading to the inference that indeed he fired his gun. 113 According to the unrebutted testimony of Rogelio Escober, an overseer of the Napal hacienda

and constant companion of Bello, on November 1, 1970, Buenaflor and another policeman named Santos Urbana, Jr. borrowed Bello's jeep on the pretext that they needed it to transfer Moscoso, the suspect in the Perez killing, to the Albay Police Headquarters. When it was returned, the jeep had bloodstains. Bello and Escober later learned from a PC officer that the jeep had been used in dumping in Guinobatan the body of Moscoso. Confronted by the PC officer, Bello admitted that the jeep was borrowed by Buenaflor and Urbina and agreed to execute a sworn statement on the matter. Consequently, the PC authorities notified Mayor Imperial of the solution of the Moscoso killing. Three days later, Escober and Bello met Urbina who warned Bello, "Kit, if you want to give your statement, just say that I borrowed your jeep for thirty minutes. This is a brotherly advice because something might happen to you." Bello retorted that he would do what was right and that was to tell the truth. Urbina said that it was up to Bello but he repeated that he was giving Bello a brotherly warning that something might happen to him 114 (TSN, August 23, 1973, pp. 4-20). These facts were of course denied by Buenaflor. However, as between the positive declaration of a prosecution witness and the negative denial of the accused, the former deserves more credence. 115 All these pieces of circumstantial evidence point to no other inference than that Pinto and Buenaflor fired their guns in defiance of their superior officer's order only "to find the whereabouts" of Bello 116 and to desist from using their weapons "without clearance from the Chief of Police". 117 Since there is more than one circumstance and the facts from which the inferences are derived are proven, the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. 118 The fact that the victims were different from the ones the appellants intended to injure cannot save them from conviction. Aberratio ictus or mistake in the identity of the victim carries the same gravity as when the accused zeroes in on his intended victim. The main reason behind this conclusion is the fact that the accused had acted with such a disregard for the life of the victim(s) ² without checking carefully the latter's identity as to place himself on the same legal plane as one who kills another willfully, unlawfully and feloniously. 119 Neither may the fact that the accused made a mistake in killing one man instead of another be considered a mitigating circumstance. 120 It is not even necessary to pinpoint who between Pinto and Buenaflor actually caused the death of Richard or the wounding of Maria Theresa in the presence of proof beyond reasonable doubt that they acted in conspiracy with each other. 121 Prior agreement between the appellants to lull their intended victim is not essential to prove conspiracy as the same may be inferred from their own acts showing joint purpose and design. 122 In this case, such unity of purpose and design is shown by the fact that only the two of them fired their guns when the Anduiza jeep with the Tiongsons passed by. This they did in defiance of the order of their superior not to shoot unless ordered to do so. Conspiracy having been proved, the guilt or culpability is imposable on both appellants in equal degrees. 123 The same conspiracy was evident in the killing of Bello and Andes. The appellants' concerted action was shown by the manner by which they killed the two. In this incident, however, they invoke self-defense as a justifying circumstance. Evidence at hand, however, do not favor their claim. Under Article 11 (1) of the Rules of Court, an accused must prove the presence of all the following elements of said exempting circumstance: (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. 124 The presence of unlawful aggression is a condition sine qua non. There can be no self-defense, complete or incomplete, unless the victim has committed an unlawful aggression on the person defending himself. 125 In this case, Buenaflor insists that he fired at Bello because, after calling out to him to surrender, his shout was answered by a gunshot. Pinto corroborates his story but the principal prosecution eyewitness in this incident, Inocencia Malbas, swears that she heard no such shout to surrender nor a gunshot from Bello's direction before Bello was fired upon by the appellants. Physical evidence as well as the testimonies of Buenaflor himself and Pinto show that Inocencia, and not the appellants, was telling the truth. Rafael Señora, the NBI agent who went to Talahib and the road to Mariawa to investigate as well as to take pictures, found no bullet marks at the crime scene which would pertain to a .22 caliber "paltik" firearm which Bello's men allegedly used. 126 As no other "paltik" firearms were recovered from the crime scene other than the two which Buenaflor confiscated from Mostoles and Francisco Andes, the possibility of said firearms or one of its kind having been used by Bello's men against the appellant particularly the one who escaped is nil. Buenaflor claimed that the shot after his call to Bello belonged to a high-powered gun 127 obviously referring to the firearms recovered from Bello himself. According to Buenaflor however, when he found the rifle, its magazine was "intact" and he did not manipulate the rifle to know how many of its bullets had been used. 128 Moreover, if Bello indeed fired a gun, it must be the firearm in his holster and not the garand which was found a couple of meters from where Bello had fallen. That Bello did not fire any of his two firearms is buttressed by Pinto's own testimony that Bello was smoking with his back towards them when he was shot at and that at that moment, he did not see Bello holding a gun. 129 We cannot help, therefore, but conclude that the defense claim that Buenaflor's call to Bello was answered by a gunshot is but a figment of their imagination designed for their own exoneration. Appellants' claim of unlawful aggression on the part of Bello or his men would have been clarified had any of Bello's men whom they had captured been presented in court. These men, Leoncio Mostoles, Francisco Andes, Domingo Bantique and Ananias Andes had executed statements before the Legazpi City police to the effect that they heard Buenaflor's call for Bello to surrender and that Bello fired his gun at the appellants. However, all four of them later executed statements before the NBI retracting said earlier statements in view of the fact that the police had threatened them to make the statements favorable to the appellants. 130 As regards the unlawful aggression of Rosalio Andes against Pinto, we find that if we are to believe Pinto, we have to stamp full credibility on his statement alone. Even Buenaflor admitted that he did not see Rosalio Andes attack Pinto. 131 Inocencia swore that she did not see any weapon near the fallen Rosalio. Indeed, if the aggression did occur, Pinto would not have lost time in presenting in court the bolo which Andes threatened to use on him. But granting that Rosalio had a bolo, Pinto was not justified in inflicting the wounds sustained by Rosalio because a mere threatening attitude of the victim will not constitute unlawful aggression. 132 Moreover, Pinto's testimony that Rosalio menacingly approached him with a bolo after Buenaflor had released a sunburst directed at the house where Bello was, is contrary to human behavior if not totally ridiculous. On the contrary, by his own admission, Pinto continued firing until he saw Rosalio fell.

