Criminal law cases compilation

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[G.R. No. 124036. October 23, 2001] FIDELINO GARCIA, petitioner, vs. THE COURT OF APPEALS, THE PRESIDING JUDGE OF THE RTC, GUMACA, QUEZON, BRANCH 62, and PEOPLE OF THE PHILIPPINES, respondents. DECISION QUISUMBING, J.: On appeal by certiorari is the decision of the Court of Appeals dated February 22, 1996, in CA-G.R. CR No. 13358. The decision affirmed the judgment of the Regional Trial Court of Gumaca, Quezon, Branch 62 in Criminal Case No. 2307-G, finding petitioner Fidelino Garcia with his co-accused Leopoldo Garcia and Wilfredo Garcia guilty of homicide. In an Information dated December 13, 1983, Fidelino Garcia, Leopoldo Garcia, and Wilfredo Garcia were charged with murder allegedly committed as follows: That on or about the 30th day of July 1983, at Barangay II, in Poblacion, Municipality of Mulanay, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the said accused, armed with a knife, a piece of wood and a broken bottle with intent to kill, and taking advantage of their superior strength and with treachery, did then and there willfully, unlawfully and feloniously attack, hit with said piece of wood and stab with the said knife and broken bottle one Paulino Rodolfo y Olgena, thereby inflicting upon the latter the following injuries, to wit: ―Wound lacerated mid parietal area 4cm with linear fracture of underlying skull; Wound lacerated 3 cm mid frontal area; Wound lacerated T shape right frontal ½ cm; Abrasion right nasolridge; Contusion with laceration nose; Multiple contusion chest right #3 6cm deep nonpenetrating; Wound lacerated left temporal 1 cm; Wound stab left arm medial aspect 1½ cm.‖ which directly caused his death. Contrary to law.[1] Petitioner and Wilfredo Garcia are brothers, while their co-accused in Criminal Case No. 2307-G, Leopoldo, is their first-degree cousin.[2] Earlier, a separate charge sheet docketed as Criminal Case No. 2165-G had been filed against petitioner Fidelino Garcia, charging him with direct assault upon an agent of a person in authority. On March 8, 1984, he was arraigned in said case and entered a plea of not guilty. In 1985, the accused in Criminal Case No. 2307-G were separately arraigned. All pleaded not guilty to the charge. As Criminal Cases Nos. 2165-G and 2307-G arose from the same incident, a joint trial ensued. The facts, as established by the prosecution before the trial court and affirmed by the appellate court, are as follows: At around 2:30 P.M., July 30, 1983, P/Cpl. Francisco Rollera was on his way to mail a letter. He was waiting at the crossing near the police outpost in the town proper of Mulanay, Quezon, when he saw

petitioner, Wilfredo and Leopoldo, ganging up on Paulino Rodolfo y Olgena.[3] While Leopoldo held the victim, petitioner hit him with an empty bottle. Wilfredo then stabbed the victim once with a stainless steel fan knife (balisong). The knife got stuck in Paulino‘s body. Paulino succeeded in wrestling free from Leopoldo‘s grasp and pulling out the knife from his body. He used the knife to stab petitioner in the stomach. Rollera tried to stop the fight. He pulled out his service pistol and fired three successive warning shots, calling upon the combatants to stop their fight, but to no avail. Still holding Wilfredo‘s knife, the wounded Paulino beat a hasty retreat to the store of one Manuel Roberto. Wilfredo pursued him. Inside the store, Paulino stabbed Wilfredo twice in the neck and stomach. Unable to stop the affray, Rollera then asked the other people around to summon other policemen. Paulino went back to the street. Seeing that Wilfredo was about to hit him with a piece of wood, Rollera stepped in and wrestled the stick away from Wilfredo. The latter, however, managed to get hold of an empty bottle. Before Rollera could react, petitioner approached him, holding a broken bottle. Rollera moved back and Fidelino chased him around a parked vehicle. At this point, two other policemen arrived and pacified the antagonists. A third responding policeman grabbed and caught petitioner chasing Rollera around the parked vehicle. Paulino Rodolfo subsequently died. The medicolegal certificate issued by Dr. Mario A. Cuento of the Bondoc Peninsula District Hospital at Catanauan, Quezon, revealed that the cause of death was ―cerebral hemorrhage.‖[4] Predictably, the defense gave a slightly different version of the incident. Wilfredo testified that between 2:00 and 3:00 P.M. of July 30, 1983, he was on his way to the tricycle parking space in Nanadiego St., Mulanay, Quezon, with his two co-accused following a short distance behind him. He met P/Cpl. Rollera and Paulino, both of whom appeared to be intoxicated. Paulino put an arm around Wilfredo‘s shoulder and invited him to have a drink. The latter removed Paulino‘s arm and refused, explaining that he had to go to the barrio. Wilfredo was about to leave, when Paulino suddenly collared him and poked a balisong at his throat. Wilfredo stepped back, but Paulino nonetheless succeeded in stabbing him in the neck, chest, and stomach. He did not know what transpired next as he lost consciousness as a result of his wounds, regaining it only next morning when he found himself at the Quezon Memorial Hospital where he was confined for four (4) days. Although petitioner and he were closely following Wilfredo, Leopoldo claimed that he did not actually see how Paulino attacked Wilfredo. What he heard were the voices of persons heatedly arguing. When he advanced to investigate, he saw Wilfredo already wounded. Leopoldo ran towards the municipal hall to get police assistance. On his way, he met police officers Pobeda and Roadilla and he told them what happened. They then proceeded to the scene of the incident where Leopoldo allegedly saw Rollera chasing a wounded Fidelino around a parked vehicle. Pobeda and Roadilla then pacified Rollera and

petitioner. Because Leopoldo and petitioner were both wounded, the peace officers brought them to the Catanauan Hospital. Leopoldo claimed that he never saw the victim at the scene. On February 14, 1992, the trial court rendered its decision and disposed of the two cases as follows: WHEREFORE, in view of the foregoing, on ground of reasonable doubt, accused Fidelino Garcia is hereby ACQUITTED of the crime charged under Criminal Case No. 2165-G for Direct Assault Upon An Agent of a Person in Authority. In Criminal Case No. 2307-G, the judgment of conviction is hereby entered. Accused FIDELINO, WILFREDO and LEOPOLDO, all surnamed GARCIA are found guilty beyond reasonable doubt of the crime of HOMICIDE, and this Court hereby sentences them, applying the Indeterminate Sentence Law, to suffer an imprisonment of 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. Furthermore, all the accused are solidarily liable and are ordered to indemnify the heirs of the late Paulino Rodolfo y Olgena, the sum of FIFTY THOUSAND PESOS (P50,000.00) plus the sum of TEN THOUSAND PESOS (P10,000.00) as actual damages and to pay the costs of this suit. SO ORDERED.[5] The accused seasonably filed their respective notices of appeal to the appellate court.[6] The Court of Appeals, in a resolution dated May 17, 1994 ordered Wilfredo Garcia‘s appeal deemed ―abandoned and ordered dismissed for failure to furnish the Court (with) his forwarding address.‖[7] On September 3, 1994, the resolution dismissing Wilfredo‘s appeal became final and executory. The Court of Appeals, in CA-G.R. CR No. 13358, thus resolved only the appeals interposed by Leopoldo and Fidelino Garcia. On February 22, 1996, the appellate court affirmed the lower court‘s decision finding them guilty beyond reasonable doubt of homicide, thus: WHEREFORE, with the modification that the indeterminate sentence should be from six (6) years and one (1) day of prision mayor as minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as maximum, the decision appealed from is AFFIRMED in all respects. Costs against accused-appellants. SO ORDERED.[8] Although the three accused were represented by one counsel before the trial court, said counsel filed an appellant‘s brief only for accused Leopoldo Garcia. Before us now is the separate appeal of petitioner Fidelino Garcia filed by a court appointed counsel de oficio from the Free Legal Assistance Group (FLAG).[9] In his brief, petitioner Fidelino Garcia assigns the following as errors committed by the appellate court: First Assigned Error THE COURT OF APPEALS ERRED IN AFFIRMING PETITIONER‘S CONVICTION FOR CONSPIRACY WHEN IT WAS NEVER ALLEGED IN THE INFORMATION NOR PROVEN DURING TRIAL. Second Assigned Error

THE COURT OF APPEALS ERRED IN AFFIRMING PETITIONER‘S CONVICTION IN THE ABSENCE OF ANY EVIDENCE REGARDING THE FACT, MANNER AND CAUSE OF THE ALLEGED VICTIM‘S DEATH. Third Assigned Error THE COURT OF APPEALS ERRED IN GIVING GREATER WEIGHT TO THE EVIDENCE OF THE PROSECUTION AND FINDING NO ILLMOTIVE ON THE PART OF THE PROSECUTION WITNESS. Fourth Assigned Error PETITIONER SHOULD BE ACQUITTED BECAUSE THE EVIDENCE DOES NOT ESTABLISH HIS CULPABILITY AS A PRINCIPAL, CO-CONSPIRATOR OR ACCOMPLICE.[10] In sum, the issues for our resolution are: (1) Whether the appellate court erred in convicting petitioner as a conspirator in the killing of Paulino Rodolfo y Olgena; and (2) Whether or not there was sufficient evidence to establish petitioner‘s guilt with moral certainty. On the first issue, petitioner contends that an accused cannot be convicted of any offense not alleged in the information, as he has the right to be informed of the nature of the offense with which he is charged before he is put on trial. He points out that the Information in Criminal Case No. 2307-G did not allege that he conspired, confederated, mutually helped, and/or acted in concert and with consent in committing the offense charged. He submits that an allegation of conspiracy cannot be presumed or implied in an information. In finding him to be a conspirator in the killing of the victim, appellant claims that his rights to be informed of the nature and cause of the accusation against him; to a fair trial; to due process of law; and to equal protection of law were violated by respondent appellate court. For the State, the Office of the Solicitor General (OSG) contends that it is not essential that the allegation of ―conspiracy‖ be expressly stated in the indictment. It is enough that the narration in the Information shows that the accused acted in concert in the commission of the crime. On this point, we are not in agreement with the OSG. In all criminal prosecutions, the accused shall first be informed of the nature and cause of the accusation against him.[11] The right of the accused to be informed of the charges against him is explicit in Sec. 1(b) Rule 115 of the Rules of Criminal Procedure.[12] To ensure that the due process rights of an accused are observed, every indictment must embody the essential elements of the crime charged with reasonable particularity as to the name of the accused, the time and place of commission of the offense, and the circumstances thereof. One such particular circumstance is conspiracy where two or more persons are charged in an information. Conspiracy denotes an intentional participation in a criminal transaction, with a view to the furtherance of a common design and purpose. It imputes criminal liability to an accused for the acts of another or others, regardless of the nature and extent of his own participation. In a conspiracy, the

act of one becomes the act of all and the particular act of an accused becomes of secondary relevance. Thus, it is essential that an accused must know from the information whether he is criminally accountable not only for his acts but also for the acts of his co-accused as well.[13]An indictment for conspiracy is sufficient if: (1) it follows the words of the statute creating the offense and reasonably informs the accused of the character of the offense he is charged with conspiring to commit;[14] or (2) following the statute, contains a sufficient statement of an overt act to effect the object of the conspiracy;[15] or (3) alleges both the conspiracy and the contemplated crime in the language of the respective statutes defining them.[16] In the present case, the appellate court held that an allegation of conspiracy is implied in, or may be inferred from, the statement that ―the said accused, armed with a knife, a piece of wood and a broken bottle, with intent to kill, and taking advantage of their superior strength and with treachery, did then and there willfully, unlawfully, and feloniously attack, hit with said piece of wood and stab with the said knife and broken bottle one Paulino Rodolfo y Olgena.‖ But we agree with appellant that here the information does not satisfy the requirement that the conspiracy must be conveyed in ―appropriate language.‖[17] The words ―conspired,‖ ―confederated,‖ or the phrase ―acting in concert‖ or ―in conspiracy,‖ or their synonyms or derivatives do not appear in the indictment.[18] The language used by the prosecution in charging the three accused contains no reference to conspiracy. Conspiracy must be alleged, not merely inferred, in the information. Absence of a particular statement in the accusatory portion of the charge sheet concerning any definitive act constituting conspiracy in Criminal Case No. 2307-G renders the indictment insufficient to hold one accused liable for the individual acts of his co-accused. An accused must be furnished with a description of the charge against him to enable him to make a proper defense and, later, to avail himself properly of either a conviction or acquittal for his protection against further prosecution for the same cause.[19] In our view, petitioner Fidelino Garcia cannot be convicted as a conspirator in the killing of Paulino Rodolfo, for the simple reason that the information against the accused contained no clear and definite allegation of conspiracy. It follows that in Criminal Case No. 2307-G, petitioner can only be held responsible for an act as could be proved to have been committed by him personally. Stated otherwise, his criminal accountability, if any, should be determined on an individual rather than on a collective basis. Responsibility for acts done by his co-accused could not be heaped on the shoulders of appellant unless it be shown that he participated directly and personally in the commission of those acts. Thus, anent the second issue, we find merit in petitioner‘s argument that the prosecution‘s evidence is insufficient to support his conviction for homicide. There appears no proof to show the connection between the acts he allegedly committed and the lethal injuries sustained by the victim. Petitioner points out that the only act he allegedly did was that of hitting the victim with an empty bottle while the latter was being held down by Leopoldo Garcia and stabbed by Wilfredo Garcia. He submits that there is no showing whatsoever that his blow caused any injury to the victim, much less caused his death. He stresses that the medico-legal certificate prepared by one Dr. Mario Cuento, marked as the prosecution‘s Exhibit ―B‖ cannot

even be found in the record, nor did the doctor take the witness stand to identify it. The medical certificate in effect has no probative value. The OSG counters that while Exhibit ―B‖ cannot be found in the records, nonetheless, the fact stands that the number and nature of the victim‘s injuries are enumerated in the Information, which the petitioner failed to rebut or object to during the trial. Moreover, petitioner did not object when Exhibit ―B‖ was offered in evidence by the prosecutor before the trial court to prove the victim‘s injuries causing his death. In general, factual findings of the trial court, when affirmed by the Court of Appeals, are binding and conclusive upon this Court.[20] The rule, however, does not apply in the present case. For one, the judge who penned the trial court‘s judgment was not the same one who heard the prosecution witnesses testify.[21] For another, our review of the records indicates that both the trial court and the appellate court have overlooked some material facts and circumstances of weight which could materially affect the result of this case. First, the Court of Appeals heavily relied on the testimony of prosecution eyewitness, P/Cpl. Francisco Rollera. However, we find his testimony riddled with inconsistencies, particularly the exact role played by petitioner in the affray leading to Paulino Rodolfo‘s death. On direct examination, Cpl. Rollera averred that petitioner struck the victim with a bottle while his coaccused were ganging up on the latter, thus: Q – Now, you stated a while ago that the accused in this case ganged up on the deceased Rodolfo Olgena. Will you please tell before this Honorable Court how the accused ganged up on him? A – While Leopoldo Garcia was holding Rodolfo Olgena, Rodolfo Olgena was hit by a bottle by Fidelino Garcia and Wilfredo Garcia stabbed him on the lower groin with a stainless [f]an knife, sir. (Stress supplied)[22] The cross-examination of Rollera, however, reveals a contradictory version in that apparently, petitioner Fidelino Garcia was not the aggressor but the victim of stabbing by the deceased Paulino Rodolfo. Thus, Cpl. Rollera testified on cross: Q – According to you, the three were ganging up on Rodolfo Olgena until Wilfredo Garcia stabbed him. As the three were ganging up on Rodolfo Olgena, where were Fedelino Garcia and Leopoldo Garcia when Rodolfo Olgena was stabbed by Wilfredo? A – Leopoldo was holding Olgena while Fedelino was approaching Olgena when Wilfredo stabbed Olgena, sir. When Rodolfo Olgena was stabbed by Wilfredo, as regards Fedelino, he was then also approaching Rodolfo Olgena and that was the reason why he was also stabbed by Olgena. Because when Fedelino approached Rodolfo Olgena, the latter had pulled the knife, so that when Olgena pulled out the knife, he was able to stab Fedelino, sir. ATTY. CERILLA: Let us straighten this out. Correct me if I am wrong. This, according to you, took place. Q – Rodolfo Olgena while being held by Leopoldo Garcia was stabbed by Wilfredo Garcia, is that correct? A – Yes, sir. Q – The weapon which was used by Wilfredo Garcia got stuck in that portion of the body of Rodolfo Olgena that was hit?

A – Yes, sir. Q – And Rodolfo Olgena was able to pull out that knife and while Fedelino Garcia was approaching he stabbed the latter? A – Yes, sir. Q – Now, are you telling us that although Rodolfo Olgena was being held by Leopoldo Garcia he was still able to pull the knife from his thigh and then used it in stabbing Fedelino Garcia? A – Rodolfo Olgena was able to get loose from the hold of Leopoldo that was why when Fedelino approached Olgena the latter who had pulled out the knife from his body was able to stab Fedelino, sir. (Stress supplied).[23] That petitioner Fidelino Garcia was stabbed by Paulino Rodolfo is perfectly clear to us. What is doubtful is whether he had an active, direct and personal role in the killing of Paulino Rodolfo. On cross-examination, it appears petitioner was still approaching the deceased when the latter was stabbed by co-accused Wilfredo Garcia. Cpl. Rollera stated under direct examination that Fidelino had hit Rodolfo with a bottle. But Cpl. Rollera did not say where and when petitioner struck the victim with a bottle, or if the blow was hard or not. Further, the prosecution‘s evidence does not establish any direct link between the petitioner‘s act with the bottle and any injury suffered by the deceased, much less the mortal wound which caused his death. If we are to believe Cpl. Rollera‘s account, petitioner was merely approaching the victim, who was then trying to get loose from Leopoldo‘s hold and ward off Wilfredo‘s attack. It appears unclear to us, however, whether petitioner succeeded to hit the victim, Rodolfo, with a bottle. As it turned out, it was petitioner who was stabbed by Rodolfo, using Wilfredo‘s balisong, with the result that petitioner was hospitalized. Second, the Court of Appeals likewise heavily relied upon Exhibit ―B‖ to establish the injuries suffered by Paulino Rodolfo. As stated earlier, Exhibit ―B‖ is nowhere in the records.[24] The only mention we find of it is in the transcript of stenographic notes of November 19, 1987. FISCAL ENCOMIENDA: We will now be resting our case. COURT: Go ahead. FISCAL ENCOMIENDA: But before we do so, we would like to prove the existence of the medico legal certificate although it has been admitted by the defense counsel and likewise the fact of death. We would like to request the same to be marked as Exhibit ―B‖ in both cases and the findings therein as stated as Exhibit ―B-1‖ and the signature of Dr. Mario Cuento as Exhibit ―B2.‖ We are offering, Your Honor, Exhibit ―A‖

and ―A-1‖ the affidavit of Francisco Llorera [should read Rollera] as part of his testimony. And we are likewise offering Exhibits ―B‖, ―B1‖, and ―B-2‖ to show the fact of death and the nature of the wounds sustained by the victim. COURT: Is that all? Any objection to the annexes of the exhibits? ATTY. CERILLA: No objection, Your Honor, except to the affidavit of the policeman. COURT: The Court will admit all these exhibits in evidence.[25] Notwithstanding its absence from the records, the Court of Appeals held that said Exhibit ―B‖ ―sufficiently indicates the nature, number, location, and extent of the injuries sustained by the victim. The cause of death stated therein is purportedly ‗cerebral hemorrhage.‘‖[26] The appellate court likewise held that ―These were deemed admitted by the accusedappellants for their failure to make a timely objection at the time the offer was made.‖[27] We find nothing in the record, however, to support the prosecution‘s sweeping statement that the ―existence of the medico-legal certificate had been admitted by defense counsel and likewise the fact of death.‖ In fact, per the transcript quoted above, Atty. Cerilla‘s response has a reservation, ―except to the affidavit of the policeman,‖ when asked about the annexes of the exhibits. But we shall not belabor this point, for the decision of the trial court is barren of any reference to admissions or stipulations. On record now, the medico-legal report is missing. And we find that the prosecution‘s evidence nowhere shows that petitioner by his own act killed the victim or contributed directly to his death. To conclude, there is a dearth of evidence as to the specific role played by petitioner Fidelino Garcia in the commission of the crime charged. Petitioner enjoys the presumption of innocence, which can only be overcome by proof beyond reasonable doubt. Mere conjectures, no matter how strong, can never substitute for this required quantum of proof.[28] Failing to meet the needed quantum of proof, petitioner‘s conviction as principal in the killing of Paulino Rodolfo cannot be sustained. WHEREFORE, the petition is GRANTED. The assailed decision of the Court of Appeals, dated February 22, 1996, in CA-G.R. CR No. 13358, which had affirmed that of the Regional Trial Court of Gumaca, Branch 62, is hereby REVERSED and SET ASIDE on the ground of insufficiency of evidence to convict petitioner Fidelino Garcia beyond reasonable doubt. Consequently, he is ACQUITTED and ordered RELEASED immediately from confinement unless held for another lawful cause. SO ORDERED.

[G.R. No. 139610. August 12, 2002] AUREA R. MONTEVERDE, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION PANGANIBAN, J.: Time and time again, this Court has emphasized the need to stamp out graft and corruption in the government. Indeed, the tentacles of greed must be cut and the offenders punished. However, this objective can be accomplished only if the evidence presented by the prosecution passes the test of moral certainty. Where doubt lingers, as in this case, the Court is mandated to uphold the presumption of innocence guaranteed by our Constitution to the accused. The Case Before us is a Petition for Review under Rule 45 of the Rules of Court, assailing the April 29, 1999 Decision[1] and February 3, 2000 Resolution[2] of the Sandiganbayan (Second Division) in Criminal Case No. 18768. The dispositive portion of the assailed Decision reads as follows: ―WHEREFORE, premises considered, judgment is hereby rendered finding accused AUREA MONTEVERDE y RASUELO guilty beyond reasonable doubt of the crime of Falsification of Commercial Document under Article 172 of the Revised Penal Code, and in default of any mitigating or aggravating circumstances and applying the Indeterminate Sentence Law, she is hereby sentenced to suffer a prison term of SIX (6) MONTHS of Arresto Mayor as minimum, to SIX (6) YEARS of Prision Correccional as maximum, to pay a fine of Five Thousand (P5,000.00) pesos with subsidiary imprisonment in case of insolvency, with all the accessory penalties of the law, and to pay the cost. ―She shall be credited with the full period of any preventive imprisonment suffered, pursuant to and as mandated by Batas Pambansa Blg. 85. ―The facts from which the civil liability may arise not being indubitable, there is no pronouncement as to the same. ―The bailbond of herein accused is hereby ordered cancelled.‖[3] The assailed resolution Motion for Reconsideration. denied petitioner‘s

Games and Amusement Corporation submitted Sales Invoice No. 21568 dated January 17, 1991 in the amount of P13,565.00 allegedly issued by Sanford Hardware when in truth and in fact said sales invoice is falsified and later did then and there, willfully, unlawfully and feloniously misappropriate, misapply and convert the same to her personal use and benefit, to the damage of the Government and which crime was committed in relation to her office.‖[4] During her arraignment on April 5, 1993, petitioner, assisted by her counsel de parte,[5] pleaded not guilty.[6] After trial on the merits, the Sandiganbayan acquitted petitioner of the crime of estafa, but convicted her of falsification of a commercial document under Article 172 of the Revised Penal Code. The Facts Version of the Prosecution The prosecution‘s version of the facts is curtly summarized by the Office of the Special Prosecutor (OSP) as follows: ―Petitioner Aurea A. Monteverde was from 1991 to 1993 the Barangay Chairman of Barangay 124 of Zone 10, District 1, Malaya, Balut, Tondo, Manila. In that capacity, she received the amount of P44,800.00 from the Philippine Amusement and Gaming Corporation (PAGCOR). The amount was spent for lighting, cleanliness and beautification programs of the Barangay. To liquidate the amount, she submitted a financial statement (Exhibits ‗1 to 1-A-3‘) with copies of sales invoices/receipts to PAGCOR. ―Sometime in August 1991, Antonio R. Araza, Jose Salvatierra, Santos L. Lopez, and Narciso Cruz, residents of Brgy. 124, charged Petitioner and Bella Evangelista, then Barangay Treasurer, with Malversation of the following funds: 1.) P82,500.00 from [the] Barangay General Fund; 2.) P44,800.00 from the PAGCOR; and 3.) P600.00 allowance of Kagawad Lito Galinda for the period July 16, to December 1990. The complaints were docketed as OMB-0-91-12694 and OMB-0-92-0643 (Exhs. A, B and C).‖[7] Version of the Defense The foregoing account is reiterated by the Office of the Solicitor General (OSG) in its Memorandum.[8] The petitioner did not submit her own Memorandum, but merely adopted the position of the OSG which recommended her acquittal. Version of the Sandiganbayan The foregoing narration does not adequately explain the evidence. In fairness to the Sandiganbayan (―SBN‖ hereafter) which is being faulted with reversible errors by petitioner and the OSG, we deem it prudent to quote the facts and the evidence it relied upon in its assailed Decision, as follows: ―EVIDENCE FOR THE PROSECUTION In its bid to establish the guilt of the accused beyond reasonable doubt, the People presented the following documentary evidence:

This case originated from the Information dated February 4, 1993, signed by Special Prosecution Officer Gualberto J. dela Llana with the approval of then Ombudsman Conrado M. Vasquez. Charging petitioner with estafa through falsification of commercial documents, the accusatory portion reads thus: ―That on or about January 17, 1991, or sometime prior or subsequent thereto, in Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being the Chairman of Barangay 124 of Zone 10, District 1, Malaya, Balut, Tondo, Manila with intent to defraud, and by taking advantage of [her] official position and to liquidate the funds donated/granted by the Philippine

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Exhibit A which is a letter complaint addressed to the Ombudsman dated September 2, 1991 signed by Santos Lopez, Narciso Cruz, Antonio Araza and Jose Salvatierra; Exhibit B which is a Joint-Affidavit of the said four (4) complainants subscribed and sworn to before a Notary Public on September 8, 1991; Exhibit C which is a letter dated June 13, 1991 signed by complainants Jose Salvatierra and Antonio Araza addressed to Mr. Manuel de la Fuente of the Chief Barangay Bureau, City of Manila; Exhibit D which is the cover of the Booklet of Sales invoice[s]/Receipts of Sanford Hardware. Exhibit D-1 which is the duplicate original copy of Sales Invoice No. 21568 dated July 20, 1981 listing only three (3) items; Exhibit D-1-A which is a genuine machine copy of Exhibit D-1; Exhibit E which is a machine copy of an official receipt with Aurea Monteverde appearing as buyer and listing eleven items as articles purchased; Exhibit E-1 which is a certification of Luz Co, Manager of Sanford Hardware stating that Exhibit E is not a genuine reproduction of the duplicate original; Exhibit F (offered lately) is a xerox copy of Invoice No. 21568 dated January 17, 1991;

answered that she did not issue Exhibit E she was requested to execute an affidavit; that she does not know accused Aurea Monteverde and that she had no delivery of hardware materials to the Barangay on January 17, 1991 (TSN May 14, 1993). ―It was the testimony of ANTONIO ARAZA that he is a resident of 2256 Malaya St., Balut, Tondo, Manila and that he secured a copy of Exhibits E and F from the Barangay Treasurer; that he brought the same to the owner of the Sanford Hardware for verification; that Luz Co to whom he talked x x x in said store manifested that said Exhibits E and F are not issued by the firm; and for which he requested Luz Co to issue a certification (Exhibit E-1); that after realizing that the receipts used by the accused are falsified receipts, he signed letter complaints and [a] Joint-Affidavit together with Santos Lopez, Narciso Cruz and Jose Salvatierra, and charged the accused before the Ombudsman; that the money involved in this case are barangay funds because it was donated by the PAGCOR to the Barangay and he was able to secure a copy from the PAGCOR evidencing that it was donated to the Barangay but the copy was submitted to the Ombudsman; that the Barangay Treasurer lent to him the receipts with the advice to verify it from the proprietor of [the] Hardware and she even gave a letter of authorization to him (Exhibit G); that the P13,565.00 appearing in Exhibits E and F was not used to buy electrical materials or lightings, and the bulbs in the Meralco post were donated by Councilor Rene Jose (TSN March 18, 1994). ―EVIDENCE FOR THE ACCUSED ―The defense presented eighty-one (81) Exhibits with Exhibits 35 to 80 dealing with certificates of commendation in favor of the accused during her stint as Barangay Chairman from 1991 to 1993 and even prior to her being a Barangay Chairman. Exhibits 1 with its submarkings (Exhibits 1-A to Exhibits 1-A-3) is a letter of the accused addressed to Alice LI Reyes of the PAGCOR with attachment she captioned Financial Statement; Exhibits 2 to 15 are Sales Invoices/Receipts from different hardware stores and individuals while Exhibits 16 and 17 are pictures depicting a basketball court portion thereof being sub-marked, and Exhibits 18 to 32 are fifteen (15) pictures depicting different alleys at Barangay 124. Exhibit 33 is a turn-over certificate/record of the Barangay properties signed by the incoming Barangay Chairman with the third page submarked as Exhibits 33-A to 33-b-2; and Exhibit 34 is the counter-affidavit of the accused sworn to before a Notary Public on September 5, 1991. Exhibit 81 is a Joint-Affidavit of Alfonso Cua Jr. and Joel Magbanua. ―Aside from her, the accused presented ALFONSO CUA, JR. whose testimony is as follows: that he knows the accused to be the Chairman of Barangay 124 from 1991 up to 1992 while he was a Barangay Tanod in the said Barangay; that one project of the accused was the installation of lights or lighting the streets and playgrounds in the Barangay; that in January 1991 materials were delivered to the house of the Barangay Chairman (accused) and around three (3) days thereafter, he helped in the installation of the electrical materials consisting of electrical wirings, electrical tapes, bulbs, lamps and lamp covers, and it took them (he and the husband of the accused) about three Sundays in doing so; that he executed a Joint-Affidavit together with one Joel Magbanua in connection with the incident (Exhibit 81) (TSN April 2, 1997).

