[G.R. No. 134362.

February 27, 2002]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EMELITO SITCHON y TAYAG, accusedappellant. DECISION KAPUNAN, J.: For beating to death the two-year old son of his common-law wife, accused-appellant Emelito Sitchon y Tayag was convicted of murder and sentenced to death by the Regional Trial Court of Manila. His case is now before this Court on automatic review. Appellant was charged in an information stating: That on or about June 12, 1996, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously, with intent to kill and with treachery and evident premeditation, attack, assault and use personal violence upon one MARK ANTHONY FERNANDEZ y TABORA a minor, 2 years old, by then and there mauling and clubbing him on the different parts of his body with the use of a steel hammer and a wooden stick, approximately 18 inches long, thereby inflicting upon the latter mortal wounds which were the direct and immediate cause of his death thereafter. CONTRARY TO LAW.[1] Appellant pleaded not guilty to the above charge.[2] However, before testifying in his own defense on June 4, 1998, appellant admitted that he killed the victim and changed his plea to guilty.[3] Five witnesses testified for the prosecution, namely, Lilia Garcia, a neighbor; the victim's eight-year old brother Roberto; the investigating officer, PO3 Paul Dennis Javier; Dr. Manuel Lagonera, medicolegal officer of the National Bureau of Investigation (NBI); and Felicisima Francisco, a forensic chemist of the same agency. Appellant lived in the second floor of a three-square meter house located at 2001 Batangas Street, Tondo, Manila. His neighbor of two months, Lilia Garcia, resided in the first floor of the same house. At about 10:00 in the morning of June 12, 1996, Lilia was in front of the house attending to her children when she heard the sound of a boy crying. Curious, Lilia went up the stairway, her children in tow. The open door of the upper floor allowed Lilia to witness appellant beating two-year old Mark Anthony Fernandez. From a distance of less than three arms length, Lilia saw appellant hit various parts of the boys body with a piece of wood, about 14 inches in length and 2 inches in diameter. Appellant also banged the head of the boy against the wooden wall. The beating went on for about one hour. Lilia then saw appellant carry the boy down the house to bring him to the hospital. The two-year old was already black and no longer moving.[4]

Eight-year old Roberto Fernandez is the elder brother of the victim, also known as Macky. According to Roberto, Macky had scattered his feces all over the house. Appellant, whom Roberto called Kuya Chito, thus beat Macky with a belt, a hammer and a 2x2 piece of wood. Roberto could not do anything to help his brother because he was afraid Kuya Chito might also beat him up. When Kuya Chito brought Macky to the hospital, his little brother, who could barely talk, was not crying anymore.[5] Roberto identified the two pieces of wood[6] that appellant allegedly used in beating the victim. He also identified the T-shirt[7] that Macky wore when he died. A certain Alice Valerio from the Galang Medical Hospital informed PO3 Paul Dennis Javier that a boy had been admitted there. When PO3 Javier went to the hospital, he found the boy already dead. He observed that the child had wounds on the left middle finger, the right index finger and both feet. The child also had lacerations in the upper lip and contusions all over his head and body. PO3 Javier proceeded to appellants house at No. 2001, Batangas Ext., Tondo, Manila. Human feces and fresh blood splattered on the floor. PO3 Javier recovered from the house the broken wooden sticks, the steel hammer,[8] which were allegedly used to beat up the boy, as well as a bloodstained white T-shirt. PO3 Javier then went to the house of appellants sister in Del Fierro St., Tondo, who informed him of matters relative to appellants identification. Thereafter, the police conducted a search operation in Cavite where appellants mother lived but they did not find him there. Later that afternoon, PO3 Javier learned that appellant had surrendered to Station 3 of their district. The following day, a staff member of the television program Magandang Gabi Bayan turned over to PO3 Javier a brown belt which appellant allegedly also used in beating the victim. Roberto Fernandez, the victims brother, had given the belt to the staff member.[9] Dr. Manuel Lagonera, medico-legal officer of the NBI, conducted the postmortem examination of the victims body on June 12, 1996 at 4:40 p.m. He found that the boy had suffered many injuries, including three wounds at the head and the anterior chest, which could have been inflicted with the use of blunt objects such as a piece of wood or a fist. The child could have been dead three to four hours, or not more than eight hours, prior to the postmortem examination. Dr. Lagonera concluded that the victim died of bilateral pneumonia secondary to multiple blunt traversal injuries or complication of the lungs due to said injuries.[10] The autopsy report of Dr. Lagonera shows that Mark Anthony Fernandez sustained the following injuries: EXTERNAL FINDINGS: 1. Multiple old scars, forehead. 2. Healing lacerated wound, left forehead. 3. Healed lacerated wound, above the left eyebrow, measuring 1.2x0.2 cm. 4. Healed linear abrasions, left cheek. 5. Lacerated wound, extending up to the mucous membrane of the upper lip, measuring 2 x0.3 cm. 6. Contussion (sic), left temporo-parietal region, measuring 6x5 cms.

7. Healing lacerated wound, left zygomatic region, measuring 0.5x0.3 cm. 8. Contussion (sic), left jaw, measuring 1.5x1 cm. 9. Contussion (sic), right anterior thorax, measuring 17x12 cms. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. Contussion (sic), right anterior forearm. Lacerated wound, tip of the forefinger, right. Old scar, upper 3rd , right anterior thigh. Contussion (sic), right lower leg, above and below the knee measuring 9x5 cms. Contussion (sic), left lower leg, above and below the knee, measuring 13x6 cms. Hematoma, big toe, under the nail bed, right. Contusso-abrasion, dorsum of the left foot, measuring 6x2 cms. Contussion (sic), left posterior thorax, measuring 17x6 cms. Contussion (sic), right postero-lateral thorax, extending up to the right lumbar region, measuring 13x6 cms. Contussion (sic), right posterior forearm, measuring 24x8 cms. Contussion (sic), left posterior forearm, measuring 22x7 cms. Healing abrasion, right buttocks, measuring 2x0.5 cm. Plucked finger nail, left middle finger, with hematoma of the nail bed. Posterior hand, both swollen. INTERNAL FINDINGS: 1. Presence of left sub-aponeurotic hematoma, temporo-parietal region and over the midoccipital region. 2. Hematoma over the sternum and pectoralis muscles. 3. Both lungs showed patcy and confluent consolidations. 4. Small amount of rice porridge was recovered from the stomach.[11] Felicisima M. Francisco, NBI forensic chemist, conducted an examination to determine the presence and grouping of human blood found on the steel hammer, the wooden sticks, and the T-shirt that were sent to his office by P/Sr. Inspector Pedro Ramos Angulo, Jr. of the Western Police District in Manila.[12] She prepared Report No. B-96-941 stating that Specimen No. 1 or the steel hammer, was positive for human blood but insufficient for blood group. Specimen Nos. 2 (the broken wooden sticks) and 3 (the white T-shirt) were also positive for human blood showing reactions of Group A.[13] Only appellant, 40, a sidewalk vendor, testified for the defense. As stated earlier, appellant admitted killing the two-year old victim, the son of his live-in partner. He and the boys mother had lived together for two years before the incident, starting when the boy was about a year old. He claimed he enjoyed a harmonious relationship with his partner and that he killed the boy only because

he was under the influence of shabu, marijuana and Valium 10 at that time. Appellant professed that he began using drugs in 1974 and that he had also taken drugs two weeks before the incident. On June 12, 1996, appellant came upon Macky playing with his feces, scattering them all over the pillow, the bed sheets and the curtains. Appellant scolded the boy, Putang-ina ka Macky! Bakit mo ikinalat ng ganyan ang tae mo? Halika, dadalhin kita sa baba para hugasan! Appellant got hold of Macky but the boy struggled to free himself from appellants grasp. Appellant, still reeling from the Valium 10 he had just taken, became so angry that he picked up a broom with a wooden handle, and hit the boy. Appellant did not realize that he had hit Macky hard until he saw the boy sprawled on the floor, breathing with difficulty. He dressed Macky and brought him to the Galang Medical Center at the corner of Abad Santos Avenue and Tayabas Street, Manila. He prayed to God that nothing serious would happen to the boy. A lady doctor immediately attended to Macky. Appellant pleaded to the lady doctor to do all she can to save the child; otherwise, he would be in serious trouble. After examining the child, the doctor told appellant that she could not do anything more Macky was dead. The same day, appellant surrendered to the police. He was brought to the Homicide Section at 3:00 p.m. Explaining his change of plea, appellant clarified that the killing of the boy was "accidental." He reiterated that he was under the influence of drugs, which he had taken one after the other. He was a drug dependent and, in fact, had been confined at the TagaytayRehabilitation Center. He said he was conscious when the incident happened but he simply did not realize that he had hit the child hard with the brooms wooden handle. He denied having hit the boy with a hammer or having banged his head against the wall. He hoped the trial court would be lenient with him because of his voluntary surrender. He prayed that the court would not impose upon him the death penalty.[14] Nevertheless, on July 3, 1998, the trial court promulgated its decision, the dispositive portion of which reads: WHEREFORE, this Court finds the accused, Emelito Sitchon y Tayag, guilty beyond reasonable doubt of the crime of murder and is sentenced to suffer the death penalty and to pay the costs. The accused is further ordered to pay the mother of the victim Christina Tabora, moral and nominal damages in the respective sums of P100,000.00 and P50,000.00, plus death compensation in the sum of P50,000.00, with interest thereon at the legal rate from this date until fully paid. SO ORDERED.[15] The Court entertains little doubt that appellant is guilty of the killing of Mark Anthony Fernandez. Appellants guilt was adequately established by the testimonies of Lilia Garcia and Roberto Fernandez, who both saw appellant beat Macky. These testimonies were further corroborated by those of PO3 Paul Dennis Javier, Dr. Manuel Lagonera and Felicisima Francisco, as well as the various pieces of object evidence. Indeed, appellant in open court admitted beating the poor child, which beating resulted in the latters death. That appellant purportedly did not intend to kill the toddler would not exculpate him from liability. Article 4(1) of the Revised Penal Code provides that criminal liability shall be incurred by any person committing a felony (delito) although the wrongful act done be different from that which he intended. The rationale of the rule is found in the doctrine that el que es causa de la causa es causa del mal causado (he who is the cause of the cause is the cause of the evil caused).[16]

Thus, where the accused violently kicked the sleeping victim in vital parts of the latters body, the accused is liable for the supervening death as a consequence of the injuries.[17] Assuming, therefore, that appellant merely intended to inflict physical injuries upon the boy, he is nevertheless liable for the death of the victim caused by such injuries. The killing in this case was attended by treachery. There is treachery when the offender commits any of the crimes against persons, employing means, methods or forms in the execution thereof which tend directly and especially to insure its execution without risk to himself arising from the defense which the offended party might make.[18] It is beyond dispute that the killing of minor children who, by reason of their tender years, could not be expected to put up a defense, is treacherous.[19] Evident premeditation is absent. For the court to appreciate evident premeditation, the prosecution must prove: (a) the time the accused decided to commit the crime; (b) an overt act manifestly indicating that he clung to his determination; and (c) sufficient lapse of time between the decision and the execution to allow the accused to reflect upon the consequence of his act.[20] The prosecution failed to establish any of these requisites. The trial court incorrectly appreciated cruelty against the accused. The test in appreciating cruelty as an aggravating circumstance is whether the accused deliberately and sadistically augmented the wrong by causing another wrong not necessary for its commission, or inhumanly increased the victims suffering or outraged or scoffed at his person or corpse.[21] The nature of cruelty lies in the fact that the culprit enjoys and delights in making his victim suffer slowly and gradually, causing him moral and physical pain which is unnecessary for the consummation of the criminal act which he intended to commit.[22] The sheer number of wounds, however, is not a test for determining whether cruelty attended the commission of a crime.[23] The prosecution did not show that appellant enjoyed inflicting injuries upon the victim. The inordinate force employed by appellant appears to have been caused not by any sadistic bend but rather by the drugs that diminished his capacity. The trial court also considered intoxication as an aggravating circumstance. The Solicitor General defends this ruling, contending that appellants habitual drug addiction is an alternative circumstance analogous to habitual intoxication under Article 15 of the Revised Penal Code: Intoxication of the offender shall be taken into consideration as a mitigating circumstance when the offender has committed a felony in a state of intoxication, if the same is not habitual or subsequent to the plan to commit said felony; but when the intoxication is habitual or intentional, it shall be considered as an aggravating circumstance. The Court does not agree. Article 13 of the Revised Penal Code provides a list of mitigating circumstances, which work to reduce the accuseds penalty. Article 13(10) allows courts to consider any other circumstance of a similar nature and analogous to those mentioned therein. Neither Article 14 of the same Code on aggravating circumstances[24] nor Article 15 on alternative circumstances,[25] however, contain a provision similar to Article 13(10). Accordingly, the Court cannot consider appellants drug addiction as an aggravating circumstance. Criminal statutes are to be strictly construed and no person should be brought within their terms who is not clearly within them.[26] Appellant maintains that his plea of guilt mitigates his criminal liability. On this matter, this Court said in People v. Ramos:[27]

To effectively alleviate the criminal liability of an accused, a plea of guilt must be made at the first opportunity, indicating repentance on the part of the accused. In determining the timeliness of a plea of guilty, nothing could be more explicit than the provisions of the Revised Penal Code requiring that the offender voluntarily confess his guilt before the court prior to the presentation of the evidence for the prosecution. It is well-settled that a plea of guilty made after arraignment and after trial had begun does not entitle the accused to have such plea considered as a mitigating circumstance. As appellant changed his plea only after the prosecution had rested its case and just when he was just about to testify, said mitigating circumstance is unavailing. The trial court credited appellant with the mitigating circumstance of voluntary surrender. For voluntary surrender to be appreciated, these elements must be established: (1) the offender has not been actually arrested; (2) he surrendered himself to a person in authority or an agent of a person in authority; and (3) his surrender was voluntary.[28] It is sufficient that the surrender be spontaneous and made in a manner clearly indicating the intent of the accused to surrender unconditionally, either because he acknowledges his guilt or he wishes to save the authorities the trouble and expense which will necessarily be incurred in searching for and capturing him.[29] Appellant has failed to adequately prove voluntary surrender. While he claimed that he surrendered to the police on the same day that the victim was killed, he did not detail the circumstances like the time and place of such surrender. Neither did appellant state to whom he surrendered. He did not indicate if the person was a person in authority or an agent of the latter. PO3 Javiers testimony that he learned of appellants alleged surrender is hearsay and does not serve to corroborate appellants claim. The Court, however, discerns no intention on the part of appellant to commit so grave a wrong against his victim. Appellants intention was merely to maltreat the victim, not to kill him. When appellant realized the horrible consequences of his felonious act, he immediately brought the victim to the hospital.[30] Sadly, his efforts were for naught. In view of the attendance of the aggravating circumstance of treachery, the killing of the victim is qualified to murder, punishable under Article 248 of the Revised Penal Code by reclusion perpetua to death. The murder was attended by the mitigating circumstance of lack of intention to commit so grave a wrong and there is no aggravating circumstance. Hence, the lesser penalty of reclusion perpetua must be imposed upon appellant.[31] Appellant is liable for civil indemnity of P50,000.00 without proof of damages.[32] Moral damages that are recoverable for the mental anguish or emotional distress suffered by the heirs of the victim cannot be awarded here as the prosecution did not present any evidence to justify its award.[33] WHEREFORE, accused-appellant Emelito Sitchon y Tayag is found GUILTY beyond reasonable doubt of Murder, as defined and punished by Article 248 of the Revised Penal Code, and is sentenced to suffer the penalty of reclusion perpetua. He is ordered to pay the heirs of Mark Anthony Fernandez civil indemnity in the amount of P50,000.00. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Buena, YnaresSantiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.