An accused who admits inflicting fatal injury on his victim and invokes self-defense must rely on the strength of his own evidence and not only on the weakness of that of the prosecution for, even if weak, the prosecution evidence gains more credibility. 133 Unfortunately, in this case, inspire of the fact that the prosecution had only one eyewitness to the killing of Bello and Andes, the appellants had not presented sufficiently strong evidence to shore up their claim of self-defense. We agree with the trial court that treachery attended the commission of all four crimes in this case. The killing of Richard Tiongson, Francisco Bello and Rosalio Andes as well as the wounding of Maria Theresa Tiongson were all so sudden that all of them were left defenseless. This is shown not only by the testimonial evidence on the commission of the crimes but also by the nature and location of the wounds of all the victims. 134 The presence of treachery qualifies the killings to murder and the wounding of Maria Theresa to frustrated murder. Nighttime, however, may not be appreciated as there is no proof that it was specifically sought in the commission of the crime and therefore we deem it absorbed by treachery. Evident premeditation has not been proven beyond reasonable doubt in this case but we find that the appellants indeed took advantage of their public position in perpetrating the crime. Under Article 248 of the Revised Penal Code, murder is punishable by reclusion temporal in its maximum period to death. There being no mitigating circumstance to temper the penalty and there being only the aggravating circumstance of taking advantage of their public office under Article 14 (1) of the said Code, the proper penalty is death. 135 However, in view the constitutional abolition of the death penalty, the penalty of reclusion perpetua shall be imposed on the appellants for each of the three murders they committed. For the wounding of Maria Theresa, the penalty imposable, applying Article 50 of the Revised Penal Code, is prision mayor maximum to reclusion temporal medium. There being no reason to further lower the penalty by one degree pursuant to the provision of Article 250, and there being one aggravating circumstance and no mitigating circumstance, the penalty should be within the range of prision mayor maximum to reclusion temporal medium. Applying the Indeterminate Sentence Law, 136 the proper penalty for the frustrated murder of Maria Theresa is six (6) years of prision correccional maximum as minimum to ten (10) years and one (1) day of prision mayor maximum as maximum. The indemnity of eight thousand pesos imposed by the lower court should be respected considering that while there is evidence as to the actual amount she spent while confined at the Sacred Heart Hospital in Legazpi City, there is no proof as to the expenses she incurred after she was transferred to the Camp Crame Hospital in Quezon City. As in all cases wherein peace officers are accused, this case creates a feeling of frustration in everyone. The crimes committed here ought to have no place in this democratic and civilized society. True it is that a police officer is sometimes left in a quandary when faced with a situation where a decisive but legal action is needed. But, as this Court said in Calderon vs. People and Court of Appeals (96 Phil. 216, 225 [1954]), "(t)he judgment and discretion of public officers, in the performance of their duties, must be exercised neither capriciously nor oppressively, but within reasonable limits. In the absence of a clear and legal provision to the contrary, they must act in conformity with the dictates of a sound discretion, and with the spirit and purpose of the law." Police officers must always bear in mind that although they are dealing with criminal elements against whom society must be protected, these criminals are also human beings with human rights. In the words of then Justice Moran in the Oanis case (Supra): It is, however, suggested that a notorious criminal "must be taken by storm" without regard to his right to life which he has by such notoriety already forfeited. We may approve of this standard of official conduct where the criminal offers resistance or does something which places his captors in danger of imminent attack. Otherwise, we cannot see how, as in the present case, the mere fact of notoriety can make the life of a criminal a mere trifle in the hands of officers of the law. Notoriety rightly supplies a basis for redoubled official alertness an vigilance; it never can justify precipitate action at the cost of human life. Where, as here, the precipitate action of the appellants has cost an innocent life and there exist no circumstances whatsoever warrant action of such character in the mind of a reasonably prudent man, condemnation²not condonation² should be the rule; otherwise we would offer a premium to crime in the shelter of official actuation. WHEREFORE, the decision of the lower court is hereby affirmed subject to the modifications that appellants shall solidarily be liable for the amount of Fifty Thousand (P50,000) for each of the three murders they committed and, for the frustrated murder of Maria Theresa Tiongson, each of them shall suffer the indeterminate penalty of from six (6) years of prision correccional maximum as minimum to ten (10) years and one (1) day of prision mayor maximum as maximum. Inasmuch as appellant Daniel Pinto, Jr. had been a police officer for only five months 137 when the crimes were committed, let a copy of this decision be furnished the Office of the President for whatever action may be proper to temper his penalty. 138 SO ORDERED.