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8.

9.

10. Exhibit G is a machine copy of an undated letter signed by Bella Evangelista authorizing Antonio Araza to verify the authenticity of Invoice No. 21568 dated January 17, 1991 in the sum of P13,565.00 as well as witnesses Luz Co y Tan and Antonio Araza y Reposo. ―LUZ CO y TAN declared that she is the manager of Sanford Hardware since 1976, that Exhibit D-1 which is [a] duplicate copy of Invoice No. 21568 dated July 2, 1981 where the amount of purchase is only P157.00 is the invoice used by her firm in the conduct of its business; that Exhibit E was not her receipt and that she executed a certification to that effect (Exhibit E-1) when required by a male person; that she does not know the entries appearing in Exhibit E but the entries in Exhibit D-1 are of her business; that Sanford Hardware is owned by [her] sister-in-law Delia Co; that there are three copies of the sales invoice her business is issuing, and the third copy or last copy is the one left in the store, and that the one who approached her and asked about Exhibit E is one Narciso Cruz and when she

―Testifying in her behalf accused took the witness stand and declared: ‗That she was the Barangay Chairman in Brgy. 124 since 1989 to 1994; that in January 1991 she received donation or cash money in the amount of P44,800.00 from PAGCOR which she used in Barangay projects like lighting, and cleanliness and beautification; that she reported the matter to PAGCOR and submitted [a] financial statement (Exhibits 1 to 1-A, 1-A-1); that when she purchased electrical and hardware items from Sanford Hardware she was issued a receipt (Exhibit 9) and considering Exhibit D-1 and D-1-A, it would appear that Sanford Hardware issued two (2) receipts; she denied the charge of Estafa thru Falsification of Commercial Documents, and claimed that with the meager amount involved, she is not going to sacrifice her good name and reputation; she then identified x x x several awards she received (Exhibits 35 to 79); that she was the one who personally purchased the items in Exhibit F, and she actually paid the same in cash for which she was issued Exhibit 9 (Exhibit F and 9 contain the same items); that the receipt was issued in her name and the money was in her possession that was why it was she and not the Barangay Treasurer who personally made the purchase; that the PAGCOR check was issued in her name and was directly given to her and so she was the one who encashed the check accompanied by one of the councilors but she did not turn over the cash to the treasurer; that even after she came to know of the existence of Exhibit E, she did not go to Sanford Hardware to inquire about the said document; that the original of the said exhibit was given to her but she submitted it to PAGCOR. (TSN September 3, November 5, 1996 and April 1, 1997).‘―[9] Ruling of the Sandiganbayan The assailed Decision noted that petitioner was supposed to have been charged with the complex crime of estafa through falsification of a commercial document. However, there was no clear allegation in the Information that the falsification was a necessary means to commit the estafa.[10] Nevertheless, going along ―with the supposition‖ that a complex crime had been charged, the SBN held: ―Despite the ambiguity and disquietude, however, the court is constrained to go with the supposition that what has been charged is that of a complex crime, otherwise the logical consequence is that the accused has been indicted with two crimes - that of Estafa and that of Falsification of Commercial Document which is not beneficial to her.‖[11] The anti-graft court acquitted petitioner of estafa, because there was no evidence that funds had been misappropriated or converted.[12]Neither was there proof that petitioner had been required to account for the money received.[13] Without these proofs, no conviction for estafa was possible.[14] However, the court a quo convicted her for allegedly falsifying the document she had submitted to show that the P13,565 donated by PAGCOR was used and spent for lighting materials for her barangay. According to the SBN, the falsification became very clear when the document was compared with another one purporting to be a duplicate original presented by the prosecution.[15] While the prosecution did not present any proof evidencing that it was petitioner who had caused the falsification, the SBN relied on the

presumption that in the absence of a satisfactory explanation, a person who is found in possession of a forged document, and who uses it, is the forger.[16] Nevertheless, petitioner was not convicted of falsification as defined by Article 171 of the Revised Penal Code, because there was no proof that she had taken advantage of her position in committing the crime.[17] Instead, she was convicted of falsification under Article 172.[18] Hence, this Petition.[19] Issues The OSG‘s Memorandum which recommended acquittal, and which petitioner adopted, raised the following issues: ―Whether the Sandiganbayan erred in: [1.] finding petitioner guilty of falsification despite its finding that no estafa was committed[;] [2.] holding that Exhibit 9, a sales invoice, was a commercial/public document[; and] [3.] applying the presumption tha petitioner was the author of falsification in the absence of any proof that she benefited from it.‖[20] This Court’s Ruling The Petition is meritorious. First Issue: Nature of Complex Crimes Appellant was purportedly charged with the complex crime of estafa through falsification of a commercial document. However, even if the SBN itself doubted whether the Information had properly charged a complex crime, it was, as quoted earlier, ―constrained to go along with the supposition that what has been charged is that of a complex crime, otherwise the logical consequence is that the accused has been indicted with two crimes -- that of Estafa and that of Falsification of Commercial Document which is not beneficial to her.‖[21] We clarify. Under Article 48 of the Revised Penal Code,[22] a complex crime refers to (1) the commission of at least two grave or less grave felonies that must both (or all) be the result of a single act, or (2) one offense must be a necessary means for committing the other (or others).[23] Negatively put, there is no complex crime when (1) two or more crimes are committed, but not by a single act; or (2) committing one crime is not a necessary means for committing the other (or others) .[24] Using the above guidelines, the acts attributed to petitioner in the present case cannot constitute a complex crime. Specifically, her alleged actions showing falsification of a public and/or a commercial document were not necessary to commit estafa. Neither were the two crimes the result of a single act. The OSG correctly observed: ―x x x. The alleged falsification happened after the money was spent and to explain how it was expended. Thus there is no complex crime since the falsification is not a necessary means for committing the estafa (as charged) or malversation (as suggested by Sandiganbayan in its Order dated February 1, 2000). If

at all, it was intended to conceal the estafa or malversation.‖[25] Well-known is the principle that an information ―must charge only one offense, except when the law prescribes a single punishment for various offenses.‖[26] When more than one offense is charged, the accused may move to quash the information.[27] In the present case, the accused should have objected to the Information on the ground that more than one offense was charged therein. For her failure to move to quash the indictments, she is deemed to have waived her right to be tried for only one crime.[28]Furthermore, she did not object to the submission of evidence that tended to prove the offenses charged in the Information -- estafa and falsification. Verily, when two or more offenses are charged in a single complaint or information, but the accused fail to object to the defect before trial, the trial court may convict them of as many offenses as are charged and proven, and impose on them the penalty for each offense, setting out separately the findings of fact and law in each.[29] On the basis of the foregoing, we reject the argument of petitioner that since she was acquitted of estafa, she could no longer be convicted of falsification of a commercial document. Having, in effect, been charged with two distinct crimes, acquittal in one will not necessarily lead to acquittal in the other. Each crime will be evaluated based on its own merits, and conviction will depend on the proof of the elements of each particular offense. Let us assume that petitioner has correctly been charged with a complex crime, as the SBN supposed. Still, acquittal from a component offense will not necessarily lead to an acquittal from the other (or others). When a complex crime under Article 48 of the Revised Penal Code is charged, it is axiomatic that the prosecution must allege in the information and prove during the trial all the elements of all the offenses constituting the complex crime. We stress that the failure of the prosecution to prove one of the component crimes and the acquittal arising therefrom will not necessarily lead to a declaration of innocence for the other crimes. Settled is the rule that when a complex crime is charged and the evidence fails to establish one of the component offenses, the defendant can be convicted of the others, so long as they are proved.[30] Second Issue: Nature of Sales Invoice The OSG agrees that the subject Sales Invoice is a public and/or a commercial document within the meaning of ―falsification‖ as defined under the Revised Penal Code. Both the OSG and the OSP agree that a private document acquires the character of a public document when it becomes part of an official record and is certified by a public officer duly authorized by law.[31] The OSP aptly explained this point as follows: ―x x x, [I]f the document is intended by law to be part of the public or official record, the preparation of which being in accordance with the rules and regulations

issued by the government, the falsification of that document, although it was a private document at the time of its falsification, is regarded as falsification of public or official document. ―Prosecution witness Luz Co testified that the duplicate original of Sales Invoice No. 21568 was submitted to the Bureau of Internal Revenue (BIR). Thus this Sales Invoice is intended to be part of the public records and the preparation thereof is required by BIR rules and regulations. Moreover, Sales Invoice No. 21568 formed part of the official records of PAGCOR when it was submitted by petitioner as one of the supporting papers for the liquidation of her accountability to PAGCOR.‖[32] Neither can it be denied that the Sales Invoice is also a commercial document. Commercial documents or papers are those used by merchants or businessmen to promote or facilitate trade or credit transactions.[33] This Court has previously characterized such documents in this wise: ―x x x. In most cases, these commercial forms [receipts, order slips and invoices] are not always fully accomplished to contain all the necessary information describing the whole business transaction. The sales clerks merely indicate a description and the price of each item sold without bothering to fill up all the available spaces in the particular receipt or invoice, and without proper regard for any legal repercussion for such neglect. Certainly, it would not hurt if businessmen and traders would strive to make the receipts and invoices they issue complete, as far as practicable, in material particulars. These documents are not mere scraps of paper bereft of probative value but vital pieces of evidence of commercial transactions. They are written memorials of the details of the consummation of contracts.”[34] (Italics supplied) Third Issue: Proof of Guilt The gut issue in this case is whether the prosecution was able to prove beyond reasonable doubt the guilt of petitioner with regard to the crime of falsification. A determination of this question will necessarily require an examination of the facts as presented before the Sandiganbayan. As a rule, an appeal by certiorari under Rule 45 of the Rules of Court raises only questions of law.[35] However, this Court, in exceptional cases, has taken cognizance of questions of fact in order to resolve legal issues. This is especially true in cases in which a palpable error or a grave misapprehension of facts was committed by the lower court.[36] Criminal cases elevated by public officials from the SBN deserve the same thorough treatment by this Court as criminal cases brought up by ordinary citizens, simply because the constitutional presumption of innocence must be overcome by proof beyond reasonable doubt in both instances. Indeed, in a criminal case, a person‘s life or liberty is at stake.[37] Petitioner asserts that the SBN erroneously applied the presumption that the possessor of a forged or falsified document who uses it is the author of the forgery or falsification. The OSG concurs with her on this point. That is why it recommended that she be acquitted.

We agree. To our mind, the prosecution‘s evidence is not sufficient to convict. As correctly observed by the OSG, the Decision of the SBN is based on the assumption that there was only one set of sales invoices issued by Sanford Hardware. On such a premise, petitioner‘s Exhibit 9 thus becomes obviously falsified when compared with respondent‘s Exhibit D-1. But on the premise that the two Exhibits are two different Sales Invoices, falsification becomes doubtful. The OSG is correct in observing as follows: ―x x x. For petitioner or anybody acting on her behalf to falsify the customer‘s copy of Sales Invoice No. 21568, she/he would have to erase or cover with correction fluid the spaces pertaining to the name of the customer, date, quantity, unit, description of articles, unit price and amount, before the insertions could be written. Neither the appealed decision nor the transcript of stenographic notes (TSN) point out various tell-tale signs of falsification despite opportunity of the prosecution to see the original of Exh. 9. The only observation the respondent Court mentioned was with respect to the date: ‗[t]he superimposition of January 17, 1991 is too apparent to be disregarded, and the alteration of the date has affected both the veracity and the effects of the said document.‘ But the changing of the date was the easiest to accomplish. The more cumbersome, as they affect wider space, would [have been] the name of the customer and the purchases. The total absence of any hint or sign of alteration on these areas is revealing.‖[38] The only logical explanation for the existence of both Exhibits 9 and D- 1 is that there are two extant documents. Whether one is the original and the other is falsified depends on the proof. This the prosecution had to prove, but unfortunately failed to. In all criminal prosecutions, without regard to the nature of the defense which the accused may raise, the burden of proof establishing the guilt of the accused beyond reasonable doubt remains with the prosecution.[39] Further, it is the duty of the prosecution to prove each and every element of the crime charged in the information.[40] We repeat that, in this case, it failed to discharge this duty. We quote with approval the OSG‘s disquisition on these two documents as follows: ―A comparison between Exh. D-1 and Exh. 9 shows that there are two (2) sets of Sales Invoice No. 21568. While the form is identical in most respects, there are three (3) telling differences: (1) the type set of the sales invoice numbers are different, (2) the bottom left of Exh. D-1 indicates the name of the printing press while no such information is indicated anywhere in Exh. 9, and (3) the bottom right of Exh. D-1 states the BIR permit which does not appear in Exh. 9. Who could have printed Exh. 9 is anybody‘s guess. It is possible that petitioner or any person acting on her behalf had a printing company copy this particular Sanford Hardware invoice so she could use it to liquidate the PAGCOR funds she received. However, it is equally possible that Sanford Hardware had printed two (2) sets of the same receipts, one to reflect the real business transaction, the other one - a sanitized version - for the consumption of the BIR people. Not one of these possibilities has been actually proven, but neither was their improbability established.”[41] (Italics supplied) Indeed, the OSG points out that there are material differences between Exhibits 9 and D-1. These include: 1) the discrepancy in the ―type set‖ or fonts used for the sales invoice numbers in the two Sales

Invoices; 2) the presence of the name of the printing press at the bottom left corner of Exhibit D-1 and its absence in Exhibit 9; and 3) the presence of the BIR permit in Exhibit D-1 and its absence in Exhibit 9. It is possible that Exhibit 9 was printed by petitioner or anyone acting on her behalf to facilitate the liquidation of funds. But it is equally possible, as the OSG points out, that Sanford Hardware caused the printing of two sets of receipts to serve its own purposes. However, none of these possibilities was either actually proven or definitely ruled out by the prosecution. At bottom, there is no clear and convincing evidence to prove that Exhibit 9 was falsified. The SBN relied on the settled rule that in the absence of a satisfactory explanation, one found in possession of -- and who used, took advantage of or profited from -- a forged or falsified document is the author of the falsification and is therefore guilty of falsification. To convict petitioner of falsification would mean that the prosecution was able to establish that Exhibit 9 was a falsified copy of an original document. But the rule itself shows that it cannot be applied to the present case, because Exhibit 9 (Sales Invoice No 21568) was not established beyond reasonable doubt to have been forged or falsified. At the very least, it may be a second document that may or may not have been printed by petitioner herself. Respondent claims that the original document is Exhibit D-1 but, as adverted to earlier, Exhibit 9 was not satisfactorily demonstrated to be a copy thereof. In other words, Exhibit 9 being different from Exhibit D-1, the prosecution cannot be deemed to have presented an original document, of which Exhibit 9 is a falsified copy. The question is: who made this second document marked Exhibit 9? Petitioner consistently maintains that Exhibit 9 was issued to her by Sanford Hardware when she purchased the items mentioned therein. On the other hand, the manager of Sanford Hardware denies having issued such document. Indeed, it is a time-honored principle[42] that greater probative value is accorded to a positive than to a negative testimony. Furthermore, as correctly pointed out by the OSG: ―x x x [Petitioner] denied the accusation and insisted that she would not sacrifice her name and reputation for the meager amount involved. She submitted photographs that the lighting of alleys in Barangay 124 was completed. There was positive testimony by Alfonso Cua, one of the persons who installed the articles listed in Sales Invoice No. 21568. The prosecution failed to rebut these.‖[43] (Citations omitted) One final point. The SBN held that the ―accused refused to present the original of Exhibit 9,‖ and that it would have been so ―easy x x x to ask for a subpoena to direct x x x the PAGCOR to produce the original copy, and yet the accused satisfied herself in presenting Exhibit 9 -- a mere xerox copy of the supposed document.‖ But, as pointed out by the OSG in its Memorandum,[44] the original of Exhibit 9 was presented in court during the November 5, 1996 hearing after a subpoena duces tecum had been issued to PAGCOR, and Prosecutor Pimentel ―confirmed that the x x x xerox copies are faithful reproductions of the original.‖[45] In all criminal cases, mere speculations cannot substitute for proof in establishing the guilt of the

accused.[46] Indeed, suspicion no matter how strong must never sway judgment. Where there is reasonable doubt, the accused must be acquitted even though their innocence may not have been established. The Constitution presumes a person innocent until proven guilty by proof beyond reasonable doubt. When guilt is not proven with moral certainty, it has been our policy of long standing that the presumption of innocence must be favored, and exoneration granted as a matter of right.[47] Although the evidence for the defense may be frail, criminal conviction must come, not from its weakness, but from the strength of that for the prosecution.[48] WHEREFORE, the Petition is GRANTED and the assailed Decision and Resolution SET ASIDE. Petitioner is ACQUITTED on reasonable doubt. No pronouncement as to costs. SO ORDERED.

G.R. No. 165483

September 12, 2006

RUJJERIC Z. PALAGANAS,1 petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION CHICO-NAZARIO, J.: For what is a man, what has he got? If not himself, then he has naught. To say the things he truly feels; And not the words of one who kneels. The record shows I took the blows And did it my way! The song evokes the bitterest passions. This is not the first time the song "My Way"2 has triggered violent behavior resulting in people coming to blows. In the case at bar, the few lines of the song depicted what came to pass when the victims and the aggressors tried to outdo each other in their rendition of the song. In this Petition for Review on Certiorari3 under Rule 45 of the Revised Rules of Court, petitioner Rujjeric Z. Palaganas prays for the reversal of the Decision of the Court of Appeals in CA-G.R. CR No. 22689 dated 30 September 2004,4 affirming with modification the Decision of the Regional Trial Court (RTC), Branch 46, of Urdaneta, Pangasinan, in Criminal Cases No. U9608, U-9609, and U-9610 and U-9634, dated 28 October 1998,5 finding petitioner guilty beyond reasonable doubt of the crime of Homicide under Article 249 of the Revised Penal Code, and two (2) counts of Frustrated Homicide under Article 249 in relation to Articles 6 and 50 of the same Code. On 21 April 1998, petitioner and his older brother, Ferdinand Z. Palaganas (Ferdinand), were charged under four (4) separate Informations6 for two (2) counts of Frustrated Murder, one (1) count of Murder, and one (1) count for Violation of COMELEC Resolution No. 29587 relative to Article 22, Section 261, of the Omnibus Election Code,8allegedly committed as follows: CRIMINAL CASE NO. U-9608 That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused armed with an unlicensed firearm, with intent to kill, treachery and evident premeditation, conspiring together, did then and there willfully, unlawfully and feloniously shoot SERVILLANO FERRER, JR. y Juanatas, inflicting upon him "gunshot wound penetrating perforating abdomen, urinary bladder, rectum bullet sacral region," the accused having thus performed all the acts of execution which would have produced the crime of Murder as a consequence, but which nevertheless, did not produce it by reason of the causes independent of the will of the accused and that is due to the timely medical assistance rendered to said Servillano J. Ferrer, Jr. which prevented his death, to his damage and prejudice.

CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the Revised Penal Code, as amended. CRIMINAL CASE NO. U-9609 That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused armed with an unlicensed firearm, with intent to kill, treachery and evident premeditation, conspiring together, did then and there willfully, unlawfully and feloniously shoot MICHAEL FERRER alias "Boying Ferrer", inflicting upon him gunshot wound on the right shoulder, the accused having thus performed all the acts of execution which would have produced the crime of murder as a consequence, but which nevertheless, did not produce it by reason of the causes independent of the will of the accused and that is due to the medical assistance rendered to said Michael "Boying" Ferrer which prevented his death, to his damage and prejudice. CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the Revised Penal Code, as amended. CRIMINAL CASE NO. U-9610 That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused armed with an unlicensed firearm, with intent to kill, treachery and evident premeditation, conspiring together, did then and there willfully, unlawfully and feloniously shoot MELTON FERRER alias "TONY FERRER", inflicting upon him mortal gunshot wounds in the head and right thigh which caused the instantaneous death of said Melton "Tony" Ferrer, to the damage and prejudice of his heirs. CONTRARY to Art. 248 of the Revised Penal Code, as amended by R.A. 7659. CRIMINAL CASE NO. U-9634 That on or about January 16, 1998 which is within the election period at Poblacion, Manaoag, Pangasinan, and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully, unlawfully and feloniously bear and carry one (1) caliber .38 without first securing the necessary permit/license to do the same. CONTRARY to COMELEC RES. 2958 in relation with SEC. 261 of the OMNIBUS ELECTION CODE, as amended.9 (Underscoring supplied.) When arraigned on separate dates,10 petitioner and Ferdinand entered separate pleas of "Not Guilty." Upon motion of Ferdinand,11 the four cases were consolidated and were assigned to Branch 46 of the RTC in Urdaneta, Pangasinan.12 The factual antecedents as viewed by the prosecution, are summarized in the Comment dated 18 April 2005 of the Office of the Solicitor General,13 to wit:

On January 16, 1998, around 8:00 in the evening, brothers Servillano, [Melton] and Michael, all surnamed Ferrer were having a drinking spree in their house because [Melton], who was already living in San Fernando, La Union, visited his three brothers and mother at their house in Sitio Baloking, Poblacion, Manaoag, Pangasinan. At 9:45 in the evening, the three brothers decided to proceed to Tidbits Videoke bar located at the corner of Malvar and Rizal Streets, Poblacion, Manaoag to continue their drinking spree and to sing. Inside the karaoke bar, they were having a good time, singing and drinking beer. Thereafter, at 10:30 in the evening, Jaime Palaganas arrived together with Ferdinand Palaganas and Virgilio Bautista. At that time, only the Ferrer brothers were the customers in the bar. The two groups occupied separate tables. Later, when Jaime Palaganas was singing, [Melton] Ferrer sang along with him as he was familiar with the song [My Way]. Jaime however, resented this and went near the table of the Ferrer brothers and said in Pangasinan dialect "As if you are tough guys." Jaime further said "You are already insulting me in that way." Then, Jaime struck Servillano Ferrer with the microphone, hitting the back of his head. A rumble ensued between the Ferrer brothers on the one hand, and the Palaganases, on the other hand. Virgilio Bautista did not join the fray as he left the place. During the rumble, Ferdinand went out of the bar. He was however pursued by Michael. When Servillano saw Michael, he also went out and told the latter not to follow Ferdinand. Servillano and Michael then went back inside the bar and continued their fight with Jaime. Meantime, Edith Palaganas, sister of Jaime and the owner of the bar, arrived and pacified them. Servillano noticed that his wristwatch was missing. Unable to locate the watch inside the bar, the Ferrer brothers went outside. They saw Ferdinand about eight (8) meters away standing at Rizal Street. Ferdinand was pointing at them and said to his companion, later identified as petitioner [Rujjeric] Palaganas, "Oraratan paltog mo lara", meaning "They are the ones, shoot them." Petitioner then shot them hitting Servillano first at the left side of the abdomen, causing him to fall on the ground, and followed by [Melton] who also fell to the ground. When Servillano noticed that [Melton] was no longer moving, he told Michael "Bato, bato." Michael picked up some stones and threw them at petitioner and Ferdinand. The latter then left the place. Afterwards, the police officers came and the Ferrer brothers were brought to the Manaoag Hospital and later to Villaflor Hospital in Dagupan. Servillano later discovered that [Melton] was fatally hit in the head while Michael was hit in the right shoulder. On the other hand, the defense, in its Appellant's Brief dated 3 December 1999,14 asserted the following set of facts:

On January 16, 1998, at around 11:00 in the evening, after a drinking session at their house, the brothers Melton (Tony), Servillano (Junior) and Michael (Boying), all surnamed Ferrer, occupied a table inside the Tidbits Café and Videoke Bar and started drinking and singing. About thirty minutes later, Jaime Palaganas along with his nephew Ferdinand (Apo) and friend Virgilio Bautista arrived at the bar and occupied a table near that of the Ferrers'. After the Ferrers' turn in singing, the microphone was handed over to Jaime Palaganas, who then started to sing. On his third song [My Way], Jaime was joined in his singing by Tony Ferrer, who sang loudly and in an obviously mocking manner. This infuriated Jaime, who then accosted Tony, saying, "You are already insulting us." The statement resulted in a free for all fight between the Ferrers', on one hand, and the Palaganases on the other. Jaime was mauled and Ferdinand, was hit on the face and was chased outside of the bar by Junior and Boying Ferrer. Ferdinand then ran towards the house of the appellant Rujjeric Palaganas, his brother, and sought the help of the latter. Rujjeric, stirred from his sleep by his brother's shouts, went out of his house and, noticing that the van of his uncle was in front of the Tidbits Videoke Bar, proceeded to that place. Before reaching the bar, however, he was suddenly stoned by the Ferrer brothers and was hit on different parts of his body, so he turned around and struggled to run towards his house. He then met his brother, Ferdinand, going towards the bar, so he tugged him and urged him to run towards the opposite direction as the Ferrer brothers continued pelting them with large stones. Rujjeric then noticed that Ferdinand was carrying a gun, and, on instinct, grabbed the gun from the latter, faced the Ferrer brothers and fired one shot in the air to force the brothers to retreat. Much to his surprise, however, the Ferrer brothers continued throwing stones and when (sic) the appellant was again hit several times. Unable to bear the pain, he closed his eyes and pulled the trigger. On 28 October 1998, the trial court rendered its Decision finding petitioner guilty only of the crime of Homicide and two (2) counts of Frustrated Homicide.15 He was, however, acquitted of the charge of Violation of COMELEC Resolution No. 2958 in relation to Section 261 of the Omnibus Election Code.16 On the other hand, Ferdinand was acquitted of all the charges against him.17 In holding that petitioner is liable for the crimes of Homicide and Frustrated Homicide but not for Murder and Frustrated Murder, the trial court explained that there was no conspiracy between petitioner and Ferdinand in killing Melton and wounding Servillano and Michael.18 According to the trial court, the mere fact that Ferdinand "pointed" to where the Ferrer brothers were and uttered to petitioner "Araratan, paltog mo lara!" (They are the ones, shoot them!), does not in itself connote common design or unity of purpose

to kill. It also took note of the fact that petitioner was never a participant in the rumble inside the Tidbits Cafe Videoke Bar (videoke bar) on the night of 16 January 1998. He was merely called by Ferdinand to rescue their uncle, Jaime, who was being assaulted by the Ferrer brothers. It further stated that the shooting was instantaneous and without any prior plan or agreement with Ferdinand to execute the same. It found that petitioner is solely liable for killing Melton and for wounding Servillano and Michael, and that Ferdinand is not criminally responsible for the act of petitioner. Further, it declared that there was no treachery that will qualify the crimes as murder and frustrated murder since the Ferrer brothers were given the chance to defend themselves during the shooting incident by stoning the petitioner and Ferdinand.19 It reasoned that the sudden and unexpected attack, without the slightest provocation on the part of the victims, was absent. In addition, it ratiocinated that there was no evident premeditation as there was no sufficient period of time that lapsed from the point where Ferdinand called the petitioner for help up to the point of the shooting of the Ferrer brothers.20 Petitioner was sleeping at his house at the time he heard Ferdinand calling him for help. Immediately, petitioner, still clad in pajama and sleeveless shirt, went out of his room to meet Ferdinand. Thereafter, both petitioner and Ferdinand went to the videoke bar where they met the Ferrer brothers and, shortly afterwards, the shooting ensued. In other words, according to the trial court, the sequence of the events are so fast that it is improbable for the petitioner to have ample time and opportunity to then plan and organize the shooting. Corollarily, it also stated that petitioner cannot successfully invoke self-defense since there was no actual or imminent danger to his life at the time he and Ferdinand saw the Ferrer brothers outside the videoke bar.21 It noted that when petitioner and Ferdinand saw the Ferrer brothers outside the videoke bar, the latter were not carrying any weapon. Petitioner then was free to run or take cover when the Ferrer brothers started pelting them with stones. Petitioner, however, opted to shoot the Ferrer brothers. It also stated that the use by petitioner of a gun was not a reasonable means to prevent the attack of the Ferrer brothers since the latter were only equipped with stones, and that the gun was deadlier compared to stones. Moreover, it also found that petitioner used an unlicensed firearm in shooting the Ferrer brothers.22 As regards the Violation of COMELEC Resolution No. 2958, in relation to Section 261 of the Omnibus Election Code, the trial court acquitted the petitioner of the offense as his use and possession of a gun was not for the purpose of disrupting election activities.23 In conclusion, the trial court held: WHEREFORE, JUDGMENT rendered as follows: 1. is hereby

as actual medical expenses of [MELTON] Ferrer; P500,000.00 as moral damages representing unearned income of [MELTON]; P50,000.00 for the death of [MELTON];P50,000.00 for exemplary damages and P100,000.00 for burial and funeral expenses. 2. Ferdinand Palaganas is hereby ACQUITTED for failure of the prosecution to prove conspiracy and likewise, for failure to prove the guilt of Ferdinand Palaganas beyond reasonable doubt.

2. Under CRIM. CASE NO. U-9608, [Rujjeric] PALAGANAS is hereby CONVICTED beyond reasonable doubt of the crime of FRUSTRATED HOMICIDE (Not Frustrated Murder), with the use of an unlicensed firearm, the Court sentences him to suffer the penalty of Prision Mayor in its maximum period or 12 years of imprisonment and to pay Servillano Ferrer the sum of P163,569.90 for his medical expenses andP50,000.00 for exemplary damages; Ferdinand Palaganas is ACQUITTED for failure of the prosecution to prove conspiracy and likewise, for failure to prove the guilt of Ferdinand Palaganas beyond reasonable doubt. 3. Under CRIM. CASE NO. U-9609, [Rujjeric] PALAGANAS is hereby CONVICTED beyond reasonable doubt of the crime of FRUSTRATED HOMICIDE (Not Frustrated Murder), with the use of an unlicensed firearm, the Court sentences him to suffer the penalty of Prision Mayor in its maximum period or 12 years of imprisonment; and to pay Michael Ferrer the sum of P2,259.35 for his medical expenses and P50,000.00 for exemplary damages; Ferdinand Palaganas is ACQUITTED for failure of the prosecution to prove conspiracy and likewise, for failure to prove the guilt of Ferdinand Palaganas beyond reasonable doubt. Ordering accused [Rujjeric] Palaganas to pay Mrs. Elena Ferrer, the mother of the Ferrer brothers, the amount of P100,000.00 as attorney's fees in CRIM. CASES NOS. U9608, U-9609, U-9610. 3. Under CRIM. CASE NO. U-9634, for failure of the prosecution to prove the guilt of [Rujjeric] Palaganas beyond reasonable doubt of the crime of Violation of COMELEC Resolution No. 2958 in relation with Section 261 of the Omnibus Election Code, the Court ACQUITS [RUJJERIC] PALAGANAS.24 Aggrieved, the petitioner appealed the foregoing Decision of the RTC dated 28 October 1998, before the Court of Appeals. In its Decision dated 30 September 2004, the Court of Appeals affirmed with modifications the assailed

Under CRIM. CASE NO. U-9610, [Rujjeric] PALAGANAS is hereby CONVICTED beyond reasonable doubt of the crime of HOMICIDE (Not Murder) with the use of an unlicensed firearm. The penalty imposable is in its maximum period which is 20 years. The Court sentences [Rujjeric] Palaganas to suffer the penalty of Reclusion Temporal in its maximum period or 20 years of imprisonment; and to pay the heirs of [MELTON] Ferrer the sum of P7,791.50

4.

RTC Decision. In modifying the Decision of the trial court, the appellate court held that the mitigating circumstance of voluntary surrender under Article 13, No. 7, of the Revised Penal Code should be appreciated in favor of petitioner since the latter, accompanied by his counsel, voluntarily appeared before the trial court, even prior to its issuance of a warrant of arrest against him.25 It also stated that the Indeterminate Sentence Law should be applied in imposing the penalty upon the petitioner.26 The dispositive portion of the Court of Appeals' Decision reads: WHEREFORE, the judgment of conviction is hereby AFFIRMED, subject to the MODIFICATION that the penalty to be imposed for the crimes which the appellant committed are as follows: (1) For Homicide (under Criminal Case No. U-9610), the appellant is ordered to suffer imprisonment of ten (10) years of prision mayor as minimum to seventeen (17) years and four (4) months of reclusion temporalas maximum. Appellant is also ordered to pay the heirs of Melton Ferrer civil indemnity in the amount ofP50,000.00, moral damages in the amount of P50,000.00 without need of proof and actual damages in the amount of P43,556.00.

APPELLANT ON THE GROUND LAWFUL SELF-DEFENSE.28

OF

Anent the first issue, petitioner argued that all the elements of a valid self-defense are present in the instant case and, thus, his acquittal on all the charges is proper; that when he fired his gun on that fateful night, he was then a victim of an unlawful aggression perpetrated by the Ferrer brothers; that he, in fact, sustained an injury in his left leg and left shoulder caused by the stones thrown by the Ferrer brothers; that the appellate court failed to consider a material evidence described as "Exhibit O"; that "Exhibit O" should have been given due weight since it shows that there was slug embedded on the sawali wall near the sign "Tidbits Café and Videoke Bar"; that the height from which the slug was taken was about seven feet from the ground; that if it was true that petitioner and Ferdinand were waiting for the Ferrer brothers outside the videoke bar in order to shoot them, then the trajectory of the bullets would have been either straight or downward and not upward considering that the petitioner and the Ferrer brothers were about the same height (5'6"-5'8"); that the slug found on the wall was, in fact, the "warning shot" fired by the petitioner; and, that if this exhibit was properly appreciated by the trial court, petitioner would be acquitted of all the charges.29 Moreover, petitioner contended that the warning shot proved that that the Ferrer brothers were the unlawful aggressors since there would have been no occasion for the petitioner to fire a warning shot if the Ferrer brothers did not stone him; that the testimony of Michael in the trial court proved that it was the Ferrer brothers who provoked petitioner to shoot them; and that the Ferrer brothers pelted them with stones even after the "warning shot."30 Petitioner's contention must fail. Article 11, paragraph (1), of the Revised Penal Code provides for the elements and/or requisites in order that a plea of self-defense may be validly considered in absolving a person from criminal liability, viz: ART. 11. Justifying circumstances. – The following do not incur any criminal liability: 1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur; First. Unlawful aggression; Second. Reasonable necessity of the means employed to prevent or repel it; Third. Lack of sufficient provocation on the part of the person defending himself. x x x. As an element of self-defense, unlawful aggression refers to an assault or attack, or a threat thereof in an imminent and immediate manner, which places the defendant's life in actual peril.31 It is an act positively strong showing the wrongful intent of the aggressor and not merely a threatening or intimidating attitude.32 It is also described as a sudden and unprovoked attack of immediate and imminent kind to the life, safety or rights of the person attacked.33 There is an unlawful aggression on the part of the victim when he puts in actual or imminent peril the life, limb, or right of the person invoking self-defense. There must be actual physical force or actual use of weapon.34 In order to constitute unlawful aggression, the person attacked must be confronted by a real threat

(2) For Frustrated Homicide (under Criminal Case No. U-9609), the appellant is hereby ordered to suffer imprisonment of four (4) years and two (2) months of prision correcional as minimum to ten (10) years ofprision mayor as maximum. Appellant is also ordered to pay Michael Ferrer actual damages in the amount of P2,259.35 and moral damages in the amount of P30,000.00. (3) For Frustrated Homicide (under Criminal Case No. U-9608), the appellant is hereby penalized with imprisonment of four (4) years and two (2) months of prision correcional as minimum to ten (10) years ofprision mayor as maximum. Appellant is also ordered to pay Servillano Ferrer actual damages in the amount of P163,569.90 and moral damages in the amount of P30,000.00.27 On 16 November 2004, petitioner lodged the instant Petition for Review before this Court on the basis of the following arguments: I. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE JUDGMENT OF CONVICTION OF THE TRIAL COURT. II. THE HONORABLE COURT OF APPEALS ERRED IN NOT ACQUITTING ACCUSED-

on his life and limb; and the peril sought to be avoided is imminent and actual, not merely imaginary.35 In the case at bar, it is clear that there was no unlawful aggression on the part of the Ferrer brothers that justified the act of petitioner in shooting them. There were no actual or imminent danger to the lives of petitioner and Ferdinand when they proceeded and arrived at the videoke bar and saw thereat the Ferrer brothers. It appears that the Ferrer brothers then were merely standing outside the videoke bar and were not carrying any weapon when the petitioner arrived with his brother Ferdinand and started firing his gun.36 Assuming, arguendo, that the Ferrer brothers had provoked the petitioner to shoot them by pelting the latter with stones, the shooting of the Ferrer brothers is still unjustified. When the Ferrer brothers started throwing stones, petitioner was not in a state of actual or imminent danger considering the wide distance (4-5 meters) of the latter from the location of the former.37 Petitioner was not cornered nor trapped in a specific area such that he had no way out, nor was his back against the wall. He was still capable of avoiding the stones by running away or by taking cover. He could have also called or proceeded to the proper authorities for help. Indeed, petitioner had several options in avoiding dangers to his life other than confronting the Ferrer brothers with a gun. The fact that petitioner sustained injuries in his left leg and left shoulder, allegedly caused by the stones thrown by the Ferrer brothers, does not signify that he was a victim of unlawful aggression or that he acted in selfdefense.38 There is no evidence to show that his wounds were so serious and severe. The superficiality of the injuries sustained by the petitioner is no indication that his life and limb were in actual peril.39 Petitioner's assertion that, despite the fact that he fired a warning shot, the Ferrer brothers continued to pelt him with stones,40 will not matter exonerate him from criminal liability. Firing a warning shot was not the last and only option he had in order to avoid the stones thrown by the Ferrer brothers. As stated earlier, he could have run away, or taken cover, or proceeded to the proper authorities for help. Petitioner, however, opted to shoot the Ferrer brothers. It is significant to note that the shooting resulted in the death of Melton, and wounding of Servillano and Michael. With regard to Melton, a bullet hit his right thigh, and another bullet hit his head which caused his instant death.41As regards Servillano, a bullet penetrated two of his vital organs, namely, the large intestine and urinary bladder.42 He underwent two (2) surgeries in order to survive and fully recover.43 Michael, on the other hand, sustained a gunshot wound on the right shoulder.44 It must also be noted that the Ferrer brothers were shot near the videoke bar, which contradict petitioner's claim he was chased by the Ferrer brothers. Given the foregoing circumstances, it is difficult to believe that the Ferrer brothers were the unlawful aggressors. As correctly observed by the prosecution, if the petitioner shot the Ferrer brothers just to defend himself, it defies reason why he had to shoot the victims at the vital portions of their body, which even led to the death of Melton who was shot at his head.45 It is an oft-repeated rule that the nature and number of wounds inflicted by the accused are constantly and unremittingly considered important indicia to disprove a plea of self-defense.46

Let it not be forgotten that unlawful aggression is a primordial element in self-defense.47 It is an essential and indispensable requisite, for without unlawful aggression on the part of the victim, there can be, in a jural sense, no complete or incomplete selfdefense.48 Without unlawful aggression, self-defense will not have a leg to stand on and this justifying circumstance cannot and will not be appreciated, even if the other elements are present.49 To our mind, unlawful aggression, as an element of self-defense, is wanting in the instant case. The second element of self-defense requires that the means employed by the person defending himself must be reasonably necessary to prevent or repel the unlawful aggression of the victim. The reasonableness of the means employed may take into account the weapons, the physical condition of the parties and other circumstances showing that there is a rational equivalence between the means of attack and the defense.50 In the case at bar, the petitioner's act of shooting the Ferrer brothers was not a reasonable and necessary means of repelling the aggression allegedly initiated by the Ferrer brothers. As aptly stated by the trial court, petitioner's gun was far deadlier compared to the stones thrown by the Ferrer brothers.51 Moreover, we stated earlier that when the Ferrer brothers allegedly threw stones at the petitioner, the latter had other less harmful options than to shoot the Ferrer brothers. Such act failed to pass the test of reasonableness of the means employed in preventing or repelling an unlawful aggression. With regard to the second issue, petitioner asserts that the Court of Appeals erred in not acquitting him on the ground of lawful self-defense. Petitioner's argument is bereft of merit. In resolving criminal cases where the accused invokes self-defense to escape criminal liability, this Court consistently held that where an accused admits killing the victim but invokes self-defense, it is incumbent upon the accused to prove by clear and convincing evidence that he acted in self-defense.52 As the burden of evidence is shifted on the accused to prove all the elements of self-defense, he must rely on the strength of his own evidence and not on the weakness of the prosecution.53 As we have already found, there was no unlawful aggression on the part of the Ferrer brothers which justified the act of petitioner in shooting them. We also ruled that even if the Ferrer brothers provoked the petitioner to shoot them, the latter's use of a gun was not a reasonable means of repelling the act of the Ferrer brothers in throwing stones. It must also be emphasized at this point that both the trial court and the appellate court found that petitioner failed to established by clear and convincing evidence his plea of self-defense. In this regard, it is settled that when the trial court's findings have been affirmed by the appellate court, said findings are generally conclusive and binding upon this Court.54 In the present case, we find no compelling reason to deviate from their findings. Verily, petitioner failed to prove by clear and convincing evidence that he is entitled to an acquittal on the ground of lawful selfdefense.

On another point, while we agree with the trial court and the Court of Appeals that petitioner is guilty of the crime of Homicide for the death of Melton in Criminal Case No. U-9610, and Frustrated Homicide for the serious injuries sustained by Servillano in Criminal Case No. U-9608, we do not, however, concur in their ruling that petitioner is guilty of the crime of Frustrated Homicide as regards to Michael in Criminal Case No. U9609. We hold that petitioner therein is guilty only of the crime of Attempted Homicide. Article 6 of the Revised Penal Code states and defines the stages of a felony in the following manner: ART. 6. Consummated, frustrated, and attempted felonies. – Consummated felonies, as well as those which are frustrated and attempted, are punishable. A felony is consummated when all the elements necessary for the for its execution and accomplishment are present; and it is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason or causes independent of the will of the perpetrator. There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance (italics supplied). Based on the foregoing provision, the distinctions between frustrated and attempted felony are summarized as follows: 1.) In frustrated felony, the offender has performed all the acts of execution which should produce the felony as a consequence; whereas in attempted felony, the offender merely commences the commission of a felony directly by overt acts and does not perform all the acts of execution. In frustrated felony, the reason for the non-accomplishment of the crime is some cause independent of the will of the perpetrator; on the other hand, in attempted felony, the reason for the non-fulfillment of the crime is a cause or accident other than the offender's own spontaneous desistance.

no intent to kill on the part of the accused and the wound/s sustained by the victim were not fatal, the crime committed may be serious, less serious or slight physical injury.57 Based on the medical certificate of Michael, as well as the testimony of the physician who diagnosed and treated Michael, the latter was admitted and treated at the Dagupan Doctors-Villaflor Memorial Hospital for a single gunshot wound in his right shoulder caused by the shooting of petitioner.58 It was also stated in his medical certificate that he was discharged on the same day he was admitted and that the treatment duration for such wound would be for six to eight days only.59 Given these set of undisputed facts, it is clear that the gunshot wound sustained by Michael in his right shoulder was not fatal or mortal since the treatment period for his wound was short and he was discharged from the hospital on the same day he was admitted therein. Therefore, petitioner is liable only for the crime of attempted homicide as regards Michael in Criminal Case No. U-9609. With regard to the appreciation of the aggravating circumstance of use of an unlicensed firearm, we agree with the trial court and the appellate court that the same must be applied against petitioner in the instant case since the same was alleged in the informations filed against him before the RTC and proven during the trial. However, such must be considered as a special aggravating circumstance, and not a generic aggravating circumstance. Generic aggravating circumstances are those that generally apply to all crimes such as those mentioned in Article 14, paragraphs No. 1, 2, 3, 4, 5, 6, 9, 10, 14, 18, 19 and 20, of the Revised Penal Code. It has the effect of increasing the penalty for the crime to its maximum period, but it cannot increase the same to the next higher degree. It must always be alleged and charged in the information, and must be proven during the trial in order to be appreciated.60 Moreover, it can be offset by an ordinary mitigating circumstance. On the other hand, special aggravating circumstances are those which arise under special conditions to increase the penalty for the offense to its maximum period, but the same cannot increase the penalty to the next higher degree. Examples are quasi-recidivism under Article 160 and complex crimes under Article 48 of the Revised Penal Code. It does not change the character of the offense charged.61 It must always be alleged and charged in the information, and must be proven during the trial in order to be appreciated.62 Moreover, it cannot be offset by an ordinary mitigating circumstance. It is clear from the foregoing that the meaning and effect of generic and special aggravating circumstances are exactly the same except that in case of generic aggravating, the same CAN be offset by an ordinary mitigating circumstance whereas in the case of special aggravating circumstance, it CANNOT be offset by an ordinary mitigating circumstance. Aside from the aggravating circumstances abovementioned, there is also an aggravating circumstance provided for under Presidential Decree No. 1866,63 as amended by Republic Act No. 8294,64 which is a special law. Its pertinent provision states:

2.)

In addition to these distinctions, we have ruled in several cases that when the accused intended to kill his victim, as manifested by his use of a deadly weapon in his assault, and his victim sustained fatal or mortal wound/s but did not die because of timely medical assistance, the crime committed is frustrated murder or frustrated homicide depending on whether or not any of the qualifying circumstances under Article 249 of the Revised Penal Code are present.55 However, if the wound/s sustained by the victim in such a case were not fatal or mortal, then the crime committed is only attempted murder or attempted homicide.56 If there was

If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. In interpreting the same provision, the trial court reasoned that such provision is "silent as to whether it is generic or qualifying."65 Thus, it ruled that "when the law is silent, the same must be interpreted in favor of the accused."66 Since a generic aggravating circumstance is more favorable to petitioner compared to a qualifying aggravating circumstance, as the latter changes the nature of the crime and increase the penalty thereof by degrees, the trial court proceeded to declare that the use of an unlicensed firearm by the petitioner is to be considered only as a generic aggravating circumstance.67 This interpretation is erroneous since we already held in several cases that with the passage of Republic Act. No. 8294 on 6 June 1997, the use of an unlicensed firearm in murder or homicide is now considered as a SPECIAL aggravating circumstance and not a generic aggravating circumstance.68 Republic Act No. 8294 applies to the instant case since it took effect before the commission of the crimes in 21 April 1998. Therefore, the use of an unlicensed firearm by the petitioner in the instant case should be designated and appreciated as a SPECIAL aggravating circumstance and not merely a generic aggravating circumstance. As was previously established, a special aggravating circumstance cannot be offset by an ordinary mitigating circumstance. Voluntary surrender of petitioner in this case is merely an ordinary mitigating circumstance. Thus, it cannot offset the special aggravating circumstance of use of unlicensed firearm. In accordance with Article 64, paragraph 3 of the Revised Penal Code, the penalty imposable on petitioner should be in its maximum period.69 As regards the civil liability of petitioner, we deem it necessary to modify the award of damages given by both courts. In Criminal Case No. U-9610 for Homicide, we agree with both courts that the proper amount of civil indemnity isP50,000.00, and that the proper amount for moral damages is P50,000.00 pursuant to prevailing jurisprudence.70However, based on the receipts for hospital, medicine, funeral and burial expenses on record, and upon computation of the same, the proper amount of actual damages should be P42,374.18, instead of P43,556.00. Actual damages for loss of earning capacity cannot be awarded in this case since there was no documentary evidence to substantiate the same.71 Although there may be exceptions to this rule,72 none is availing in the present case. Nevertheless, since loss was actually established in this case, temperate damages in the amount ofP25,000.00 may be awarded to the heirs of Melton Ferrer. Under Article 2224 of the New Civil Code, temperate or moderate damages may be recovered when the court finds that some pecuniary loss was suffered but its amount cannot be proved with certainty. Moreover, exemplary damages should be awarded in this case since the presence of special aggravating circumstance of use of unlicensed firearm was already established.73 Based on prevailing jurisprudence, the award of exemplary damages for homicide is P25,000.00.74

In Criminal Cases No. U-9608 and U-9609, we agree with both courts as to the award of actual damages and its corresponding amount since the same is supported by documentary proof therein. The award of moral damages is also consistent with prevailing jurisprudence. However, exemplary damages should be awarded in this case since the presence of special aggravating circumstance of use of unlicensed firearm was already established. Based on prevailing jurisprudence, the award of exemplary damages for both the attempted and frustrated homicide shall be P25,000.00 for each. WHEREFORE, premises considered, the decision of the Court of Appeals dated 30 September 2004 is herebyAFFIRMED with the following MODIFICATIONS: (1) In Criminal Case No. U-9609, the petitioner is found guilty of the crime of attempted homicide. The penalty imposable on the petitioner is prision correccional under Article 51 of the Revised Penal Code.75 There being a special aggravating circumstance of the use of an unlicensed firearm and applying the Indeterminate Sentence of Law, the penalty now becomes four (4) years and two (2) months of arresto mayor as minimum period to six (6) years of prision correccional as maximum period. As regards the civil liability of petitioner, the latter is hereby ordered to pay Michael Ferrer exemplary damages in the amount of P25,000.00 in addition to the actual damages and moral damages awarded by the Court of Appeals.