G.R. No. 140756

April 4, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUAN GONZALES ESCOTE, JR. @ Jun Mantika of Sta. Lucia, Angat, Bulacan and VICTOR ACUYAN y OCHOVILLOS @ Vic Arroyo of Sto. Nio, Poblacion, Bustos, Bulacan, accused-appellants. CALLEJO, SR., J.: Robbery with homicide is classified as a crime against property. Nevertheless, treachery is a generic aggravating circumstance in said crime if the victim of homicide is killed treacherously. The Supreme Court of Spain so ruled. So does the Court rule in this case, as it had done for decades. Before the Court on automatic review is the Decision1 of Branch 11 of the Regional Trial Court of Bulacan in Criminal Case No. 443-M-97 convicting accused-appellants Juan Gonzales Escote, Jr. and Victor Acuyan of the complex crime of robbery with homicide, meting on each of them the supreme penalty of death, and ordering them to pay the heirs of the victim, SPO1 Jose C. Manio, Jr., the total amount of P300,000.00 by way of actual and moral damages and to pay to Five Star Bus, Inc., the amount of P6,000.00 by way of actual damages. The Facts The antecedent facts as established by the prosecution are as follows: On September 28, 1996 at past midnight, Rodolfo Cacatian, the regular driver of Five Star Passenger Bus bearing Plate No. ABS-793, drove the bus from its terminal at Pasay City to its destination in Bolinao, Pangasinan. Also on board was Romulo Digap, the regular conductor of the bus, as well as some passengers. At Camachile, Balintawak, six passengers boarded the bus, including Victor Acuyan and Juan Gonzales Escote, Jr. who were wearing maong pants, rubber shoes, hats and jackets.2 Juan seated himself on the third seat near the aisle, in the middle row of the passengers' seats, while Victor stood by the door in the mid-portion of the bus beside Romulo. Another passenger, SPO1 Jose C. Manio, Jr., a resident of Angeles City, was seated at the rear portion of the bus on his way home to Angeles City. Tucked on his waist was his service gun bearing Serial Number 769806. Every now and then, Rodolfo looked at the side view mirror as well as the rear view and center mirrors installed atop the driver's seat to monitor any incoming and overtaking vehicles and to observe the passengers of the bus. The lights of the bus were on even as some of the passengers slept. When the bus was travelling along the highway in Plaridel, Bulacan, Juan and Victor suddenly stood up, whipped out their handguns and announced a holdup. Petrified, Rodolfo glanced at the center mirror towards the passengers' seat and saw Juan and Victor armed with handguns. Juan fired his gun upward to awaken and scare off the passengers. Victor followed suit and fired his gun upward. Juan and Victor then accosted the passengers and divested them of their money and valuables. Juan divested Romulo of the fares he had collected from the passengers. The felons then went to the place Manio, Jr. was seated and demanded that he show them his identification card and wallet. Manio, Jr. brought out his identification card bearing No. 00898.3 Juan and Victor took the identification card of the police officer as well as his service gun and told him: "Pasensya ka na Pare, papatayin ka namin, baril mo rin and papatay sa iyo." The police officer pleaded for mercy: "Pare maawa ka sa akin. May pamilya ako." However, Victor and Juan ignored the

plea of the police officer and shot him on the mouth, right ear, chest and right side of his body. Manio, Jr. sustained six entrance wounds. He fell to the floor of the bus. Victor and Juan then moved towards the driver Rodolfo, seated themselves beside him and ordered the latter to maintain the speed of the bus. Rodolfo heard one of the felons saying: "Ganyan lang ang pumatay ng tao. Parang pumapatay ng manok." The other said: "Ayos na naman tayo pare. Malaki-laki ito." Victor and Juan further told Rodolfo that after they (Victor and Juan) shall have alighted from the bus, he (Rodolfo) should continue driving the bus and not report the incident along the way. The robbers assured Rodolfo that if the latter will follow their instructions, he will not be harmed. Victor and Juan ordered Rodolfo to stop the bus along the overpass in Mexico, Pampanga where they alighted from the bus. The robbery was over in 25 minutes. When the bus reached Dau, Mabalacat, Pampanga, Rodolfo and Romulo forthwith reported the incident to the police authorities. The cadaver of SPO1 Manio, Jr. was brought to the funeral parlor where Dr. Alejandro D. Tolentino, the Municipal Health Officer of Mabalacat, Pampanga, performed an autopsy on the cadaver of the police officer. The doctor prepared and signed an autopsy report detailing the wounds sustained by the police officer and the cause of his death: "Body still flaccid (not in rigor mortis) bathed with his own blood. There were 6 entrance wounds and 6 exit wounds. All the entrance were located on his right side. An entrance (0.5 cm x 0.5 cm.) located infront of the right ear exited at the left side just below the ear lobe. Another entrance through the mouth exited at the back of the head fracturing the occiput with an opening of (1.5 cm x 2 cm). Blood CSF and brain tissues came out. Another fatal bullet entered at the upper right cornea of the sternum, entered the chest cavity pierced the heart and left lung and exited at the left axillary line. Severe hemorrhage in the chest cavity came from the heart and left lung. The other 3 bullets entered the right side and exited on the same side. One entrance at the top of the right shoulder exited at the medial side of the right arm. The other entered above the right breast and exited at the right lateral abdominal wall travelling below muscles and subcutaneous tissues without entering the cavities. Lastly another bullet entered above the right iliac crest travelled superficially and exited above the right inguinal line. Cause of Death: Shock, massive internal and external hemorrhage, complete brain destruction and injury to the heart and left lung caused by multiple gunshot wounds."4 Rodolfo and Romulo proceeded to the police station of Plaridel, Bulacan where they reported the robbery and gave their respective sworn statements.5 SPO1 Manio, Jr. was survived by his wife Rosario Manio and their four young children. Rosario spent P20,000.00 for the coffin and P10,000.00 for the burial lot of the slain police officer.6 Manio, Jr. was 38 years old when he died and had a gross salary of P8,085.00 a month.7 Barely a month thereafter, or on October 25, 1996, at about midnight, SPO3 Romeo Meneses, the team leader of Alert Team No. 1 of Tarlac Police Station, and PO3 Florante S. Ferrer were at the police checkpoint along the national highway in Tarlac, Tarlac. At the time, the Bambang-Concepcion bridge was closed to traffic and the police officers were tasked to divert traffic to the Sta. Rosa road. Momentarily, a white colored taxi cab without any plate number on its front fender came to view. Meneses stopped the cab and asked the driver, who turned out to be the accused Juan Gonzales Escote, Jr., for his identification card. Juan told Meneses that he was a policeman and handed over to Meneses

the identification card of SPO1 Manio, Jr. and the money which Juan and Victor took from Manio, Jr. during the heist on September 28, 1996.8 Meneses became suspicious when he noted that the identification card had already expired on March 16, 1995. He asked Juan if the latter had a new pay slip. Juan could not produce any. He finally confessed to Meneses that he was not a policeman. Meneses brought Juan to the police station. When police officers frisked Juan for any deadly weapon, they found five live bullets of a 9 millimeter firearm in his pocket. The police officers confiscated the ammunition. In the course of the investigation, Juan admitted to the police investigators that he and Victor, alias Victor Arroyo, staged the robbery on board Five Star Bus and are responsible for the death of SPO1 Manio, Jr. in Plaridel, Bulacan. Meneses and Ferrer executed their joint affiavit of arrest of Juan.9 Juan was subsequently turned over to the Plaridel Police Station where Romulo identified him through the latter's picture as one of those who robbed the passengers of the Five Star Bus with Plate No. ABS-793 and killed SPO1 Manio, Jr. on September 28, 1996. In the course of their investigation, the Plaridel Police Station Investigators learned that Victor was a native of Laoang, Northern Samar.10 On April 4, 1997, an Information charging Juan Gonzales Escote, Jr. and Victor Acuyan with robbery with homicide was filed with the Regional Trial Court of Bulacan. The Information reads: That on or about the 28th day of September 1996, in the municipality of Plaridel, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping each other, armed with firearms, did then and there wilfully, unlawfully and feloniously, with intent of (sic) gain and by means of force, violence and intimidation, take, rob and carry away with one (1) necklace and cash in [the] undetermine[d] amount of one SPO1 Jose C. Manio, Jr., to the damage and prejudice of the said owner in the said undetermine[d] amount; that simultaneously or on the occassion (sic) of said robbery, said accused by means of violence and intimidation and in furtherance of their conspiracy attack, assault and shoot with the service firearm of the said SPO1 Jose C. Manio, Jr., thereby inflicting serious physical injuries which resulted (sic) the death of the said SPO1 Jose C. Manio, Jr. Contrary to law.11 On the strength of a warrant of arrest, the police officers arrested Victor in Laoang, Northern Samar and had him incarcerated in the Bulacan Provincial Jail. Assisted by Atty. Ramiro Osorio, their counsel de parte, Juan and Victor were duly arraigned and entered their plea of not guilty to the charge. Trial thereafter ensued. After the prosecution had rested its case on August 26, 1998, Juan escaped from the provincial jail.12 The trial court issued a bench warrant on September 22, 1998 for the arrest of said accused-appellant.13 In the meantime, Victor adduced his evidence. Victor denied the charge and interposed the defense of alibi. He testified that in 1996, he worked as a tire man in the vulcanizing shop located in Banga I, Plaridel, Bulacan owned by Tony Boy Negro. On one occasion, Ilarde Victorino, a customer of Tony Boy Negro, ordered Victor to sell a tire. Victor sold the tire but did not turn over the proceeds of the sale to Ilarde. The latter hated Victor for his misdeed. The shop was later demolished and after two months of employment, Victor returned to Barangay Muwal-Buwal, Laoang, Northern Samar. On September 26, 1996, at 9:30 p.m., Victor was at the town fiesta in Laoang. Victor and his friends, Joseph Iringco and Rickey Lorcio were having a drinking spree in the house of Barangay Captain Ike Baluya. At 11:30 p.m., the three left the house of the barangay captain and attended the public dance at the town auditorium. Victor and his friends left the auditorium at 5:30 a.m. of September 27, 1996. Victor likewise testified that he never met Juan until his arrest and detention at the Bulacan Provincial Jail. One of the inmates in said provincial jail was Ilarde Victorino. Victor learned

that Ilarde implicated him for the robbery of the Five Star Bus and the killing of SPO1 Manio, Jr. to hit back at him for his failure to turn over to Ilarde the proceeds of the sale of the latter's tire. On January 14, 1999, Juan was rearrested in Daet, Camarines Norte.14 However, he no longer adduced any evidence in his behalf. The Verdict of the Trial Court On March 11, 1999, the trial court rendered its Decision judgment finding Juan and Victor guilty beyond reasonable doubt of the crime charged, meted on each of them the penalty of death and ordered them to pay P300,000.00 as actual and moral damages to the heirs of the victim and to pay the Five Star Bus Company the amount of P6,000.00 as actual damages. The decretal portion of the decision reads: WHEREFORE, this Court finds both accused, Juan Gonzales Escote, Jr. and Victor Acuyan GUILTY beyond reasonable doubt of Robbery with Homicide as penalized under Art. 294 of the Revised Penal Code as amended and hereby sentences both to suffer the supreme penalty of Death and to indemnify the heirs of the late SPO1 Jose C. Manio, Jr., the amount of P300,000.00 as actual and moral damages and to pay the Five Star Bus P6,000.00 as actual damage. SO ORDERED.15 Assignment of Errors Juan and Victor assail the Decision of the trial court and contend that: I THE TRIAL COURT ERRED IN HOLDING THAT RODOLFO CACATIAN AND ROMULO DIGAP, DRIVER AND CONDUCTOR OF THE FIVE STAR BUS, RESPECTIVELY, WERE ABLE TO POSITIVELY IDENTIFY THE TWO (2) MEN WHO HELD-UP THEIR BUS AND KILLED ONE PASSENGER THEREOF AT AROUND 3:00 O'CLOCK IN THE EARLY MORNING OF SEPTEMBER 28, 1996. II THE TRIAL COURT ERRED IN FINDING THE TWO (2) ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ROBBERY WITH HOMICIDE.16 The Court's Verdict Anent the first assignment of error, Juan and Victor contend that the trial court committed a reversible error in relying on the testimony of Rodolfo, the bus conductor, for convicting them of the crime charged. They aver that although their counsel was able to initially cross-examine Rodolfo, the former failed to continue with and terminate his cross-examination of the said witness through no fault of his as the witness failed to appear in subsequent proceedings. They assert that even if the testimonies of Rodolfo and Romulo were to be considered, the two witnesses were so petrified during the robbery that they were not able to look at the felons and hence could not positively identify accused-appellants as

the perpetrators of the crime. They argue that the police investigators never conducted a police line-up for the identification of the authors of the crime. The contentions of Juan and Victor are not meritorious. There is no factual and legal basis for their claim that they were illegally deprived of their constitutional and statutory right to fully cross-examine Rodolfo. The Court agrees that the right to cross-examine is a constitutional right anchored on due process.17 It is a statutory right found in Section 1(f), Rule 115 of the Revised Rules of Criminal Procedure which provides that the accused has the right to confront and cross-examine the witnesses against him at the trial. However, the right has always been understood as requiring not necessarily an actual crossexamination but merely an opportunity to exercise the right to cross-examine if desired.18 What is proscribed by statutory norm and jurisprudential precept is the absence of the opportunity to crossexamine.19 The right is a personal one and may be waived expressly or impliedly. There is an implied waiver when the party was given the opportunity to confront and cross-examine an opposing witness but failed to take advantage of it for reasons attributable to himself alone.20 If by his actuations, the accused lost his opportunity to cross-examine wholly or in part the witnesses against him, his right to cross-examine is impliedly waived.21 The testimony given on direct examination of the witness will be received or allowed to remain in the record.22 In this case, the original records show that after several resettings, the initial trial for the presentation by the prosecution of its evidence-in-chief was set on November 18, 1997 and December 5, 1997, both at 9:00 a.m.23Rodolfo testified on direct examination on November 18, 1997. The counsel of Juan and Victor forthwith commenced his cross-examination of the witness but because of the manifestation of said counsel that he cannot finish his cross-examination, the court ordered the continuation thereof to December 5, 1997.24 On December 5, 1997, Rodolfo did not appear before the court for the continuation of his cross-examination but Rosemarie Manio, the widow of the victim did. The prosecution presented her as witness. Her testimony was terminated. The court ordered the continuation of the trial for the cross-examination of Rodolfo on January 20, 1998 at 8:30 a.m.25During the trial on January 20, 1998, Rodolfo was present but accused-appellants' counsel was absent. The court issued an order declaring that for failure of said counsel to appear before the court for his crossexamination of Rodolfo, Victor and Juan waived their right to continue with the cross-examination of said witness.26 During the trial set for February 3, 1998, the counsel of Juan and Victor appeared but did not move for a reconsideration of the court's order dated January 20, 1998 and for the recall of Rodolfo Cacatian for further cross-examination. It behooved counsel for Juan and Victor to file said motion and pray that the trial court order the recall of Rodolfo on the witness stand. Juan and Victor cannot just fold their arms and supinely wait for the prosecution or for the trial court to initiate the recall of said witness. Indeed, the Court held in Fulgado vs. Court of Appeals, et al: xxx The task of recalling a witness for cross examination is, in law, imposed on the party who wishes to exercise said right. This is so because the right, being personal and waivable, the intention to utilize it must be expressed. Silence or failure to assert it on time amounts to a renunciation thereof. Thus, it should be the counsel for the opposing party who should move to crossexamine plaintiff's witnesses. It is absurd for the plaintiff himself to ask the court to schedule the cross-examination of his own witnesses because it is not his obligation to ensure that his deponents are cross-examined. Having presented his witnesses, the burden shifts to his opponent who must now make the appropriate move. Indeed, the rule of placing the burden of

the case on plaintiff's shoulders can be construed to extremes as what happened in the instant proceedings. 27 The trial was reset to March 31, April 17 and 24, 1998, all at 8:30 a.m. because of the non-availability of the other witnesses of the prosecution.28 On March 31, 1998, the prosecution presented Dr. Alejandro Tolentino, PO2 Rene de la Cruz and Romulo Digap. During the trial on April 17, 1998, the counsel of Juan and Victor failed to appear. The trial was reset to June 3, 19 and 26, 1998.29 The trial scheduled on June 3, 1998 was cancelled due to the absence of the counsel of Juan and Victor. The court issued an order appointing Atty. Roberto Ramirez as counsel for accused-appellants.30 During the trial on August 26, 1998, Atty. Ramirez appeared in behalf of Juan and Victor. The prosecution rested its case after the presentation of SPO2 Romeo Meneses and formally offered its documentary evidence. The next trial was set on September 23, 1998 at 8:30 a.m.31 On November 11, 1998, Juan and Victor commenced the presentation of their evidence with the testimony of Victor.32 They rested their case on January 27, 1999 without any evidence adduced by Juan. Juan and Victor did not even file any motion to reopen the case before the trial court rendered its decision to allow them to cross-examine Rodolfo. They remained mute after judgment was rendered against them by the trial court. Neither did they file any petition for certiorari with the Court of Appeals for the nullification of the Order of the trial court dated January 20, 1998 declaring that they had waived their right to cross-examine Rodolfo. It was only on appeal to this Court that Juan and Victor averred for the first time that they were deprived of their right to cross-examine Rodolfo. It is now too late in the day for Juan and Victor to do so. The doctrine of estoppel states that if one maintains silence when in conscience he ought to speak, equity will debar him from speaking when in conscience he ought to remain silent. He who remains silent when he ought to speak cannot be heard to speak when he should be silent.33 The contention of accused-appellants Juan and Victor that Rodolfo and Romulo failed to identify them as the perpetrators of the crime charged is disbelieved by the trial court, thus: As can be gathered from the testimonies of the witnesses for the prosecution, on September 28, 1996, the accused boarded at around 3:00 a.m. a Five Star Bus driven by Rodolfo Cacatian, bound to Pangasinan, in Camachile, Balintawak, Quezon City. Twenty (20) minutes or so later, when the bus reached the vicinity of Nabuag, Plaridel, Bulacan, along the North Espressway, the accused with guns in hand suddenly stood up and announced a hold-up. Simultaneously with the announcement of a hold-up, Escote fired his gun upwards. Acuyan, meanwhile, took the gun of a man seated at the back. Both then went on to take the money and valuables of the passengers, including the bus conductor's collections in the amount of P6,000.00. Thereafter, the duo approached the man at the back telling him in the vernacular "Pasensiya ka na pare, papatayin ka namin. Baril mo rin ang papatay sa iyo." They pointed their guns at him and fired several shots oblivious of the plea for mercy of their victim. After the shooting, the latter collapsed on the floor. The two (2) then went back at the front portion of the bus behind the driver's seat and were overheard by the bus driver, Cacatian, talking how easy it was to kill a man. The robbery and the killing were over in 25 minutes. Upon reaching the Mexico overpass of the Expressway in Pampanga, the two (2) got off the bus. The driver drove the bus to the Mabalacat Police Station and reported the incident. During the investigation conducted by the police, it was found out that the slain passenger was a policeman, SPO1 Jose C. Manio, Jr. of the Caloocan City Police Department.