October 6, 1933 G.R. No. L-38511 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. FRANCISCO CAGOCO Y RAMONES (alias FRANCISCO CAGURO, alias FRANCISCO ADMONES, alias BUCOY, alias FRISCO GUY), defendant-appellant. W.A. Caldwell and Sotto and Astilla for appellant. Office of the Solicitor-General Bengzon for appellee. Vickers, J.:

The accused was charged in the Court of First Instance of Manila with the crime of asesinato, committed as follows: That on or about the 24th day of July, 1932, in the City of Manila, Philippine Islands, the said accused did then and there willfully, unlawfully and feloniously, without any just cause therefor and with intent to kill and treachery, assault and attack one Yu Lon by suddenly giving him a fist blow on the back part of the head, under conditions which intended directly and especially to insure, the accomplishment of his purpose without risk to himself arising from any defense the victim Yu Lon might make, thus causing him to fall on the ground as a consequence of which he suffered a lacerated wound on the scalp and a fissured fracture on the left occipital region, which were necessarily mortal and which caused the immediate death of the said Yu Lon. After hearing the evidence, Judge Luis P. Torres found the defendant guilty as charged, and sentenced him to suffer reclusion perpetua, with the accessory penalties of the law, to indemnify the heirs of the deceased Yu Lon in the sum of P1,000, without subsidiary imprisonment in case of insolvency, and to pay the costs. Appellant's attorney de oficio makes the following assignments of error: 1. The trial court erred in finding that the appellant the person who committed the assault on Yu Lon, the victim to the crime charged in the information. 2. Assuming that the appellant is the person who committed the assault on Yu Lon (a fact which we specifically deny), the trial court erred in finding that the appellant struck his supposed victim. 3. Assuming that the appellant is the person who committed the assault on Yu Lon, and that the appellant did strike his supposed victim (facts which we specifically deny) the trial court erred in finding that the blow was dealt from the victim's rear. 4. The trial court erred in finding that the identity of the appellant was fully established. 5. Assuming that the four preceding errors assigned are without merit, the trial court erred in convicting the appellant of the crime of murder, under article 248 of the Revised Penal Code, instead of convicting him of the crime of maltreatment, under article 266 of the said Code. It appears from the evidence that about 8:30 on the night of July 24, 1932 Yu Lon and Yu Yee, father and son, stopped to talk on the sidewalk at the corner of Mestizos and San Fernando Streets in the District of San Nicolas Yu Lon was standing near the outer edge of the sidewalk, with his back to the street. While they were talking, a man passed back and forth behind Yu Lon once or twice, and when Yu Yee was about to take leave of his father, the man that had been passing back the forth behind Yu Lon approached him from behind and suddenly and without warning struck him with his fist on the back part of the head. Yu Lon tottered and fell backwards. His head struck the asphalt pavement; the lower part of his body fell on the sidewalk. His assailants immediately ran away. Yu Yee pursued him through San Fernando, Camba, and Jaboneros Streets, and then lost sight of him. Two other Chinese, Chin Sam and Yee Fung, who were walking along Calle Mestizos, saw the incident and joined him in the pursuit of Yu Lon's assailant. The wounded man was taken to the Philippine General Hospital, were he died about midnight. A post-mortem examination was made the next day by Dr. Anastacia Villegas, who found that

the deceased had sustained a lacerated wound and fracture of the skull in the occipital region, and that he had died from cerebral hemorrhage; that he had tuberculosis, though not in an advanced stage, and a tumor in the left kidney. Yu Yee promptly reported the incident to the police, and about 3 o'clock the next morning Sergeant Sol Cruz and other detectives, accompanied by Yu Yee, went to the scene of the crime and found blood stains in the street. Yu Yee said that he could recognize his father's assailant, and described him as being about five feet in height, 25 or 30 years old, with long hair and wearing a suit of dark clothes. After Sergeant Sol Cruz had been working on the case for three or four days he received information that the accused might be the person that had assaulted Yu Lon, and on August 4th the accused was arrested by detectives Manrique and Bustamante. He was wearing a dark wool suit. Yu Yee was immediately called to the police station. The accused was placed near the middle of a line of some eleven persons that had been detained for investigation. They were wearing different kinds of clothes. Yu Yee without hesitation pointed out the defendant as the person that had assaulted Yu Lon. He identified him not only by his long hair combed towards the back and worn long on the sides in the form of side-whiskers (patillas), but also by his high cheek-bones and the fact that his ears have no lobes. The defendant was identified at the trial not only by Yu Yee, but also by Chin Sam and Yee Fung. With respect to the first four assignment of error, which raise questions of fact as to the identification of the accused, and whether or not be struck the deceased, and if he did assault the deceased, whether he did so in a treacherous manner, we see no sufficient reason, after considering the evidence and arguments of counsel, to doubt the correctness of the findings of the trial judge. The accused was identified by Yu Yee and two other Chinese, and although Yu Yee may have overstated at the trial some of the facial peculiarities in the defendant that he claimed to have observed at the time of the incident, it must be remembered that Yu Yee without hesitation picked the defendant out of a group of eleven persons as his father's assailant, and that he had exceptional opportunities for observing his father's assailant, because while that person was walking back and forth behind Yu Lon, Yu Yee was facing the assailant. We find the testimony of the defendant and his witnesses as to the whereabouts of the defendant on the night in question unworthy of credit. The testimony of the three Chinese that a man struck the deceased and then ran away is corroborated by the testimony of a 15-year old boy, Dominador Sales. As to the contention that the deceased would have fallen on his face if he had been struck on the back of the head, the expert testimony shows that in such a case a person instinctively makes an effort to preserve or regain his balance, and that as result thereof the deceased may have fallen backwards. Another consideration is that sidewalks almost invariably slope towards the pavement, and this being true, when the deceased straightened up, he naturally tended to fall backwards. The evidence leaves no room for doubt that the accused struck the deceased on the back of the head, because when the deceased was assaulted he and Yu Yee were standing on the sidewalk, facing each other, and if the accused had not struck the deceased on the back of the head, it would have been necessary for him to go between the deceased and Yu Yee. Since the accused struck the deceased from behind and without warning, he acted with treachery. "There is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and especially to insure its execution, without risk to himself arising from the defense which the offended party might make." (Article 14, No. 16, of the Revised Penal Code.)