(2) In Criminal Case No. U-9608, the penalty imposable on the petitioner for the frustrated homicide is prision mayor under Article 50 of the Revised Penal Code.76 There being a special aggravating circumstance of the use of an unlicensed firearm and applying the Indeterminate Sentence Law, the penalty now becomes six (6) years ofprision correccional as minimum period to twelve (12) years of prision mayor as maximum period. As regards the civil liability of petitioner, the latter is hereby ordered to pay Servillano Ferrer exemplary damages in the amount of P25,000.00 in addition to the actual damages and moral damages awarded by the Court of Appeals. (3) In Criminal Case No. U-9610, the penalty imposable on petitioner for the homicide is reclusion temporal under Article 249 of the Revised Penal Code.77 There being a special aggravating circumstance of the use of an unlicensed firearm and applying the Indeterminate Sentence Law, the penalty now is twelve (12) years of prision mayor as minimum period to twenty (20) years of reclusion temporal as maximum period. As regards the civil liability of petitioner, the latter is hereby ordered to pay Melton Ferrer exemplary damages in the amount ofP25,000.00 in addition to the actual damages and moral damages awarded by the Court of Appeals. The actual damages likewise awarded by the Court of Appeals is hereby reduced to P42,374.18. SO ORDERED

G.R. No. 170136 January 18, 2008 PEOPLE OF THE PHILIPPINES, appellee, vs. ROBERT BRODETT y PAJARO, appellant. RESOLUTION CARPIO, J.: Before this Court for review is the 2 August 2005 Decision1 of the Court of Appeals in CA-G.R. CR No. 00776. The Court of Appeals affirmed the decision of the Regional Trial Court, Branch 46, Urdaneta City, Pangasinan, finding appellant Robert Brodett y Pajaro (appellant) guilty of murder, with the modification that only the generic aggravating circumstance of scoffing at the corpse is appreciated. Appellant, together with Ronald Dulay (Dulay) and Reynald de Guzman were charged with murdering Dr. April Duque (April). They pleaded not guilty upon arraignment and trial ensued thereafter. The prosecution established during the trial that on 29 December 2000, the Philippine National Police (PNP) Station at Alcala, Pangasinan received a report at around 2:00 a.m. regarding a burning corpse on the spillway of Laoac, Alcala, along the national highway. Chief of Police Ludovico Bravo and his men proceeded to the site and saw the corpse still burning. They poured water over the burning corpse until the fire was extinguished. They noted that the burned corpse was that of a woman who was about five feet tall and with fair complexion. They brought the corpse to a funeral parlor where an autopsy was performed by Dr. Alfredo Laguardia (Dr. Laguardia). A ring and a wristwatch taken from the left arm of the corpse were turned over to the head investigator of the police station. On 15 January 2001, the corpse was buried at the public cemetery after it remained unclaimed for several days. On 1 February 2001, April‘s mother and some agents of the National Bureau of Investigation (NBI) from Dagupan City inquired at the PNP Alcala Station about a missing person named April. The NBI agents wanted to verify whether the corpse found on the spillway was that of April. When shown a picture of the burned corpse, April‘s mother exclaimed that it was her daughter. April‘s mother and the NBI agents went to the cemetery and had the corpse exhumed. Upon seeing the corpse, April‘s mother cried and exclaimed that the facial features were those of her daughter and that she knew it was her daughter. She also identified the ring and wristwatch taken from the corpse as belonging to her daughter. Prior to her death, April had been the live-in partner of appellant for nine years. April and appellant have a then 5-year-old son named Giobert, who was one of the prosecution witnesses. According to Giobert, his mommy was already in heaven because his daddy killed her. Giobert testified that he saw his daddy hit his mommy‘s head with a hammer and that his daddy also stabbed his mommy. Another prosecution witness was Shirley Duzon (Shirley), the assistant of April, who was a dermatologist, in her clinic. Shirley testified that on 28 December 2000, she was at the clinic together with April‘s son, Giobert. According to Shirley, April was scheduled to leave for Hong Kong at 11:00 p.m. that day together with her alleged new boyfriend Dulay and her son Giobert. When April failed to return to the clinic,

Shirley decided to close the clinic at around 9:00 p.m. and brought Giobert to April‘s residence. Shirley identified the ring and wristwatch taken from the corpse as belonging to April. The defense presented appellant as the lone witness. Appellant admitted that he was the live-in partner of April for nine years. Appellant, April, and their son Giobert lived together in a townhouse in Urdaneta Villas. Appellant‘s testimony delved mainly on April‘s alleged hatred of her mother because of the latter‘s extra-marital relations. When asked about the ring and wristwatch taken from the corpse, appellant denied that these items belonged to April. On 5 June 2002, the trial court rendered a decision, the dispositive portion of which reads: WHEREFORE, in view of the foregoing, the Court finds the accused ROBERT BRODETT y Pajaro, GUILTY beyond reasonable doubt of the crime of MURDER defined and penalized under Republic Act No. 7659 otherwise known as the Heinous Crime[s] Law, the offense having been committed with the attendant aggravating circumstances of superior strength, dwelling, with insult or in disregard of the respect due the offended party on account of her sex, cruelty and outraging or scoffing at her person or corpse, hereby sentences him the ultimum suplicum of DEATH to be executed pursuant to Republic Act No. 8177 known as the Lethal Injection Law, to pay the heirs of the victim DRA. APRIL SANTOS-DUQUE in the amount ofP50,000.00 as indemnity and P1,000,000.00 as moral damages, and to pay the costs. It is said: "Dura Lex, sed lex," translated as "The law is harsh, but that is the law!" With respect to the accused RONALD DULAY and REYNALD DE GUZMAN, for insufficiency of evidence against them, the Court declares their ACQUITTAL. The warden of the Bureau of Jail Management and Penology (BJMP) of Urdaneta City, Pangasinan, where the accused are presently detained, is ordered to release immediately the persons of the said accused Dulay and de Guzman, unless they are detained for any legal or lawful cause or causes. SO ORDERED.2 On appeal, appellant alleged that the prosecution failed to prove his guilt beyond reasonable doubt. In its 2 August 2005 Decision, the Court of Appeals affirmed the trial court‘s decision with the modification that, aside from the qualifying circumstance of treachery, only the generic aggravating circumstance of scoffing at the corpse is appreciated. The Court of Appeals held that the murder of April was qualified by treachery. The injuries suffered by April clearly showed that she did not have any chance to defend herself. As regards the aggravating circumstance of abuse of superior strength, the Court of Appeals held that it was already absorbed in treachery. Since appellant and April resided in the same house, the appellate court ruled that the aggravating circumstance of dwelling could not be

considered. The Court of Appeals likewise did not appreciate the aggravating circumstance of disrespect on account of sex since appellant did not deliberately intend to insult or disrespect April‘s womanhood. However, the appellate court agreed with the trial court in appreciating the aggravating circumstance of outraging or scoffing at the victim‘s corpse which was burned and left on the spillway in order to conceal the crime. We agree with the Court of Appeals that the evidence of the prosecution clearly established that appellant murdered April. The most incriminatory evidence against appellant came from appellant‘s 5-year-old son Giobert who saw his father kill his mother April. Giobert even demonstrated in court how appellant killed his mother. Giobert‘s testimony of how April was killed was corroborated by the medico-legal report of Dr. Laguardia3 and the autopsy report of Dr. Ronald Bandonill.4 In this case, appellant killed April by hitting her head with a hammer and stabbing her neck using a bladed weapon. The medical and autopsy reports revealed that April sustained contusion, lacerated wounds and hematoma on the scalp and forehead, and a neck stab wound.5 Clearly, the killing of April was attended by treachery and abuse of superior strength. There is treachery when the mode of the attack tends to insure the accomplishment of the criminal purpose without risk to the attacker arising from any defense the victim might offer.6 Furthermore, an attack by a man with a deadly weapon upon an unarmed and defenseless woman constitutes abuse of superior strength.7 However, abuse of superior strength as an aggravating circumstance is already absorbed in treachery.8 The trial court and the appellate court imposed upon appellant the death penalty. However, in view of the effectivity of Republic Act No. 9346,9 the imposition of the death penalty has been prohibited and in lieu thereof, the penalty of reclusion perpetua should be imposed, without eligibility for parole. We also reduce the award of moral damages from P1,000,000 to P50,000 and increase the civil indemnity from P50,000 to P75,000 in accordance with prevailing jurisprudence.10 Furthermore, since the offense is attended by aggravating circumstances, exemplary damages in the amount of P25,000 should also be imposed.11 WHEREFORE, we AFFIRM with MODIFICATION the 2 August 2005 Decision of the Court of Appeals in CA-G.R. CR No. 00776. We find appellant Robert Brodett y Pajaro guilty beyond reasonable doubt of the crime of murder, qualified by treachery and with the attendant aggravating circumstance of outraging or scoffing at the victim‘s corpse. Pursuant to Republic Act No. 9346, prohibiting the imposition of the death penalty, appellant is sentenced to suffer the penalty of reclusion perpetua without eligibility for parole. Appellant is further ordered to pay the victim‘s heirs P75,000 as civil indemnity, P50,000 as moral damages, and P25,000 as exemplary damages. Costs against appellant. SO ORDERED.

G.R. No. L-39051 June 29, 1982 THE PEOPLE OF THE PHILIPPINES, plaintiffappellee, vs. FAUSTINO DEL MUNDO, alias Commander Sumulong, accused-appellant. PER CURIAM: This is a case of kidnapping with murder involving the Huks, members of the Hukbong Mapagpalaya ng Bayan, the military arm of the Communist Party of the Philippines. Counsel for Faustino del Mundo, alias Commander Sumulong, admits that the said accused ordered the killing of the victim, Marciano T. Miranda, 41, the barrio captain of Barrio Balitucan, Magalang, Pampanga, who was an alleged army informer and who was opposed to the candidacy of Rogelio Tiglao, a provincial board member. (p. 11, Brief; p. 140, Rollo). Del Mundo contends that he should be convicted only of homicide and sentenced to reclusion temporal medium and that the trial court erred in convicting him of the said complex crime and in sentencing him to reclusion perpetua (p. 12, Brief). For his part, the Solicitor General submits that Del Mundo is guilty of that complex crime and should be sentenced to death. The evidence shows that between five and six o'clock in the afternoon of October 13, 1969 Felixberto Macalino (alias Commander Berting), Numeriano Cabrera, Bartolome Lacson, Fernando Macasaquit and four other persons, all armed with firearms, were in Barrio Balitucan, looking for Miranda. Not finding him in his house, the armed group, accompanied by Ponciano Salvador, cruised around the barrio in a jeepney driven by Policarpio Avenir. Near a brook around two hundred meters from Miranda's house, the group saw a truck driven by Miranda. Cabrera talked with Miranda who shortly thereafter instructed Avenir to drive the truck to his (Miranda's) house. The group brought Miranda, whose hands were handcuffed (No. 19, Exh. D), to Barrio Sta. Lucia, Magalang and delivered him to Commander Joe Bombay, Commander Mike and two persons. The following day, October 14, Faustino del Mundo and Ricardo Pangilinan brought Miranda in a jeepney to Sitio Cauayan, Barrio Pampang, Angeles City. After the jeepney was parked near a bamboo grove, Del Mundo interrogated Miranda in the presence of Maximo Licup, Tomas Licup, Dionisio Angeles, Domingo Ocampo and Bernardo Pineda (son-in-law of Del Mundo, Exh. B-1) who had followed the jeepney upon Del Mundo's instruction. Del Mundo asked Miranda why he was fighting Tiglao. After Miranda denied that imputation, Del Mundo boxed him. Del Mundo threatened to kill him if he did not tell the truth. Meanwhile, Angeles, Ocampo, Tomas Licup and Maximo Licup started digging a grave. As Miranda persisted in his denials, Del Mundo directed Pangilinan to bind Miranda and bring him near the grave. Pangilinan complied. Del Mundo told Miranda to say his prayers. While Miranda was praying, Maximo Licup, acting on a signal given by Del Mundo, struck Miranda with a pipe.

Miranda fell into the grave. Del Mundo told him that he (Miranda) would rot in the grave for not telling the truth. Angeles, Ocampo and the two Licups covered the grave. Then, Del Mundo and his companion left the place. The kidnapping and killing were politically motivated. Miranda refused to support Tiglao, the candidate for Congressman of the Huks. He supported Rafael Lazatin, the Nacionalista candidate (No. 15, Exh. 1-Cabrera). More than six months later, or on May 8, 1970, a team of Constabulary soldiers, acting on the information furnished by Pineda, ordered some detainees to exhume the body of Miranda in Barrio Cauayan. Two corpses in an advanced state of decomposition but with the clothes partly preserved were exhumed in the spot where Miranda was buried. The city health officer issued an exhumation report wherein he noted that one of the skulls showed the absence of six upper teeth and a linear fracture in the upper jaw and that the nasal bones were fractured (Exh. A). Miranda's skeletonized remains were Identified by his wife, Eufracia Quiambao, and by his brother, Domingo. Eufracia recognized the cadaver as that of her husband because of his clothes and the fact that his molars were missing. Domingo confirmed the absence of the six molars which, according to him, were removed by the dentist when Miranda was still single. Domingo also identified the body by means of the hair which was reddish. On the basis of that Identification, a death certificate was issued and the Government Service Insurance System paid Miranda's wife P5,000 as the insurance compensation due to the heirs of a barrio captain who was killed. Even before that exhumation, or on January 24, 1970, a Constabulary investigator filed, in connection with the killing of Miranda, in the municipal court of Magalang a complaint for kidnapping and serious illegal detention against Cabrera, Macasaquit, Lacson, Commander Berting and four other persons. The complaint was based on the statements of Salvador and Avenir (Exh. 1Cabrera and Exh. 1-Macalino). On November 4, 1970, another Constabulary investigator filed an amended complaint for kidnapping with murder. Del Mundo and others were included in the amended complaint. Del Mundo (Tanda) was supposed to be the second highest officer of the Huks (No. 9, Exh. C). The case was elevated to the Court of First Instance at Angeles City. On June 18, 1971, the fiscal filed with the Circuit Criminal Court at San Fernando, Pampanga an information for kidnapping with murder against Del Mundo, Pangilinan, Macasaquit, Cabrera, Macalino, Angeles, Lacson, Ernesto Meneses, Leonardo Salas, Domingo Ocampo, Maximo Licup, Tomas Licup and others not Identified. Del Mundo did not testify in his defense. As already stated, the trial court convicted him of kidnapping with murder together with Pangilinan, Macasaquit and Cabrera, sentenced him to reclusion perpetua and ordered him to pay an indemnity of P17,000 to Miranda's heirs. Macalino and Meneses were acquitted. Salas died during the pendency of the case. Only Del Mundo appealed. His counsel de oficio contends that there was no intention to deprive Miranda of his liberty and no premeditated plan to kill him (p. 9, Brief).

That contention is not well-taken. The fact is that Miranda was forcibly removed from his barrio and deprived of his liberty for several hours and was then brought to another place where he was killed. While under interrogation, his grave was already being prepared. The fatal blow, which was inflicted upon him, caused him to fall into his grave. We find that there was a conspiracy to liquidate Miranda and that the kidnapping was utilized as a means to attain that objective. From the surrounding circumstances, it maybe inferred that Del Mundo masterminded the kidnapping or induced it and that, as observed by the Solicitor General, the killing was intended to terrorize the supporters of Lazatin. Miranda was a public officer. His kidnapping is covered by article 267(4) of the Revised Penal Code which imposes the penalty of reclusion perpetua to death for that offense. The killing of Miranda was murder because his hands were bound when he was mortally assaulted (U.S. vs. Elicanal, 35 Phil. 209 and other cases). Even without taking into account evident premeditation, the death penalty has to be imposed because article 48 of the Revised Penal Code requires that the graver penalty for kidnapping, which is more serious than murder, has to be meted out to Del Mundo (Parulan vs. Rodas, 78 Phil. 855; People vs. Parulan, 88 Phil. 615, 624). This case has some parallelism with People vs. Umali and De la Cruz, 100 Phil. 1095, where the accused, who with 47 companions, kidnapped three persons on the night of September 20, 1948 in Barlis, Cabanatuan City and took them to Barrio Buliran of the same city where they were killed, was found guilty of three separate and distinct complex crimes of kidnapping with murder. However, inasmuch as Del Mundo is now seventy-eight (78) years old, the death penalty cannot be imposed upon him (Art. 83, Revised Penal Code). WHEREFORE, the trial court's judgment is modified in the sense that the death penalty imposable on Del Mundo is commuted to reclusion perpetua with the accessory penalties provided in article 40. In all other respects, the trial court's judgment is affirmed. Costs de oficio. SO ORDERED.

[G.R. No. 123917. December 10, 2003] PEOPLE OF THE PHILIPPINES, appellee, vs. ARTEMIO ELLORABA, ARTURO MANAOG and ZOSIMO MIRANDA, accused. ZOSIMO MIRANDA, appellant. DECISION CALLEJO, SR., J.: On December 11, 1987, at about 7:00 a.m., Antonio Ladan was walking along Barangay Liwayway, MacArthur, Leyte, on his way back home from the house of his cousin Juanito Tisten. Antonio had just spoken with Juanito regarding the sale of his property located in Barangay San Roque. Leticia Galvez, the wife of Barangay Captain Dominador Galvez, was hanging laundry near the house of her brother-in-law, and was chatting with Epifania (Panyang) Advincula. Pelagio Mediona‘s residence was located near the houses of Dominador and Antonio. As Antonio passed by, he saw Dominador in front of Pelagio‘s house. Antonio was shocked when, from behind and on Dominador‘s left, he saw Artemio Elloraba point his shotgun at Dominador and shoot the latter once on the back. Dominador fell to the ground face down. When she heard the gunshot, Leticia looked towards the direction of the gunfire and saw her husband fall. She saw Artemio swing his shotgun from left to right, and vice-versa. Arturo Manaog, who was armed with a small bolo (pisao), turned Dominador‘s body face up, and stabbed him more than once with the bolo. Zosimo Miranda followed suit and stabbed Dominador once with his bolo. The three then fled from the scene, towards the direction of Baliri river. At the time of the shooting, Marcelino Ngoho, Dominador‘s brother-in-law, was travelling along the road of Barangay Liwayway on his motocycle. As he neared Pelagio‘s house, he saw Dominador in the yard. He then saw Artemio Elloraba shoot Dominador from behind once with a shotgun. He also saw Arturo Manaog turn the body of the fallen Dominador face up, and stab the latter with his pisao. Marcelino then turned his motorcycle around and sped away towards Barangay Abuyog. The assailants were all known to the Spouses Dominador and Leticia Galvez. Zosimo Miranda was a neighbor of the Spouses Galvez and was Dominador‘s nephew. Miranda even used to borrow kettle from the couple. Manaog had been Leticia‘s student, while Artemio was a drinking buddy of Dominador. On December 11, 1984, Dr. Lorenzo Tiongson performed an autopsy on the cadaver of Dominador and prepared his Report thereon, which contained his postmortem findings, to wit: FINDINGS: 1. Lacerated wound at the left side of the forehead extending vertically measuring 2 ½ inches in length. 2. Stab wound at the left side of the face, ½ inch lateral to the outer corner of the left eye measuring ½ inch in length. 3. Stab wound at the left anterior portion of the thorax, at the same level of the left nipple and ½ inch lateral to the mid-sternal line, measuring 1 inch in length. The wound has a slightly upward direction and the heart beneath was also wounded.

4. Stab wound at the right anterior portion of the thorax, ½ inch below the level of wound No. 3 and 1/3 inch lateral to the mid-sternal line measuring ¾ of an inch in length. The wound is non-penetrating. 5. Stab wound at the right anterior portion of the thorax, 1/3 of an inch below the level of wound No. 4 and along the mid-clavicular line (right) measuring ¾ inch in length. The wound is penetrating and the lung beneath was also wounded. 6. Stab wound at the anterior portion of the thorax, just below the zyphoid process of the sternum measuring 1/3 inch in length. The wound is penetrating and the diaphram beneath was also wounded. 7. Stab wound at the left side of the anterior portion of the thorax same level with wound no. 6 and 1/3 inch lateral to it, measuring ¾ inch in length. The wound is also penetrating. 8. Circular wound at the left lateral portion of the neck, 4 inches below the level of the left ear, measuring 1/3 in diameter. The wound is surrounded by a blackish coloration (contusion collar). 9. Lacerated wound at the right posterior portion of the thorax, 1 inch lateral to the mid-scapular line and ¾ inches in length. The edge of the wound has a blackish coloration. 10. Lacerated wound at the right posterior portion of the thorax, ¼ inch lateral to wound no. 9 measuring 1 inch in length. 11. Circular wound at the left posterior portion of the thorax, 2 inches lateral to the left mid-scapular line and 1 inch above the level of the left axial measuring ¼ inch in diameter. CAUSE OF DEATH: Profuse hemorrhage due to shotgun wounds, cut and multiple stab wounds.[1] On December 11, 1987, Leticia Galvez gave a sworn statement to the police investigators. It turned out that Elloraba had a pending warrant in connection with another criminal case. On December 24, 1987, a composite team of police operatives from MacArthur and Abuyog, Leyte, led by P/Lt. Paulino Matol and Sgt. Jose Genobatin, secured a copy of the said warrant and proceeded to the house of a certain Beyong Fernandez in Barangay Danao where Elloraba was staying. After about thirty minutes of negotiations, Elloraba decided to surrender to P/Lt. Paulino Matol. He also surrendered the shotgun he used in shooting Dominador. Elloraba, Manaog and Miranda were charged with murder in the Regional Trial Court of Abuyog, Leyte, Branch 10, in an Information the accusatory portion of which reads: That on or about the 11th day of December 1987, in the Municipality of MacArthur, Province of Leyte, Philippines, and within the jurisdiction of this Honorable Court, the said accused conspiring and confederating together and mutually helping each other, and with the use of superior strength, did then and there willfully and lawfully and feloniously and with treachery and evident premeditation, attack, assault and use personal violence upon one DOMINADOR GALVEZ, by then and there shooting the latter on the different parts of the body with the use of a home-made

shot gun, thereby inflicting upon the latter mortal wounds which were the direct and immediate cause of his death shortly thereafter. CONTRARY TO LAW.[2] Upon their arraignment, all the accused, assisted by counsel, pleaded not guilty to the charge. The Case for the Accused Zosimo denied inflicting any injuries on the victim. He testified that aside from being the Barangay Captain of Barangay Liwayway, Dominador was an Informer of the Philippine Constabulary against the New People‘s Army. He alleged that Dominador had a grudge against him. There was a donation of 35 pieces of galvanized sheets for the repair of the barangay chapel, but Dominador used only 20 pieces for the chapel and used the rest for the roofing of his house. Zosimo reported the matter to Doroteo Galvez, the father of Dominador, and Leonilo Pelagio, Jr. Dominador was summoned to a barangay meeting regarding the matter, but failed to attend. At one time, Dominador was drunk and blocked Zosimo‘s way. Dominador told him, ―Boboy, I am angry at you. Why did you do something to me?‖ Zosimo replied, ―I do not know why you are accosting me.‖ On December 11, 1987, at 6:00 a.m., he went to the house of his aunt, Zosimo‘s mother, Susana Candelaria, about ½ kilometer away from his house in Barangay Liwayway. At 8:00 a.m., the spouses brought him to their farm to harvest rice. The spouses left him there and went back home. At about 10:00 a.m., Fernando Arado arrived and informed him that his brother, Leonardo Miranda, was being hunted down by Dominador and that Leonardo‘s life was in peril. Zosimo returned home after asking permission from the Spouses Candelaria. When he arrived home, he was informed by Dingding that Philippine Constabulary soldiers were on the lookout for him. Zosimo then rushed to the house of Barangay Captain Diosdado Mentis where he stayed and tarried for a while. A policeman later arrived and placed him under arrest for the killing of Dominador. Susana Candelaria corroborated the testimony of Zosimo. Arturo Manaog also denied any involvement in the killing of Dominador. He testified that on December 8, 1987, Dominador poked an armalite at him. He told his older brother, Cristito Manaog, and their parents about the incident. On December 11, 1987, at 7:00 a.m., Arturo was in the house of his brother Cristito, about 200 meters away from the house of Pelagio Mediona. He was ill with flu at the time and stayed in bed. A policeman later arrived and brought him to the police station for the killing of Dominador. Maria Manaog, Cristito‘s wife, corroborated the testimony of Arturo Manaog. Castor Mones testified that he and Artemio Elloraba went to work for Benyong Fernandez in the latter‘s coconut farm in Sitio Limon, Barangay Danao, MacArthur, Leyte. Benyong was already old and his children were all women. During the period of December 5 toDecember 11, 1987, he and Artemio were in the farm of Benyong, harvesting coconuts. On December 9, 1987, he was able to gather 5,000 coconuts. By December 10, 1987, he had finished

splitting the coconuts. At 5:00 a.m. of December 11, 1987, Artemio smoked the coconuts, while Castor gathered the coconut husks for the fire. At 10:00 a.m., Leonila Elloraba, Artemio‘s wife, brought their breakfast. According to the witness, it would take more than one hour for one to negotiate the distance between Sitio Limon to Barangay Liwayway, on foot. Leonila corroborated the testimony of Castor in part. She testified that when she delivered breakfast for Artemio and Castor onDecember 11, 1987, she told them that Dominador had been killed. When Artemio asked who the culprit was, she replied that the word was that he was killed by NPAs. After trial, the court rendered judgment convicting all the accused for murder, the decretal portion of the decision reads: WHEREFORE, the prosecution having proven the guilt of these three (3) accused beyond reasonable doubt, the Court finds the accused ARTEMIO ELLORABA, ARTURO MANAOG and ZOSIMO MIRANDA, GUILTY beyond reasonable doubt of the crime of MURDER as charged and each is sentenced to suffer the penalty of RECLUSION PERPETUA, to indemnify the heirs of DOMINADOR GALVEZ the sum of FIFTY THOUSAND (P50,000.00) PESOS and to pay the costs.[3] Only Zosimo Miranda appealed from the decision of the trial court, contending that: ASSIGNMENT OF ERRORS (D.1) THE COURT A QUO GRIEVOUSLY ERRED WHEN IT COMPLETELY ACCEPTED AS GOSPEL TRUTH THE VERSION OF THE PROSECUTION ABOUT THE TRAGIC SHOOTING AND STABBING INCIDENT NOTWITHSTANDING THE IRRECONCILIABLE CONFLICTING TESTIMONIES OF THE ALLEGED THREE PROSECUTION EYEWITNESSES, WITH PROSECUTION EYEWITNESS, MARCELINO NGOHO, BROTHER-IN-LAW OF DOMINADOR GALVEZ, EXCULPATING HEREIN ACCUSEDAPPELLANT, AND CASTING DOUBT ON THE PRESENCE OF ANTONIO LADAN AND LETICIA GALVEZ AT THE SCENE OF THE CRIME. (D.2) THE COURT A QUO GRIEVOUSLY ERRED WHEN IT CONVICTED HEREIN ACCUSED-APPELLANT NOTWITHSTANDING THE FACT THAT THE PROSECUTION‘S EVIDENCE FAILED TO ESTABLISH THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT AND OVERCOME THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE OF APPELLANT HEREIN. (D.3) THE COURT A QUO GRIEVOUSLY ERRED WHEN IT APPRECIATED THE QUALIFYING CIRCUMSTANCES OF CONSPIRACY AND ABUSE OF SUPERIOR STRENGTH WHEN THE SAME WERE NEVER PROVEN BY THE PROSECUTION INSOFAR AS HEREIN ACCUSED-APPELLANT IS CONCERNED. (D.4) THE COURT A QUO GRIEVOUSLY ERRED WHEN IT ADJUDGED, ORDERED AND DIRECTED HEREIN ACCUSED-APPELLANT CIVILLY LIABLE TO THE PRIVATE OFFENDED PARTY NOTWITHSTANDING

HIS NON-PARTICIPATION CHARGED.[4]

IN

THE

OFFENSE

We do not agree with the appellant. There is no discordance between the testimony of Ngoho on one hand, and those of Ladan and Leticia on the other. In point of fact, the testimonies of Ngoho, Ladan and Leticia Galvez complement each other. What differentiates the testimony of Ngoho and those of Ladan and Leticia is that Ladan and Leticia Galvez saw the entire episode of Dominador‘s killing; whereas Ngoho witnessed the killing of Dominador by Elloraba and Manaog, and left the situs criminis without seeing the stabbing of Dominador by the appellant. According to his testimony, Ngoho left the scene after seeing Elloraba shoot Dominador and while Manaog was stabbing the victim. Ngoho returned to the scene of the crime only after the culprits had already fled. We are in full accord with the disquisitions of the Office of the Solicitor General: Appellant Zosimo Miranda contends that court a quo erred in its appreciation of the evidence presented before it. He points to a certain alleged inconsistencies between the testimony of prosecution witness Marcelino Ngoho, on the one hand, and Leticia Galvez and Antonio Ladan on the other. The inconsistencies, appellant avers, are enough to create reasonable doubt as to his guilt of the crime charged. (Appellant‘s Brief, p. 6) In particular, appellant points to the testimony of Marcelino Ngoho that he only saw Artemio Elloraba and Arturo Manaog attack the victim. This testimony, appellant claims, is at odds with that of the testimonies of Antonio Ladan and Leticia Galvez pointing to him as the third attacker. He concludes that the said conflicting testimonies cast doubt as to his presence and participation in the crime (id., pp. 9-13). A perusal of the testimonies adverted to show no conflict or inconsistency. Marcelino Ngoho testified that he fled the scene right after he saw the shooting by Artemio Elloraba and the hacking by Arturo Manaog. Q. When you saw Artemio Elloraba at that time, what happened next? A. He was carrying a firearm. Q. What did he do with that weapon? A. He fired and when he fired it, Dominador Galvez fell. He fired it from behind. ... Q. After Artemio Elloraba fired his firearm, what next did you observe? A. After he fired, he moved backwards and Arturo Manaog approached the fallen Dominador Galvez and turned the victim face up and stabbed. (TSN, Feb. 16, 1989, pp. 6 and 9) ... Q. After Arturo Manaog had delivered stabbing blow on Dominador Galvez, after he was turned face upwards, what next transpired? A. Artemio Elloraba was swinging his gun side to side and when he turned it towards me, I made a ―u-turn‖ of my motorcyle and left proceeding to my house.