The above version came from Rodolfo Cacatian and Romulo Digap, bus driver and conductor, respectively, of the ill-fated Five Star Bus.34 The Court agrees with the trial court. It may be true that Romulo was frightened when Juan and Victor suddenly announced a holdup and fired their guns upward, but it does not follow that he and Rodolfo failed to have a good look at Juan and Victor during the entire time the robbery was taking place. The Court has held in a catena of cases that it is the most natural reaction of victims of violence to strive to see the appearance of the perpetrators of the crime and to observe the manner in which the crime was committed.35 Rodolfo and Romulo had a good look at both Juan and Victor before, during and after they staged the robbery and before they alighted from the bus. The evidence on record shows that when Juan and Victor boarded the bus and while the said vehicle was on its way to its destination, Romulo stationed himself by the door of the bus located in the mid-section of the vehicle. The lights inside the bus were on. Juan seated himself in the middle row of the passengers' seat near the center aisle while Victor stood near the door of the bus about a meter or so from Romulo.36 Romulo, Juan and Victor were near each other. Moreover, Juan divested Romulo of his collection of the fares from the passengers.37Romulo thus had a face-to-face encounter with Juan. After shooting SPO1 Manio, Jr. at the rear portion of the bus, Juan and Victor passed by where Romulo was standing and gave their instructions to him. Considering all the facts and circumstances, there is no iota of doubt that Romulo saw and recognized Juan and Victor before, during and after the heist.38 Rodolfo looked many times on the rear, side and center view mirrors to observe the center and rear portions of the bus before and during the robbery. Rodolfo thus saw Juan and Victor stage the robbery and kill SPO1 Manio, Jr. with impunity: xxx Q A So, the announcement of hold-up was ahead of the firing of the gun? Yes, sir.

Q And before the actual firing of the gun it was even still said bad words before saying the hold-up? A After they fired the gun they uttered bad words, sir.

Q Mr. Witness before the announcement of the hold-up you do not have any idea that you will encounter that nature which took place, is that correct? A None, sir.

Q Within the two (2) year[s] period that you are plying the route of Manila to Bolinao that was your first experience of hold-up? A Yes, sir.

Q And the speed of above 70 kilometers per hour your total attention is focus in front of the road, correct, Mr. witness?

Once in a while the driver look at the side mirror and the rear view mirror, sir.

Q Before the announcement there was no reason for you to look at any at the rear mirror, correct, Mr. witness? Court: Every now and then they usually look at the side mirror and on the rear, that was his statement. Atty. Osorio: (to the witness) Q Fiscal: Before the announcement of hold-up, there was no mention. Court: Every now and then. Atty. Osorio: (to the witness) Q A Q A Q A Q A Q A When you said every now and then, how often is it, Mr. witness? I cannot tell how often but I used to look at the mirror once in a while, sir. How many mirror do you have, Mr. witness? Four (4), sir. Where are these located? Two (2) on the side mirror, center mirror and rear view mirror, sir. The two side mirror protruding outside the bus? Yes, sir, they are in the side of the bus, sir. One of them is located on the left and the other on the right, correct? Yes, sir. I am asking him if there was no reason for him....

Q A Q A Q A sir. Q A Q A Q A Q

You only look at the side mirror when you are going to over take, Mr. witness? No, sir. Where is this center mirror located, Mr. witness? In the center, sir. What is the purpose of that? So that I can see the passengers if they are already settled so that I can start the engine,

What about the remaining mirror? Rear view mirror, sir. What is the purpose and where is it located? The rear view is located just above my head just to check the passengers, sir. So that the center mirror and the rear view mirror has the same purpose? They are different, sir. How do you differentiate of (sic) one from the other?

A The center mirror is used to check the center aisle while the rear mirror is for the whole view of the passengers, sir. Q If you are going to look at any of your side mirrors, you will never see any passengers, correct, Mr. witness? A None, sir.

Q If you will look at your center mirror you will only see the aisle and you will never see any portion of the body of your passengers? A Q A Yes, sir. Seated passengers? It is only focus (sic) on the middle aisle sir.

Q If you look at your rear mirror, you will only see the top portion of the head of your passengers, correct?

Only the portion of their head because they have different hight (sic), sir.

Q You will never see any head of your passengers if they were seated from the rear mirror portion, correct, Mr. witness? A Q A Yes, sir. Before the announcement of hold-up, all of your passengers were actually sleeping? Some of my passengers were sleeping, some were not, sir.

Q But you will agree Mr. witness that when you said every now and then you are using your mirror? It is only a glance, correct? A Yes, sir.

Q And by mere glancing, Mr. witness you were not able to identify any person on the basis of any of your mirror, correct? A If only a glance but when I look at him I can recognize him, sir.

Q You agree a while ago by every now and then it is by glancing, as a driver, Mr. witness by your side mirror? A Not all glancing, there are times when you want to recognize a person you look at him intently, sir. Q The purposes of your mirror inside your Bus is mainly of the safety of your passengers on board, Mr. witness? A Yes, sir.

Q And as a driver, Mr. witness, you do not used (sic) your mirror to identify the person particularly when you are crossing (sic) at a speed of 70 kilometers per hour? A I do that, sir.

Q How long Mr. witness can you focus your eyes on any of these mirror before getting back your eyes into the main road? A Seconds only, sir.

Q When you said seconds, for how long the most Mr. witness that you can do to fix your eyes on any of your mirrors and the return back of (sic) your eyes into the main road? A Two seconds, sir.

Q At that time Mr. witness, that you were travelling at about 70 kilometers you were glancing every now and then on any of your mirrors at about two seconds, correct? A Yes, sir.

Q And when you heard the announcement of hold-up your natural reaction is to look either at the center mirror or rear mirror for two seconds, correct? A Yes, sir.

Q And you were instructed Mr. witness to even accelerate your speed upon the announcement of hold-up? A Fiscal: May I request the vernacular "alalay ka lang, steady ka lang. Atty. Osorio: (to the witness) Q A Q A Q A Steady at what speed? 70 to 80, sir. What is the minimum speed, Mr. witness for Buses along North Expressway? 60 kilometers, sir. Are you sure of that 60 kilometers, minimum? Are you sure of that? Yes, sir. No sir, they just told me to continue my driving, sir.

Q That is what you know within the two (2) years that you are driving? Along the North Expressway? A Yes, sir.

Q And while you were at the precise moment, Mr. witness, you were being instructed to continue driving, you were not looking to anybody except focus yours eyes in front of the road? Fiscal: May I request the vernacular. Nakikiramdam ako.

Atty. Osorio: (to the witness) Q That's what you are doing?

A During the time they were gathering the money from my passengers, that is the time when I look at them, sir. Q A For two seconds, correct? Yes, sir.

Q Which of the four (4) mirrors that you are looking at within two seconds, Mr. witness you said you are nakikiramdam? A Q A The rear view mirror, sir. The Bus that you were driving is not an air con bus? Ordinary bus, sir.

Q And at what time your passengers, most of your passengers were already sleep (sic), Mr. witness? A Q A Most of my passengers, sir. Some of my passengers were still sleep (sic), sir. And the lights inside the Bus are off, correct Mr. witness? The lights were on, sir.

Q While the passengers were sleep (sic) the light was still on, Mr. witness, at the time of the trip.? A Yes, sir.

Q Now, Mr. witness when the hold-up was announced and then when you look for two seconds in the rear mirror you were not able to see any one, you were only sensing what is happening inside your bus? A I saw something, sir.

Q You saw something in front of your Bus? You can only see inside when you are going to look at the mirror? A Yes, sir.

Q That is the only thing that you see every now and then, you said you were looking at the mirror? A Yes, sir.

Q How many times, Mr. witness did you look Mr. witness at the rear mirror during the entire occurance (sic) of the alleged hold-up? A There were many times, sir.

Q The most that you can remember, please inform the Honorable Court? During the occurance (sic) of the alleged hold-up, Mr. witness? A Q A I cannot estimate, sir. How long did the alleged hold-up took place? More or less 25 minutes, sir.39

When Rodolfo gave his sworn statement to the police investigators in Plaridel, Bulacan after the robbery, he described the felons. When asked by the police investigators if he could identify the robbers if he see them again, Rodolfo declared that he would be able to identify them: 8. T: Natatandaan mo ba kung ano ang itsura ng dalawang lalaki na nanghold-up sa minamaneho mong bus? S: Halos magkasing taas, 5'4" o 5'5" katam-taman ang pangangatawan, parehong nakapantalon ng maong naka-suot ng jacket na maong, parehong naka rubber shoes at pareho ring naka sumbrero. 9. T: S: Kung sakali bang makikita mo pa ang mga ito ay makikilala mo pa sila? Makikilala ko po sila.40

When asked to identify the robbers during the trial, Rodolfo spontaneously pointed to and identified Juan and Victor: Q Fiscal:

(to the witness) xxx Q Those two man (sic) who stated that it was a hold-up inside the bus and who fired the gun are they inside the Court room (sic) today? A Yes, ma'am.

Point to us?

Interpreter: Witness pointing to a man wearing red T-shirt and when asked his name answered Victor Acuyan and the man wearing green T-shirt and when asked his name answered Juan Gonzales.41 For his part, Romulo likewise spontaneously pointed to and identified Juan and Victor as the culprits when asked by the prosecutor to identify the robbers from among those in the courtroom: xxx Q You said that you were robbed inside the bus, how does (sic) the robbing took place?

A They announced a hold up ma'am, afterwards, they confiscated the money of the passengers including my collections. Q to? A You said "they" who announced the hold up, whose (sic) these "they" you are referring

Those two (2), ma'am.

Interpreter: Witness pointing to the two accused. Public Pros.: May we request that the accused be identified, Your Honor. Court: (to both accused) What are your names? A Juan Escote, Your Honor. Victor Acuyan, Your Honor.

Public Pros.: May we know from the accused if his name is Juan Escote Gonzales because he just said Juan Escote. In the Information, it is one Juan Gonzales, Jr., so, we can change, Your Honor.42 Moreover, when he was accosted by SPO3 Romeo Meneses on October 25, 1997 in Tarlac, Tarlac, Juan was in possession of the identification card43 of the slain police officer. Juan failed to explain to the trial

court how and under what circumstances he came into possession of said identification card. Juan must necessarily be considered the author of the robbery and the killing of SPO1 Manio, Jr. In People v. Mantung,44 we held: xxx [T]he recovery of part of the loot from Mantung or the time of his arrest gave rise to a legal presumption of his guilt. As this Court has held, '[I]n the absence of an explanation of how one has come into possession of stolen effects belonging to a person wounded and treacherously killed, he must necessarily be considered the author of the aggression and death of the said person and of the robbery committed on him.' While police investigators did not place Juan and Victor in a police line-up for proper identification by Rodolfo and Romulo, it cannot thereby be concluded that absent such line-up, their identification by Romulo and Rodolfo as the authors of the robbery with homicide was unreliable. There is no law or police regulation requiring a police line-up for proper identification in every case. Even if there was no police line-up, there could still be proper and reliable identification as long as such identification was not suggested or instigated to the witness by the police.45In this case, there is no evidence that the police officers had supplied or even suggested to Rodolfo and Romulo the identities of Juan and Victor as the perpetrators of the robbery and the killing of SPO1 Manio, Jr. The Felony Committed by Juan and Victor The Court finds that the trial court committed no error in convicting Juan and Victor of robbery with homicide. Article 294, paragraph 1 of the Revised Penal Code, as amended by Republic Act 7659, reads: Art. 294. - Robbery with violence against or intimidation of persons. - Penalties. - Any person guilty of robbery with the use of violence against or intimidation of 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. To warrant the conviction of Juan and Victor for the said charge, the prosecution was burdened to prove the confluence of the following essential elements: xxx (a) the taking of personal property with the use of violence or intimidation against a person; (b) the property thus taken belongs to another; (c) the taking is characterized by intent to gain or animus lucrandiand (d) on the occasion of the robbery or by reason thereof, the crime of homicide, which is therein used in a generic sense, was committed. xxx46 The intent to rob must precede the taking of human life.47 In robbery with homicide, so long as the intention of the felons was to rob, the killing may occur before, during or after the robbery. In People v. Barut,48 the Court held that: In the controlling Spanish version of article 294, it is provided that there is robbery with homicide "cuando con motivo o con ocasin del robo resultare homicidio". "Basta que entre aquel este exista una relacin meramente ocasional. No se requiere que el homicidio se cometa como medio de ejecucin del robo, ni que el culpable tenga intencin de matar, el delito existe

segn constanta jurisprudencia, aun cuando no concurra animo homicida. Incluso si la muerte sobreviniere por mero accidente, siempre que el homicidio se produzca con motivo con ocasin del robo, siendo indiferente que la muerte sea anterior, coetnea o posterior a ste" (2 Cuello Calon, Derecho Penal, 1975 14th Ed. P. 872). Even if the victim of robbery is other than the victim of the homicide committed on the occasion of or by reason of the robbery, nevertheless, there is only one single and indivisible felony of robbery with homicide. All the crimes committed on the occasion or by reason of the robbery are merged and integrated into a single and indivisible felony of robbery with homicide. This was the ruling of the Supreme Court of Spain on September 9, 1886, et sequitur cited by this Court in People v. Mangulabnan, et al.49 We see, therefore, that in order to determine the existence of the crime of robbery with homicide it is enough that a homicide would result by reason or on the occasion of the robbery (Decision of the Supreme Court of Spain of November 26, 1892, and January 7, 1878, quoted in 2 Hidalgo's Penal Code, p. 267 and 259-260, respectively). This High Tribunal speaking of the accessory character of the circumstances leading to the homicide, has also held that it is immaterial that the death would supervene by mere accident (Decision of September 9, 1886; October 22, 1907; April 30, 1910 and July 14, 1917), provided that the homicide be produced by reason or on occasion of the robbery, inasmuch as it is only the result obtained, without reference or distinction as to the circumstances, causes, modes or persons intervening in the commission of the crime, that has to be taken into consideration (Decision of January 12, 1889 see Cuello Calon's Codigo Penal, p. 501-502). Case law has it that whenever homicide has been committed by reason of or on the occasion of the robbery, all those who took part as principals in the robbery will also be held guilty as principals of robbery with homicide although they did not take part in the homicide, unless it appears that they endeavored to prevent the homicide.50 In this case, the prosecution proved beyond reasonable doubt that Juan and Victor conspired and confabulated together in robbing the passengers of the Five Star Bus of their money and valuables and Romulo of his collections of the fares of the passengers and in killing SPO1 Manio, Jr. with impunity on the occasion of the robbery. Hence, both Juan and Victor are guilty as principals by direct participation of the felony of robbery with homicide under paragraph 1, Article 294 of the Revised Penal Code, as amended by R.A. 7659, punishable byreclusion perpetua to death. The Proper Penalty The trial court imposed the supreme penalty of death on Juan and Victor for robbery with homicide, defined in Article 294, paragraph 1 of the Revised Penal Code, punishable with reclusion perpetua. Under Article 63, paragraph 1 of the Revised Penal Code, the felons should be meted the supreme penalty of death when the crime is committed with an aggravating circumstance attendant in the commission of the crime absent any mitigating circumstance. The trial court did not specify in the decretal portion of its decision the aggravating circumstances attendant in the commission of the crime mandating the imposition of the death penalty. However, it is evident from the findings of facts contained in the body of the decision of the trial court that it imposed the death penalty on Juan and Victor on its finding that they shot SPO1 Manio, Jr. treacherously on the occasion of or by reason of the robbery:

xxx The two (2) accused are incomparable in their ruthlessness and base regard for human life. After stripping the passengers of their money and valuables, including the firearm of the victim, they came to decide to execute the latter seemingly because he was a police officer. They lost no time pouncing him at the rear section of the bus, aimed their firearms at him and, in a derisive and humiliating tone, told him, before pulling the trigger, that they were rather sorry but they are going to kill him with his own gun; and thereafter, they simultaneously fired point blank at the hapless policeman who was practically on his knees begging for his life. Afterwhich, they calmly positioned themselves at the front boasting for all to hear, that killing a man is like killing a chicken ("Parang pumapatay ng manok"). Escote, in particular, is a class by himself in callousness. xxx.51 The Court agrees with the trial court that treachery was attendant in the commission of the crime. There is treachery when the following essential elements are present, viz: (a) at the time of the attack, the victim was not in a position to defend himself; and (b) the accused consciously and deliberately adopted the particular means, methods or forms of attack employed by him.52 The essence of treachery is the sudden and unexpected attack by an aggressor on the unsuspecting victim, depriving the latter of any chance to defend himself and thereby ensuring its commission without risk of himself. Treachery may also be appreciated even if the victim was warned of the danger to his life where he was defenseless and unable to flee at the time of the infliction of the coup de grace.53 In the case at bar, the victim suffered six wounds, one on the mouth, another on the right ear, one on the shoulder, another on the right breast, one on the upper right cornea of the sternum and one above the right iliac crest. Juan and Victor were armed with handguns. They first disarmed SPO1 Manio, Jr. and then shot him even as he pleaded for dear life. When the victim was shot, he was defenseless. He was shot at close range, thus insuring his death. The victim was on his way to rejoin his family after a hard day's work. Instead, he was mercilessly shot to death, leaving his family in grief for his untimely demise. The killing is a grim example of the utter inhumanity of man to his fellowmen. The issues that now come to fore are (1) whether or not treachery is a generic aggravating circumstance in robbery with homicide; and if in the affirmative, (b) whether treachery may be appreciated against Juan and Victor. On the first issue, we rule in the affirmative. This Court has ruled over the years54 that treachery is a generic aggravating circumstance in the felony of robbery with homicide, a special complex crime (un delito especial complejo) and at the same time a single and indivisible offense (uno solo indivisible).55 However, this Court in two cases has held that robbery with homicide is a crime against property and hence treachery which is appreciated only to crimes against persons should not be appreciated as a generic aggravating circumstance.56 It held in another case that treachery is not appreciated in robbery with rape precisely because robbery with rape is a crime against property.57 These rulings of the Court find support in case law that in robbery with homicide or robbery with rape, homicide or rape are merely incidents of the robbery, with robbery being the main purpose and object of the criminal.58 Indeed, in People vs. Cando,59 two distinguished members of this Court advocated a review of the doctrine that treachery is a generic aggravating circumstance in robbery with homicide. They opined that treachery is applicable only to crimes against persons. After all, in People vs. Bariquit,60 this Court in a per curiamdecision promulgated in year 2000 declared that treachery is applicable only to crimes against persons. However, this Court held in People vs. Cando that treachery is a generic aggravating circumstance in robbery with homicide, citing its prior rulings that in robbery with homicide, treachery is a generic aggravating circumstance when the victim of homicide is killed with treachery. This Court opted not to apply its ruling earlier that year in People vs. Bariquit.