The fourth assignment of error is a repetition of the first. In the fifth assignment of error it is contended that the appellant if guilty at all, should be punished in accordance with article 266 of the Revised Penal Code, or for slight physical injuries instead of murder. Paragraph No. 1 of article 4 of the Revised Penal Code provide that criminal liability shall be incurred by any person committing a felony (delito) although the wrongful act done be different from that which he intended; but in order that a person may be criminally liable for a felony different from that which he proposed to commit, it is indispensable that the two following requisites be present, to wit: (a) That a felony was committed; and (b) that the wrong done to the aggrieved person be the direct consequence of the crime committed by the offender. U.S. vs. Brobst, 14 Phil. 310; U.S. vs. Mallari, 29 Phil. 14 U.S. vs. Diana, 32 Phil. 344.) In the Brobst case, supra, it was held that death may result from a blow over or near the heart or in the abdominal region, notwithstanding the fact that the blow leaves no outward mark of violence; that where death result as the direct consequence of the use of illegal violence, the mere fact that the diseased or weakened condition of the injured person contributed to his death, does not relieve the illegal aggressor of criminal responsibility; that one is not relieved, under the law in these Islands, from criminal liability for the natural consequences of one's illegal acts, merely because one does not intend to produce such consequences; but that in such cases, the lack of intention, while it does not exempt from criminal liability, is taken into consideration as an extenuating circumstance. (U.S. vs. Luciano, 2 Phil. 96.) The reasoning of the decisions cited is applicable to the case at bar. There can be no reasonable doubt as to the cause of the death of Yu Lon. There is nothing to indicate that it was due to some extraneous case. It was clearly the direct consequence of defendants felonious act, and the fact that the defendant did not intend to cause so great an injury does not relieve him from the consequence of his unlawful act, but is merely a mitigating circumstance (U.S. vs. Rodriguez, 23 Phil. 22). The next question is whether the crime committed by the defendant should be classified as homicide or murder. Can the defendant be convicted of murder when he did not intend to kill the deceased? We have seen that under the circumstances of this case the defendant is liable for the killing of Yu Lon, because his death was the direct consequence of defendant's felonious act of striking him on the head. If the defendant had not committed the assault in a treacherous manner. he would nevertheless have been guilty of homicide, although he did not intend to kill the deceased; and since the defendant did commit the crime with treachery, he is guilty of murder, because of the presence of the qualifying circumstance of treachery. The Supreme Court of Spain has held that there is no incompatibility, moral or legal, between alevosia and the mitigating circumstance of not having intended to cause so great an injury: Considering that there is no moral or legal incompatibility between treachery and the mitigating circumstance No. 3 of article 9 of the Penal Code, because the former depends upon the manner of execution of the crime and the latter upon the tendency of the will towards a definite purpose, and therefore there is no obstacle, in case treacherous means, modes or forms are employed, to the appreciation of the first of said circumstances and simultaneously of the second if the injury produced

exceeds the limits intended by the accused; and for that reason it cannot be held in the instant case that this mitigating circumstances excludes treachery, or that the accused, being chargeable with the death of the offended party, should not be liable due to the voluntary presence of treachery in the act perpetrated, although with mitigation corresponding to the disparity between the act intended and the act consummated, etc. (Decision of May 10, 1905, Gazette of April 20, 906; Viada: 5th edition, Vol. 2, p. 156.) In the case of the United States vs. Candelaria (2 Phil. 104), this court speaking through Chief Justice Arellano said: In trying Jacinto to a tree the three defendants acted treacherously (alevosamente). Whether it was to prevent him from making resistance, whether it was to torture him for the purpose of making him give information, or whether it was for the purpose of inflicting further punishment, the fact is that by this means the defendants secured themselves against any risk which might have arisen from an attempt at self-defense on the part of the victim. We are of opinion that they had no intention to cause so great an evil as that which resulted, but this does not neutralize that other qualifying circumstance of the resulting death, because if there was no alevosia for the purpose of killing there was alevosia for the purpose of the illtreating. The means employed were not made use of for the precise purpose of making certain the death of Jacinto de Jesus but as a safe means of illtreating him without risk to the persons who were doing so. If by this means the ill treatment was aggravated, it follows that it is a qualifying circumstances in the death which resulted. It was not a condition of the purpose, but it was a condition of the criminal act itself, in whatever sense this be taken. The penalty of murder (article 248 of the Revised Penal Code) is reclusion temporal in its maximum period to death, and there being present in this case one mitigating and no aggravating circumstance the prison sentence of the appellant is reduced to seventeen years, four months, and one day of reclusion temporal. As thus modified, the decision appealed from is affirmed, with the costs against the appellant. Avanceña, C.J., Street, Abad Santos, and Butte, JJ., concur. .
G.R. No. L-36282 December 10, 1976 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. COSME MONLEON, accused-appellant. Prospero A. Crescini, for appellant. Solicitor General Estelito P. Mendoza, Assistant Solicitor General Conrado T. Limcaoco and Solicitor Pio C. Guerrero for appellee.