Q. After that, what else transpired? A. When I noticed that the criminals were not there anymore, I returned and loaded the victim on my motorcycle, going to Abuyog. (TSN, Feb. 16, 1989, p. 11) Ngoho could not have witnessed appellant‘s attack on the victim because he was no longer at the scene, having fled when he felt his life threatened when Elloraba pointed the gun at him. He returned only after the assailants left. His testimony thus covered only a stage or portion of the event. Appellant‘s participation in the crime was established through the testimonies of Antonio Ladan and Leticia Galvez who were present throughout the attack on the victim. Both their eyewitnesses‘ testimonies were consistent that appellant delivered a single hacking blow to the head of the victim after the latter was shot by Elloraba and stabbed and hacked by Manaog (TSN, Feb. 9, 1989, pp. 6-9, 15 Sept. 27, 1989, pp. 6-7). This is consistent with the physical evidence (Exh. ―A‖; Cf. People v. Tuson, 261 SCRA 711 [1996]. Appellant failed to adduce evidence to show why Ladan and Galvez would implicate him in the commission of the crime. As earlier pointed out, appellant is a nephew of the victim. He also related to Antonio Ladan who is a cousin of his father (TSN, Sept. 8, 1989, p. 9). It is thus inconceivable for the victim‘s widow and appellant‘s own uncle to point to him as one of the attackers if it were not the truth. When there is no evidence to show any dubious reason or improper motive why a prosecution witness should testify falsely against the accused or falsely implicate him in a heinous crime, the said testimony is worthy of full faith and credit (People v. Cristobal, 252 SCRA 507 [1997]). Appellant attempts to cast doubt on the presence of Ladan at the scene. He claims that no one noticed nor testified as to his presence while the crime was being committed. But even assuming, arguendo, that Ladan was not present and did not witness the crime, his testimony is merely corroborative since there was another eyewitness in the person of the victim‘s widow. In an attempt to further discredit the testimony of Ladan, appellant wonders why the former failed to note the presence of Ngoho at the scene. He points out the same ―omission‖ in the testimony of Leticia Galvez. The testimonies of Ladan and Galvez dwelt only on the attack on the victim. Both Ladan and Galvez cannot be expected to recall or name all the persons who were at or near the scene who had nothing to do with the killing.[5] Contrary to the perception of the appellant, conspiracy is not a qualifying circumstance. Conspiracy may be a felony by itself when the law defines it as a crime with an imposable penalty therefor or is merely a mode of increasing criminal liability. Examples of conspiracy to commit a crime per se include conspiracy to sell illicit drugs under Section 21 of Republic Act No. 6485, conspiracy to bribe voters under Section 261 (b) of the Omnibus Election Code and conspiracy to commit any violation under Article 115 of the Revised Penal Code.

In this case, the conspiracy was alleged in the Information as a mode of increasing criminal liability. There is conspiracy when two or more persons agree to commit a crime and desire to commit it.[6] Direct evidence is not required to prove conspiracy. It may be proved by circumstantial evidence. It is not even required that they have an agreement for an appreciable period to commence it.[7] What is important is that all participants performed specific acts with such cooperation and coordination bringing about the death of the victim.[8] When conspiracy is present, the act of one is the act of all.[9] In this case, Elloraba, Manaog and the appellant acted in concert to achieve a common purpose, i.e., to kill the victim. Elloraba shot the victim at close range. Manaog followed suit and stabbed the victim with a pisao. The appellant later stabbed the victim with his own bolo. The three fled from the scene together, carrying their weapons with them. Indubitably, the three acted in concert; hence, all are guilty for the killing of Dominador. The crime is qualified by treachery. The victim was unarmed. Elloraba shot the victim from behind. Manaog turned the body of the victim, face upward, and stabbed him. The appellant followed suit, stabbing the victim while the latter was lying on the ground, defenseless.[10] Abuse of superior strength is absorbed by treachery. The trial court failed to award moral and exemplary damages. The decision of the trial court has to be modified. The heirs of the victim, Dominador Galvez, are entitled to P50,000.00 as moral damages and P25,000.00 as exemplary damages. IN LIGHT OF ALL THE FOREGOING, the appealed Decision is AFFIRMED WITH MODIFICATION. The appellant is ordered to pay to the heirs of the victim, Dominador Galvez, the amount of P50,000.00 as moral damages, and P25,000.00 as exemplary damages. Costs against the appellant. SO ORDERED.

PEOPLE OF THE PHILIPPINES, Appellee, - versus ARNULFO FERNANDEZ, Appellant.

G.R. 176060 Present:

No. lying on top of her and she felt pain in her vagina. She could not overpower appellant who was heavier and stronger than her. Appellant thereafter went down and had another drinking bout with AAA‘s father. When appellant left, AAA‘s father went upstairs and noticed that AAA‘s panty was on her knees and that there were

QUISUMBING, J. , Chairperson, CARPIO, CARPIO MORALES, TINGA, and VELASCO, JR., JJ.

Promulgated: October 5, 2007 x------------------------------------------------- x RESOLUTION CARPIO, J.: This is an appeal from the 22 September

bloodstains

on

her

blanket.

When

asked

what

happened, AAA told him that appellant raped her. The following morning, AAA‘s father reported the incident to the Barangay Captain and the police. AAA‘s blanket with some bloodstains and male discharge was submitted to the police as evidence.

2006 Decision[1] of the Court of Appeals in CA-G.R. CEB-CR-HC No. 00296, affirming the trial court‘s decision finding appellant Arnulfo Fernandez guilty beyond reasonable doubt of rape. Appellant was charged with raping AAA, his first degree cousin, who was then alleged to be 14 years old. During the trial, the trial court found that AAA was only 13 years old while appellant was 20 years old at the time of the incident. It was established that on the night of 7 July 1997, appellant and AAA‘s father were drinking wine. Appellant gave money to AAA‘s father to buy more wine. When AAA‘s father left, appellant went upstairs where AAA and her younger siblings were sleeping. Appellant covered AAA‘s mouth and then raped her. When AAA woke up, she noticed appellant

The Barangay Captain summoned appellant but he could not be located. Appellant surrendered to a certain Kagawad Putian one week later. Appellant alleged that AAA was his

girlfriend. He admitted during cross-examination that AAA is mentally slow and shy. He alleged that they had sexual intercourse from 1995 until 1997, although it was only in 1997 that AAA became his girlfriend. He accused AAA of initiating their sexual intercourse and claimed that AAA is a sex maniac. He admitted that on the night of 7 July 1997, he had a drinking spree with AAA‘s father. When AAA‘s father left to buy more wine, he went upstairs and saw that AAA‘s siblings were asleep. Appellant claimed that AAA enticed him to have sexual intercourse and AAA then removed her panty down to

her knees. Appellant admitted that he had sexual intercourse with AAA that night. The following day, appellant went to Banban to work at a hollow block factory. It was only when appellant went back to their house a few days later that his mother informed him that he was accused of raping AAA. Appellant then surrendered to Kagawad Putian. The trial court did not believe appellant‘s ―sweetheart theory.‖ The trial court likewise found incredible appellant‘s claim that AAA is a sex maniac who initiated all their sexual encounters. On 12 October 2000, the trial court rendered a decision, the dispositive portion of which reads:

On

appeal,

appellant

contended

that

the

prosecution failed to prove his guilt beyond reasonable doubt. In its 22 September 2006 Decision, the Court of Appeals affirmed the trial court‘s decision with the modification that an additional P50,000 as civil indemnity be awarded to the victim. The Court of Appeals held that factual findings of the trial court are accorded the highest respect unless some important facts have been clearly overlooked which if considered would affect the result of the case. The Court of Appeals ruled that the trial court was correct in relying on AAA‘s positive and straightforward testimony rather than on appellant‘s bare denial of the charge. Hence, this appeal. We find the appeal without merit. The Court of Appeals was correct in affirming the ruling of the trial court that rape was clearly established by the witnesses and the evidence of the prosecution. The trial court, having the opportunity to observe the witnesses and their demeanor during the trial, can best assess the credibility of the witnesses and their

PREMISES CONSIDERED, the Court finds accused Arnulfo Fernandez GUILTY beyond reasonable doubt of the crime of rape which is punished under Art. 335, paragraph 2 of the Revised Penal Code as amended by R.A. 7659 otherwise known as the ―Heinous Crimes Law.‖ This specific provision refers to the situation wherein the woman is deprived of reason or otherwise unconscious, as in this case wherein the offended party was sleeping and therefore deprived of her free will. Although it has been held that in crimes against chastity such as rape, relationship is aggravating (People v. Matrimonio, 215 SCRA 613), the said circumstance is offset by the voluntary (albeit one week late) surrender of the accused. Accordingly, the court hereby sentences the accused to the penalty of RECLUSION PERPETUA. Based on latest jurisprudence, the accused is further ordered to indemnify the victim, who is a minor, the amount of P50,000 as moral damages. SO ORDERED.[2]

testimonies.[3] Thus, the trial court‘s findings are accorded great respect unless the trial court has overlooked or misconstrued some substantial facts, which if considered might affect the result of the case.[4]

In this case, appellant admits that he had sexual intercourse with AAA on the night of 7 July 1997 but alleges that it was consensual and that AAA initiated the sexual act. We agree with the trial court and the appellate court that appellant‘s version of the incident is unbelievable. Appellant himself testified that he went upstairs where he knew AAA was sleeping with her siblings. AAA could not have initiated their sexual intercourse considering that she was already asleep when appellant went upstairs. Under Article 335(2) of the Revised Penal Code, rape is committed by having carnal knowledge of a woman who is deprived of reason or otherwise unconscious. Thus, there is rape where the woman was unconscious as when she was asleep when the carnal act was accomplished.[5] Appellant‘s allegations that AAA was his girlfriend and that they had sexual relation since 1995 are likewise hard to believe. Appellant would have us believe that AAA, who was then only 11 years old in 1995, was already engaging in sexual intercourse with appellant. Besides, the doctor[6] who examined AAA testified that there was fresh laceration of AAA‘s hymen which could mean that the incident on 7 July 1997 was probably AAA‘s first sexual experience.

relationship of appellant to AAA. Under Article 15 of the Revised Penal Code, the alternative circumstance of relationship shall be taken into consideration when the offended party is the spouse, ascendant, descendant, legitimate, natural, or adopted brother or sister, or relative by affinity in the same degree of the offender. The relationship between appellant and AAA as first cousins is not covered by any of the relationships mentioned. Nevertheless, even if the aggravating circumstance of relationship is deleted, the penalty

of reclusion perpetua, which is a single indivisible penalty, still applies. Under Article 63 of the Revised Penal Code, in cases where the law prescribes a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating

circumstance. WHEREFORE, we AFFIRM the 22 September 2006 Decision of the Court of Appeals in CA-G.R. CEBCR-HC No. 00296 finding appellant Arnulfo Fernandez guilty beyond reasonable doubt the of rape with

the MODIFICATION that

aggravating

circumstance of relationship is deleted.

SO ORDERED. The Court notes that the trial court mistakenly considered as an aggravating circumstance the

PEOPLE OF THE PHILIPPINES, Appellee,

G.R. No. 179943 Present: YNARESSANTIAGO, J., Chairperson, when a mint green-colored Tamaraw FX arrived for service at the said gasoline station.[3] Eduardo Zulueta was the one who attended to the said vehicle. He went to the driver‘s side in order to take the key of the vehicle from the driver so that he could open the gas tank. He saw through the lowered window shield that there were about six to seven persons aboard the vehicle. He proceeded to fill up P50.00 worth of diesel in the gas tank. After doing

-versusCHICO-NAZARIO, VELASCO, JR., NACHURA, and PERALTA, JJ. MARLON ALBERT DE LEONy HOMO, Appellant. Promulgated: June 26, 2009 x----------------------------------------------------------------------------------------x DECISION PERALTA, J.:

this, he returned the key to the driver. While returning the key, the driver told him that the engine of the vehicle would not start.[4] Eduardo Zulueta offered to give the vehicle a push. While Eduardo Zulueta and fellow gasoline boy Fortunato Lacambra III were positioned at the back of the vehicle, ready to push the same, the six male passengers of the same vehicle, except the driver, alighted and announced a hold-up. They were armed with a shotgun and .38 caliber pistol.[5] Fortunato Lacambra III was ordered to lie down,[6] while Eduardo Zulueta was directed to go near the Car Wash Section.[7] At that instance, guns were poked at them.[8] Appellant, who guarded Eduardo Zulueta, poked a gun at the latter and took the latter's wallet containing a pawnshop ticket and P50.00, while the

This is an appeal from the Decision[1] of the Court of Appeals (CA), affirming with modification the Decision[2] of the Regional Trial Court (RTC), Branch 76, San Mateo, Rizal, finding appellant Marlon Lambert De Leon y Homo guilty beyond reasonable doubt of the crime of robbery with homicide. The factual and procedural antecedents are as follows: According to the prosecution, in the early morning, around 2 o'clock of January 7,

2000, Eduardo Zulueta and Fortunato Lacambra III, both gasoline boys; Julieta Amistoso, cashier; and Edralin Macahis, security guard; all employees of Energex Gasoline Station, located

at Barangay Guinayan, San Mateo, Rizal, were on duty

companion of the former, hit the latter on his nape with a gun.[9] Meanwhile, four members of the group went to the cashier's office and took the money

from his Tita Emma to go to Antipolo. Catherine Homo, appellant's cousin and the latter's younger brother, accompanied appellant to the terminal. While waiting for a ride, the vehicle, a Tamaraw FX, of a certain Christian Gersalia, a relative of appellant and Catherine Homo, passed by. Catherine Homo asked Christian Gersalia if he would allow appellant to hitch a ride on his vehicle. Christian Gersalia agreed. Aside from Christian Gersalia, there were other passengers in the said vehicle.[18] When the vehicle reached Masinag, where appellant was supposed to alight, he was not allowed to do so; instead, he was asked by the other passengers to join them in their destination. While on the road, appellant fell asleep. When he woke up, they were in a gasoline station. He then saw Christian Gersalia and the other passengers conducting a hold-up. He never left the vehicle and was not able to do anything because he was overwhelmed with fear. After he heard the gunshots, Christian Gersalia and the other passengers went to the vehicle and proceeded

worth P3,000.00.[10] Those four robbers were also the ones who shot Edralin Macahis in the

stomach.[11] Thereafter, the same robbers took Edralin Macahis' service firearm.[12] After he heard successive gunshots, Eduardo Zulueta saw appellant and his companions immediately leave the place.[13] The robbers boarded the same vehicle and proceeded toward San Mateo, Rizal.[14] When the robbers left, Eduardo Zulueta stood up and found Julieta Amistoso, who told him that the robbers took her bag and jewelry. He also saw that Edralin Macahis had a gunshot wound in the stomach. He immediately hailed a vehicle which transported the injured Edralin Macahis to the hospital.[15] Later on, Edralin Macahis died at the hospital due to the gunshot wound.[16] The following day, Eduardo Zulueta

identified appellant as one of the robbers who poked a gun at him.[17] However, according to appellant,

towards Marikina. On their way, they were followed by policemen who fired at them. The other passengers fired back at the policemen. It was then that the vehicle hit a wall prompting the other passengers to scamper in different directions leaving him behind. When the policemen arrived, he was immediately arrested.[19]

from January 4 to 6, 2000, he stayed at the house of his Tita Emma at Pantok, Binangonan, Rizal, helping the latter in her canteen. On the evening of January 6, at approximately 9 o'clock, appellant asked permission

As a result of the above incident, four Informations for Robbery with Homicide were filed against appellant, Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy

still at-large, did then and there willfully, unlawfully and feloniously attack, assault and shoot one EDRALIN MACAHIS, a Security Guard of Energex Gasoline Station, thereby inflicting upon him gunshot wound on his trunk which directly caused his death. Contrary to law. Criminal Case No. 4748

Servantes, an alias ―Rey,‖ an alias ―Jonard,‖ an alias ―Precie,‖ and an alias ―Renato,‖ which read as:

Criminal Case No. 4747 That on or about the 7th day of January 2000, in the Municipality of San Mateo, Province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias ―Rey,‖ Alias ―Jonard,‖ Alias ― Precie‖ and Alias ―Renato‖ whose true names, identities and present whereabouts are still unknown and still at-large, and conspiring and mutually helping and assisting one another, while armed with unlicensed firearms and acting as a band, with intent of gain with aggravating circumstances of treachery, abuse of superior strength and using disguise, fraud or craft and taking advantage of nighttime, and by means of motor vehicle and by means of force, violence and intimidation, employed upon ENERGEX GASOLINE STATION, owned by Regino C. Natividad, and represented by Macario C. Natividad, did then and there willfully, unlawfully and feloniously rob, steal and carry away its cash earnings worthP3,000.00, to the damage and prejudice of said Energex Gasoline Station in the aforesaid amount of P3,000.00 and on the occasion of the said robbery, the above-named accused, while armed with unlicensed firearms with intent to kill, conspiring and confederating together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias ―Rey,‖ Alias ―Jonard,‖ Alias ―Precie‖ and Alias ―Renato,‖ whose true names, identities and present whereabouts are still unknown and

That on or about the 7th day of January 2000 in the Municipality of San Mateo, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating , together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias ―Rey,‖ Alias ―Jonard,‖ Alias ― Precie‖ and Alias ―Renato,‖ whose true names, identities and present whereabouts are still unknown and still at-large and conspiring and mutually helping and assisting one another, while armed with unlicensed firearms and acting as a band, with intent of gain, with aggravating circumstances of treachery, abuse of superior strength and using disguise, fraud or craft and taking advantage of nighttime, and by means of a motor vehicle and by means of force, violence and intimidation, employed upon the person of JULIETA A. AMISTOSO, the Cashier of Energex Gasoline Station, did then and there willfully, unlawfully and feloniously rob, steal and carry away the following, to wit: a) One (1) ladies ring with sapphire stone valued at P1,500.00 One (1) Omac wristwatch at P2,000.00 black bag ladies valued

b)

c) Guess at P500.00

valued

d) Leather wallet valued at P150.00 e) White T-Shirt valued at P175.00 to her damage and prejudice in the total amount of P4,325.00 and on the occasion of the said robbery, the above-named accused while armed with unlicensed firearms with intent to kill, conspiring and confederating together with Rudy

Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias ―Rey,‖ Alias ―Jonard,‖ Alias ―Precie‖ and Alias ―Renato,‖ whose true names, identities and present whereabouts are still unknown and still at-large, did then and there willfully, unlawfully and feloniously attack, assault and shoot one EDRALIN MACAHIS, a Security Guard of Energex Gasoline Station, thereby inflicting upon him gunshot wound on his trunk which directly caused his death. Contrary to law. Criminal Case No. 4749 That on or about the 7th day of January 2000, in the Municipality of San Mateo, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias ―Rey,‖ Alias ―Jonard,‖ Alias ―Precie‖ and Alias ―Renato,‖ whose true names, identities and present whereabouts are still unknown and still at-large, and conspiring and mutually helping and assisting one another, while armed with unlicensed firearms and acting as a band, with intent of gain, with aggravating circumstances of treachery, abuse of superior strength and using disguise, fraud or craft and taking advantage of nighttime, and by means of a motor vehicle and by means of force, violence and intimidation, employed upon EDRALIN MACAHIS, a Security Guard of Energex Gasoline Station, did then and there willfully, unlawfully and feloniously rob, steal, and carry away his service firearm .12 gauge shotgun with serial number 13265 valued at P12,000.00 owned by Alert and Quick (A-Q) Security Services Incorporated represented by its General Manager Alberto T. Quintos to the damage and prejudice of said Alert and Quick (A-Q) Security Services Incorporated in the aforesaid amount of P12,000.00 and on the occasion of the said robbery the above-named accused, while armed with unlicensed firearms, with intent to kill conspiring and confederating together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan

Brenvuela, Pantoy Servantes, Alias ―Rey‖, Alias ―Jonard‖, Alias ― Precie‖ and Alias ―Renato‖, whose true names, identities and present whereabouts are still unknown and still at-large, did then and there willfully, unlawfully and feloniously attack, assault and shoot one EDRALIN MACAHIS, thereby inflicting upon him gunshot wound on his trunk which directly caused his death. Contrary to law. Criminal Case No. 4750 That on or about the 7th day of January 2000, in the Municipality of San Mateo, Province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias ―Rey,‖ Alias ―Jonard,‖ Alias ―Precie‖ and Alias ―Renato,‖ whose true names, identities and present whereabouts are still unknown and still at-large and conspiring and mutually helping and assisting one another, while armed with unlicensed firearms and acting as a band, with intent of gain, with aggravating circumstances of treachery, abuse of superior strength and using disguise, fraud or craft and taking advantage of nighttime, and by means of a motor vehicle and by means of force, violence and intimidation, employed upon the person of EDUARDO ZULUETA, a gasoline boy of Energex Gasoline Station, did then and there willfully, unlawfully and feloniously rob, steal and carry away the following to wit: a) Pawnshop Ticket from M. Lhuiller Pawnshop for one (1) black Citizen men's watch (automatic) valued atP2,000.00 b) Cash money worth P50.00 to his damage and prejudice in the total amount of P2,050.00 and on the occasion of the said robbery, the above-named accused, while armed with unlicensed firearms with intent to kill, conspiring and confederating together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias ―Rey,‖ Alias ―Jonard,‖ Alias ―Precie‖ and Alias ―Renato,‖ whose

true names, identities and present whereabouts are still unknown and still at-large, did then and there willfully, unlawfully and feloniously attack, assault and shoot one EDRALIN MACAHIS, a Security Guard of Energex Gasoline Station, thereby inflicting upon him gunshot wound on his trunk which directly caused his death. Contrary to law.

Upon arraignment on March 23, 2000, appellant, with the assistance of counsel de parte, entered a plea of not guilty on all the

charges. Thereafter, trial on the merits ensued. The prosecution presented five witnesses, namely: Macario C. Natividad,[20] then officer-in-charge of Energex Gasoline Station where the incident took place; Edito Macahis,[21] a cousin of the deceased security guard Edralin Macahis; Fortunato Lacambra III,[22] a gasoline boy of the same gas station; Eduardo Zulueta,[23] also a gasoline boy of the same gas station, and Alberto Quintos,[24] general manager of Alert and Quick Security Services, Inc., where the deceased security guard was employed. The defense, on the other hand, presented two witnesses, namely: Catherine Homo,[25] a cousin of appellant and the

1. In Criminal Case No. 4747, finding accused Marlon Albert de Leon y Homo guilty beyond reasonable doubt of the crime of Robbery with Homicide, as defined and penalized under No. 1 of Art. 294 of the Revised Penal Code, as amended by Sec. 9 of R.A. 7659, in relation to Sec. 1 of P.D. 1866, as further amended by Sec. 1 of R.A. 8294, having acted in conspiracy with other malefactors who have, to date, remained atlarge, and sentencing the said Marlon Albert de Leon y Homo to the penalty of Death, taking into consideration the use of an unlicensed firearm in the commission of the crime as an aggravating circumstance; to pay Energex Gasoline Station owned by Regino Natividad and represented by Macario C. Natividad the amount of P3,000.00 as compensatory damages and to pay the costs; 2. In Crim. Case No. 4748, finding accused Marlon Albert de Leon y Homo guilty beyond reasonable doubt of the crime of Robbery with Homicide, as defined and penalized under No. 1 of Art. 294 of the Revised Penal Code, as amended by Sec. 9 of R.A. 7659, in relation to Sec. 1 of P.D. 1866, as further amended by Sec. 1 of R.A. 8294, having acted in conspiracy with other malefactors who have, to date, remained atlarge, and sentencing the said Marlon Albert de Leon y Homo to the penalty of Death, taking into consideration the use of an unlicensed firearm in the commission of the crime as an aggravating circumstance, and to pay the costs; 3. In Crim. Case No. 4749, finding accused Marlon Albert de Leon y Homo guilty beyond reasonable ground of the crime of Robbery with Homicide, as defined and penalized under No. 1 of Art. 294 of the Revised Penal Code, as amended by Sec. 9 of R.A. 7659, in relation to Sec. 1 of P.D. 1866, as further amended by Sec. 1 of R.A. 8294, having acted in conspiracy with other malefactors who have, to date, remained atlarge, and sentencing the said Marlon Albert de Leon y Homo to the penalty of Death, taking into consideration the use of an unlicensed firearm in the commission of the crime as an

appellant[26] himself. On December 20, 2001, the RTC rendered its Decision[27] convicting appellant beyond reasonable doubt of all the charges against him, the dispositive portion of which reads:

aggravating circumstance; to indemnify the heirs of Edralin Macahis in the amount of P50,000.00 as death indemnity; to pay P12,000.00 as compensatory damages for the stolen service firearm if restitution is no longer possible and P50,000.00 as moral damages, and to pay the costs; 4. In Crim. Case No. 4750, finding accused Marlon Albert de Leon y Homo guilty beyond reasonable doubt of the crime of Robbery with Homicide, as defined and penalized under No. 1 of Art. 294 of the Revised Penal Code, as amended by Sec. 9 of R.A 7659, in relation to Sec. 1 of P.D. 1866, as further amended by Sec. 1 of R.A. 8294, having acted in conspiracy with other malefactors who have, to date, remained atlarge, and sentencing the said Marlon Albert de Leon y Homo to the penalty of Death, taking into consideration the use of an unlicensed firearm in the commission of the crime as an aggravating circumstance and to pay Eduardo Zulueta, victim of the robbery, in the amount of P2,050.00 as compensatory damages for the stolen properties if restitution is no longer possible and to pay the costs. As against accused Rudy Gersalia and Christian Gersalia, who have, to date, remained atlarge, let a warrant of arrest be issued against them and let these cases be, in the meantime, sent to the archives without prejudice to their reinstatement upon apprehension of the said accused. As against accused Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias ―Rey,‖ Alias ―Jonard,‖ Alias ―Precie and Alias ―Renato,‖ whose true names, identities and present whereabouts are still unknown and are still at-large, let these cases be, in the meantime, sent to the archives without prejudice to their reinstatement upon the identification and apprehension of the said accused. SO ORDERED.

the Decision dated July 7, 2004 in G.R. Nos. 147678-87 entitled The People of the Philippines v. Efren Mateo y Garcia, modifying the pertinent provisions of the Revised Rules of Criminal Procedure, more particularly Sections 3 and 10 of Rule 125 and any other rule insofar as they provide for direct appeals from the RTCs to this Court in cases where the penalty imposed is

death, reclusion perpetua or life imprisonment, as well as the Resolution of this Court, en banc dated

September 19, 1995, in ―Internal Rules of the Supreme Court‖ in cases similarly involving the death penalty, pursuant to the Court's power to promulgate rules of procedure in all courts under Article VII, Section 5 of the Constitution, and allowing an intermediate review by the CA before such cases are elevated to this Court. This Court transferred the cases to the CA for appropriate action and disposition. The CA, on June 29, 2007,[29] affirmed with modification, the Decision of the RTC, with the dispositive portion reading:

WHEREFORE, the appealed decision is AFFIRMED with MODIFICATION. Accused Marlon Albert de Leon y Homo is hereby found guilty beyond reasonable doubt of the crime of Robbery with Homicide of only one count. Given the passage of Republic Act 9346 which took effect on 24 June 2006, the penalty imposed upon Marlon de Leon y Homo is hereby reduced or commuted to reclusion perpetua.