Legal Luminaries in criminal law and eminent commentators of the Revised Penal Code are not in full accord either. Chief Justice Ramon C. Aquino (Retired) says that treachery is appreciated only in crimes against persons as defined in Title 10, Book Two of the Code.61 Chief Justice Luis B. Reyes (Retired) also is of the opinion that treachery is applicable only to crimes against persons.62 However, Justice Florenz D. Regalado (Retired) is of a different view.63 He says that treachery cannot be considered in robbery but can be appreciated insofar as the killing is concerned, citing the decisions of this Court in People vs. Balagtas64 for the purpose of determining the penalty to be meted on the felon when the victim of homicide is killed with treachery. It must be recalled that by Royal Order of December 17, 1886 the 1850 Penal Code in force in Spain, as amended by the Codigo Penal Reformado de 1870 was applied in the Philippines. The Penal Code of 1887 in the Philippines was amended by Act 3815, now known as the Revised Penal Code, which was enacted and published in Spanish. In construing the Old Penal Code and the Revised Penal Code, this Court had accorded respect and persuasive, if not conclusive effect to the decisions of the Supreme Court of Spain interpreting and construing the 1850 Penal Code of Spain, as amended by Codigo Penal Reformado de 1870.65 Article 14, paragraph 16 of the Revised Penal Code reads: ART. 14. Aggravating circumstances. The following are aggravating circumstances: xxx 16. That the act be committed with treachery (alevosia). There is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make. The law was taken from Chapter IV, Article 10, paragraph 2 of the 1860 Penal Code and the Codigo Penal Reformado de 1870 of Spain which reads: Art. 10 ...2. Ejecutar el hecho con alevosia. Hay alevosia cuando el culpable comete cualquiera de los delitos contra las personas empleando medios, modos o for mas en la ejecucion que tiendan directa y especialmente a asegurarla sin riesgo para su persona, que proceda de la defensa que pudiera hacer el ofendido. xxx Article 14, paragraph 16 of the Revised Penal Code is a reproduction of the 1850 Penal Code of Spain and theCodigo Penal Reformado de 1870 with a slight difference. In the latter law, the words "las personas" (the persons) are used, whereas in Article 14, paragraph 6, of the Revised Penal Code, the words "the person" are used. Going by the letter of the law, treachery is applicable only to crimes against persons as enumerated in Title Eight, Chapters One and Two, Book II of the Revised Penal Code. However, the Supreme Court of Spain has consistently applied treachery to robbery with homicide, classified as a crime against property. Citing decisions of the Supreme Court of Spain, Cuello Calon, a noted commentator of the Spanish Penal Code says that despite the strict and express reference of the penal code to treachery being applicable to persons, treachery also applies to other crimes such as robbery with homicide:66

Aun cuando el Codigo solo se refiere a los delitos contra las personas, cabe estimarla en los que no perteneciendo a este titulo se determinan por muerte o lesiones, como, en el robo con homicidio, y en el homicidio del Jefe del Estado que es un delito contra la seguridad interior del Estado, y no obstante la referencia estricta del texto legal a los delitos contra las personas no es la alevosia aplicable a la mayoria de ellos, no lo es en el homicidio, pues como su concurrencia lo cualifica lo transforma en delito distinto, en asesinato, ni en el homicidio consentido (art. 409), ni en la ria tumultuaria (art. 408) ni en el infanticidio (art. 410). xxx. 67 Viada also says that treachery is appreciated in crimes against persons (delitos contra personas) and also in robbery with homicide (robo con homicidio).68 "Contra las personas. - Luego la circunstancia de alevosia solo puede apreciarse en los delitos provistos desde el art. 417 al 447, y en algun otro, como el de robo con homicidio, atentario, a la vez que contra la propriedad, contra la persona." Thus, treachery is a generic aggravating circumstance to robbery with homicide although said crime is classified as a crime against property and a single and indivisible crime. Treachery is not a qualifying circumstance because as ruled by the Supreme Court of Spain in its decision dated September 11, 1878, the word "homicide" is used in its broadest and most generic sense.69 Article 62, paragraph 1 of the Revised Penal Code provides that in diminishing or increasing the penalty for a crime, aggravating circumstances shall be taken into account. However, aggravating circumstances which in themselves constitute a crime specially punishable by law or which are included by the law in defining a crime and prescribing a penalty therefor shall not be taken into account for the purpose of increasing the penalty.70 Under paragraph 2 of the law, the same rule shall apply with respect to any aggravating circumstances inherent in the crime to such a degree that it must of necessity accompany the commission thereof. 1. Aggravating circumstances which in themselves constitute a crime specially punishable by law or which are included by the law in defining a crime and prescribing the penalty therefor shall not be taken into account for the purpose of increasing the penalty. xxx 2. The same rule shall apply with respect to any aggravating circumstances inherent in the crime to such a degree that it must be of necessity accompany the commission thereof. Treachery is not an element of robbery with homicide. Neither does it constitute a crime specially punishable by law nor is it included by the law in defining the crime of robbery with homicide and prescribing the penalty therefor. Treachery is likewise not inherent in the crime of robbery with homicide. Hence, treachery should be considered as a generic aggravating circumstance in robbery with homicide for the imposition of the proper penalty for the crime. In its Sentencia dated March 14, 1877, the Supreme Court of Spain declared that treachery is a generic aggravating circumstance not only in crimes against persons but also in robbery with homicide. The high court of Spain applied Article 79 of the Spanish Penal Code (Article 62 of the Revised Penal Code) and ruled that since treachery is not a constitutive element of the crime of robbery with homicide nor is it

inherent in said crime, without which it cannot be committed, treachery is an aggravating circumstance to said crime. The high court of Spain was not impervious of the fact that robbery with homicide is classified as a crime against property. Indeed, it specifically declared that the classification of robbery with homicide as a crime against property is irrelevant and inconsequential in the application of treachery. It further declared that it would be futile to argue that in crimes against property such as robbery with homicide, treachery would have no application. This is so, the high tribunal ruled, because when robbery is coupled with crimes committed against persons, the crime is not only an assault(ataca) on the property of the victims but also of the victims themselves (ofende): xxx que la circunstancia agravante de alevosia ni es constitutiva del delito complejo de robo y homicidio, ni de tal modo inherente que sin ella no pueda cometerse, sin que quepa arguir que en los delitos contra la propiedad no debe aquella tener aplicacion, porque cuando estos son complejos de los que se cometen contra las personas, no solo se ataca a la propiedad, sino que se ofende a estas. xxx71 In fine, in the application of treachery as a generic aggravating circumstance to robbery with homicide, the law looks at the constituent crime of homicide which is a crime against persons and not at the constituent crime of robbery which is a crime against property. Treachery is applied to the constituent crime of "homicide" and not to the constituent crime of "robbery" of the special complex crime of robbery with homicide. The crime of robbery with homicide does not lose its classification as a crime against property or as a special complex and single and indivisible crime simply because treachery is appreciated as a generic aggravating circumstance. Treachery merely increases the penalty for the crime conformably with Article 63 of the Revised Penal Code absent any generic mitigating circumstance. In its Sentencia, dated July 9, 1877, the high tribunal of Spain also ruled that when the victim of robbery is killed with treachery, the said circumstance should be appreciated as a generic aggravating circumstance in robbery with homicide: xxx que si aparece probado que el procesado y su co-reo convinieron en matar a un conocido suyo, compaero de viaje, para lo cual desviaron cautelosamente los carros que guiaban, en uno de los cuales iba el interfecto, dirigiendolos por otro camino que conducia a un aljibon, y al llegar a este, valiendose de engao para hacer bajar a dicho interfecto, se lanzaron de improviso sobre el, tirandolo en tierra, robandole el dinero, la manta y los talegos que llevaba, y atandole al pie una piedra de mucho peso, le arrojaron con ella a dicho aljibon, dados estos hechos, no cabe duda que constituyen el delito complejo del art. 516, num. I, con la circunstancia agravante de alevosia, puesto que los medios, forma y modos empleados en la ejecucion del crimen tendieron directa y especialmente a asegurarla sin riesgo para sus autores, procedente de la defensa del ofendido.72 In sum then, treachery is a generic aggravating circumstance in robbery with homicide when the victim of homicide is killed by treachery. On the second issue, we also rule in the affirmative. Article 62, paragraph 4 of the Revised Penal Code which was taken from Article 80 of the Codigo Penal Reformado de 1870,73 provides that circumstances which consist in the material execution of the act, or in the means employed to accomplish it, shall serve

to aggravate or mitigate the liability of those persons only who had knowledge of them at the time of the execution of the act or their cooperation therein. The circumstances attending the commission of a crime either relate to the persons participating in the crime or into its manner of execution or to the means employed. The latter has a direct bearing upon the criminal liability of all the accused who have knowledge thereof at the time of the commission of the crime or of their cooperation thereon.74 Accordingly, the Spanish Supreme Court held in its Sentencia dated December 17, 1875 that where two or more persons perpetrate the crime of robbery with homicide, the generic aggravating circumstance of treachery shall be appreciated against all of the felons who had knowledge of the manner of the killing of victims of homicide, with the ratiocination that: xxx si por la Ley basta haberse ejecutado un homicidio simple con motivo ocasin del robo para la imposicion de la pena del art. 516, num. I, no puede sere ni aun discutible que, concurriendo la agravante de alevosia, se aumente la criminalidad de los delincuentes; siendo aplicable a todos los autores del hecho indivisible, porque no es circunstancia que afecte a la personalidad del delincuente, de las que habla el art. 80 del Codigo penal en su primera parte, sino que consiste en la ejecusion material del hecho y en los medios empleados para llevarle a cabo, cuando de ellos tuvieron conocimiento todos los participantes en el mismo por el concierto previo y con las condiciones establecidad en la segunda parte del citado articulo.75 Be that as it may, treachery cannot be appreciated against Juan and Victor in the case at bar because the same was not alleged in the Information as mandated by Section 8, Rule 110 of the Revised Rules on Criminal Procedures which reads: 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. Although at the time the crime was committed, generic aggravating circumstance need not be alleged in the Information, however, the general rule had been applied retroactively because if it is more favorable to the accused.76 Even if treachery is proven but it is not alleged in the information, treachery cannot aggravate the penalty for the crime. There being no modifying circumstances in the commission of the felony of robbery with homicide, Juan and Victor should each be meted the penalty of reclusion perpetua conformably with Article 63 of the Revised Penal Code. Civil Liability of Juan and Victor The trial court awarded the total amount of P300,000.00 to the heirs of SPO1 Manio, Jr. The court did not specify whether the said amounts included civil indemnity for the death of the victim, moral damages and the lost earnings of the victim as a police officer of the PNP. The Court shall thus modify the awards granted by the trial court. Since the penalty imposed on Juan and Victor is reclusion perpetua, the heirs of the victim are entitled to civil indemnity in the amount of P50,000.00. The heirs are also entitled to moral damages in the amount of P50,000.00, Rosemarie Manio having testified on the factual basis thereof.77 Considering that

treachery aggravated the crime, the heirs are also entitled to exemplary damages in the amount of P25,000.00. This Court held in People vs. Catubig78 that the retroactive application of Section 8, Rule 110 of the Revised Rules of Criminal Procedure should not impair the right of the heirs to exemplary damages which had already accrued when the crime was committed prior to the effectivity of the said rule. Juan and Victor are also jointly and severally liable to the said heirs in the total amount of P30,000.00 as actual damages, the prosecution having adduced evidence receipts for said amounts. The heirs are not entitled to expenses allegedly incurred by them during the wake as such expenses are not supported by receipts.79 However, in lieu thereof, the heirs are entitled to temperate damages in the amount of P20,000.00.80 The service firearm of the victim was turned over to the Evidence Custodian of the Caloocan City Police Station per order of the trial court on October 22, 1997.81 The prosecution failed to adduce documentary evidence to prove the claim of Five Star Bus, Inc. in the amount of P6,000.00. Hence, the award should be deleted. However, in lieu of actual damages, the bus company is entitled to temperate damages in the amount of P3,000.00.82 The heirs are likewise entitled to damages for the lost earnings of the victim. The evidence on record shows that SPO1 Manio, Jr. was born on August 25, 1958. He was killed on September 28, 1996 at the age of 38. He had a gross monthly salary as a member of the Philippine National Police of P8,065.00 or a gross annual salary of P96,780.00. Hence, the heirs are entitled to the amount of P1,354,920.00 by way of lost earnings of the victim computed, thus: Age of the victim Life expectancy = 38 years old = 2/3 x (80 age of the victim at the time of death) = 2/3 x (80-38) = 2/3 x 42 = 28 years Gross Annual Income = gross monthly income x 12 months = P8,065.00 x 12 = P96,780.00 Living Expenses = 50% of Gross Annual Income = P96,780.00 x 0.5 = P48,390.00 Lost Earning Capacity = Life expectancy x [Gross Annual Income-Living expenses] = 28 x [P96,780.00 P48,390.00] = 28 x P48,390.00 = P1,354,920.00 IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Bulacan is hereby AFFIRMED with MODIFICATIONS. Accused-appellants Juan Gonzales Escote, Jr. and Victor Acuyan are hereby found guilty beyond reasonable doubt of the felony of robbery with homicide defined in Article 294, paragraph 1 of the Revised Penal Code and, there being no modifying circumstances in the commission of the felony, hereby metes on each of them the penalty of RECLUSION PERPETUA. Said accused-appellants are hereby ordered to pay jointly and severally the heirs of the victim SPO1 Jose C. Manio, Jr. the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, P1,349,920.00

for lost earnings, P30,000.00 as actual damages and P25,000.00 as exemplary damages. The award of P6,000.00 to the Five Star Bus, Inc. is deleted. However, the said corporation is awarded the amount of P3,000.00 as temperate damages. Costs de oficio. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Quisumbing, Carpio, Austria-Martinez, Corona, Carpio-Morales, and Azcuna, JJ., concur. Vitug J., please see separate opinion. Ynares-Santiago, J., I join J. Vitug's separate opinion. Sandoval-Gutierrez, JJ., join J. Vitug's separate opinion.

Separate Opinion VITUG, J.: Should an attendant aggravating circumstance of treachery, exclusive to crimes against persons, be appreciated in the special complex crime of robbery with homicide which Article 294 of the Revised Penal Code categorizes as a crime against property? I humbly submit that it should not be appreciated. A brief background. At past midnight on 28 September 1996, a Five Star passenger bus with plate No. ABS-793, bound for Bolinao from Manila, stopped at the Balintawak junction to pick up some passengers. Six passengers, among them victor Acuyan and Juan Gonzales Escote, boarded the bus. Escote seated himself on the third seat near the aisle while Acuyan took the mid-portion of the vehicle beside the bus conductor. Along the highway in Plaridel, Bulacan, passengers Escote and Acuyan suddenly stood up, took their positions and declared a holdup. Escote fired his gun upwards, jolting to consciousness the sleepy and dozing passengers. The duo promptly divested the passengers of their valuables. The bus conductor, Romulo Digap, was dispossessed of the fares he earlier collected from the passengers. When the two repaired to the rear end of the bus, they came upon SPO1 Jose C. Manio, a passenger on his way to Angeles City. The felons demanded that Manio show them his identification card and wallet. Manio took out his identification card and his service gun. At this point, the duo told the hapless law officer: "Pasensya ka na pare, papatayin ka namin, baril mo rin ang papatay sa iyo." Ignoring his pleas for mercy, the robbers mercilessly and repeatedly shot Manio to death. The two then proceeded to the driver's seat. Rodolfo Caciatan, the driver, overheard one of the felons boast: "Ganyan lang ang pumatay ng tao. Parang pumapatay ng manok." The other said: "Ayos na naman tayo pare. Malaki-laki ito." After warning Caciatan not to report the incident to the authorities, the two alighted at an overpass in Mexico, Pampanga. The bus driver and the bus conductor reported the incident to the police authorities in Dau, Mabalacat, Pampanga. The lifeless body of SPO1 Manio, Jr., was brought to a nearby funeral parlor where Dr. Alejandro D. Tolentino performed an autopsy.