AQUINO, J.: Cosme Monleon appealed from the decision of the Court of First Instance of Cebu, finding him guilty of parricide, sentencing him to reclusion perpetua, and ordering him to pay the heirs of his deceased wife, Concordia Bongo, an indemnity of twelve thousand pesos plus moral damages in the sum of two thousand pesos (Criminal Case No. BO-121). After that judgment was read to him in open court on January 11, 1973, he asked that the penalty be reduced (156 tsn). The court advised him to appeal if he was not satisfied with the penalty.

The Solicitor General submits that the judgment of conviction should be affirmed but recommends executive clemency because the penalty of reclusion perpetua appears to be excessive, considering the degree of malice exhibited by Monleon (Art. 5, Revised Penal Code; Sec. 14, Art. IX, 1973 Constitution). The judgment was based on the following facts: Appellant Monleon and his wife, Concordia Bongo, who had been married for twenty-six years (Exh. A), were residents of Barrio Lunas, Borbon, Cebu. On June 1, 1970 Monleon, a forty-five year old illiterate farmer, worked in the palihug (a sort of bayanihan) at the farm of Tomas Rosello, his brother-inlaw. There, he imbibed copious amounts of tuba, the coconut wine that is a causative factor in the rampancy of criminality or lawlessness in rural areas. At about seven o'clock in the evening of that day, June 1, Cosme Monleon arrived at his house. He was drunk. He inquired from Concordia whether their carabao had been fed by their ten-year old son, Marciano. She assured him that the carabao had been fed. He repaired to the place where the carabao was tethered to check the veracity of her statement. He discovered that the carabao had not been adequately fed. He became furious. When he was about to whip Marciano, Concordia intervened. A violent quarrel ensued between them. He placed himself astride his wife's chest, squezzed her neck, pressed her head against a post, and kicked her in the abdomen. He shouted: "What do I care if there would be someone who would be buried tomorrow. You let your brothers and sisters stand up and I will also include them." Felicisimo, one of the couple's six children, pulled away his father and stopped his assault on Concordia. The following morning Concordia vomitted blood. She died at eleven o'clock on that morning of June 2. Death was due to "acute abdomen" (Exh. B), a pathologic condition within the belly, requiring surgical intervention (Blakiston's New Gould Medical Dictionary, 2nd Edition, page 2). Sixteen days after Concordia Bongo's death, or on June 18, Monleon thumbmarked a confession, written in the Cebuano dialect and sworn to before the town mayor (Exh. C). He admitted in that confession that he assaulted his wife and that he had repented for the wrong which he had done to her. He orally admitted to Perfecto Bongo, a lieutenant in the Cebu City police department and a relative of Concordia, that he (Monleon) assaulted his wife because he was drunk and she was a nagger (133-134 tsn November 24, 1972). On July 31, 1970 or about two months after Concordia's death, a medico-legal officer of the National Bureau of Investigation (NBI) exhumed her body. He found bluish-black discolorations on the sphenoid temporal bones of her skull, on the atlas or cervical vertebra below the skull or at the base of the neck, and on the first ribs. The discolorations were due to internal hemorrhage "caused by trauma or external violence" (Exh. D-1; 21-24 tsn). The doctor ventured the opinion that the "acute abdomen" could have been caused "by external violence" (37 tsn). Appellant Monleon, by means of his testimony and the testimonies of his nineteen-year old daughter, Felicisima, and his twelve-year old son, Marciano (a third-grade pupil), denied that he used violence against his wife. He testified that he and his wife had merely a verbal quarrel and that Clemencia Bongo-Monleon, the sister of Concordia and the wife of his elder brother, testified against him because Clemencia and Monleon had a boundary dispute regarding the lands inherited by Clemencia and Concordia from their father, Victor Bongo. Monleon said that Lieutenant Bongo asked him to sign a "recibo" that he would take care of his children (113 tsn). He also said that some persons threatened to kill him if he did not affix his thumbmark to his confession (116 tsn). As already stated, the trial court convicted Monleon of parricide. In this appeal, his counsel de oficio the trial court erred in giving credence to Monleon's confession, the affidavit of his son, Marciano (Exh. E), and the testimonies of the prosecution witnesses, Clemencia Bongo-Monleon, Epifania Bongo, Perfecto Bongo, and the NBI medico-legal officer, Doctor Ceferino Cunanan; in treating the alleged declarations of Concordia Bongo to Clemencia's husband as part of the res gestae and in rejecting the testimonies of Monleon and his two children, Marciano and Felicisima. The crucial fact in this case is that Monleon feloniously assaulted his wife in the evening of June 1, 1970 by choking her, bashing her head against a post and kicking her in the abdomen. He did not use any weapon but the acts of physical violence which he inflicted on her produced internal complications which caused her to vomit blood the next day and eventually snuffed out her life. The corpus delicti or the fact of the commission of the crime of which Concordia Bongo was the victim was established by the prosecution witnesses, Clemencia Bongo-Monleon and Epifania Bongo. Hence, Monleon's extrajudicial confession (Exh. C) was corroborated by evidence of the corpus delicti (Sec. 3, Rule 133 and sec. 29, Rule 130, Rules of Court). The trial court said that it took pains to observe the demeanor on the witness stand of the mayor Epifania, and Clemencia, who all testified for the prosecution, and appellant Monleon himself. It was convinced that the confession "was voluntarily executed by the accused." Appellant's counsel de oficio contends that there are discrepancies between Monleon's confession and the version given by the prosecution witnesses, Epifania and Clemencia. Those two witnesses testified that Concordia died at eleven o'clock in the morning while Monleon in his confession declared that his wife died at one o'clock in the afternoon. Another discrepancy is that according to prosecution witnesses Monleon was not present when his wife died but according to the confession, he was with her when she breathed her last. Counsel de oficio also points out that the confession was supposed to have been thumbmarked on June 16, 1970 and then sworn to before the mayor two days later or on June 18 but, according to Lieutenant Bongo, he investigated Monleon in the early morning of June 18 and his confession was executed at that time. We are of the opinion that those discrepancies do not destroy the probative value of the confession nor negate Monleon's admission therein that he assaulted his wife. A court may reject portions of the confession by reason of the improbability of the facts or statements therein or because of their falsity or untrustworthiness (People vs. Layos, 60 Phil. 760; People vs. Piring, 63 Phil. 546; People vs. Villanueva, 115 Phil. 858; 22 C.J.S. 1479).