The cases were appealed to this Court, however, on September, 21, 2004,[28] in conformity with

II SO ORDERED. ON THE ASSUMPTION THAT ACCUSED-APPELLANT IS GUILTY OF ROBBERY WITH HOMICIDE, THE TRIAL COURT GRAVELY ERRED IN IMPOSING FOUR (4) DEATH PENALTIES DESPITE THAT THE CRIME CHARGED WAS PRODUCED BY ONE SINGLE ACT WHICH SHOULD BE METED WITH A SINGLE PENALTY.

On December 10, 2007, this Court accepted the appeal,[30] the penalty imposed being reclusion perpetua.

The OSG, in its Appellee's Brief,[34] insisted The Office of the Solicitor General (OSG), that all the elements of the crime and the appellant's on February 8, 2008, filed its Manifestation and Motion participation in the crime had been established. In Lieu of the Supplemental Brief[31] dated February 4, 2008 stating that it will no longer file a supplemental Appellant, in his Reply Brief,[35] argued that brief, considering that appellant has not raised any new the penalty should not be death, but only reclusion issue that would require the filing of a supplemental perpetua, because the aggravating circumstance of use brief. of Appellant filed a Information, was not alleged with specificity. Manifestation[32] on February 22, 2008 stating that he re-pleads and adopts his Appellant's Brief and Reply Article 294, paragraph 1 of the Revised Penal Brief as Supplemental Brief. Code provides: unlicensed firearm, although alleged in the

Appellant, following errors:

in

his

Brief,[33] assigned

the

Art. 294. Robbery with violence against or intimidation of persons – Penalties. - Any person guilty of robbery with the use of violence against or any person shall suffer: 1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed, or when the robbery shall have been accompanied by rape or intentional mutilation or arson.

I THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSEDAPPELLANT A COCONSPIRATOR IN THE COMMISSION OF THE CRIME CHARGED DESPITE THE FAILURE OF THE PROSECUTION TO PROVE THE SAME AND GUILT BEYOND REASONABLE DOUBT.

In People v. De Jesus,[36] this Court had exhaustively discussed the crime of robbery with homicide, thus:

homicide. All the felonies committed by reason of or on the occasion of the robbery are integrated into one and indivisible felony of robbery with homicide. The word ―homicide‖ is used in its generic sense. Homicide, thus, includes murder, parricide, and infanticide. Intent to rob is an internal act, but may be inferred from proof of violent unlawful taking of personal property. When the fact of asportation has been established beyond reasonable doubt, conviction of the accused is justified even if the property subject of the robbery is not presented in court. After all, the property stolen may have been abandoned or thrown away and destroyed by the robber or recovered by the owner.[41] The prosecution is not burdened to prove the actual value of the property stolen or amount stolen from the victim. Whether the robber knew the actual amount in the possession of the victim is of no moment, because the motive for robbery can exist regardless of the exact amount or value involved.[42] When homicide is committed by reason or on the occasion of robbery, all those who took part as principals in the robbery would also be held liable as principals of the single and indivisible felony of robbery with homicide, although they did not actually take part in the killing, unless it clearly appears that they endeavored to prevent the same.[43] If a robber tries to prevent the commission of homicide after the commission of the robbery, he is guilty only of robbery and not ofrobbery with homicide. All those who conspire to commit robbery with homicide are guilty as principals of such crime, although not all profited and gained from the robbery. One who joins a criminal conspiracy adopts the criminal designs of his co-conspirators and can no longer repudiate the conspiracy once it has materialized.[44] Homicide is said to have been committed by reason or on the occasion of robbery if, for instance, it was committed (a) to facilitate the robbery or the escape of the culprit; (b) to preserve the possession by the culprit of the loot; (c) to prevent discovery of the commission of the robbery; or, (d)

For the accused to be convicted of the said crime, the prosecution is burdened to prove the confluence of the following elements: (1) the taking of personal property is committed with violence or intimidation against persons; (2) the property taken belongs to another; (3) the taking is animo lucrandi; and (4) by reason of the robbery or on the occasion thereof, homicide is committed.[37] In robbery with homicide, the original criminal design of the malefactor is to commit robbery, with homicide perpetrated on the occasion or by reason of the robbery.[38] The intent to commit robbery must precede the taking of human life.[39] The homicide may take place before, during or after the robbery. It is only the result obtained, without reference or distinction as to the circumstances, causes or modes or persons intervening in the commission of the crime that has to be taken into consideration.[40] There is no such felony of robbery with homicide through reckless imprudence or simple negligence. The constitutive elements of the crime, namely, robbery with homicide, must be consummated. It is immaterial that the death would supervene by mere accident; or that the victim of homicide is other than the victim of robbery, or that two or more persons are killed, or that aside from the homicide, rape, intentional mutilation, or usurpation of authority, is committed by reason or on the occasion of the crime. Likewise immaterial is the fact that the victim of homicide is one of the robbers; the felony would still be robbery with homicide. Once a homicide is committed by or on the occasion of the robbery, the felony committed is robbery with

to eliminate witnesses in the commission of the crime. As long as there is a nexus between the robbery and the homicide, the latter crime may be committed in a place other than the situs of the robbery.

convincing manner, the circumstances surrounding the commission of the robbery and positively identified appellant as one of the robbers. Witness Eduardo Zulueta testified that appellant was one of the robbers

From the above disquisition, the testimonies of the witnesses, and pieces of evidence presented by the prosecution, the crime of robbery with homicide was indeed committed. There was no mistaking from the actions of all the accused that their main intention was to rob the gasoline station and that on occasion of such robbery, a homicide was committed. The question now is whether there was conspiracy in the commission of the crime. According to appellant, the prosecution failed to prove that he was a co-conspirator. However, this Court finds no merit to appellant's argument.

who poked a gun at him, thus:

Q. Were you able to identify those two armed male persons who poked their guns at you? A: Yes, sir. Q: Kindly look around inside this courtroom and inform the Hon. Court whether those two (2) persons who poked their guns at you were (sic) present now? A: Only one, sir, and there he is. (At this juncture, witness pointing to a certain person who answered by the name of MARLON ALBERT DE LEON when asked.) Q: This Marlon De Leon was he the one who guarded you in the carwash or not? A: Yes, sir. Q: Now, what happened to you at the carwash where this Marlon De Leon was guarding you? A: His gun was poked at me, sir. Q: What else transpired, Mr. Witness, or what else happened to you aside from that? A: He hit me with his gun on my nape, sir. Q: What else, Mr. Witness? A: He got my wallet from my pocket, sir. Q: Who hit you with a gun? A: His other companion, sir.[46] Appellant was also identified by witness Fortunato Lacambra III, thus: Q: What about that person who ordered Zulueta to go to the

If it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their combined acts, though apparently independent, were in fact connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment, a conspiracy may be inferred though no actual meeting among them to concert means is proved. That would be termed an implied conspiracy.[45] The prosecution was able to prove the presence of an implied

conspiracy. The witnesses were able to narrate in a

carwash section and hit him, was he also armed? A: Yes, sir. Q: What kind of firearm was he carrying then?

of

them

becomes

secondary,[49] since

all

the

conspirators are principals.

A: Also .38 caliber, sir. Q: Were you able to identify or recognize that person who approached and ordered Zulueta to go to the carwash section?

As to the credibility of the witnesses, the RTC's findings must not be disturbed. The well-settled rule in this jurisdiction is that the trial court‘s findings on the credibility of witnesses are entitled to the highest degree of respect and will not be disturbed on appeal without any clear or showing that it overlooked, facts or

A: Yes, sir. Q: If that person is inside the courtroom, will you be able to identify him? A: Yes, sir. Q: Kindly point to him? A: That man, sir. (Witness pointed to a person who answered by the name of Marlon Albert de Leon).[47]

misunderstood

misapplied

some

circumstances of weight or substance which could affect the result of the case.[50]

Therefore, it can be inferred from the role For his defense, appellant merely denied appellant played in the commission of the robbery, that participating in the robbery. However, his presence a conspiracy existed and he was part of it. To be a during the commission of the crime was wellconspirator, one need not participate in every detail of established as appellant himself testified as to the the execution; he need not even take part in every act or matter. Granting that he was merely present during the need not even know the exact part to be performed by robbery, his inaction does not exculpate him. To the others in the execution of the conspiracy. Each exempt himself from criminal liability, a conspirator conspirator may be assigned separate and different must have performed an overt act to dissociate or tasks which may appear unrelated to one another but, detach himself from the conspiracy to commit the in fact, constitute a whole collective effort to achieve felony and prevent the commission thereof.[51] Appellant their common criminal objective.[48] Once conspiracy is offered no evidence that he performed an overt act shown, the act of one is the act of all the conspirators. neither to escape from the company of the robbers nor The precise extent or modality of participation of each to prevent the robbery from taking place. His denial, therefore, is of no value. Courts generally view the

defenses of denial and alibi with disfavor on account of the facility with which an accused can concoct them to suit his defense. As both evidence are negative and selfserving, they cannot attain more credibility than the testimonies of prosecution witnesses who testify clearly, providing thereby positive evidence on the various aspects of the crime committed.[52]

took place in several houses belonging to different persons, when not absolutely unconnected, was held not to be taken as separate and distinct offenses. They formed instead, component parts of the general plan to despoil all those within the vicinity. In this case, the Solicitor General argued that the [appellant] had committed eight different robberies, because the evidence shows distinct and different acts of spoilation in different houses, with several victimized persons.[58] The Highest Tribunal, however, ruled that the perpetrated acts were not entirely distinct and unconnected from one another.[59] Thus, the single offense or crime.

Consequently, the CA was correct in ruling that appellant was guilty only of one count of robbery with homicide. In the crime of robbery with homicide, there are series of acts, borne from one criminal resolution, which is to rob. As decided[53] by the Court of Appeals:

Now, this Court comes to the penalty imposed by the CA. The decision[60] merely states that, in view of the enactment of R.A. 9346, the sentence of Death Penalty, imposed upon appellant, is

automatically commuted to reclusion perpetua, but is silent as to how it had arrived into such a conclusion.

A continued (continuous or continuing) crime is defined as a single crime, consisting of a series of acts but all arising from one criminal resolution.[54] Although there is a series of acts, there is only one crime committed; hence, only one penalty shall be imposed.[55] In the case before Us, [appellant] and his companions intended only to rob one place; and that is the Energex gasoline station. That they did; and in the process, also took away by force the money and valuables of the employees working in said gasoline station. Clearly inferred from these circumstances are the series of acts which were borne from one criminal resolution. A continuing offense is a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy.[56] This can be said of the case at hand. Akin to the extant case is that of People v. De la Cruz,[57] wherein the robbery that

Under Article 294 of the Revised Penal Code, as amended by R.A. No. 7659, robbery with homicide is punishable byreclusion perpetua to death, which are both indivisible penalties. Article 63 of the same Code provides that, in all cases in which the law prescribes a penalty composed of two indivisible penalties, the greater penalty shall be applied when the commission of the deed is attended by one aggravating

circumstance.[61] It must be remembered that the Informations filed with the RTC alleged the aggravating circumstance of the use of unlicensed firearm. Pursuant

to the third paragraph of Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, such use of

an unlicensed firearm is a special and not a generic aggravating circumstance in the homicide or murder committed. As explained by this Court in Palaganas v. People:[62]

Aside from the aggravating circumstances abovementioned, there is also an aggravating circumstance provided for underPresidential Decree No. 1866,[66] as amended by Republic Act No. 8294,[67] which is a special law. Its pertinent provision states: If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. In interpreting the same provision, the trial court reasoned that such provision is ―silent as to whether it is generic or qualifying.‖[68]Thus, it ruled that ―when the law is silent, the same must be interpreted in favor of the accused.‖[69] Since a generic aggravating circumstance is more favorable to petitioner compared to a qualifying aggravating circumstance, as the latter changes the nature of the crime and increase the penalty thereof by degrees, the trial court proceeded to declare that the use of an unlicensed firearm by the petitioner is to be considered only as a generic aggravating circumstance.[70] This interpretation is erroneous, since we already held in several cases that with the passage of Republic Act No. 8294 on 6 June 1997, the use of an unlicensed firearm in murder or homicide is now considered as a SPECIAL aggravating circumstance and not a generic aggravating circumstance.[71] Republic Act No. 8294 applies to the instant case since it took effect before the commission of the crimes in 21 April 1998. Therefore, the use of an unlicensed firearm by the petitioner in the instant case should be designated and appreciated as a SPECIAL aggravating circumstance and not merely a generic aggravating circumstance.

Generic aggravating circumstances are those that generally apply to all crimes such as those mentioned in Article 14, paragraphs No. 1, 2, 3, 4, 5, 6, 9, 10, 14, 18, 19 and 20, of the Revised Penal Code. It has the effect of increasing the penalty for the crime to its maximum period, but it cannot increase the same to the next higher degree. It must always be alleged and charged in the information, and must be proven during the trial in order to be appreciated.[63] Moreover, it can be offset by an ordinary mitigating circumstance. On the other hand, special aggravating circumstances are those which arise under special conditions to increase the penalty for the offense to its maximum period, but the same cannot increase the penalty to the next higher degree. Examples are quasirecidivism under Article 160 and complex crimes under Article 48 of the Revised Penal Code. It does not change the character of the offense charged.[64] It must always be alleged and charged in the information, and must be proven during the trial in order to be appreciated.[65] Moreover, it cannot be offset by an ordinary mitigating circumstance. It is clear from the foregoing that the meaning and effect of generic and special aggravating circumstances are exactly the same except that in case of generic aggravating, the same CAN be offset by an ordinary mitigating circumstance whereas in the case of special aggravating circumstance, it CANNOT be offset by an ordinary mitigating circumstance.

In another case,[72] this Court ruled that, the existence of the firearm can be established by testimony, even without the presentation of the firearm.[73] In the said case, it was established that

Elmer and Marcelina Hidalgo died of, and Pedro Hidalgo sustained, gunshot wounds. The ballistic examination of the slugs recovered from the place of the incident showed that they were fired from a .30 carbine rifle and a .38 caliber firearm. The prosecution witnesses positively identified appellant therein as one of those who were holding a long firearm. It was also established that the same appellant was not a licensed firearm holder. Hence, this Court ruled that the trial court and the CA correctly appreciated the use of unlicensed firearm as an aggravating circumstance. After a careful study of the records of the present case, this Court found that the use of unlicensed firearm was not duly proven by the

the stolen service firearm if restitution is no longer possible and P50,000.00 as moral damages. Actual damages were never proven during the trial. Hence, this Court's rulings[74]on temperate damages apply, thus: In People vs. Abrazaldo,[75] we laid down the doctrine that where the amount of actual damages for funeral expenses cannot be determined because of the absence of receipts to prove them, temperate damages may be awarded in the amount of P25,000[76] This doctrine specifically refers to a situation where no evidence at all of funeral expenses was presented in the trial court. However, in instances where actual expenses amounting to less than P25,000 are proved during the trial, as in the case at bar, we apply the ruling in the more recent case of People vs. Villanueva[77] which modified the Abrazaldo doctrine. In Villanueva, we held that ―when actual damages proven by receipts during the trial amount to less than P25,000, the award of temperate damages for P25,000 is justified in lieu of the actual damages of a lesser amount.‖ To rule otherwise would be anomalous and unfair because the victim‘s heirs who tried but succeeded in proving actual damages of an amount less than P25,000 would be in a worse situation than those who might have presented no receipts at all but would now be entitled to P25,000 temperate damages.[78]

prosecution. Although jurisprudence dictates that the existence of the firearm can be established by mere testimony, the fact that appellant was not a licensed firearm holder must still be established. The

prosecution failed to present written or testimonial evidence to prove that appellant did not have a license to carry or own a firearm, hence, the use of unlicensed firearm as an aggravating circumstance cannot be appreciated. Finally, it is worth noting that the RTC ordered appellant to indemnify the heirs of Edralin Macahis the amount ofP50,000.00 as death 2007 of WHEREFORE, the Decision dated June 29, the Court of Appeals is

hereby AFFIRMED withMODIFICATION. Appellan t Marlon Albert de Leon y Homo is hereby found guilty beyond reasonable doubt of the crime of Robbery with Homicide, the penalty of which, is reclusion perpetua in view of the absence of any mitigating or aggravating

indemnity, P12,000.00 as compensatory damages for

circumstance. Appellant is also liable to pay the heirs of the victim, P25,000.00 as temperate damages, in addition to the other civil indemnities and damages adjudged by the Regional Trial Court, Branch 76, San Mateo, Rizal. SO ORDERED.

G.R. No. L-48796 June 11, 1981 THE PEOPLE OF THE PHILIPPINES, plaintiffappellee, vs. DIEGO OPERO Y COSIPAG et al., accused; DIEGO OPERA Y COSIPAG, defendant-appellant. PER CURIAM: Automatic review of the death sentence imposed on Diego Opero for robbery with homicide with which he was charged in the Circuit Criminal Court of Manila, together with Reynaldo Lacsinto and Milagros Villegas, who, however, did not appeal their conviction with much lesser penalty, the last-named, as a mere accessory after the fact. Another accused, Asteria Avila was acquitted. In his brief, appellant raised only the question of the propriety of the imposition of the death penalty on him, with the following assignments of error: 1. THE LOWER COURT ERRED IN NOT CONSIDERING ARTICLE 4, PARAGRAPH 1 OF THE REVISED PENAL CODE IN DETERMINING THE CRIMINAL LIABILITY OF THE ACCUSED. THE TRIAL COURT ERRED IN NOT CONSIDERING ARTICLE 49, PARAGRAPH 1 OF THE REVISED PENAL CODE IN IMPOSING THE PENALTY ON THE ACCUSED

condition of the room were taken under Patrolman Fajardos supervision (pp. 19, 20, 21, 22, 23 & 24, t.s.n., June 15, 1978). Patrolman Fajardo came to know that the occupants of Room 314 were Dr. Hong, his wife Liew Soon Ping who is the victim in this case, their three children and two maids, namely, Mila and Ester (pp. 26 & 27, t.s.n., Id). After conducting a preliminary inquiry around the vicinity of the incident, Patrolman Fajardo made an advance report (Exh. "O"; pp. 32, 33 & 34, rec.) naming therein three suspects, namely, Diego Opero, Milagros Villegas, Asteria Avila and a fourth unidentified suspect. The names of these suspects were furnished by neighbors of the victim to Patrolman Fajardo (pp- 28 & 29, t.s.n.,Id.). After establishing the Identity of the suspects, a follow up team of Manila Policemen composed of Patrolmen Luis Lim and Servande Malabute was formed to further investigate the case. A separate police team composed of Sgt. Yanguiling and several policemen were sent to Leyte and Samar to track down the suspects (pp. 30 & 31, t.s.n., Id.). "Dr. Hong, the victim's husband who was in Cebu when the incident in his residence was committed was contacted by the police and informed about the death of his wife. Dr. Hong came back immediately from Cebu and reported to the police. He (Dr. Hong) made an inventory of the personal effects found missing in his residence. valued at P30,221.00 (pp. 31, 32 & 33, t.s.n Id; Exhs. 'R' and 'R-l'). While the case was under investigation, the homicide division of the Manila Police, received a radio message (Exh. "T-l", p. 40, rec.) relayed thru Col. Narciso Cabrera, Chief of the Detective Bureau of the Manila Police, that Reynaldo Lacsinto one of the suspects could be found in a school house in Moriones, Tondo, Manila. Another radio message (Exh. "T", p. 41, rec.) was received by the police that two other suspects in the case, namely, Diego Opero and Asteria Avila were picked up by the Samar P.C. and some of the missing articles, namely, one (1) camera, flashlight, bill fold, and other personal belongings were recovered from them (pp. 35 & 36, t.s.n., Id). Reynaldo Lacsinto was taken to police headquarters and after appraising him of his rights under the constitution, his statement was taken in the presence of his father (pp. 37, 38 & 39, t.s.n., Id; Exhs. "U" & "U-l", pp. 42, 43, 44, 45, 46, 47 & 48, rec,). In his said statement to the police, Lasinto admitted his participation and narrated in detail the commission of the robbery in Room 314 of the House International Hotel. The Samar P.C. turned over three other suspects, namely Diego Opero, Milagros Villegas and Asteria Avila to Sgt. Yanguiling who brought said suspects to Manila and turned them over to the homicide division of the Manila Police, together with some of the stolen articles (pp. 31 & 32, t.s.n., June 16, 1978). Statements of these three suspects (Exhibits "B", "C", and "D", respectively) taken by the Samar P.C. were also turned over by Sgt. Yanguiling to the homicide division (pp. 34 & 35, t.s.n.Id). Opero was investigated further at the Manila Police Headquarters and he gave a supplemental statement (Exh. "FF", pp. 70-74, rec.; p. 36, t. s.n. Id) admitting that he had robbed the victim

2.

For the facts of the case, the narration of which in both the People's brief and that of appellant does not vary as to the essential ones, we could very well quote from the Appellee's brief, being the more comprehensive and complete, and the following: At about 4:00 o'clock in the morning of April 27, 1978, Salvador Oliver, a GSIS security guard assigned to the House International Hotel at Ongpin Street, Binondo, Manila, was informed by Demetrio Barcing another security guard, that the latter picked up a little girl about three years old loitering at the second floor of the building. Rafael Ordona a janitor of the House International Hotel, told Oliver that the little girl is residing at Room 314 of the hotel. Oliver called up Room 314 by telephone and when nobody answered, he and Barcing brought the little girl to said Room 314 (pp6, 7, & 8, t.s.n., June 15, 1978). Upon reaching Room 314, Oliver knocked at the door, and when nobody answered, he pushed the door open but he smelled foul odor emanating from the room. Oliver covered his nose with a handkerchief and together with Barcing and the little girl, they entered the room where they saw prostrate on a bed a dead person with the face down and both feet tied. Oliver called up the homicide division of the Manila Police. Patrolman Fajardo who was assigned to investigate the report of Oliver, together with some funeral parlor men arrived at the scene, and they saw a small baby crying and trying to get out of a crib near the bed of the dead person. (pp. 9, 10 & 11, t.s.n., Id). The dead body at Room 314 of the House International Hotel was that of Liew Soon Ping, Room 314 had been ransacked and personal belongings thrown all around. The hands and feet of the dead person were tied and the body was bloated. A towel was tied around the mouth of the victim. Photographs of the dead person and the

and Identified some of the missing articles recovered from his possession (pp. 41 & 42, t.s.n. Id). He described in detail how he planned the robbery and named the rest of his coaccused as willing participants. He also narrated in his said supplemental statement that he and his co-accused Lacsinto subdued the victim by assaulting her, tying up her hands and feet stabbing her and stuffing her mouth with a piece of pandesal (pp. 70- 74, rec.). In her statement to the Manila police (Exh. 'GG', pp. 74 & 75, rec.) Milagros Villegas Identified the stolen clothes which were given to her by Opero. (pp. 44, 45 & 46, t. s. n. Id) The third suspect, Asteria Avila told the Manila police that she was not a party to the crime and upon advice of her lawyer she did not give any further statement. (p. 47, t. S. n. Id) A reenactment of the crime at the crime scene was held under the direction of Opero portraying - his role, with Lacsinto depicting his part, and pictures of the reenactment were taken (pp. 51, 52, 53, 54, 55, 56, 57, 58, 59 & 60, t. s.n. Id; pp. 79-99, incl., rec.). The body of the victim Liew Soon Ping was autopsied by Dr. Angelo Singian, then Chief of the Medico Legal Division of the Western Police District. The body was Identified by the victim's husband. Dr. Singian examined the body of the victim and issued a death certificate (Exh. "AA"), and the necropsy report (Exh. 'BB'), with the following findings: 1) a pale yellowish band across the eyes of the victim caused by the application of a towel, or broad piece of cloth across the eyes; 2) a pale yellowish band across the mouth caused by a similar material as the one applied across the victim's eyes, which was tied across the mouth; 3) contusion and hematoma on the upper and lower lips caused by a blunt instrument; 4) abrasions on the right side of the chin; 5) broad linear mark of clothing material on the neck; 6) cord or ligature marks on the left and right arm, indicating that both arms were tied; 7) abdomen distended with gas, due to decomposition; 8) epiglotis, hematoma and contusion on the right side of the tongue; 9) contusions and hematoma on the right cheek; 10) superficial stab wound measuring 0.8 c.m. on the right side of the chin caused by a sharp bladed instrument; 1 1) superficial stab wound on the midaxilliary line caused by a sharp bladed instrument: 12) stab wound on the left forearm: 13) cord markings on both feet. Internal findings reveal an impacted bolus of white bread measuring 3 x 2.5 cm in the oropharynx. The tongue has contusion on the right lateral side and an abrasion across the middle portion. The larynx and trachea are markedly congested. The cause of death was due to asphyxiation by suffocation with an impacted bolus into the oropharynx and compression of the neck with a broad clothing around the neck (pp. 6-18, incl., t. s. n. June 16,1978; Exh. "BB" pp. 62 & 63, rec.). In his first assignment of error, appellant advances the theory that he never intended to kill the deceased, his intention being merely to rob her, for if indeed he had the intention to kill her, he could have easily done so with the knife, and therefore, his liability should be only for robbery.