Less than a month later, on 25 October 1996, about midnight, SPO3 Romeo Meneses, the team leader of Alert Team No. 1 of the Tarlac Police Station, and SPO3 Florante S. Ferrer were at a checkpoint along the Tarlac national highway. The police officers were diverting the traffic flow to the Sta. Rosa Road because of the temporary closure of the Bambang-Concepcion bridge to motorists. Meneses stopped the driver of a white-colored taxicab without any plate number. The driver turned out to be Juan Gonzales Escote, Jr. Escote introduced himself to be a police officer. When asked to present his identification card, Escote at once produced the card issued to and in the name of SPO1 Manio. Meneses became suspicious after noticing that the card had already expired. When asked to produce a new pay slip, Escote was not able to show any. Amidst intensive probing, Escote finally confessed that he was not a policeman. Meneses forthwith brought Escote to the police station where five live bullets of a 9-millimeter firearm were confiscated from him. Escote owned responsibility for the highway robbery committed aboard the Five Star passenger bus and for the death of SPO1 Manio, Jr. Escote was turned over to the custody of the Plaridel Police Station where the bus conductor, Romulo Digap, later identified Escote as having been one of the two robbers. A further investigation on the case led to the arrest of Victor Acuyan in Laoang, Northern Samar. On 04 April 1997, an Information for robbery with homicide was filed before the Regional Trial Court of Bulacan against Juan Gonzales Escote and Victor O. Acuyan. When arraigned, Escote and Acuyan entered a plea of not guilty. The trial ensued. After the prosecution had rested its case, Escote escaped from the provincial jail. Only Acuyan was able to adduce evidence in his defense. Acuyan denied the charge and interposed the defense of alibi. At the time of the robbery, he claimed, he was in Laoang, Samar, for the town fiesta and had a drinking spree with friends, after which they attended a public dance that lasted until dawn of the next day. He denied having met Juan Escote before. On 14 January 1999, Juan Escote was re-arrested in Daet, Camarines Norte, but he chose not to adduce any evidence in his behalf. The trial court found Juan Escote and Victor Acuyan guilty beyond reasonable doubt of the crime of robbery with homicide and meted upon each of them the penalty of death. In imposing the penalty of death upon appellants, the trial court considered treachery as an aggravating circumstance as to justify its imposition of the maximum penalty of death. The ponencia, while finding that treachery could not be appreciated for not having been aptly alleged in the information, expressed in an obiter, however, that had it been otherwise, i.e., that had treachery been properly alleged, this circumstance could have aggravated the crime. It is on the last pronouncement that I beg to differ. Unlike ordinary complex crimes, robbery with homicide, defined by Article 294 of the Revised Penal Code, is aspecial complex crime against property, explicitly carrying a corresponding penalty of reclusion perpetua to death. In an ordinary complex crime, Article 48 of the Revised Penal Code expresses that "the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period." Article 48 means then that in the imposition of the penalty for such an ordinary complex crime, i.e., where no specific penalty is prescribed for the complex crime itself, the composite offenses and their respective penalties are individually factored, and it is possible, indeed warranted, that any aggravating circumstance, generic or qualified, even if it be peculiar to only one of the constituent crimes, can and should be logically considered in order to determine which of the composite crimes is the "most serious crime," the penalty for which shall then "be applied in its maximum period." The rule evidently is not in square

with a special complex crime, like robbery with homicide, where the law effectively treats the offense as an individual felony in itself and then prescribes a specific penalty therefore. Article 294 is explicit, and it provides"Art. 294. Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer: "(1) The penalty of reclusion perpetua to death, when by reason or on the 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." There being just an independent prescribed penalty for the offense, any circumstance that can aggravate that penalty should be germane and generic not to one but to both of the constituent offenses that comprise the elements of the crime.1 The suggestion that treachery could be appreciated "only insofar" as the killing is concerned would unavoidably be to consider and hold robbery and homicide as being separately penalized and to thus discount its classification under Article 294 of the Code as a distinct crime itself with a distinct penalty prescribed therefor. Most importantly, such interpretation would be to treat the special complex crime of robbery with homicide no differently from ordinary complex crimes defined under Article 48, where the composite crimes are separately regarded and weighed in the ultimate imposition of the penalty. If such were intended, the law could have easily so provided, with the penalty for the higher of the two offenses to be then accordingly imposed on the malefactor. In prescribing, however, the penalty of reclusion perpetua to death, where homicide results by reason or on occasion of the robbery, the law has virtually taken into account the particularly "nefarious" nature of the crime, where human life is taken, howsoever committed, to pursue the criminal intent to gain with the use of violence against or intimidation of any person. Distinct penalties prescribed by law in special complex crimes is in recognition of the primacy given to criminal intent over the overt acts that are done to achieve that intent. This conclusion is made implicit in various provisions of the Revised Penal Code. Thus, practically all of the justifying circumstances, as well as the exempting circumstances of accident (paragraph 4, Article 12) and lawful or insuperable cause (paragraph 7, Article 12), are based on the lack of criminal intent.2 In felonies committed by means of dolo, as opposed to those committed by means of culpa (including offenses punished under special laws), criminal intent is primordial and overt acts are considered basically as being mere manifestations of criminal intent. Paragraph 2, Article 4, of the Revised Penal Code places emphasis on "intent" over effect, as it assigns criminal liability to one who has committed an "impossible crime," said person having intended and pursued such intent to commit a felony although, technically, no crime has actually been committed. Article 134 of the same Code, penalizing the crime of rebellion, imposes a distinct penalty, the rebel being moved by a single intent which is to overthrow the existing government, and ignores individual acts committed in the furtherance of such intent. If a circumstance, peculiar to only one of the composite crimes, could at all be allowed to aggravate the penalty in robbery with homicide, it should be with respect to the main offense of robbery, the intent to gain being the moving force that impels the malefactor to commit the crime. The attendant offense of homicide cannot be further modified, "homicide" this time being so understood, as it should be, in its generic sense, comprehending even murder or parricide, when committed "by reason or on the occasion of the robbery." The generic character of "homicide" in this special complex crime, has been exemplified, for instance, in People vs. Mangulabnan,3 where the court has held that, "[i]n order to determine the existence of the crime of robbery with homicide, it is enough that a homicide would

result by reason or on the occasion of the robbery and it is immaterial that the death would supervene by mere accident provided that the homicide be produced by reason or on occasion of the robbery inasmuch as it is only the result obtained, without reference or distinction as to the circumstances, causes , modes or persons intervening in the commission of the crime, that has to be taken into consideration."4 If the term "homicide" were not to be understood in its generic sense, an aggravating circumstance, such as evident premeditation or treachery, would qualify the killing into murder. Two separate crimes of robbery and homicide inevitably would result that effectively would place the two felonies outside the coverage of Article 294. And, as to whether or not those crimes should be complexed with each other would depend on the attendance of the requisites enumerated in Article 48 for ordinary complex crimes, i.e., a) that a single act constitute two or more grave or less grave felonies or, b) that an offense is a necessary means for committing the other. It is on the foregoing predicate, I am convinced, that this Court in People vs. Timple5 has rejected the idea of appreciating treachery as being an aggravating circumstance in the crime of robbery with homicide, an offense, I might repeat, is by law classified as a crime against property. I certainly will not view the ruling as having been made in any cavalier fashion and with little or no effort for an introspective ratiocination. Timple has, in fact, been stressed in People vs. Arizobal;6 viz: "But treachery was incorrectly considered by the trial court. The accused stand charged with, tried and convicted of robbery with homicide. This special complex crime is primarily classified in this jurisdiction as a crime against property, and not against persons, homicide being merely an incident of robbery with the latter being the main purpose and object of the criminals. As such, treachery cannot be validly appreciated as an aggravating circumstance under Art. 14 of The Revised Penal Code. (People v. Bariquit, G.R. No. 122733, 2 October 2000, 341 SCRA 600.) This is completely a reversal of the previous jurisprudence on the matter decided in a litany of cases before People v. Bariquit."7

G.R. No. L-10126

October 22, 1957

SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA, LUZVIMINDA, ELENITA, OSCAR and ALFREDO BATACLAN, represented by their Natural guardian, SALUD VILLANUEVA VDA. DE BATACLAN, plaintiffs-appellants, vs. MARIANO MEDINA, defendant-appellant. Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for plaintiffs-appellants. Fortunato Jose for defendant and appellant. MONTEMAYOR, J.:

Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina Transportation, operated by its owner defendant Mariano Medina under a certificate of public convenience, left the town of Amadeo, Cavite, on its way to Pasay City, driven by its regular chauffeur, Conrado Saylon. There were about eighteen passengers, including the driver and conductor. Among the passengers were Juan Bataclan, seated beside and to the right of the driver, Felipe Lara, sated to the right of Bataclan, another passenger apparently from the Visayan Islands whom the witnesses just called Visaya, apparently not knowing his name, seated in the left side of the driver, and a woman named Natalia Villanueva, seated just behind the four last mentioned. At about 2:00 o'clock that same morning, while the bus was running within the jurisdiction of Imus, Cavite, one of the front tires burst and the vehicle began to zig-zag until it fell into a canal or ditch on the right side of the road and turned turtle. Some of the passengers managed to leave the bus the best way they could, others had to be helped or pulled out, while the three passengers seated beside the driver, named Bataclan, Lara and the Visayan and the woman behind them named Natalia Villanueva, could not get out of the overturned bus. Some of the passengers, after they had clambered up to the road, heard groans and moans from inside the bus, particularly, shouts for help from Bataclan and Lara, who said they could not get out of the bus. There is nothing in the evidence to show whether or not the passengers already free from the wreck, including the driver and the conductor, made any attempt to pull out or extricate and rescue the four passengers trapped inside the vehicle, but calls or shouts for help were made to the houses in the neighborhood. After half an hour, came about ten men, one of them carrying a lighted torch made of bamboo with a wick on one end, evidently fueled with petroleum. These men presumably approach the overturned bus, and almost immediately, a fierce fire started, burning and all but consuming the bus, including the four passengers trapped inside it. It would appear that as the bus overturned, gasoline began to leak and escape from the gasoline tank on the side of the chassis, spreading over and permeating the body of the bus and the ground under and around it, and that the lighted torch brought by one of the men who answered the call for help set it on fire. That same day, the charred bodies of the four deemed passengers inside the bus were removed and duly identified that of Juan Bataclan. By reason of his death, his widow, Salud Villanueva, in her name and in behalf of her five minor children, brought the present suit to recover from Mariano Medina compensatory, moral, and exemplary damages and attorney's fees in the total amount of P87,150. After trial, the Court of First Instance of Cavite awarded P1,000 to the plaintiffs plus P600 as attorney's fee, plus P100, the value of the merchandise being carried by Bataclan to Pasay City for sale and which was lost in the fire. The plaintiffs and the defendants appealed the decision to the Court of Appeals, but the latter endorsed the appeal to us because of the value involved in the claim in the complaint. Our new Civil Code amply provides for the responsibility of common carrier to its passengers and their goods. For purposes of reference, we are reproducing the pertinent codal provisions: ART. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to all the circumstances of each case. Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734, 1735, and 1745, Nos. 5, 6, and 7, while the extra ordinary diligence for the safety of the passengers is further set forth in articles 1755 and 1756.

ART. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances. ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as prescribed in articles 1733 and 1755 ART. 1759. Common carriers are liable for the death of or injuries to passengers through the negligence or willful acts of the former's employees, although such employees may have acted beyond the scope of their authority or in violation of the order of the common carriers. This liability of the common carriers does not cease upon proof that they exercised all the diligence of a good father of a family in the selection and supervision of their employees. ART. 1763. A common carrier responsible for injuries suffered by a passenger on account of the willful acts or negligence of other passengers or of strangers, if the common carrier's employees through the exercise of the diligence of a good father of a family could have prevented or stopped the act or omission. We agree with the trial court that the case involves a breach of contract of transportation for hire, the Medina Transportation having undertaken to carry Bataclan safely to his destination, Pasay City. We also agree with the trial court that there was negligence on the part of the defendant, through his agent, the driver Saylon. There is evidence to show that at the time of the blow out, the bus was speeding, as testified to by one of the passengers, and as shown by the fact that according to the testimony of the witnesses, including that of the defense, from the point where one of the front tires burst up to the canal where the bus overturned after zig-zaging, there was a distance of about 150 meters. The chauffeur, after the blow-out, must have applied the brakes in order to stop the bus, but because of the velocity at which the bus must have been running, its momentum carried it over a distance of 150 meters before it fell into the canal and turned turtle. There is no question that under the circumstances, the defendant carrier is liable. The only question is to what degree. The trial court was of the opinion that the proximate cause of the death of Bataclan was not the overturning of the bus, but rather, the fire that burned the bus, including himself and his copassengers who were unable to leave it; that at the time the fire started, Bataclan, though he must have suffered physical injuries, perhaps serious, was still alive, and so damages were awarded, not for his death, but for the physical injuries suffered by him. We disagree. A satisfactory definition of proximate cause is found in Volume 38, pages 695-696 of American jurisprudence, cited by plaintiffs-appellants in their brief. It is as follows: . . . 'that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.' And more comprehensively, 'the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person

responsible for the first event should, as an ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom. It may be that ordinarily, when a passenger bus overturns, and pins down a passenger, merely causing him physical injuries, if through some event, unexpected and extraordinary, the overturned bus is set on fire, say, by lightning, or if some highwaymen after looting the vehicle sets it on fire, and the passenger is burned to death, one might still contend that the proximate cause of his death was the fire and not the overturning of the vehicle. But in the present case under the circumstances obtaining in the same, we do not hesitate to hold that the proximate cause was the overturning of the bus, this for the reason that when the vehicle turned not only on its side but completely on its back, the leaking of the gasoline from the tank was not unnatural or unexpected; that the coming of the men with a lighted torch was in response to the call for help, made not only by the passengers, but most probably, by the driver and the conductor themselves, and that because it was dark (about 2:30 in the morning), the rescuers had to carry a light with them, and coming as they did from a rural area where lanterns and flashlights were not available; and what was more natural than that said rescuers should innocently approach the vehicle to extend the aid and effect the rescue requested from them. In other words, the coming of the men with a torch was to be expected and was a natural sequence of the overturning of the bus, the trapping of some of its passengers and the call for outside help. What is more, the burning of the bus can also in part be attributed to the negligence of the carrier, through is driver and its conductor. According to the witness, the driver and the conductor were on the road walking back and forth. They, or at least, the driver should and must have known that in the position in which the overturned bus was, gasoline could and must have leaked from the gasoline tank and soaked the area in and around the bus, this aside from the fact that gasoline when spilled, specially over a large area, can be smelt and directed even from a distance, and yet neither the driver nor the conductor would appear to have cautioned or taken steps to warn the rescuers not to bring the lighted torch too near the bus. Said negligence on the part of the agents of the carrier come under the codal provisions above-reproduced, particularly, Articles 1733, 1759 and 1763. As regard the damages to which plaintiffs are entitled, considering the earning capacity of the deceased, as well as the other elements entering into a damage award, we are satisfied that the amount of SIX THOUSAND (P6,000) PESOS would constitute satisfactory compensation, this to include compensatory, moral, and other damages. We also believe that plaintiffs are entitled to attorney's fees, and assessing the legal services rendered by plaintiffs' attorneys not only in the trial court, but also in the course of the appeal, and not losing sight of the able briefs prepared by them, the attorney's fees may well be fixed at EIGHT HUNDRED (P800) PESOS for the loss of merchandise carried by the deceased in the bus, is adequate and will not be disturbed. There is one phase of this case which disturbs if it does not shock us. According to the evidence, one of the passengers who, because of the injuries suffered by her, was hospitalized, and while in the hospital, she was visited by the defendant Mariano Medina, and in the course of his visit, she overheard him speaking to one of his bus inspectors, telling said inspector to have the tires of the bus changed immediately because they were already old, and that as a matter of fact, he had been telling the driver to change the said tires, but that the driver did not follow his instructions. If this be true, it goes to prove that the driver had not been diligent and had not taken the necessary precautions to insure the safety of his passengers. Had he changed the tires, specially those in front, with new ones, as he had been instructed to do, probably, despite his speeding, as we have already stated, the blow out would not have occurred. All in all, there is reason to believe that the driver operated and drove his vehicle negligently,

resulting in the death of four of his passengers, physical injuries to others, and the complete loss and destruction of their goods, and yet the criminal case against him, on motion of the fiscal and with his consent, was provisionally dismissed, because according to the fiscal, the witnesses on whose testimony he was banking to support the complaint, either failed or appear or were reluctant to testify. But the record of the case before us shows the several witnesses, passengers, in that bus, willingly and unhesitatingly testified in court to the effect of the said driver was negligent. In the public interest the prosecution of said erring driver should be pursued, this, not only as a matter of justice, but for the promotion of the safety of passengers on public utility buses. Let a copy of this decision be furnished the Department of Justice and the Provincial Fiscal of Cavite. In view of the foregoing, with the modification that the damages awarded by the trial court are increased from ONE THOUSAND (P1,000) PESOS TO SIX THOUSAND (P6,000) PESOS, and from SIX HUNDRED PESOS TO EIGHT HUNDRED (P800) PESOS, for the death of Bataclan and for the attorney's fees, respectively, the decision appealed is from hereby affirmed, with costs.