The mayor and Lieutenant Bongo testified that Monleon was not forced to affix his thumbmark to the confession. There is no evidence that he was tortured or maltreated. Monleon could have complained to the fiscal during the preliminary investigation that he was forced to execute his confession. He did not do so. Attorney Prospero A. Crescini, appellant's counsel de oficio, examined meticulously the evidence, conscientiously studied Page 268 the case and submitted a good brief. He points out that Clemencia and Epifania did not mention that they saw each other when they allegedly witnessed the assault made by Monleon on his wife; that they did not report immediately to the authorities the alleged incident; that it was strange that Epifania did not ask her husband, Gervasio Bongo, the brother of the victim, to stop the assault, and that Clemencia failed to summon her husband, an elder brother of Monleon, to pacify the latter. Those acts and omission of Clemencia and Epifania do not render their testimonies worthless The two prosecution witnesses are uneducated. The fiscal in his direct examination and the defense counsel did not ask them whether they saw each other in the yard of Monleon's house when they allegedly saw Monleon mauling his wife. Most likely, they assumed that Monleon was merely chastising his wife, as he had repeatedly done in the past, and that he did not intend to kill her. They were not cognizant at first of the grave consequences resulting from Monleon's violent acts. Hence, they did not see the necessity of the intervention of other persons or of the barrio captain and the police. Appellant's counsel argues that the trial court erred in admitting Marciano Monleon's affidavit which was written in the Cebuano dialect (Exh. E) and which was not accompanied with the corresponding translation. That confession is well-taken. The trial court erred in admitting that affidavit over the objection of appellant's counsel because section 34, Rule 132 of the Rules of Court provides that documents written in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English, Spanish or the national language "To avoid interruption of proceedings, parties or their attorneys are directed to have such translation prepared before trial" (See. 34). Also meritorious is appellant's contention that the trial court erred in ruling that the alleged declarations of Concordia Bongo to the husband of Clemencia Bongo Monleon, as to the violent acts inflicted upon her (Concordia) by appellant Monleon, are part of the res gestae. That ruling was made in connection with Clemencia's testimony (not on direct examination but in answer to the questions of the trial judge) that at eight o'clock in the evening of June 1, 1970, or about an hour after Concordia was assaulted by Monleon, she (Concordia) left her house and went to Clemencia's house three hundred meters away and recounted to Clemencia's husband (appellant Monleon's brother) how she was beaten by Monleon (22 tsn). Appellants counsel observed that it was incredible that Concordia, after being severely maltreated by Monleon (according to the prosecution's version), would still have the strength to go to Clemencia's house which was located on a hill. Clemencia's testimony reveals that she must have been confused in making that assertion, assuming that it was accurately translated and reported. A careful scrutiny of her entire testimony reveals that what she really meant was that Concordia on the following day, June 2, recounted to her, as Concordia recounted also to Epifania, how she was maltreated by Monleon. In all probability what happened was that Clemencia, on arriving at her house at around eight o'clock in the evening of June 1, apprised her husband that she witnessed the assault made by Monleon on her sister, Concordia. The trial court's error in regarding as part of the res gestae the statement supposedly made by Concordia to Clemencia's husband immediately after the incident and its error in admitting Monleon's affidavit are not sufficient to exculpate Monleon or engender any reasonable doubt as to his guilt. The testimonies of Epifania and Clemencia, the confession of Monleon, as supported by the testimonies of the mayor and Lieutenant Bongo, and the expert opinion of the NBI medico-legal officer are sufficient to establish the guilt of appellant Monleon. The instant case is covered by article 4 of the Revised Penal Code which provides that criminal liability is incurred by any person committing a felony although the wrongful act done be different from that which he intended. The maltreatment inflicted by Monleon on his wife was the proximate cause of her death. Monleon in his inebriated state had no intent to kill her. He was infuriated because his son did not feed his carabao. He was provoked to castigate his wife because she prevented him from whipping his negligent son. He could have easily killed his wife had he really intended to take her life. He did not kill her outright. The trial court did not appreciate any mitigating circumstances in favor of Monleon. The Solicitor General is correct in finding that the extenuating circumstances of lack of intent to commit so grave a wrong and intoxication, which was not habitual, are present in this case. Hence, the penalty imposable on Monleon is reclusion perpetua (Arts. 63[3] and 246, Revised Penal Code). But considering that Monleon had no intent to kill his wife and that her death might have been hastened by lack of appropriate medical attendance or her weak constitution, the penalty of reclusion perpetua appears to be excessive. A strict enforcement of the provisions of the Penal Code means the imposition of a draconian penalty on Monleon. This case is similar to People vs. Rabao, 67 Phil. 255 where the husband quarrelled with his wife because he wanted to restrain her from giving a bath to their child, who had a cold. In the course of the quarrel, he punched her in the abdomen. As a result she suffered an attack and died. He was convicted of parricide and sentenced to reclusion perpetua. The commutation of the penalty was recommended to the Chief Executive (See People vs. Formigones, 87 Phil. 658; U.S. vs. Guevara, 10 Phil. 37; People vs. Castañeda, 60 Phil. 604, 609; People vs. Gungab, 64 Phil. 779). Therefore, there is sufficient justification for the Solicitor General's recommendation that Monleon's case be brought to the attention of the Chief Executive so that the penalty of reclusion perpetua may be reduced.