Appellant's theory finds no basis in the law or in jurisprudence. It was been repeatedly held that when direct and intimate connection exists between the robbery and the killing, regardless of which of the two precedes the other, or whether they are committed at the same time, the crime committed is the special complex crime of robbery with homicide. 1 If the circumstances would indicate no intention to kill, as in the instant case were evidently, the intention is to prevent the deceased from making an outcry, and so a "pandesal" was stuffed into her mouth, the mitigating circumstance of not having intended to commit so grave a wrong may be appreciated. 2 The stuffing of the "pandesal" in the mouth would not have produced asphyxiation had it not slid into the neckline, "caused by the victim's own movements,‖ according to Dr. Singian. The movements of the victim that caused the "pandesal" to slide into the neckline were, however, attributable to what appellant and his co-accused did to the victim, for if they did not hogtie her, she could have easily removed the "pandesal" from her mouth and avoided death by asphyxiation. It may not avail appellant to contend that the death was by mere accident for even if it were so, which is not even beyond doubt for the sliding of the pandesal into the neckline to produce asphyxiation could reasonably have been anticipated, it is a settled doctrine that when death supervenes by reason or on the occasion of the robbery, it is immaterial that the occurrence of death was by mere accident. 3 What is important and decisive is that death results by reason or on the occasion of the robbery. 4 These Spanish doctrines were cited by this Court in People vs. Mangulabnan, et al., 99 Phil. 992. Appellant would also have Article 49, paragraph I of the Revised Penal Code apply to him, and faults the court a quo for having failed to do so. The provision cited reads: Art. 49. Penalty to be imposed upon the principals when the crime committed is different from that intended — In cases in which the felony committed is different from that which the offender intended to commit, the following rules shall be observed: 1. If the penalty prescribed for the felony committed be higher than that corresponding to the offense which the accused intended to commit, the penalty corresponding to the latter shall be imposed in its maximum period. xxx xxx xxx. The foregoing provision has been applied only to cases when the crime committed befalls a different person from the one intended to be the victim. This was the explicit ruling in the case of People vs. Albuquerque, 59 Phil. 150-153, and citing decisions of the Supreme Court of Spain." 5 In the instant case, the intended victim, not any other person, was the one killed, as a result of an intention to rob, as in fact appellant and his co-accused, did rob the deceased. As stated earlier, what may be appreciated in appellant's favor is only the mitigating circumstance of not having intended to commit so grave a wrong as that committed, under paragraph 3 of Article 13 of the Revised Penal Code, an entirely different situation from that contemplated under paragraph 1, Article 49 of the same Code, where as already explained, the different felony from that intended, befalls someone different

from the intended victim, as when the person intended to be killed is a stranger to the offender, but the person actually killed is the offender's father, thereby making the intended felony which is homicide different from the crime actually committed which is parricide. Notwithstanding the presence of the mitigating circumstance of not having intended to commit so grave a wrong as that comitted, there still remains one aggravating circumstance to consider, after either one of the two aggravating circumstances present, that of superior strength and dwelling, is offset by the mitigating circumstance aforesaid. The higher of the imposable penalty for the crime committed, which is reclusion perpetua to death, should therefore be the proper penalty to be imposed on appellant. 'This is the penalty of death as imposed by the lower court. WHEREFORE, the judgment appealed from being in accordance with law and the evidence, except as to the non-appreciation of the mitigating circumstance of having no intention to commit so grave a wrong as that committed, which nevertheless does not call for the modification of the penalty of death as imposed by the lower court, is hereby affirmed. Cost de oficio. SO ORDERED.

G.R. No. 131835 February 3, 2000 PEOPLE OF THE PHILIPPINES, plaintiffappellee, vs. ARNULFO QUILATON alias "ARNOLD," PATRICIO QUIYO, DIDING MAMALINGPING, AVELINO AHAO y LATIMBANG, HILDO BUACON y EMPONG, accused; ARNULFO QUILATON alias "ARNOLD," appellant. PANGANIBAN, J.: The burden of proof rests upon the prosecution. Unless it succeeds in proving the guilt of the accused beyond reasonable doubt, the constitutional presumption of innocence remains. Mere passive presence at the crime scene does not prove participation in the conspiracy. Statement of the Case Arnulfo Quilaton appeals before us the February 5, 1996 "Judgment"2 of the Regional Trial Court of Kidapawan, Cotabato (Branch 17), in Criminal Case No. 1560 which disposed as follows:3 WHEREFORE, prescinding from all the foregoing considerations, the Court hereby pronounces the accused Avelino Ahao, Hildo Buacon and Arnulfo Quilaton guilty of the crime charged beyond reasonable doubt and accordingly hereby sentences each to undergo [the] prison term of [r]eclusion [p]erpetua for the death of Pio de Juan and Arturo Laos,4 to indemnify the heirs of Arturo Laos and Pio de Juan and for [the] frustrated murder of Jerry de Juan, Arnel Laos and Carlito Taping, the Court hereby sentences each to suffer an indeterminate penalty ranging from eight years of prision mayor, as minimum, to seventeen years and four (4) months of Reclusion Temporal as maximum and to pay medical expenses incurred by the victim.1âwphi1.nêt The criminal liability of Patricio Quiyo and Diding Mamalingping is extinguished pursuant to Art. 89 of the Revised Penal Code. On September 23, 1982, acting Second Assistant Provincial Fiscal Camilo O. Fulvadora filed an Information deed September 17, 1982, charging herein appellant and the other accused as follows:5 That on or about August 9, 1980, at Barangay Kauswagan, Municipality of Magpet, Province of North Cotabato, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a 20 gauge pistol, ax, claw bar, and a hoe, with intent to kill, conspiring, confederating together and mutually helping one another, with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault, ax and wound Arturo Laus and Pio de Juan, thereby hitting and inflicting upon the latter mortal wounds on the vital parts of their bodies which caused their instantaneous death, and on the same occasion, the same accused with intent to kill, and in treacherous manner, did then and there willfully, unlawfully and feloniously

beat Jerry de Juan, strike Arnel Laus, hack and shoot Carlito Taping, hitting and inflicting on the vital parts of their bodies, thus performing all the acts of execution which would have produced the crime of Triple Murder, as a consequence, but nevertheless, did not produce it by reason of causes independent of the will of the perpetrators, that is, by the timely and able medical assistance rendered to Jerry de Juan, Arnel Laus and Carlito Taping which prevented their death. Accused Diding Mamalimping and Patricio Quiyo died during the pendency of the proceedings in the trial court.6On June 16, 1983, the three other accused, with the assistance of Attys. Gregory Yarra and Jorge Zerrudo, entered a plea of not guilty.7 A rather lengthy trial ensued. On March 20, 1996,8 the trial court promulgated its "Judgment" dated February 5, 1996. In an Order dated June 17, 1996, the court a quo denied Quilaton's Motion for Reconsideration.9 Hence, this appeal filed by Quilaton only.10 The Facts Version of the Prosecution In its Brief,11 the prosecution summarized the facts of this case as follows:12 [O]n the evening of August 9, 1980, Erlinda Taping, her husband Carlito Taping, and their children were sleeping at the sala of the second floor of her father's house in Kauswagan; Magpet, North Cotabato (p. 13, TSN, March 14, 1985). Downstairs, Arturo Laus (Erlinda's father), Hildo Buacon, appellant Arnulfo Quilaton, Diding Manalingping, Avelino Ahao, Arnel Laus, Gerry de Juan, and Pio de Juan were sleeping (p. 11, TSN, March 4, 1985). Buacon, Quilaton, Ahao, Pio de Juan and Mamalingping were laborers in Arturo Laos' rubber plantation (pp. 3-4, TSN, March 14, 1985). Between 10:00 p.m. and 11:00 p.m. of the same night, Erlinda was sleeping when she was struck by an ax (p. 14, TSN, March 14, 1985). She shouted at her husband, Carlito, and woke him up (p. 14, TSN, August 20, 1984). Carlito Taping stood up. Erlinda, on the other hand, got a flashlight and, with it, saw her husband push Hildo Buacon and Diding Mamalingping (p. 15, TSN, August 20, 1984). Carlito Taping was hacked by Hildo Buacon on the head (p. 16, TSN, August 20, 1984). Carlito then pushed Buacon and Mam[a]lingping down. The two men fell to the elevated floor portion of the stairs before reaching the ground floor (pp. 18-19, TSN, August 21, 1984). Thereafter, Patricio Quiyo who was downstairs handed a gauge 20 firearm to Buacon (p. 21, TSN, March 14, 1985) who then went upstairs and shot Carlito Taping. The latter was hit [i]n the stomach (p. 20, TSN, August 21, 1984). Erlinda Taping was almost 1 1/2 meters from her husband, and 3

to 4 meters from Buacon at the time of the shooting (p. 21, TSN, August 21, 1984). After the shooting, Buacon gave the gun to Patricio Quiyo (p. 21, TSN, August 21, 1984). Thereafter, these two men with Diding Mamalingping ran out of the house (p. 22, TSN, August 21, 1984). When Erlinda, with Carlito and their children, went downstairs, she saw her father (Arturo Laus) already dead, with a wound on the face just above the nose. Pio de Juan was lying face down on the cemented floor, also dead. Erlinda also saw Arnel Laus wounded on the head, but still alive, as well as Gerry de Juan who was likewise wounded (pp. 22-25, TSN, August 21, 1984). Carlito saw appellant Quilaton come out from under the bed (p. 8, TSN, January 4, 1984). Erlinda brought Arnel Laus and Carlito Taping to the Brokenshine Hospital. She did not bring Gerry de Juan along since she thought he was already dead (p. 26, TSN, August 21, 1984). De Juan was brought to the Madonna Hospital. It was appellant who paid for his hospitalization (pp. 26-28, TSN, August 21, 1984). Version of the Defense In his Brief, appellant submits the following statement of facts:13 On August 9, 1980 at Barangay Kauswagan, Magpet, North Cotabato, a group of malefactors attacked/assaulted the occupants of a house and committed the following crimes: double murder and triple frustrated murder. It was established that these persons were also occupants of the house that night and were sleeping there being workers/laborers, and in the case of Arnulfo Quilaton, a houseboy, 16 years of age. The victims of the crimes were ARTURO LAUS and PIO DE JUAN who were killed[;] JERRY DE JUAN, ARNEL LAUS and CARLITO TAPING, Arturo Laus' son-in-law were seriously injured. Accused of the crimes were: PATRICIO QUIYO, DIDING MAMALINGPING, AVELINO AHAO, HILDO BUACON and ARNULFO QUILATON alias ARNOLD. It was also established that in the afternoon of that day there was a drinking some in the rubber plantation attended by the accused. But while Buacon declared that Arnulfo Quilaton was with the group, this was denied by Avelino Ahao, who omitted Arnulfo's name in his testimony, but Carlito Taping, principal witness and offended party declared that Quilaton was not a participant in the spree, confirmed by Quilaton himself when he testified in his behalf. There is therefore serious doubt as to the participation of ARNULFO QUILATON in the conspiracy,

thus he can not legally be responsible for the acts of his co-accused, especially [since] it is a basic rule of evidence that conspiracy must be proved like the crime itself beyond reasonable doubt. Carlito Taping who was seriously injured during the incident was first treated at Sto. Niño Hospital in Makilala town but was transferred to the Brokenshire Hospital in Davao City. The prosecution's Offer of Evidence/Exhibits will show that no doctor was presented, but the medical certificates of the wounded were identified by Carlito Taping and/or Erlinda Laus Taping. From the evidence adduced, it appears that the MOTIVE for the crimes committed were (1) tenancy disputes and (2) [the allegation that] Carlito Taping . . . boxed Patricio Quiyo in the presence of the Barangay Captain; Jesus Kionisala.14 The trial court summarized appellant's testimony in this wise:15 ARNULFO QUILATON testifying in his behalf declared that he is 29 years old, married, farmer, a resident of Kauswagan, Magpet, Cotabato. That on 9 August 1980, he was in the house of his employer Arturo Laos. He denied having planned and participated in the killing of Laos and Pio de Juan. He admitted having struck Jerry de Juan believing that he was a bad man. The house of Arturo Laos is a two (2) storey [structure;] the upper portion is occupied by the Taping family, while the lower portion is occupied by Arturo Laos, Pio de Juan, Jerry de Juan and Arnel Laos. He denied having knowledge of the plan to kill Laos and de Juan as he was at the time in his employer's house. Ruling of the Trial Court In convicting the accused, the trial court explained:16 From the mass of evidence, the prosecution has established the identity of the accused Hildo Buacon, Avelino Ahao and Arnulfo Quilaton as the perpetrators of the crime. Accused's pretended innocence . . . is overturned by the prosecution's evidence, particularly the testimonies of Carlito Taping and Erlinda Taping who positively identified all of the accused on that fatal evening. Conspiracy has been established in the instant case . . . . Accused failed to present an iota of evidence to at least corroborate their testimonies. No motive was established by the defense as to why they [were] being indicted for such a heinous crime. Assignment of Errors Appellant submits that the trial court committed the following errors: (1) . . . FINDING ARNULFO QUILATON GUILTY BEYOND REASONABLE

DOUBT OF THE CRIMES CHARGED BASED UPON THE EVIDENCE PRESENTED DURING THE TRIALS; (2) . . . SENTENCING ARNULFO QUILATON TO THE MAXIMUM PENALTY OF RECLUSION PERPETUADESPITE CONCLUSIVE PROOF WHICH IS OF JUDICIAL NOTICE THAT SAID ACCUSED, ARNULFO QUILATON was a minor of 16 years at the time of the incident, AS THE RECORDS SHOW THAT HE WAS IN THE CUSTODY OF HIS PARENTS; (3) . . . FINDING ARNULFO QUILATON IN CONSPIRACY WITH HIS CO-ACCUSED; (4) . . . NOT CONSIDERING THE DESISTANCE OF THE DE JUAN RELATIVES AND THE RETRACTION OF CARLITO TAPING, OFFENDED PARTY AND EYE-WITNESS. In resolving this appeal, the Court will determine whether the prosecution has proven appellant's guilt beyond reasonable doubt. This Court's Ruling The appeal is meritorious. Main Issue: Sufficiency of Prosecution Evidence The burden of proof rests upon the prosecution. Unless the guilt of the accused is proven beyond reasonable doubt, the constitutional presumption of innocence applies.17 In the present case, the prosecution presented two alleged eyewitnesses, Carlito and Erlinda Taping. Relying on their testimonies, the trial court ruled that appellant conspired with the other accused in attacking the victims on the night of August 9, 1980. While these two witnesses categorically established the criminal participation of the other accused, their very testimonies show, however, that appellant had no part in the conspiracy. There was no showing at all that he had confabulated with or assisted any of the other accused in committing the crime, or that he was even aware of their criminal design. Erlinda Taping testified as follows:18 Q At about between 19:00 o'clock to 11:00 o'clock that evening of August 9, 1980, was there any unusual incident that happened inside your house? A Yes, sir, there was. Q What happened? A First, I noticed that I was struck by an ax. Q When you were hit what did you [do] if you did anything? A I shouted at my husband that there was a man. xxx xxx Q When your husband stood up, what did you do? A I got a flashlight. Q And what did you do with the flashlight? A I flash[ed] the flashlight [on] them. xxx

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Q And did you see anybody when you flash[ed] the flashlight? A Yes, sir. Q What [did] you [see]? A I saw that he was push[ed] down by my husband. Q Who was pushed by your husband? A Hildo Buazon and Diding Mamalimping. xxx xxx Q When your husband stood up, what happened, if any? A He was hacked by Hildo Buacon. xxx xxx Q After he was hit on the head by Hildo Buacon, what happened next? A When he was hacked on the head, he pushed the two men down. xxx xxx Q Now when these two, Hildo Buacon and Diding Mamalimping fell on the elevated portion of the stair, what did your husband do, if any? A He just watched them. xxx xxx Q While your husband was watching . . . that portion, of the house, what happened next, if any? A Patricio Quiyo told Buacon to shoot. Q Where was Patricio Quiyo at that time? A He was down stairs. xxx xxx Q And what did Hildo Buacon do, if any? A He went upstairs and then [fired a shot]. Q Who was shot? A My husband, sir. xxx xxx Q Now, what did your husband do after he was shot[?] A He just sat down. Q What about these 3 persons, Hildo Buacon, Diding Mamalimping and Patricio Quiyo, what did they do if they did anything? A They ran away. Q You mean they went out of your house? A Yes, sir. Q [Did] you [see] Arnulfo Quilaton that time? A Yes, Sir, when we went downstairs already. Q Where was Arnulfo Quilaton when you went downstairs? A He was in the bodega.

Erlinda's direct testimony dearly shows that she saw appellant only after the incident. In fact, her averments during cross-examination established that she saw him only when he came our of hiding.19 A When we went down we saw Arnulfo Quilaton and Hildo Buacon [on] the cement. Hildo Buacon went out [from] under the bed. Arnulfo Quilaton [sought] cover at the corn mill.

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Q So, when you went down and when you saw these persons, Hildo Buacon and Arnulfo Quilaton, you saw them hiding? A Yes, sir Q And what did you do when you saw them? A We just proceeded to the car and Buacon and Quilaton went with us. xxx xxx xxx Q You mean to tell us that Arnulfo Quilaton and Hildo Buacon helped in bringing the victim Arnel Laos and load[ing] him in the car? A Yes, sir. Carlito Taping narrated the incident in this wise:20 Q At about 10:00 o'clock in the evening of August 9, 1980, was there any unusual incident that took place in your house? A There was, sir. xxx xxx xxx Q Tell us, what [was] that incident? A At around 10:00 o'clock . . . that evening of August 9, 1980, while I was sleeping all of a sudden I woke up when my wife told me that there was a person so I woke up and after I woke up, I stood and then a person hacked me. xxx xxx xxx Q What followed next after you were hacked? A When I was hacked by that person, I took hold of him and I pushed him down to the ladder. xxx xxx xxx Q Who hacked you, if you know? A Hildo Buacon. Q If this Hildo Buacon is inside the courtroom now, could you point to him? A Yes, sir. Q Please do so[.] A (Witness points to a person inside the room who when asked his name answered Hildo Buacon, one of the accused herein). xxx xxx xxx Q On what part of your house were you when you were hacked? A I was hacked at the sala of [the] upper floor of our house. xxx xxx xxx Q After wiping your forehead because of blood oozing, what happened next? A My wife tied my head with a piece of cloth. Q What about Hildo Buacon, where was he when your wife was tying your forehead with a piece of cloth? A They fell down . . . the stairs. xxx xxx xxx Q You used the word "they", who were they? A Diding Mamalimping. Q Before Diding Mamalingping fell together with Hildo Buacon, what did Diding Mamalimping do? A He was able to come up the stairs. Q Why did these Hildo Buacon and Diding Mamalimping f[a]ll [down] the stairs? A Because I took hold of Hildo Buacon and pushed him [down] the stairs and at the

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same time kick[ed] him, that [was] why they fell. xxx xxx Q After pushing down Buacon and Mamalimping and they fell [down] the stairs, what did you do? A I got my "lagarao" which was place[d] about my pillow. Q At that time, what was your wife doing, i[f] any? A She took our flashlight. Q What did she do with that flashlight? A After I took hold of my "lagarao" I wanted to follow them but when my wife flashed the flashlight, they were no longer there; they were already down the house. Q After that? A I ran upstairs because I heard Quiyo saying: "pusila" meaning, "[shoot] him[.]" Q Did you see Quiyo when he uttered "shoot him"? A Yes, sir. Q Where was Quiyo that time? A He was also there at the base of the stairs . . . . Q How were you able to recognize him? A Because my wife [trained the] flashlight [on] him. xxx xxx Q After you were shot, what did you do next? A I ran to my room and hid. Q How about your children, what did they do? A They cried for help. Q Your wife? A She shouted for help. Q And was there anybody who came to help you? A None, sir. Q Since nobody came to [your] succor . . ., what did you do? A I told my wife that we will go down altogether so that I can be brought to the hospital. Q How did you go down? A I was not able to go down yet because there were people downstairs. Q What did you do when you observed that there were persons below your house? A I just sat inside my room. Q And, finally, were you able to go down? A Yes, we were able to go downstairs because I told . . . all of them that we will altogether go down the house. Q When you were able to go downstairs, who were those people you saw downstairs? A Hildo Buacon and Arnulfo Qulaton were there downstairs. Q By the way, why was Arnulfo Quilaton there that time? A Because he slept in our house. Q Why, is Arnulfo Quilaton your employee? A Yes, sir. Q Employed with whom? A With my father-in-law. Q What was Arnulfo Quilaton doing that time [when you saw] him downstairs?

A They came out from under the bed. Nothing in the foregoing testimony imputes any criminal act to appellant. Moreover, Carlito subsequently declared that, to his knowledge, appellant did not participate in the crime. In an affidavit dated May 23, 1994, he averred:21 That I very well know Arnulfo Quilaton alias Arnold, he having grown up in our family and that I very well know and am convinced that he had nothing to do and was totally innocent of the gory and tragic incident that happened to our family on August 9, 1990 at nighttime; That I and my witnesses did not see or notice any participation or involvement of Arnulfo Quilaton relative to the crime, and as a matter of fact he assisted and accompanied me in going to the hospital, first [to] Sto. Niño, Makilala, Cotabato and later to the Brokenshire Hospital in Davao City; that I know him to be trustworthy and of good moral character. Proof of Conspiracy Citing the testimonies of Erlinda and Carlito, the trial court nonetheless convicted appellant on the basis of his alleged conspiracy with the other accused. We disagree. The well-settled rule is that conspiracy must be proven as clearly as the commission of the offense itself.22 True, direct proof is not essential, because conspiracy may be inferred from the conduct of the accused before, during and after the commission of the crime, showing that they had acted with a common purpose and design.23 Clearly, however, the prosecution failed to prove the elements of conspiracy. There was no evidence that appellant aided the other accused or that he participated in their criminal design. Conspiracy was not implied by his mere presence at the crime scene,24 which could be explained by the fact that as an employee of the deceased, he had been told to sleep there. In fact, the two eyewitnesses saw him only after the incident. The testimonies given to implicate appellant indicated only that he was seen coming out of hiding after the other accused had fled. There was nothing abnormal or sinister about his conduct. That he hid while the killing was being committed was not a crime. Some may damn him for cowardice but, just the same, the act of hiding did not prove participation or conspiracy in the crime. Furthermore, appellant himself assisted Carlito Taping in bringing the wounded to the hospital that night. While this act did not necessarily prove that he was innocent, it nonetheless strengthened his contention that he had no part in the criminal design. Testimonies of the Other Accused Failed to Implicate Appellant Noteworthy is the fact that not one of the other accused, after having admitted their participation in the crime, implicated herein appellant. Accused Hildo Buacon stated that he participated in the attack, because he had been threatened by Diding Mamalingping and Patricio Quiyo. He testified thus: Q After you ha[d] been already sleeping, what happened? A This Diding Mamalimping awakened me. Q What did he tell you? A He told me, "pag-mata na, naa na si Patricio Quiyo", meaning, wake up because Patricio Quiyo is already here. Q After you woke up, what did you do?

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A When I woke up, this Patricio Quiyo pointed a gun towards me. Q What did Patricio Quiyo tell you after point[ing] a gun to you? A He said, "patyon nato si Arturo Laos ug Carlito Taping", meaning, let us kill Arturo Laos and Carlito Taping. Q What did you tell him when you heard that? A I answered, "dili ko ana Nong kay wala siyang atraso nako", meaning, I will not, he has no differences with me. Q What happened after that? A If you will not accede, I will kill you. Q What happened next? A Because of fear, I acceded. Q Now, what happened next when you acceded? A He also called on Avelino Ahao to wake up. Q Why? where was Avelino Ahao sleeping that time? A In the other room [in] that same house. Q After Avelino Ahao . . . already woke up, what happened next? A He was threatened in the manner [in] which I was threatened. Q Then what happened next? A They killed Arturo Laos and Pio De Juan. Q Who killed Pio De Juan and Arturo Laos? A Patricio Quiyo and Diding Mamalimping killed Arturo Laos. Q How about [Pio] De Juan? Who killed him? A Avelino Ahao struck him with an iron bar on the portion below his left arm and then he was hacked by Patricio Quiyo. xxx xxx Q What were you doing that time? A I just look[ed]. Q Then, after the two were already killed, what happened next? A I was brought upstairs to the place where Carlito Taping was. Q And you went with them upstairs? A Yes, I went with them. Q Who were with you when you went upstairs? A Patricio Quiyo and Diding Mamalimping. Q What happened when you went up? A This Carlito Taping woke up and I hacked him. Q Where was he hit? A He was hit on his temple but because he resisted, he pushed me. Q Where were you pushed? A Towards the stairs. Q Then what happened when you were pu[sh]ed downstairs? A Immediately, this Patricio Quiyo handed me a gun and told me to shoot Carlito Taping. Q Was Carlito Taping hit when you [shot] him? A Yes, [i]n his stomach. Q Then what happened next after that?

A He fell then we, all of us, went down. Q Then what happened next? A Mrs. Taping [trained her flashlight on] us and I hid under the bed. Q Then how about the others, Diding Mamalimping and Patricio Quiyo and Avelino Ahao, what did they do? A I do not know anymore where they were. Accused Ahao, on the other hand, also stated that he took part in the commission of the crime, together with Buacon, Quiyo and Mamalingping. Like Buacon, he made no mention that appellant was part of their group. Testimony of Appellant Even the solicitor general admitted that the two prosecution witnesses' testimonies, by themselves, "appear insufficient to establish appellant's guilt beyond reasonable doubt"; and that they "do not constitute adequate proof that appellant participated in the crimes committed [against] the victims."25 The solicitor general maintains, however, that what linked appellant to the crime was this portion of the latter's testimony: Q And while there was a rumble, you were just sleeping? A I was surprised regarding that commotion. Q Isn't it that you were given an iron bar to hit one of the victims in the person of Jerry de Juan? A Incidentally, I took hold of the "sadol" hoe and upon seeing that the person I met [was] a bad person . . . I hit him and I discovered later that it was Jerry de Juan.26 The solicitor general argues that these statements constituted sufficient proof of appellant's participation in the conspiracy.

We disagree. That alleged admission, by itself, did not show beyond-reasonable doubt that appellant was part of the conspiracy. He himself explained that he thought he was hitting one of the "bad-men." His explanation must be viewed in the light of the chaos that characterized the night. As testified to by the other accused, there were four attackers. It was dark and forbidding. It was not surprising that someone who was not a part of the conspiracy was confused and unable to think rationally. That appellant immediately concluded that the person he had hit was one of the attackers was not farfetched. To repeat, no other act was imputed to him. Verily, the circumstance cited by the solicitor general fails to produce moral certainty that appellant was part of the conspiracy. In the present case, we are convinced that the prosecution evidence failed to overcome the constitutional presumption of innocence. The appellant deserves an acquittal and must forthwith be given back his liberty.27 WHEREFORE, the appeal is hereby GRANTED; and the Decision of the Regional Trial Court of Kidapawan, Cotabato, insofar as it convicted Appellant Arnulfo Quilaton, is, hereby REVERSED and SET ASIDE. On reasonable doubt, appellant is hereby ACQUITTED. The director of the Bureau of Corrections and the head of the Davao Prison and Penal Farm are hereby directed to release appellant immediately, unless he is being lawfully held for another cause; and to inform the Court of the date of his release, or the reasons for his continued confinement, within ten days from notice. No costs. SO ORDERED.1âwphi1

PO3 BENITO SOMBILON, JR.,Petitioner, - versus PEOPLE OF THE PHILIPPINES, Respondent.