G.R. No. 116719

January 18, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PATRICIO AMIGO alias "BEBOT", accused-appellant. DECISION MELO, J.: Initially, Patricio Amigo was charged with frustrated murder in an Information reading as follows: The undersigned accuses the above-named accused of the crime of FRUSTRATED MURDER, under Art. 248, in relation to Art. 5 of the Revised Penal Code, committed as follows: That on or about December 29, 1989, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, armed with a knife, with treachery and evident premeditation and with intent to kill wilfully, unlawfully and feloniously attacked, assaulted and stab with said weapon one Benito Ng Suy, thereby inflicting injuries upon the latter, the following injuries, to wit: MULTIPLE STAB WOUNDS-LEFT ARM, LEFT CHEST, ABDOMEN AND LEFT THIGH WITH PENETRATION TO LEFT PLEURAL CAVITY, DIAPHRAGM STOMACH, DUODENUM, PANCREAS AND MIDTRANVERSE COLON. thus performing all the acts of execution which should have produced the crime of murder as a consequence but nevertheless, did not produce it by reason of causes independent of his will,

that is, because of the timely and able medical assistance immediately rendered to the said Benito Ng Suy. (p. 1, Rollo.) to which he pleaded not guilty. Subsequently, due to the death of the victim, an amended Information was filed charging now the crime of murder, to wit: That on or about December 29, 1989, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, armed with a knife, with treachery and evident premeditation and with intent to kill wilfully, unlawfully and feloniously attacked, assaulted and stabbed with said weapon one Benito Ng Suy, thereby inflicting upon the latter multiple wounds which caused his death and the consequent loss and damage to the heirs of the victim. (p. 3, Rollo.) After trial on the merits, the court a quo rendered a decision, disposing: WHEREFORE, finding the accused Patricio Amigo guilty beyond reasonable doubt of the crime of MURDER punishable under Art. 248 of the Revised Penal Code, with no modifying circumstance present, the accused is hereby sentenced to the penalty of reclusion perpetua, which is the medium period of the penalty ofreclusion temporal in its maximum to death and to pay the cost; to indemnify the offended party the amount of P93,214.70 as actual damages and P50,000.00 as compensatory damages and P50,000.00 as moral damages. (p. 32, Rollo.) Reversal thereof is now sought, with accused-appellant arguing that error was committed by the trial court in imposing or meting out the penalty of reclusion perpetua against him despite the fact that Sec. 19 (1), Article III of the 1987 Constitution was already in effect when the offense was committed. The facts of the case, as briefly summarized in the brief submitted by the Office of the Solicitor General and as borne out by the evidence, are as follows: On December 29, 1989, at around 1:00 P.M., after having spent half-day at their store, located at No. 166-A, Ramon Magsaysay Avenue, Davao City, Benito Ng Suy was driving their gray Ford Fiera back home, situated at the back of Car Asia, Bajada, Davao City. With him during that time were his daughters, Jocelyn Ng Suy and a younger one together with his two year old son, who were all seated at the front seat beside him while a five year old boy was also seated at the back of the said vehicle. (TSN, April 29, 1991, pp. 3-5; TSN, March 31, 1992) On their way home and while traversing the National Highway of Bajada, Davao City, an orange Toyota Tamaraw driven by one Virgilio Abogada, suddenly made a left turn in front of the Regional Hospital, Bajada, Davao City, without noticing the Ford Fiera coming from the opposite

direction. This Tamaraw was heading for Sterlyn Kitchenette, which was situated at the comer of the said hospital. (TSN, April 29, 1991, p. 4; TSN, March 31, 1992, pp. 3 and 13) With Virgilio was Patricio Amigo alias Bebot, a vulcanizer at Lingling's vulcanizing shop owned and operated by a certain Galadua. He was also seated at the right front seat beside Virgilio. Due to the unexpected veer made by Virgilio, an accidental head on collision occurred between the Fiera and the Tamaraw, causing a slight damaged to the right bumper of the latter. (TSN, March 31, 1992, p. 4) Right after the collision, Benito immediately alighted from the driver's seat and confronted Virgilio Abogada who also went down from his vehicle. (TSN, April 29, 1991, p. 5) Benito, who was a big man with a loud voice told Virgilio, "You were not looking," to which Virgilio retorted, I did not see you". (TSN, April 29, 1991, p. 16) While the two drivers where having this verbal confrontation, Patricio who was merely a passenger of Virgilio also alighted from the front seat of the Tamaraw and instantaneously approached Benito and advised the latter to leave since it was merely a small and minor accident. (TSN, April 29, 1991, pp. 16-18) A bit irritated with the actuation exhibit by Patricio, Benito rebuked the former and told him not to interfere, since he had nothing to do with the accident. (ibid. p. 7) Irked by the comment made by Benito, Patricio sarcastically asked; "You are Chinese, is it you?" With a ready answer Benito said; "Yes, I am a Chinese and why?" Patricio in turn replied; So, you are a Chinese, wait for a while," then left. (ibid. pp. 7 and 19) Immediately thereafter, Benito ordered Jocelyn to call a policeman, but after a lapsed of about one minute, Patricio returned and arrogantly approached Benito, asking the latter once again, "You are a Chinese, is it not?" To this Benito calmly responded in the affirmative. (ibid. pp. 7, 1920) Upon hearing the response, Patricio mumbled "Ah, so you are a Chinese," and suddenly took a five inch knife from his waist and simultaneously stabbed Benito hitting him twice on the chest. (Ibid. p. 20) After being hit, Benito wounded and sensing that his life was in peril, tried to evade his assailant by pushing Patricio away and run around the Tamaraw but Patricio wielding the same knife and not content with the injuries he had already inflicted, still chased Benito and upon overtaking the latter embraced him and thrusted his knife on the victim several times, the last of which hit Benito on the left side of his body. (ibid. pp. 8, 10, 22) It was at this juncture that Jocelyn who was still inside the Ford Fiera, pleading for mercy to spare her father tried to get out of the vehicle but it was very unfortunate that she could not open its door. (Ibid. p. 10)

Knowing that Patricio was really determined to kill her father by refusing to heed her pleas, Joselyn shouted for help, since there were already several people around witnessing that fatal incident, but to her consternation nobody lifted a single finger to help them. (ibid. pp. 6, 10, 18, 21-22) Only after her father lay seated on the floor of their Ford Fiera after being hit on the left side of his body that she was able to open the door of the said vehicle. (Ibid. p 12) After this precise moment, her younger sister, upon seeing their father bathing with his own blood, embraced him, causing Patricio to cease from his ferocious assault and noticing the presence of several people, he fled. (Ibid. p. 22) Thereafter, an enraged Jocelyn chased him, but since the assailant ran faster than her, she was not able to overtake him, thus, she instead decided to go back to where her father was and carried him inside the Tamaraw who bumped them and consequently brought him to San Pedro Hospital where he was attended to at the Emergency Room. (ibid. p 13) While at the Emergency Room, Benito who was on a very critical condition, due to multiple (13) stabbed wounds, was operated by Dr. Rolando Chiu. After the operation, he was subsequently brought to the ICU and stayed there for three (3) weeks. (July 12, 1991, pp. 3 and 4) In a last ditch effort to save his life, having only 10 to 20 percent survival, Benito was airlifted to Manila and was directly confined at the Chinese General Hospital. After three (3) weeks of confinement, Benito expired. CAUSE OF DEATH SEPSIS (an overwhelming infection). This means that the infection has already circulated in the blood all over the body. (ibid. pp. 6-7) (pp. 59-65, Rollo.) Accused-appellant contends that under the 1987 Constitution and prior to the promulgation of Republic Act No. 7659, the death penalty had been abolished and hence, the penalty that should have been imposed for the crime of murder committed by accused-appellant without the attendance of any modifying circumstances, should bereclusion temporal in its medium period or 17 years, 4 months and 1 day, to 20 years of reclusion temporal. Reasons out accused-appellant: . . . Since the death penalty (or capital punishment) is not imposable when the stabbing and killing happened, the computation of the penalty should be regarded from reclusion perpetua down and not from death penalty. Indeed, the appropriate penalty is deducible from reclusion perpetua down to reclusion temporal in its medium period. Hence, there being no modifying circumstances present (p. 5 Decision, ibid.), the correct penalty should be in the medium period (Art. 64, par. 1, Revised Penal Code) which is 17 years, 4 months and 1 day to 20 years of reclusion temporal. (p. 10, Appellant's Brief, ff. p. 50, Rollo.) The question raised by accused-appellant was settled by this Court in People vs. Muoz (170 SCRA 107 [1989]) thusly:

In People vs. Gavarra, Justice Pedro L. Yap declared for the Court that "in view of the abolition of the death penalty under Section 19, Article III of the 1987 Constitution, the penalty that may be imposed for murder isreclusion temporal in its maximum period to reclusion perpetua," thereby eliminating death as the original maximum period. Later, without categorically saying so, the Court, through Justice Ameurfina A. Melencio-Herrera in People vs. Masangkay and through Justice Andres R. Narvasa in People vs. Atencio, divided the modified penalty into three new periods, the limits of which were specified by Justice Edgardo L. Paras inPeople vs. Intino, as follows: the lower half of reclusion temporal maximum as the minimum; the upper half ofreclusion temporal maximum as the medium; and reclusion perpetua as the maximum. The Court has reconsidered the above cases and, after extended discussion, come to the conclusion that the doctrine announced therein does not reflect the intention of the framers as embodied in Article III, Section 19(1) of the Constitution. This conclusion is not unanimous, to be sure. Indeed, there is much to be said of the opposite view, which was in fact shared by many of those now voting for its reversal. The majority of the Court, however, is of the belief that the original interpretation should be restored as the more acceptable reading of the constitutional provision in question. The advocates of the Masangkay ruling argue that the Constitution abolished the death penalty and thereby limited the penalty for murder to the remaining periods, to wit, the minimum and the medium. These should now be divided into three new periods in keeping with the threegrade scheme intended by the legislature. Those who disagree feel that Article III, Section 19(1) merely prohibits the imposition of the death penalty and has not, by reducing it to reclusion perpetua, also correspondingly reduced the remaining penalties. These should be maintained intact. A reading of Section 19(1) of Article III will readily show that here is really nothing therein which expressly declares the abolition of the death penalty. The provision merely says that the death penalty shall not be imposed unless for compelling reasons involving heinous crimes the Congress hereafter provides for it and, if already imposed, shall be reduced to reclusion perpetua. The language, while rather awkward, is still plain enough. And it is a settled rule of legal hermeneutics that if the language under consideration is plain, it is neither necessary nor permissible to resort to extrinsic aids, like the records of the constitutional convention, for its interpretation. xxx xxx xxx

The question as we see it is not whether the framers intended to abolish the death penalty or merely to prevent its imposition. Whatever the intention was, what we should determine is whether or not they also meant to require a corresponding modification in the other periods as a result of the prohibition against the death penalty. It is definite that such a requirement, if there really was one, is not at all expressed in Article III, Section 19(1) of the Constitution or indicated therein by at least clear and unmistakable implication. It would have been so easy, assuming such intention, to state it categorically and plainly, leaving no doubts as to its meaning.

One searches in vain for such a statement, express or even implied. The writer of this opinion makes the personal observation that this might be still another instance where the framers meant one thing and said another or strangely, considering their loquacity elsewhere did not say enough. The original ruling as applied in the Gavarra, Masangkay, Atencio and Intino cases represented the unanimous thinking of the Court as it was then constituted. All but two members at that time still sit on the Court today. If we have seen fit to take a second look at the doctrine on which we were all agreed before, it is not because of a change in the composition of this body. It is virtually the same Court that is changing its mind after reflecting on the question again in the light of new perspectives. And well it might, and can, for the tenets it lays down are not immutable. The decisions of this Court are not petrified rules grown rigid once pronounced but vital, growing things subject to change as all life is. While we are told that the trodden path is best, this should not prevent us from opening a fresh trial or exploring the other side or testing a new idea in a spirit of continuing inquiry. Accordingly, with the hope that "as judges, (we) will be equal to (our) tasks," whatever that means, we hereby reverse the current doctrine providing for three new periods for the penalty for murder as reduced by the Constitution. Instead, we return to our original interpretation and hold that Article III, Section 19(1) does not change the periods of the penalty prescribed by Article 248 of the Revised Penal Code except only insofar as it prohibits the imposition of the death penalty and reduces it to reclusion perpetua. The range of the medium and minimum penalties remains unchanged. The Court realizes that this interpretation may lead to certain inequities that would not have arisen under Article 248 of the Revised Penal Code before its modification. Thus, a person originally subject to the death penalty and another who committed the murder without the attendance of any modifying circumstance will now be both punishable with the same medium period although the former is concededly more guilty than the latter. True enough. But that is the will not of this Court but of the Constitution. That is a question of wisdom, not construction. Of some relevance perhaps is the parable in the Bible of the workman who was paid the stipulated daily wage of one penny although he had worked longer than others hired later in the day also paid the same amount. When he complained because he felt unjustly treated by the hoe jurisdiction of the court over the person. An appearance may be madt agree with me for a penny? The problem in any event is addressed not to this Court but to the Congress. Penalties are prescribed by statute and are essentially and exclusively legislative. As judges, we can only interpret and apply them and have no authority to modify them or revise their range as determined exclusively by the legislature. We should not encroach on this prerogative of the lawmaking body. Coming back to the case at bar, we find that there being no generic aggravating or mitigating circumstance attending the commission of the offenses, the applicable sentence is the medium period of the penalty prescribed by Article 248 of the Revised Penal Code which, conformably to the new doctrine here adopted and announced, is still reclusion perpetua. This is the penalty we imposed on all the accused-appellants for each of the three murders they have committed in conspiracy with the others. The award of civil indemnity for the heirs of each of the victims is

affirmed but the amount thereof is hereby increased to P30,000.00 in line with the present policy. (at pp. 120-125.) The above ruling was reiterated in People vs. Parominog (203 SCRA 673 [1991]) and in People vs. De la Cruz(216 SCRA 476 [1992]). Finally, accused-appellant claims that the penalty of reclusion perpetua is too cruel and harsh a penalty and pleads for sympathy. Courts are not the forum to plead for sympathy. The duty of courts is to apply the law, disregarding their feeling of sympathy or pity for an accused. DURA LEX SED LEX. The remedy is elsewhere clemency from the executive or an amendment of the law by the legislative, but surely, at this point, this Court can but apply the law. WHEREFORE, the appealed decision is hereby AFFIRMED. SO ORDERED.

G.R. No. 168827

April 13, 2007

BENJAMIN P. MARTINEZ, Petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, Respondents. DECISION CALLEJO, SR., J.: This is a Petition for Review on Certiorari of the Decision1 and the Resolution2 of the Court of Appeals (CA) in CA-G.R. CR No. 25436, affirming with modification the trial courts judgment finding Benjamin P. Martinez guilty beyond reasonable doubt of frustrated homicide. The Antecedents Dean Dongui-is was a teacher at the Tubao National High School, La Union. Petitioner Benjamin Martinez was the husband of Deans co-teacher, Lilibeth Martinez. Petitioner eked out a living as a tricycle driver. On October 28, 1998, Dean and his wife Freda filed a complaint for damages against the spouses Martinez in the Municipal Circuit Trial Court (MCTC) of Tubao, La Union. They alleged that in March 1998, petitioner, a suitor of Elvisa Basallo, had been peddling false reports that Dean and Elvisa had illicit relations; he even told Freda that Elvisa was Deans mistress. This led to a quarrel between Dean and Freda, and the latter was hospitalized for her heart ailment. Dean requested Lilibeth to stop her

husband from spreading lies, and she replied that Elvisa had been her husbands mistress. They prayed that they be awarded moral and exemplary damages and litigation fees in the total amount of P100,000.00.3 The case was docketed as Civil Case No. 226. For her part, Elvisa also filed a complaint against the spouses Martinez in the MCTC of Tubao for damages anchored on Article 26 of the New Civil Code. She alleged that on several occasions, petitioner went to the Shaltene Pawnshop and Pharmacy where she was employed and accused her of having an illicit affair with Dean; on one occasion, he held her hand and forcibly pulled her outside, which caused her to scratch his face and run after him with a knife; he also told her husbands cousin, Willy Ordanza, that she had an illicit affair with Dean; Willy, in turn, told her mother-in-law about it; petitioner relayed the same rumors to her co-worker, Melba Dacanay, and his wife spread to people in the Municipality, including Ramil Basallo, her brother-in-law. Elvisa also prayed for damages in the total amount of P100,000.00. The case was docketed as Civil Case No. 227.4 The spouses Martinez filed a motion to dismiss the complaint in Civil Case No. 226 which was heard in the morning of February 3, 1999. The court denied the motion. At about 1:40 p.m. that day, Dean went to the Tubao Credit Cooperative (TCC) office to pick up the dividend certificate of his wife who was a member of the cooperative. He left the building and walked to his car which was parked in front. As he did, he read the dividend certificate of his wife. Dean was about a step away from an L-300 van which was parked in front of the building when petitioner, armed with a bolo, suddenly emerged from behind the vehicle and stabbed him on the left breast. Dean instantly moved backward and saw his assailant. Dean fled to the bank office and was able to gain entry into the bank. Petitioner ran after him and upon cornering him, tried to stab him again. Dean was able to parry the blow with his right hand, and the bolo hit him on the right elbow. Dean fell to the floor and tried to stand up, but petitioner stabbed him anew on his left breast.5 Dean managed to run to the counter which was partitioned by a glass. Unable to get inside the counter, petitioner shouted at Dean: "Agparentomeng ka tatta ta talaga nga patayen ka tatta nga aldawen (You kneel down because I will really kill you now this day)."6 Meantime, SPO1 Henry Sulatre was at the Tubao Police Station, about 100 meters away. He was informed that a fight was going on in the bank. He rushed to the place on board the police car. When he arrived at the scene, he saw Barangay Captain Rodolfo Oller and his son Nicky Oller.7 Nicky handed to him the bolo which petitioner had used to stab Dean.8 He and Rodolfo brought petitioner to the police station. On the way, they passed by the loading area of tricycles, about 40 meters away from the police station. Petitioner shouted: "Sinaksak kon pare, sangsangaili laeng isuna saan isuna to agari ditoy Tubao (I stabbed him, he is just a visitor so he should not act like a king here in Tubao)." SPO1 Sulatre placed Benjamin in jail. Benjamin kept on shouting: "Napatay kon, napatay kon (I killed him, I killed him)."9 In the meantime, PO3 Valenzuela brought Dean to the Doa Gregoria Memorial Hospital in Agoo, La Union. The victim was transferred to the Ilocos Regional Hospital (IRH) in San Fernando, La Union where Dean was examined and operated on by Dr. Nathaniel Rimando, with the assistance of Dr. Darius Parias.10 Dean sustained two stab wounds in the anterior chest, left, and a lacerated wound in the right elbow, forearm. Had it not been for the blood clot that formed in the stab wound on the left ventricle that prevented the heart from bleeding excessively, Dean would have died from profuse bleeding.11 On February 7, 1999, Dean gave a sworn statement to SPO1 Sulatre.12 However, he deferred swearing to the truth of his statement before the Public Prosecution because SPO1 Sulatre was waiting for the