WHEREFORE, the trial court's judgment is affirmed. Pursuant to article 5 of the Revised Penal Code, a certified copy of this decision should be furnished the Chief Executive through the Secretary of Justice (See sec. 3[1], Art. XVII, 1973 Constitution). Costs against the appellant. SO ORDERED.

March 14, 1930 G.R. No. L-32076 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. NATALIO ILUSTRE, defendant-appellant. Trinidad, Suarez and Diokno for appellant. Attorney-General Jaranilla fro appelle. VILLAMOR, J.: The appellant was tried in the Court of First Instance of Batangas for homicide upon the following information: That on or about June 24, 1929, in the municipality of Balayan, Province of Batangas, Philippine Islands, the above-named defendant willfully, unlawfully, and feloniously dealt Juan Magsino a blow with his closed fist in the right hypochondriac region, bruising his liver and producing an internal hemorrhage resulting in the death of said Juan Magsino. Contrary to law. The case was duly tried, and the trial court found the defendant guilty of the crime charged, but considering that the accused had no intention to commit so grave an evil as that committed, sentenced him to twelve years and one day, reclusion temporal, P1,000 indemnity to the family of the deceased, and the costs. Defendant appealed from this sentence, and his counsel now alleges that: 1. The lower court erred in finding that the appellant herein hit Juan Magsino in the right hypochondriac region with his fist, and that said blow bruised the victim's liver. 2. Even admitting hypothetically for the sake of argument, that the defendant hit the deceased causing a contusion or congestion of the liver, the lower court still erred in finding that said contusion or congestion was the direct cause of Magsino's death, and in condemning the herein appellant. 3. There being some doubt as to the real cause of Juan Magsino's death, the lower court erred likewise in convicting the defendant of homicide, instead of sentencing him for misdemeanors against persons.

4. Even supposing that the act prosecuting was really committed by the defendant, as it was done without criminal intent, the trial court also erred in not acquitting him. 5. Finally, the lower court erred in not giving the defendant the benefit of the reasonable doubt, and therefore in not acquitting him. It is not disputed that on the morning of June 24, 1929, on St. John's day, a procession was held in the barrio of Canlurangbayan, Balayan. The trial court describes the feast and the occurrence, as follows: It is characteristic of this feast to make the rounds of the town in procession, with a roasted pig on a piece of cane followed by music and the populace. The bearer goes about daring to the tune of the music, and as is customary, designed to enliven the celebration, the people try to take a piece of barbecued pig. To direct the procession and present the people from consuming the whole animal before reaching the end, a man is placed in charged, who on the day of record, June 24, 1929, happened to be the defendant Natalio Ilustre vHGW. A young man, Juan Magsino by name, delicate and suffering from incipient tuberculosis, made one of the gay multitude and tried to secure a piece of the crackling. To punish his boldness, the defendant ran after him, boxed him, and left him sprawling on the ground. Upon being struck Juan Magsino suddenly became very ill and his companions had to take him home in a carromata. This was in the morning, and about three o'clock in the afternoon he expired. The real question raised in this appeal is, What was the cause of Juan Magsino's death? The autopsy was performed by Doctor Jose Ilagan, municipal physician for Balayan, assisted by Doctors Antonio Agoncillo, municipal physician for Taal, and Hermenegildo de Castillo, municipal physician for Lemery, all of the Province of Batangas. Doctor Ilagan, testifying on the autopsy as evidenced by Exhibit A, bases his diagnosis upon the following: The symptoms of the deceased before death; the interstitial hemorrhage of the liver produced by the lesion thereof; the ecchymotic spots on the skin of the right epigastric region, an indication of internal hemorrhage; the hemorrhagic condition of the peritoneum, and the sanguineous liquid found in the abdominal cavity; adding, that he also found the lungs covered with military granules and the heart was somewhat dilated, but that its valves were normal. In the opinion of this physician, Juan Magsino's death was caused by the contusion of the liver and the internal hemorrhage; that, although the autopsy showed that the deceased had incipient tuberculosis, he could not have died of it; that neither could he have died of heart disease, because the slight dilation noticed was due to the increased efforts of this organ owing to the incipient tuberculosis of the lungs. "Tubercular lesions," he declares, "are cavities in the lungs that contain blood causing congestion, and the heart being called upon to make a greater exertion becomes dilated." Doctor Agoncillo corroborates Ilagan's opinion; but Doctor Castillo, with the self-same data gathered at the autopsy, has not arrived at a definite conclusion as to the real cause of Juan Magsino's death.