G.R. No. 175528 Present: PUNO, C.J., Chairperson, CARPIO, CORONA, LEONARDO-DE CASTRO, and BERSAMIN, JJ. Promulgated: September 30, 2009

The facts found during trial, as succinctly stated by the CA, are as follows:

The facts found during the trial reveal that on or about August 15, 1998, AAA, a fifteen (15)year old minor, was investigated by Appellant at the Calinan Police Station, Davao City in connection with a complaint for Theft filed by a certain Aileen Dagoc. AAA alleged that Appellant, in conducting the investigation, took her inside a room and locked it. She testified that the room had no window but had a cot, a table, and a clothesline where some clothes were hanged. She claimed that Appellant pointed a gun at her, with the end of the barrel touching her forehead and pushed her with it, causing her head to violently bang against the wall, and asked her: ―Did you steal the necklace?‖ She answered that she did not. Appellant then took an electric wire from a drawer and inserted its male plug to a socket. She was ordered to place her two hands on top of the table where her fingers were electrocuted with the end of the wire. She was again asked the same question, which she kept answering in the negative. Subsequently, she was asked: ―Dalaga ka na ba?‘ (Are you a woman now?), and was told: ―I am single too.‖ Simultaneously, she was touched all over her body including her breasts, her belly, and her private parts. She was also kissed on her cheek. She struggled to resist the sexual advances but Appellant prevailed. She claimed that they were inside the room for more than one (1) hour. Thereafter, they went out of the room where Appellant announced to P03 Danilo Mendez and Aileen Dagoc that she had already admitted having stolen the necklace. Pale, AAA was trembling and crying; her hair disheveled, her dress wet. She also had bruises on her forehead.

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DECISION

LEONARDO-DE CASTRO, J.:

This resolves the petition for review which seeks to annul and set aside the following rulings of the Court of Appeals (CA) in C.A. C.R. No. 27729: a) the Decision[1] dated July 28, 2005 which affirmed with modification the decision[2] dated May 13, 2003 of the Regional Trial Court of Davao City (RTC), convicting petitioner of acts of lasciviousness; and b) the Resolution[3] dated September 22, 2006 denying petitioner‘s Motion for Reconsideration of the

The police officers allowed AAA and her

mother to go home on the condition that they would

pay the value of the necklace. Because of AAA‘s

aforesaid Decision.

condition, AAA‘s mother brought her daughter to

the Medical Clinic of St. Luke where AAA was

examined by Dr. Manuel Garcia, Sr.[4] Dr. Garcia gave

upon the person of AAA, by then and there embracing, mashing the breast, and touching the private part, against her will. CONTRARY TO LAW.

AAA a tranquilizer to calm down the latter who was Upon arraignment, petitioner pleaded ―not guilty.‖ Trial ensued thereafter. answer the doctor when she was asked what happened

trembling and incoherent.[5] At first, AAA could not

to her. Later, upon regaining her composure, she

On May 13, 2003, after trial on the merits, the RTC rendered a decision finding petitioner guilty of acts of lasciviousness with the aggravating

revealed that she was electrocuted and sexually

molested

by

petitioner.[6] The

Medical

circumstance of petitioner‘s taking advantage of his public position and sentenced him to six (6) months ofarresto mayor, as minimum, to five (5) years, four (4)

Certificate[7] issued by

Dr. Garcia

disclosed the

following injuries: 1. 2. 3. 4. 5. Slight contusion over occiput region. Slight contusion over center area of forehead. Multiple slight contusions of fingers of bilateral hands. Multiple slight contusions of bilateral breast areas. Slight body tremors.

months

and

twenty-one

(21)

days

of prision

correccional, as maximum. The dispositive portion of the Decision reads:

Diagnosis: Slight Physical Injuries

In an Information[8] dated August 23, 1999,

petitioner was charged with the crime of Acts of

Lasciviousness committed as follows:

For the foregoing judgment is hereby rendered, finding accused P03 Benito Sombilon, GUILTY beyond reasonable doubt of the crime of Acts of Lasciviousness, under Article 366 of the Revised Penal Code, and is hereby sentenced to suffer imprisonment under the Indeterminate Sentence Law from Six (6) months of Arresto Mayor, as minimum to Five (5) years, Four (4) months and Twenty-one (21) days of Prision Correccional, as maximum and directed to pay private complainant AAA the following: a.) by way of moral Damages, the amount of Ten Thousand Pesos (PhP10,000.00); and by way of Exemplary Damages, the amount of ten Thousand Pesos (Php10,000.00).[9]

The undersigned accuses the above-named accused of the crime of Acts of Lasciviousness, under Art. 336, in relation to Art. 344 of the Revised Penal Code, upon the instance of the complainant AAA, who is 15 years old, whose affidavit is hereto attached to form part of this Information. The crime is committed as follows: That on or about August 14, 1998, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, motivated by lewd design, willfully, unlawfully, and feloniously

b.)

From

the

above

decision,

petitioner

interposed an appeal to the CA, which was docketed as CA-G.R. CV No. 40419. On July 28, 2005, the CA rendered the herein challenged Decision affirming with modification the RTC‘s judgment of conviction. Appreciating the aggravating circumstance of taking advantage of public position which was adequately established during the trial, the CA increased the maximum penalty imposed against petitioner to its maximum period of six years ofprision correccional. The dispositive portion of the Decision reads: WHEREFORE, the Decision of the Regional Trial Court, Br. 8, Davao City in Criminal Case No. 43, 810-99 is hereby AFFIRMED with MODIFICATION. Appel lant P03 Benito Sombilon, as found guilty beyond reasonable doubt of the crime of acts of lasciviousness, defined and penalized under article 336 of the Revised Penal Code, is hereby sentenced to suffer the indeterminate penalty of 6 months of arresto mayor as minimum, to 6 years of prision correccional, as maximum. Appellant is likewise ordered to pay the victim, AAA, the amount of Php10,000.00 as moral damages and another Php10,000.00 as exemplary damages. With costs. SO ORDERED.[10]

ASSUMING BUT NOT ADMITTING, THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE APPRECIATION OF THE AGGRAVATING CIRCUMSTANCE OF TAKING ADVANTAGE OF HIS PUBLIC POSITION FOR FAILURE TO ALLEGE IN THE INFORMATION; III THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE AWARD OF DAMAGES.[11] Petitioner contends that the CA erred in affirming his conviction for acts of lasciviousness. Even as he admits havingmerely touched the victim, petitioner argues that the act of touching did not constitute lewdness. At most, he could only be convicted of unjust vexation. Petitioner likewise asserts that while the victim was being touched, the latter tried to cover her body with her arms. Lastly petitioner posits that the police station does not favor the perpetration of the crime of acts of lasciviousness. Petitioner‘s contention deserves scant consideration. The crime of acts of lasciviousness as punished under Article 336 of the Revised Penal Code provides:

ART. 336. Acts of lasciviousness.- Any person who shall commit any act of lasciviousness upon other persons of either sex, under any of the circumstances mentioned in the preceding article, shall be punished by prision correccional.

For an accused to be convicted of acts of

lasciviousness under the foregoing provision, the

prosecution is burdened to prove the confluence of the

Thus, petitioner filed the instant petition,

following essential elements: (1) that the offender

with the following allegations:

commits any act of lasciviousness or lewdness; and (2)

I THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE TRIAL COURT THAT THE ACCUSED IS GUILTY OF THE CRIME CHARGED BEYOND REASONABLE DOUBT; II

that

it

is

done

under

any

of

the

following

circumstances: (a) by using force or intimidation; (b)

when the offended woman is deprived of reason or

otherwise unconscious; or (c) when the offended party

was intended neither to merely annoy or irritate the

is under twelve (12) years of age.[12]

victim nor to force her to confess the theft. He could

have easily achieved that when he electrocuted the In the case of Amployo v. People,[13] the Court expounded on the definition of the term lewd, thus: As found by the RTC and affirmed by the CA, The term ―lewd‖ is commonly defined as something indecent or obscene; it is characterized by or intended to excite crude sexual desire. That an accused is entertaining a lewd or unchaste design is necessarily a mental process the existence of which can be inferred by overt acts carrying out such intention, i.e., by conduct that can only be interpreted as lewd or lascivious. The presence or absence of lewd designs is inferred from the nature of the acts themselves and the environmental circumstances. What is or what is not lewd conduct, by its very nature, cannot be pigeonholed into a precise definition. As early as U.S. v. Gomez we had already lamented that – It would be somewhat difficult to lay down any rule specifically establishing just what conduct makes one amenable to the provisions of article 439 of the Penal Code. What constitutes lewd or lascivious conduct must be determined from the circumstances of each case. It may be quite easy to determine in a particular case that certain acts are lewd and lascivious, and it may be extremely difficult in another case to say just where the line of demarcation lies between such conduct and the amorous advances of an ardent lover. petitioner‘s acts of kissing the victim, fondling her breasts and touching her private parts constitute lascivious conduct intended to quench his salacious desire. Petitioner‘s lewd intent was betrayed when he asked AAA, ―Dalaga ka na ba?‖ as a prelude to his lustful advances on the victim, and thereafter conveyed to her that ―I am single too.‖ We quote with approval the CA‘s ratiocination: Undeniably, appellant committed lewd acts against AAA. ―Lewd‖ is defined as obscene, lustful, indecent, and lecherous. It signifies that form of immorality which has relation to moral impurity; or that which is carried on a wanton manner. The evidence shows that appellant committed lewd acts against AAA when he touched her ―all over her body‖ which includes mashing her breasts, touching her private parts, and kissing her on the cheek. These acts were clearly done with lewd designs as appellant even previously asked AAA, as if it was a prelude for things to come, ―Dalaga ka na ba?‖ and thereafter conveyed to her that ―he is single too.‖[14] The fact that the victim tried to cover her within the above described lascivious conduct. It body with her arms does not negate petitioner‘s lascivious conduct. Petitioner succeeded in fondling the victim‘s breasts intense enough to cause multiple would have the Court do. The intention of petitioner slight contusions of bilateral breast areas. latter. Petitioner intended to gratify his sexual desires.

Undoubtedly, petitioner committed acts which fall

cannot be viewed as mere unjust vexation as petitioner

As aptly observed by the CA, petitioner employed force and intimidation against AAA:

commission of the acts of lasciviousness, petitioner and AAA were the only persons inside the room. Lust, as we have often held, is no respecter of either place or time.[18] As to the appreciation of the aggravating circumstance of taking advantage of public position, petitioner points out that said circumstance was not alleged in the information. The Solicitor General shares the same view. Sections 8 and 9 of Rule 110 of the Revised Rules of Criminal Procedure, which took effect on December 1, 2000, provide:

Moreover, appellant employed force and intimidation when he committed these acts on AAA. In fact, as found by the trial court, appellant pointed a gun at the forehead of AAA as evidenced by the bruises on her forehead. Further, the medical Certificate shows that AAA suffered slight physical injuries which include ―multiple slight contusion of bilateral breast areas‖ which supports AAA‘s claim.[15] In People v. Victor,[16] the Court held that in cases of acts of lasciviousness, it is not necessary that intimidation be irresistible. It being sufficient that some compulsion equivalent to intimidation annuls or subdues the free exercise of the will of the offended party. Here, the victim was locked inside a windowless room together with her aggressor who poked a gun at her forehead. Even a grown man would be paralyzed with fear if threatened at gunpoint, what more the hapless victim who was only 15 years old when she was subjected to such atrocity. Petitioner‘s assertion that the locus

Sec. 8. Designation of the offense. — The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. Sec. 9. Cause of the accusations. — The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment. Clearly, it is now a requirement that the aggravating as well as the qualifying circumstances be expressly and specifically alleged in the complaint or

criminis i.e., the police station makes it unlikely for him to commit the crime of acts of lasciviousness is specious. The presence of other policemen on duty and of the victim‘s mother outside the room where the incident took place does not render commission of the offense impossible. It has been shown that there was a room in the precinct which, except for two doors which could be locked, was totally enclosed.[17] During the

information. Otherwise, they cannot be considered by the trial court in its judgment, even, if they are subsequently proved during trial.[19] A reading of the

Information shows that there was no allegation of any aggravating circumstance. In People v. Buayaban,[20] the crime was committed and the Information was filed in 1990. Still, the Court gave the 2000 Rules of Criminal Procedure retroactive application since it benefited the accused and disregarded the generic aggravating circumstance of band because it was not alleged in the

Section 1 of the Indeterminate Sentence Law[21] (ISL) states that (i)n imposing a prison

sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense. Under Article 366 of the Revised Penal Code, the penalty for acts of lasciviousness is prision correccional. Since no aggravating or mitigating circumstance attended the commission of the offense in this case, the penalty should be applied in its medium period, the duration of which is two (2) years, four (4) months and one (1) day to four (4) years and two months, as maximum. The minimum shall be within the range of the penalty next lower in degree which is arresto mayor, with the duration of one (1) month

Information. The Court explained, viz:

Section 8 simply provides that the information or complaint must state the designation of the offense given by the statute and specify its qualifying and generic aggravating circumstances. With regard to Section 9, we held in People vs. Nerio Suela that the use of the word ―must‖ in said Section 9 indicates that the requirement is mandatory and therefore, the failure to comply with sec. 9, Rule 110, means that generic aggravating circumstances, although proven at the trial, cannot be appreciated against the accused if such circumstances are not stated in the information. In this case, we cannot properly appreciate the ordinary aggravating circumstance of band in the commission of the crime since there was no allegation in the information that ―more than three armed malefactors acted together in the commission of the crime.

Here, the crime was committed in 1998, the generic aggravating circumstance of taking advantage of public position was not alleged in the information. As such, it cannot be appreciated as the an aggravating imposed

and one (1) day to six (6) months.

Applying the ISL, the proper penalty would be imprisonment of six (6) months of arresto mayor as minimum to four (4) years and two (2) months of prision correccional as maximum.[22]

circumstance. Consequently, must be modified.

penalty

As to the damages awarded, Article 2230 of the Civil Code provides that in criminal offenses, exemplary damages as part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. Since the generic aggravating circumstance of taking advantage of public position was not alleged in the Information against petitioner it cannot be appreciated in the imposition of the penalty. But as regards the award of exemplary damages, in the case of People v. Catubig,[23] the Court declined retroactive application of the 2000 Rules of Criminal Procedure, to wit:

acts of lasciviousness, the amount ofP30,000.00 as moral damages may be further awarded to the victim in the same way that moral damages are awarded to victims of rape even without need of proof because it is assumed that they suffered moral injury. Considering the immeasurable pain and anguish that the victim had to suffer in the hands of the petitioner; the trauma that she had to endure even after the incident; and the sexual perversity of petitioner, who is a police officer, the award of moral damages in the amount

of P30,000.00 is proper. WHEREFORE, the petition is hereby denied and the Decision dated July 28, 2005 of the Court of Appeals finding petitioner P03 Benito Sombilon GUILTY of the crime of acts of lasciviousness under Article 336 of the Revised Penal Code is

The retroactive application of procedural rules, nevertheless, cannot adversely affect the rights of the private offended party that have become vested prior to the effectivity of said rules. Thus, in the case at bar, although relationship has not been alleged in the information, the offense having been committed, however, prior to the effectivity of the new rules, the civil liability already incurred by appellant remains unaffected thereby. Thus, in accordance with the foregoing pronouncement, the Court affirms the CA‘s award of exemplary damages to the victim in the amount of P10,000.00. With regard to the awarded moral damages in the amount of P10,000.00, the same should be increased to P30,000.00. In People v. Solmoro[24] we declared that upon a finding of guilt of the accused for

AFFIRMED with Modification that he is sentenced to suffer an indeterminate penalty of imprisonment of six (6) months ofarresto mayor as minimum to four (4) years and two (2) months of prision correccional as maximum, and to pay the victim the amount of P30,000 as moral damages and P10,000.00 as exemplary damages. . SO ORDERED.

G.R. No. L-47941 April 30, 1985 THE PEOPLE OF THE PHILIPPINES, plaintiffappellee, vs. JAIME TOMOTORGO y ALARCON, defendantappellant. ALAMPAY, J.: Jaime Tomotorgo y Alarcon, the accused-appellant in this case, appeals from the decision rendered on December 22, 1977, by the Court of First Instance of Camarines Sur, Branch IV, in Criminal Case No. 403 of said court finding him guilty of the crime of parricide for having killed his wife Magdalena de los Santos. The dispositive portion of said judgment reads, as follows: WHEREFORE, in view of the foregoing considerations, the accused Jaime Tomotorgo y Alarcon is hereby condemned to suffer the penalty of reclusion perpetua and to indemnify the heirs of the deceased Magdalena delos Santos in the sum of P12,000.00 without subsidiary imprisonment, plus costs. And considering the circumstances under which the offense was committed, the court hereby recommends executive clemency for him, after serving the minimum of the medium penalty of prision mayor. Let copy of this decision be furnished, his Excellency, the President of the Philippines, and the Chairman of the Board of Pardons and Parole. SO ORDERED. Given at Naga City, this 22nd day of December, 1977. SGD. ALFREDO S. REBUENA Judge (Rollo, pg. 10) The facts of this case as recited in the decision of the trial court and in the appellee's brief stand uncontroverted and undisputed. From the evidence submitted it is disclosed that the victim, Magdalena de los Santos, was the wife of the herein accused. Several months prior to the occurrence of the fatal incident on June 23, 1977, Magdalena de los Santos had been persistently asking her husband to sell the conjugal home which was then located at Sitio Dinalungan, Barangay Cabugao, Municipality of Siruma, Camarines Sur. She wanted their family to transfer to the house of her husband's in-laws which is in the town of Tinambac, Camarines Sur. (TSN, pp. 6-10, December 13, 1977). Accused Tomotorgo would not accede to his wife's request. He did not like to abandon the house wherein he and his wife were then living. Furthermore, he had no inclination to leave because he has many plants and improvements on the land which he was then farming in said municipality of Siruma, Camarines Sur, a town very far from the place of his in-laws where his wife desired their family to transfer to. On June 23, 1977, at about seven o'clock in the morning, the accused left his home to work on his farm Upon his return at about nine o'clock that same morning. He found his wife and his three-month old baby already gone. He proceeded to look for both of them and sometime later on, on a trail about two hundred (200) meters from their home, he finally saw his wife carrying his infant son and bringing a bundle of clothes. He asked and pleaded with his wife that she should return home with their child but she adamantly refused to do so. When appellant sought to take the child from his wife, the latter threw the baby on the

grassy portion of the trail hereby causing the latter to cry. This conduct of his wife aroused the ire of the herein accused. Incensed with wrath and his anger beyond control, appellant picked lip a piece of wood nearby and started hitting his wife with it until she fell to the ground complaining of severe pains on her chest. Realizing what he had done, the accused picked his wife in his arms and brought her to their home. He then returned to the place where the child was thrown and he likewise took this infant home. Soon thereafter, Magdalena de los Santos died despite the efforts of her husband to alleviate her pains. After the accused changed the dress of his wife, he reported the tragic incident to the Barangay Captain of their place who brought him to Policeman Arellosa to whom the accused surrendered. He also brought with him the piece of wood he used in beating his wife. Charged with the crime of parricide, the accused at his arraignment on November 24, 1977, with assistance from his counsel de-oficio, pleaded not guilty to the said offense. However, when his case was called for trial on December 13, 1977, his counsel manifested to the court that after his conference with the accused, the latter expressed a desire to change his previous plea of not guilty to that of guilty. Accordingly, and upon motion by the counsel of the accused and without objection on the part of the prosecution, the trial court allowed the accused to withdraw his original plea. Upon being re-arraigned, the accused entered a plea of guilty. He confirmed the manifestations made by his counsel to the court regarding his desire to change his initial plea. He expressed his realization of the gravity of the offense charged against him and the consequences of his plea. His counsel was then permitted by the court to establish the mitigating circumstances which were then invoked in favor of the accused. After the accused had testified and upon his plea given in open court, the court below found him guilty of the crime of parricide, but with three mitigating circumstances in his favor, namely: voluntary surrender, plea of guilty, and that he acted upon an impulse so powerful as naturally to have produced passion and obfuscation. With the imposition by the court below of the penalty of reclusion perpetua on the herein accused and the subsequent denial of his motion for reconsideration of the judgment rendered against him, the accused through his counsel filed a notice of appeal to this Court. In his appeal, accused argues and contends that the lower court erred: 1. In disregarding its own findings of fact which showed manifest lack of intent to kill; 2. In disregarding the provisions of Article 49 of the Revised Penal Code which prescribes the proper applicable penalty where the crime committed is different from that intended; 3. In not following the mandatory sequence of procedures for determining the correct applicable penalty;

4. In denying the appellant the benefits of the Indeterminate Sentence Law. (Appellant's Brief, pg. 1, pars. 1-4) We find no merit in the appeal of the accused herein which assails only the correctness of the penalty imposed by the trial court on him. Appellant submits that the penalty for the felony committed by him which is parricide being higher than that for the offense which he intended to commit, and which he avers to be that of physical injuries only, the provisions of Article 49 of the Revised Penal Code which relate to the application of penalties should have been observed and followed by the trial court. The said provision of law which accused invokes provides that: ART. 49. Penalty to be imposed upon the principals when the crime committed is different from that intended in cases in which the felony committed is different from that which the offender intended to commit, the following rules shag be observed; 1. If the penalty prescribed for the felony committed be higher than that corresponding to the offense which the accused intended to commit, the penalty corresponding to the latter shall be imposed in its maximum period. xxx xxx xxx Continuing, appellant argues in his appeal brief submitted to this Court, that: xxx xxx xxx The felony actually committed, parricide. has a higher penalty (reclusion perpetua to death) than the felony intended, qualified physical injuries (reclusion temporal medium and maximum). Hence, since the penalty corresponding to the felony intended shall be imposed in its maximum period, the prescribed penalty is therefore reclusion temporal maximum. This is a divisible penalty. Under Article 64, sub-par. 5, of the Penal Code, When there are two or more mitigating circumstances and no aggravating circumstances are present, the court shall impose the penalty next lower to that prescribed by law, in the period that it may deem applicable, according to the number and nature of such circumstances. The trial court itself found "that the accused is entitled to three (3) mitigating circumstances with no aggravating circumstances, namely: voluntary surrender, plea of guilty, and obfuscation. We submit that the plea of guilty, which, as we had shown earlier, was improvidently made, should no longer be considered. This leaves only two mitigating with no aggravating. Sufficient compliance with the law. Hence, an automatic lowering of the penalty by one degree, or to reclusion temporal medium This being a case where a period constitutes the entire range of the penalty prescribed, and therefore, also a degree. (Appellant's Brief, pp. 8-9) Appellant maintains the belief that he should be punished only for the offense he intended to commit which he avers to be serious physical injuries, qualified by the fact that the offended party is his spouse. Pursuant to the sub-paragraph of paragraph 4 of Art. 263 of the Revised Penal Code and as his wife is among

the persons mentioned in Art. 246 of the same code, appellant contends that the penalty imposable should then be reclusion temporal in its medium and maximum periods. On this mistaken premise, appellant therefore claims that the penalty prescribed by law for his offense is divisible and he should thus be entitled to the benefits of the Indeterminate Sentence Law. These contentions of the accused are manifestly untenable and incorrect. Article 4 of the Revised Penal Code expressly states that criminal liability shall be incurred by any person committing a felony (delito) although the wrongful act be different from that which he intended and that the accused is liable for all the consequences of his felonious acts. The reference made by the accused to Article 263 of the Revised Penal Code which prescribes graduated penalties for the corresponding physical injuries committed is entirely misplaced and irrelevant considering that in this case the victim died very soon after she was assaulted. It will be, therefore, illogical to consider appellant's acts as falling within the scope of Article 263 of the Revised Penal Code. The crime committed is parricide no less. We are in complete accord with and we sustain the ruling made by the courts below that the accused is not entitled to the benefits of the Indeterminate Sentence Law. The court sustains the submissions of the appellee that — ... Article 49 of the Revised Penal Code does not apply to cases where more serious consequences not intended by the offender result from his felonious act because, under Article 4, par. I of the same Code, he is liable for all the direct and natural consequences of his unlawful act. His lack of intention to commit so grave a wrong is, at best mitigating (Article 13, par. 3). Article 49 applies only to cases where the crime committed is different from that intended and where the felony committed befalls a different person (People vs. Albuquerque, 59 Phil. 150). Article 246 of the Revised Penal Code punished parricade with the penalty of reclusion perpetua to death, which are two indivisible penalties. As the commission of the act was attended by mitigitating circumstances with no aggravating circumstances, the lesser penalty, which is reclusion perpetua, should be imposed (People vs. Laureano, et al., 71 Phil. 530; People vs. Francisco, 78 Phil. 697; People vs. Belarmino, 91 Phil. 118) Appellee's Brief, pp. 6-7). (Emphasis supplied) We hold that the fact that the appellant intended to maltreat the victim only or inflict physical imjuries does not exempt him from liability for the resulting and more serious crime committed. In the case of People vs. Climaco Demiar, 108 Phil. 651, where the accused therein had choked his mother in a fit of anger because the latter did not prepare any food for him, it was ruled that the crime committed by Demiar is parricide (Article 246, Revised Penal Code), the deceased victim of his criminal act being his legitimate mother. Said crime was declared as punishable with reclusion perpetua to death. As the mitigating circumstance of lack of intent to commit so grave a wrong. (Article 13 (3 Id.) The penalty imposed on the herein accused is

therefore correct in the light of the relevant provisions of law and jurisprudence. The trial court in its consideration of this case had added a recommendation that "executive clemency be extended to the accused-appellant after his service of the minimum of the medium penalty of prison mayor." The Solicitor General likewise concludes and prays in the People's Brief that in view of the circumstances which attended the commission of the offense, a recommendation for the commutation of the penalty would be appropriate. (Appellee's Brief, pg. 7). This Court is constrained to take note that the accusedappellant is said to have been in detention since June 23, 1977 or for more than seven years already. This Court can do no less than express its hope that the accused-appellant can be now extended an absolute or conditional pardon by the President of the Republic of the Philippines or that there be a commutation of his sentence so that he may qualify and be eligible for parole. WHEREFORE, the appealed judgment is hereby affirmed without any pronouncement as to costs. Considering the circumstances which attended the commission of the offense, the manifest repentant attitude of the accused and his remorse for his act which even the trial court made particular mention of in its decision and the recommendation made by the Office of the Solicitor General as well as number of years that the accused-appellant had been imprisoned, this Court can do no less than recommend that executive clemency be extended to the accused-appellant, Jaime Tomotorgo y Alarcon, or that his sentence be commuted so that he can now qualify and be considered eligible for parole. This recommendation of the Court should be promptly brought to the attention of the President of the Republic of the Philippines by the proper authorities in whose custody the herein accused has been placed. Aside from this, let copy of this decision be furnished the Office of the President of the Republic of the Philippines and the Chairman of the Board of Pardons and Parole. SO ORDERED.

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