permanent medical certificate to be issued by the hospital. SPO1 Sulatre deferred the execution and submission of an arrest report also pending the issuance of the medical certificate. Instead of issuing a permanent medical certificate, the IRH issued on February 8, 1999 the following Temporary Certificate: TO WHOM IT MAY CONCERN: According to hospital record, DEAN N. DONGUI-IS, 30 years old, male, married, a resident of Francia West, Tubao, La Union, was examined/treated/confined in this hospital on/from February 3-20, 1999. WITH THE FOLLOWING FINDINGS AND DIAGNOSIS: Stab Wound (L) Chest with Hemothorax (L), (L) Ventricular Perforation; OPERATIONS: Exploratory Thoracotomy (L); Evacuation of Retained Blood Clots; Ventriculorrhaphy Decortication 2/11/99 and would need medical attendance for more than thirty (30) days barring complications.13 On March 10, 1999, SPO1 Sulatre filed a criminal complaint for frustrated murder against petitioner in the MCTC.14 The MCTC opted not to act on the crime pending the arrest report and SPO1 Sulatres submission of Deans sworn statement. The IRH issued a medical certificate on February 28, 1999, stating that Deans wounds would need medical attendance of more than 30 days.15 Barangay Captain Oller and SPO1 Sulatre executed an affidavit on petitioners arrest.16 Dean had his affidavit sworn before the Public Prosecutor on March 30, 1999. On September 13, 2000 the Provincial Prosecutor of La Union indicted Benjamin for frustrated murder before the Regional Trial Court (RTC), Branch 31, of the same province. The accusatory portion of the Information reads: That on or about the 3rd day of February 1999, in the Municipality of Tubao, Province of La Union, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, and with treachery and evident premeditation, being then armed with a small pointed bolo, did then and there willfully, unlawfully and feloniously attack, assault and stab one DEAN DONGUI-IS y Manalo, hitting him on his left breast and right elbow, and thereby inflicting on him injuries that would have produced the crime of Murder as a consequence but which nevertheless, did not produce it by reason of causes independent of the will of the accused, mainly the timely rendition of medical assistance of on the said offended party, which prevented his death, to his damage and prejudice. CONTRARY TO LAW.17 On October 13, 2000, the accused, assisted by counsel, was arraigned and entered a plea of not guilty.

The Case for Petitioner Petitioner declared that he merely defended himself against Deans assault. Dean was so jealous of him because his mistress, Elvisa, had also been his mistress. Unknown to Dean, he had already terminated his relation with Elvisa sometime in March 1997 when his wife Lilibeth discovered the illicit relationship.18 Dean also suspected that he (petitioner) had been sending letters to his (Deans) wife relative to the illicit relationship with Elvisa. Dean also suspected that he was responsible for the raid conducted by the Criminal Investigation Service (CIS) of his house for possession of a gun.19 As a result, Dean filed a civil complaint against him for damages, docketed as Civil Case No. 266. Before and after the filing of the civil case, Dean had hurled invectives at him in the presence of Joselito Madriaga and other tricycle drivers.20 Dean even attempted to sideswipe him with his car.21 Petitioner declared that the criminal charge against him was Deans concoction, and intended solely to harass him. He narrated that he went to the TCC office at about 1:30 p.m. on February 3, 1999. His wife had earlier received a note from the cooperative to get the interest on her deposit.22 He parked his tricycle in front of the building on the left side of the railing going to the entrance of the cooperative.23 Deans car was parked on the right side of the railing.24 On his way, he met his 82-year-old uncle, Godofredo Sarmiento, who was also on his way to the cooperative to update his passbook because he was intending to apply for a loan.25 He told Godofredo that they could go to the TCC together. When they were about to pass through the entrance door, Dean was about to exit from the cooperative. Dean thought that he was blocking his way and shouted invectives at him and his uncle; Dean also spat on his breast and face; and threw a punch which he was able to parry with his left elbow.26 Dean kept attacking him, forcing him to move backward through the railing and towards his tricycle. Dean punched him again but he managed to parry the blow with his bolo which he took from his tricycle. He stabbed Dean on his right elbow.27 He swung his bolo at Dean which forced the latter to run back into the office. He entered the office and stood by the entrance door to see if Dean would get a weapon. Dean continued hurling invectives at him but was later pacified by Patricio Alterado, an employee of the cooperative.28 When Barangay Captain Oller arrived, he surrendered, along with his bolo.29 He never boasted on the way to the police station that he had killed Dean.30 Godofredo partially corroborated the testimony of petitioner. He declared that Dean spat on the face of petitioner.31 By the time Dean and petitioner reached the place where the latters tricycle was parked, he had left; he was afraid of being involved.32 He did not report the incident to the police authorities. Joselito Madriaga testified that he and petitioner were bosom buddies with a long history of friendship. Dean had an axe to grind against petitioner because the two maintained a common mistress, Elvisa.33 The Trial Courts Decision On April 30, 2001, the trial court rendered judgment34 convicting petitioner of frustrated homicide. The fallo of the decision reads WHEREFORE, this Court, after a consideration of the evidence adduced in this case, finds accused BENJAMIN MARTINEZ guilty of the crime of Frustrated Homicide as principal. Neither aggravating circumstance nor mitigating circumstance has been appreciated. Applying the Indeterminate Sentence Law, accused Benjamin Martinez is sentenced to suffer the penalty of imprisonment ranging from FOUR (4) YEARS OF PRISION CORRECTIONAL MEDIUM as minimum to EIGHT (8) YEARS and ONE (1) DAY OF

PRISION MAYOR MEDIUM as maximum. He is also ordered to pay DEAN DONGUI-IS the amount of ONE HUNDRED FIFTY THOUSAND (P150,000.00) PESOS, broken into the following: (a) Ninety-Two Thousand (P92,000.00) Pesos for medical expenses; (b) Twenty-Six Thousand (P26,000.00) Pesos, representing his salaries for two (2) months when he could not attend to teach due to his injuries; (c) Twenty-Two Thousand (P22,000.00) Pesos as moral damages; and (d) Ten Thousand (P10,000.00) Pesos as complainants attorneys fees. SO ORDERED.35 The trial court gave credence and full probative weight to the testimony of Dean, Dr. Rimando, SPO1 Sulatre, and the documentary evidence of the prosecution. The court rejected petitioners twin defenses of denial and self-defense. It declared that his version lacked strong corroboration, and that his witnesses (a close relative and a friend) were biased. Finding that the prosecution failed to prove the qualifying circumstances of treachery, the trial court convicted petitioner of frustrated homicide. The court declared that the crime involved a "love triangle,"36 and considered the protagonists history of personal animosity. There was no evident premeditation because Dean had been "forewarned" of the attack.37 On appeal before the CA, petitioner raised the following issues: I. THE TRIAL COURT COMMITTED SERIOUS ERRORS WHEN IT WRONGFULLY GAVE CREDENCE TO THE FABRICATED CLAIMS OF THE SOLE WITNESS FOR THE PROSECUTION. II. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT WRONGFULLY GAVE CREDENCE TO THE FALSE AND SPECIOUS TESTIMONY OF THE COMPLAINANT. III. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT CONVICTED THE ACCUSED FOR FRUSTRATED HOMICIDE FOR INJURIES NOT ATTESTED BY ANY COMPETENT MEDICAL CERTIFICATE. IV. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT CONVICTED THE ACCUSED FOR FRUSTRATED HOMICIDE WITHOUT ANY PROOF BEYOND REASONABLE DOUBT. V. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT DISREGARDED THE CONCLUSIVE EVIDENCE FOR THE DEFENSE WHICH COMPLETELY NEGATED ANY PROOF FOR THE PROSECUTION AND WHICH DEFINITELY WARRANTED THE ACQUITTAL OF THE ACCUSED.38 Maintaining his innocence, petitioner claimed that he had merely acted in self-defense when Dean insulted him, spat on his face and assaulted him with fist blows on a mere suspicion that he (petitioner) was blocking Deans way through the exit door of the cooperative. The Decision of the Court of Appeals

On February 21, 2005, the CA rendered judgment affirming the assailed decision of the RTC with modification. The fallo reads WHEREFORE, the appealed Decision dated April 30, 2001 of the trial court is affirmed, subject to the afforested modification of the minimum period of the sentence. Loss of earnings in the amount of P26,000.00 and attorneys fees in the amount of P10,000.00 are deleted, and the award of actual damages is increased to P92,715.68. SO ORDERED.39 The CA ruled that the case is more of a "retaliation" rather than a case of self-defense. It declared that Dean sustained two fatal stab wounds in his left chest, a fact which belied petitioners defense and confirmed the prosecutions theory that he purposely and vigorously attacked the victim. The CA ruled that when an unlawful aggression which has begun no longer exists, the one making the defense has no more right to kill or even wound the aggressor. The appellate court pointed out that in the case before it, the supposed unlawful aggression of Dean ceased from the moment he retreated inside the cooperative building; there was no need for petitioner to follow Dean inside the building and stab him with his bolo. Petitioner should have simply stood his ground and walked away. In discounting the qualifying circumstances of treachery and evident premeditation, the CA simply adverted to the stipulation of facts contained in the Pre-Trial Order dated December 20, 2000 issued by the RTC, stating "[t]hat the accused stabbed the private complainant when the latter assaulted and boxed him (accused)."40 Petitioners plea of voluntary surrender was not appreciated in his favor. However, the appellate court modified the minimum sentence imposed by the trial court to four (4) years and two (2) months of prision correctional, as minimum. As to damages, the CA deleted the RTCs award of loss of earning capacity and attorney fees, holding that they lack factual and legal basis. It, however, increased the award of actual damages from P92,000.00 to P92,715.68 reasoning that latter amount was duly receipted. The CA denied the appellants motion for reconsideration.41 Before this Court, petitioner assigns the following errors allegedly committed by the CA I. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET ASIDE, AS THEY AROSE FROM MISAPPREHENSION OF FACTS THAT PROVE THAT THE PROCEEDINGS AND THE FINDINGS MADE IN THE DECISION OF THE TRIAL COURT AS WELL AS IN THE ASSAILED DECISION ITSELF, WERE BASED ON A FALSE CHARGE WHICH IS PATENTLY FABRICATED BY A POLICE INVESTIGATOR AND WHICH COMPRISES MALICIOUS PROSECUTION. II. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET ASIDE, AS THEY ARE BASED ON THE FABRICATED STATEMENT AS WELL AS ON THE SOLE, SELF-SERVING, CONTRADICTORY AND UNCORROBORATED TESTIMONY OF THE COMPLAINANT, WHICH ARE MANIFESTLY CONCOCTED AND CANNOT ESTABLISH THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT. III. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SE[T] ASIDE, AS THERE IS TOTAL ABSENCE OF EVIDENCE TO PROVE THE VACUOS CHARGE AS WELL AS THE SAID DECISION AND RESOLUTION, FOR WHICH REASON THE GUILT OF THE ACCUSED WAS NOT DULY PROVED BEYOND REASONABLE DOUBT[.]

IV. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET ASIDE, AS THE SAME WERE RENDERED IN ALL GRAVE ABUSE OF DISCRETION AND IN TOTAL DISREGARD OF THE COMPETENT AND UNREBUTTED TESTIMONY FOR THE DEFENSE, WHICH NEGATE ANY REASONABLE DOUBT ON THE GUILT OF THE ACCUSED. V. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET ASIDE, AS THE INFERENCES MADE ON THE UNDISPUTED FACTS ARE CONTRARY TO LAW AND JURISPRUDENCE AND CANNOT JUSTIFY ANY FINDING OF ANY PROOF BEYOND REASONABLE DOUBT.42 Petitioner insists that the criminal complaint filed by SPO1 Sulatre was a fabrication because the latter never conducted a formal investigation of the stabbing incident or of any witness to the incident. The police officer filed the criminal complaint against petitioner on the basis of a sworn statement by Dean which was taken only on March 10, 1999, long after the criminal complaint was filed in the MCTC. Worse, when he testified on cross-examination, Dean admitted that he did not see the questions prepared by SPO1 Sulatre at the hospital, nor his answers to the policemans questions. The affidavit dated March 10, 1999 was not typewritten in the hospital, and he was not present when the affidavit was typewritten in the police station. Thus, the testimony of the victim was self-serving and uncorroborated, tailored solely to support the charge filed by SPO1 Sulatre. In its comment on the petition, respondent, through the Office of the Solicitor General (OSG), avers that the issues raised by petitioner are factual, hence, inappropriate in a petition for review on certiorari in this Court. The OSG maintains that the Revised Rules of Criminal Procedure does not require that the affidavit of the offended party or the witnesses to the crime charged be appended to the criminal complaint filed in court. Moreover, the issue of the validity of the criminal complaint in the MCTC had became moot and academic after the Information was filed in the trial court, and when petitioner was arraigned, assisted by counsel, and entered a plea of not guilty. It insists that Deans testimony, by itself, is sufficient to warrant the conviction of petitioner for frustrated homicide. Petitioners conviction may be anchored on Deans testimony since the trial court found it credible and entitled to full probative weight. Petitioner failed to prove his plea of self-defense by clear and convincing evidence. The Courts Decision The petition is denied for lack of merit. Section 3(a) and (b), Rule 112 of the Revised Rules of Criminal Procedure43 provide: Sec. 3. Procedure. The preliminary investigation shall be conducted in the following manner: (a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or

unavailability, before a notary public, each of whom must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. (b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents. It bears stressing that the officer conducting the preliminary investigation has to determine whether to dismiss the complaint outright based on the averments of the complaint and the appendages thereof if it finds no ground to continue with the investigation. If he finds ground to continue with the investigation of the accused, a subpoena should be issued to the accused, appending thereto a copy of the complaint and the supporting affidavits. Unless the affidavits of the witnesses named in the complaint and supporting documents are appended to the complaint, the investigating officer may not be able to determine whether to dismiss the complaint outright or to conduct an investigation and issue a subpoena to the accused.44 We agree with petitioner that the criminal complaint filed by SPO1 Sulatre with the MCTC on March 10, 1999 was defective. As gleaned from the RTC records, the criminal complaint was not accompanied by any medical certificate showing the nature and number of wounds sustained by the victim, the affidavits of any of the witnesses listed at the bottom of the criminal complaint (particularly the victim himself), and the arrest report of SPO1 Sulatre, Brgy. Capt. Rodolfo Oller, and his son Nicky. The MCTC had the option not to act one way or the other on the criminal complaint of SPO1 Sulatre because the latter failed to comply with Section 3(a) and (b), Rule 112 of the Revised Rules of Criminal Procedure; or to order SPO1 Sulatre to comply with the aforequoted rule; or to dismiss the complaint without prejudice to its refiling with the requisite documents. However, the MCTC opted not to act on the complaint until after SPO1 Sulatre shall have submitted the requisite affidavits/medical certificate/arrest report. When SPO1 Sulatre filed with the MCTC, on March 10, 1999, the permanent medical certificate issued by the IRH, the affidavit of Dean and his and Brgy. Capt. Ollers affidavit of arrest of petitioner, the MCTC forthwith issued a subpoena to petitioner appending thereto the said medical certificate, affidavit of Dean and the affidavit of arrest of SPO1 Sulatre.45 Hence, SPO1 Sulatre had complied with Section 3(a) and (b), Rule 112 of the Revised Rules of Criminal Procedure. Moreover, petitioner submitted his counter-affidavit without any protest. Neither did he assail the validity of the criminal complaint or the tardy submission by SPO1 Sulatre of the medical certificate, the affidavit of Dean and the affidavit of arrest of SPO1 Sulatre. Aside from this, petitioner was arraigned in the RTC, assisted by counsel, and entered a plea of not guilty. On the second issue, the rulings of the trial court and the appellate court are correct. Whether or not petitioner acted in self-defense whether complete or incomplete is a question of fact,46 the wellentrenched rule is that findings of fact of the trial court in the ascertainment of the credibility of witnesses and the probative weight of the evidence on record affirmed, on appeal, by the CA are accorded high respect, if not conclusive effect, by the Court and in the absence of any justifiable reason to deviate from the said findings.47