Doctor Sixto Roxas, director of the provincial hospital of Batangas, was called upon to express his opinion as to the cause of Magsino's death, in view of the information obtained at the autopsy, to wit: According to Doctors Ilagan and Agoncillo, the anterior right lobe of the liver was bruised, while the left side was normal. They also found sanguineous fluid in the abdominal cavity. They examined the heart and lungs, and found upon the latter military granules, indicating, according to them, the presence of tuberculosis in its first and second stages. The dilated heart they found to weigh 400 grams. The heart valves were normal. They went over the body and found no ecchymosis or lesion, save one ecchymotic spot in the lower part of the abdomen beneath the navel. The peritoneum was hemorrhagic. To the autopsy data, must added the theory that the death of Juan Magsino occurred a few hours after receiving a blow in the right hypochondrium. The other theory sustained is that the deceased had taken wine and then bathed in the river, and that he had afterwards received a push and had fallen on his back. After giving some explanation of the data presented to him by the court, Doctor Roxas was thus interrogated: Q. Well, at any rate, a blow on the right hypochondrium of this individual could have caused his death? ? A. Yes, sir; the shock of it. Q. Supposing five hours passed, as His Honor remarked, considering that the person was delicate, with symptoms of tuberculosis in both lungs, and a consequent dilation of the heart: do you believe, doctor, that a blow could have killed him in five hours? ? A. He might die, but it would be an extremely rare case. Q. Do you not think, doctor, that a sufferer from tuberculosis in the first or second stage, no longer has the amount of blood he had before? ? A. Naturally not. Q. And with a hemorrhage, an internal hemorrhage caused by a blow on the right hypochondrium, don't you think such hemorrhage contributed considerably to bring about this man's death? ? A. Naturally. Q. And if that man was killed by a shock, that shock was caused by the blow, wasn't it, doctor? ? A. Of course. The testimony just quoted inclines us to believe that in the long run Doctor Roxas agrees with the diagnosis of Doctors Ilagan and Agoncillo, to the effect that Juan Magsino's death was due to a contusion on the liver accompanied by an internal hemorrhage. It is thus seen that, passing over Doctor Castillo's opinion, which of course, cannot serve as a basis for a definite conclusion, the three medical men, Doctors Ilagan, Agoncillo, and Roxas agree, with this exception, that while the first two who performed the autopsy on the body, with their own eyes saw the result thereof, the latter, that is, Doctor Roxas, simply considered the data hypothetically. We are

therefore convinced there is no fundamental disagreement among the medical witnesses as to the cause of the victim's death; and that is was caused by the defendant's blow on the deceased right hypochondrium, which bruised the liver and produced an internal hemorrhage. The appellant denies having hit Magsino, protesting that he had no motive for doing so; but the evidence shows that he punched Magsino in the abdomen a little to the right, felling him to the ground. The fact that the deceased had a delicate constitution and suffered from incipient pulmonary tuberculosis does not affect the defendant's criminal liability, for eve if it rendered the blow more fatal, the efficient cause of the death remains the same. (U. S. vs. Fenix, 11 Phil. 95) And the circumstance that the defendant did not intend so grave an evil as the death of the victim does not exempt him from criminal liability, since he deliberately committed an act prohibited by law, but simply mitigates his guilt in accordance with article 9, No. 3, of the Penal Code. (U. S. vs. Samea, 15 Phil. 227.) The instant case comes under the provision of article 404 of the Penal Code providing the penalty of reclusion temporal, which must be imposed in its minimum degree in view of the mitigating circumstance just mentioned, or twelve years and one day, reclusion temporal. Therefore, the judgment appealed from must be, as it is, hereby affirmed, with costs against the appellant.1 So ordered. Johnson, Malcolm, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur. Footnotes 1Modified by resolution of March 25, 1930. .

Sponsor Documents

Or use your account on DocShare.tips

Hide

Forgot your password?

Or register your new account on DocShare.tips

Hide

Lost your password? Please enter your email address. You will receive a link to create a new password.

Back to log-in

Close