In this case, the trial court gave no credence and probative weight to the evidence of petitioner to prove that he acted in self-defense, complete or incomplete. Petitioner failed to establish that the trial court and the appellate court misconstrued, misappropriated or ignored facts and circumstances of substance which, if considered, would warrant a modification or reversal of the decision of the CA that petitioner failed to establish clear and convincing evidence that he acted in self-defense, complete or incomplete. Like alibi, petitioners claim of self-defense is weak; it is also settled that self-defense is easy to fabricate and difficult to disprove. Such a plea is both a confession and avoidance.48 One who invokes selfdefense, complete or incomplete, thereby admits having killed the victim by inflicting injuries on him. The burden of evidence is shifted on the accused to prove the confluence of the essential elements for the defense as provided in Article 11, paragraph 1 of the Revised Penal Code: x x x (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person defending himself. x x x49 The accused must rely on the strength of his own evidence and not on the weakness of that of the prosecution because even if the evidence of the prosecution is weak, the same can no longer be disbelieved.50 The accused cannot escape conviction if he fails to prove the essential elements of complete self-defense. In Garcia v. People,51 the Court defined unlawful aggression: x x x Unlawful aggression presupposes an actual, sudden and unexpected or imminent danger on the life and limb of a person a mere threatening or intimidating attitude is not sufficient. There must be actual physical force or a threat to inflict physical injury. In case of a threat, it must be offensive and positively strong so as to display a real, not imagined, intent to cause injury. Aggression, if not continuous, does not constitute, aggression warranting self-defense.52 Aggression, if not continuous, does not constitute aggression warranting self-defense.53 When unlawful aggression ceases, the defender no longer has any justification to kill or wound the original aggressor. The assailant is no longer acting in self-defense but in retaliation against the original aggressor.54 There can be no self-defense, complete or incomplete, unless the accused proves unlawful aggression on the part of the victim.55 Unlawful aggression is a sudden and unexpected attack or an imminent danger thereof, and not merely a threatening or an intimidating attitude.56 Petitioner failed to discharge his burden. First. Petitioner failed to surrender himself to the responding authorities who arrived at the situs criminis, as well as the bolo he used in stabbing the victim. One who acted in self-defense is expected to surrender, not only himself, but also the weapon he used to kill or inflict physical injuries on the victim.57 Second. The victim sustained three stab wounds on different parts of his body. Two were fatal stab wounds at his left chest. The presence of a large number of wounds on the part of the victim, their nature and location disprove self-defense and instead indicate a determined effort to kill the victim.58

Third. Petitioner testified that he was punched by the victim. However, there is not a scintilla of evidence to show that petitioner suffered even a scratch as a result of the alleged fist blows. Neither can the RTC nor the CA be faulted for giving credence to the testimony of SPO1 Salutre. No evidence was adduced by the defense to show that he harbored any ill-motive against petitioner to charge him with such a crime. Absent any proof of improper motive, the prosecution witness who is law enforcer is presumed to have regularly performed his duty in arresting and charging petitioner.59 His testimony is thus entitled to full faith and credit. Moreover, the conviction of petitioner was not based solely on the testimony of the SPO1 Salutre. The unimpeached testimony of Dean categorically established the crime; this was corroborated by the testimony of Dr. Nathaniel Rimando. Petitioners argument that he should be acquitted because the criminal complaint against him was not supported by the victims sworn statement or by an affidavit of any witness is totally untenable. This issue should have been raised during the preliminary investigation. It is much too late in the day to complain about this issue after a judgment of conviction has been rendered against him. Contrary to petitioners stance, the testimonies of his corroborating witnesses are unimpressive. For one, Godofredos testimony was limited only to the alleged fact that happened outside of the cooperative building. He himself admitted that when the protagonists started fighting each other, for fear for his life, he hurriedly flagged and boarded a tricycle which revved up to the highway; it was from there that he saw petitioner slumped on his tricycle. In other words, he did not witness what transpired thereafter or how the fight ended. Joselitos testimony did not fare any better. It was given neither credence nor weight by the trial court. And even if it had been proved that the victim was rabid against petitioner, such evidence would only have established a probability that he had indeed started an unlawful assault on petitioner. This probability cannot, however, overcome the victims positive statement that petitioner waylaid and assaulted him without any provocation. The theory that Dean may have started the fight since he had a score to settle against petitioner is flimsy, at best. Furthermore, Joselito admitted that he was petitioners best friend; hence, his bias cannot be discounted. The Crime Committed by the Petitioner Petitioner next argues that should he be convicted of any crime, it should be of less serious physical injuries only, absence the element of intent to kill. He advances the argument that the single wound suffered by the victim was not life threatening and that the latter was transferred to undergo operation in another hospital only because the medical staff where he was first rushed bungled their job. He makes much of the fact that Dr. Darius R. Parias who issued the Medical Certificate never testified for the prosecution. Again, the Court is not swayed.1a\^/phi1.net If one inflicts physical injuries on another but the latter survives, the crime committed is either consummated physical injuries, if the offender had no intention to kill the victim or frustrated or attempted homicide or frustrated murder or attempted murder if the offender intends to kill the victim. Intent to kill may be proved by evidence of the following: (a) motive; (b) the nature or number of weapons used in the commission of the crime; (c) the nature and number of wounds inflicted on the

victim; (d) the manner the crime was committed; and (e) words uttered by the offender at the time the injuries are inflicted by him on the victim.60 Petitioner insists that he had no intent to kill Dean. However, the physical evidence belies petitioners pose. To begin with, as between petitioner and the victim, the former had more hatred to harbor arising from the fact that the victim filed a lawsuit against him and his wife. Petitioner thus had more motive to do harm than the victim. By his own account, he and Dean had a history of personal animosity. Secondly, petitioner was armed with a deadly 14-inch bolo. Thirdly, if it were true that petitioner stabbed Dean merely to defend himself, it defies reason why he had to stab the victim three times. Petitioners claim that Dean suffered only a single non-life threatening wound is misleading. Dr. Rimando, who attended to and operated on Dean, testified that the victim sustained three (3) stab wounds, two (2) of which penetrated his heart and lung, causing massive blood clotting necessitating operation; the other lacerated Deans his right elbow. The presence of these wounds, their location and their seriousness would not only negate self-defense; they likewise indicate a determined effort to kill.61 Moreover, physical evidence is evidence of the highest order. It speaks more eloquently than a hundred witnesses.62 Neither does the non-presentation of Dr. Darius R. Parias, the doctor who signed the medical certificate, would dent a bit the evidence for the prosecution. This is so because Dr. Parias, who assisted Dr. Rimaldo during the operation of Dean, would merely corroborate Dr. Rimaldos testimony. As such, his testimony is not indispensable. Fourthly, from the manner the crime was committed, there can hardly be any doubt that intent to kill was present. It has been clearly established that petitioner ambushed Dean and struck him with a bolo. Dean was defenseless and unarmed, while petitioner was deadly armed.1vvphi1.nt Lastly, the words of the petitioner while he was assaulting Dean were most revealing: Atty. Atitiw: Q : When you were in the counter, what was accused Benjamin doing? A : When I was inside the counter and hes outside and between us is a glass and there he shouting at me telling in Ilocano that AGPARENTONG KA TATTA TA TALAGA NGA PATAYEN KA TATTA NGA ALDAWEN "You kneel down because I will really kill you now."63 xxxx Atty. Atitiw: Q : While passing through the loading area of the tricycle, do you remember anything that transpired there at the loading area?

A : Yes, Sir. Q : What is that, Mr. Witness? A : While Benjamin Martinez, Barangay Captain Oller and I were walking proceeding to our Police Station and when we were near the area, at the loading area if the tricycle, Benjamin Martinez shouted and I quote: "SINAKSAK KON PARE, SANGSANGAILI LAENG ISUNA SAAN NGA ISUNA TI AGARI DITOY TUBAO," that was the utterance, Sir.64 xxxx Q : After bringing him to the Police Station, what did you do next? A : We put him in jail, Sir. Q : And while in jail do you remember whether accused Benjamin Martinez did anything while in jail? A : Yes, Sir. Q : What is that, Mr. Witness? A : He kept on shouting words, Sir. Q : What are those words if you can remember? A : He kept on shouting "NAPATAY KON, NAPATAY KON," Sir.65 Anent the allegation of negligence on the part of the medical staff of Doa Gregoria Memorial Hospital where Dean was rushed, suffice it to say that this is a new theory being foisted by petitioner. It was never raised in the two courts below and thus it will not be entertained here. At any rate, this allegation finds no support in the records of the case. It cannot be denied that petitioner had the intention to kill Dean. Petitioner performed all the acts of execution but the crime was not consummated because of the timely medical intervention applied on the victim. An appeal in a criminal case opens the entire case for review on any question including one not raised by the parties.66 In this regard, we find ample evidence to establish treachery. The CAs advertence to the stipulation of facts contained in the Pre-Trial Order dated December 20, 200067 is misplaced. This alleged stipulation was stricken off the record on motion of the prosecution on the ground that no stipulation of such fact was made.68 There is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution without risk to himself arising from the defense which the offended party might take.69

In the present case, the prosecution had met the requisites for alevosia to be appreciated: (1) at the time of the attack the victim was not in a position to defend himself; and (2) that the offender consciously adopted the particular means, method, or form of the attack employed by him.70 Dean lived to tell about the swiftness of the attempt against his life: Q : After getting the dividend certificate where did you proceed next? A : I went out from the bank, sir. I was able to go to school. Q : Where you able to go to the school? A : No, Sir. Q : Why were you not able to reach the school? A : Because I was suddenly stabbed by Benjamin Martinez. Q : Where did Benjamin Martinez stab you? A : In front of the bank, Sir. Q : And how did Benjamin Martinez stab you? A : I was about to go to my car, Sir. I was reading the dividend certificate that I got from the bank but when I was about one step away from the back of the L300 van that was parked in front of the bank, I was suddenly stabbed by him. Q : Where was Benjamin Martinez at that time when he was stabbed you? A : Probably he was hiding at the back of the L300 van, Sir.71 When Dean was attacked he was unarmed. He had just exited the cooperative building and had no inkling that he would be waylaid as he made his way towards his car. Upon the other hand, petitioner was armed with a deadly 14-inch bolo. The attacked on Dean was swift and unannounced; undeniably, petitioners attack was treacherous. Petitioner is guilty of frustrated murder under Article 248 in relation to Article 6, first paragraph of the Revised Penal Code which reads: A felony is consummated when all the elements necessary 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 of causes independent of the will of the perpetrator. The essential elements of a frustrated felony are as follows: 1. The offender performs all the acts of execution;

2. All the acts performed would produce the felony as a consequence; 3. But the felony is not produced; 4. By reason of causes independent of the will of the perpetrator.72 A crime is frustrated when the offender has performed all the acts of execution which should result in the consummation of the crime. The offender has passed the subjective phase in the commission of the crime. Subjectively, the crime is complete. Nothing interrupted the offender while passing through the subjective phase. He did all that is necessary to consummate the crime. However, the crime was not consummated by reason of the intervention of causes independent of the will of the offender. In homicide cases, the offender is said to have performed all the acts of execution if the wound inflicted on the victim is mortal and could cause the death of the victim barring medical intervention or attendance.73 The penalty for frustrated murder is one degree lower than reclusion perpetua to death, which is reclusion temporal.74 The latter penalty has a range of 12 years and 1 day to 20 years. Applying the Indeterminate Sentence Law, the maximum of the indeterminate penalty should be taken from reclusion temporal, the penalty for the crime, taking into account any modifying circumstances in its commission. The minimum of the indeterminate penalty shall be taken from the full range of prision mayor which is one degree lower than reclusion temporal. Since there is no modifying circumstance in the commission of frustrated murder, the appellants should be meted an indeterminate penalty of from nine (9) years and four (4) months of prision mayor in its medium period as minimum, to seventeen (17) years and four (4) months of reclusion temporal in its medium period, as maximum. Petitioner, likewise, insists that he voluntarily surrendered to Barangay Captain Rodolfo Oller. He faults the trial and appellate courts for relying on the prosecutions Affidavit of Arrest, arguing that the same is inadmissible as hearsay, the affiants not having testified to affirm their declarations. For voluntary surrender to be appreciated, the following requisites should be present: (1) the offender has not been actually arrested; (2) the offender surrendered himself to a person in authority or the latters agent; and (3) the surrender was voluntary. The surrender must be spontaneous, made in such a manner that it shows the interest of the accused to surrender unconditionally to the authorities, either because he acknowledged his guilt or he wishes to save them the trouble and expenses that would necessarily be incurred in the search and capture.75 In the case at bar, SPO1 Salutre testified that petitioner did not voluntarily surrender but was forcibly apprehended by Barangay Captain Oller, and thereafter turned over to him. Petitioner however insists that said testimony is hearsay inasmuch as SPO1 Salutre was not the person who actually arrested him. We disagree. During SPO1 Salutres testimony, petitioner failed to object to the questions propounded to SPO1 Salutre regarding his apprehension. Consequently, he cannot now claim that SPO1 Salutres testimony on the arrest was hearsay. Petitioners assertion of having voluntarily surrendered to Barangay Captain Oller was not corroborated by any competent and reliable evidence. Considering the damning averments in the Affidavit of Arrest, petitioner should have at least called Barangay Captain Oller to the witness stand just to shed light on his alleged voluntary surrender.

We agree with the trial court that the qualifying circumstance of evident premeditation has not been adequately shown. To properly appreciate the same, it is necessary to establish: (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that the culprit has clung to this determination; and (3) a sufficient lapse of time between the determination and the execution to allow him to reflect upon the consequences of his act.76 Since there is dearth of evidence on when petitioner first conceived of killing Dean and that he was afforded sufficient time to reflect on the consequences of his contemplated crime before its final execution, the circumstance of evident premeditation cannot be appreciated. Civil Liabilities of Petitioner The trial court awarded Dean the amount of P92,000.00 representing his hospitalization and medical expenses which was increased by the CA to P92,715.68. To be entitled to actual damages, it is necessary to prove the actual amount of loss with a reasonable degree of certainty, premised upon competent proof and the best evidence obtainable to the injured party.77 For Deans hospitalization and medical expenses, the receipts submitted to support said claim amounted only to P56,275.48; hence, Dean is entitled only to the said amount. The Court awards exemplary damages in the amount of P25,000.00, inasmuch as the qualifying circumstance of treachery attended the commission of the crime. In People v. Catubig,78 we emphasized that insofar as the civil aspect of the crime is concerned, exemplary damages in the amount of P25,000.00 is recoverable if there is present an aggravating circumstance, whether qualifying or ordinary, in the commission of the crime. The CA is correct in deleting Deans claim for lost salary while recuperating, since this was not supported by evidence. However, the trial courts award of P10,000.00 as attorneys fees should be reinstated, Dean having hired a private prosecutor to prosecute his case. Lastly, for the suffering Dean endured from petitioners felonious act, the award of P22,000.00 moral damages is increased to P25,000.00, in keeping with the latest jurisprudence.79 IN LIGHT OF ALL THE FOREGOING, the assailed Decision is hereby AFFIRMED WITH MODIFICATION. Petitioner is hereby found guilty beyond reasonable doubt of Frustrated Murder under Article 248 in relation to Article 6, first paragraph of the Revised Penal Code and is hereby sentenced to suffer an indeterminate penalty from nine (9) years and four (4) months of prision mayor in its medium period, as minimum, to seventeen (17) years and four (4) months of reclusion temporal in its medium period, as maximum. Petitioner is ordered to pay Dean Dongui-is the amount of P56,275.48 as actual damages; P25,000 as moral damages; P25,000.00 as exemplary damages; and P10,000.00 as attorneys fees. SO ORDERED.

G. R. No. 149028-30. April 2, 2003]

THE PEOPLE OF THE PHILIPPINES, appellee, vs. ARMANDO CABALLERO, RICARDO CABALLERO, MARCIANO CABALLERO, JR., and ROBITO CABALLERO, accused. ARMANDO CABALLERO, RICARDO CABALLERO, and MARCIANO CABALLERO, JR., appellants. DECISION CALLEJO, SR., J.: Before the Court on automatic review is the Decision[1] of the Regional Trial Court of San Carlos City, Negros Occidental, Branch 57, convicting appellants Armando Caballero, Ricardo Caballero and Marciano Caballero, Jr. of murder in Criminal Cases Nos. RTC-1217 and RTC-1218 and meting on each of them the supreme penalty of death and ordering them to pay damages; and of frustrated murder in Criminal Case No. RTC-1219 and imposing on them the penalty of reclusion perpetua.

The Antecedents Teresito (Dodong) Mondragon and his family lived in a compound surrounded by a barbed-wire fence at New Sumakwel, Broce Street, San Carlos City, Negros Occidental. Living in the same compound were Ricardo Caballero and his family; and Myrna Bawin, the sister of Eugene Tayactac, and her family. Beside the compound was the house of Leonilo Broce, a nephew of Wilma Broce. In the afternoon of August 3, 1994, Armando (Baby), Robito (Bebot) and Marciano, Jr. (Jun), all surnamed Caballero, were having a drinking spree in the house of their brother Ricardo in the Mondragon Compound. At about 7:00 p.m. of said date, Eugene Tayactac and Arnold Barcuma arrived in the sari-sari store of Wilma Broce which was across the Mondragon Compound. Eugene had dinner in the store while Arnold proceeded to the house of Susana Broce, Eugenes girlfriend, for a chat. Susanas house was about 15 meters away from the store of Wilma. Momentarily, Armando arrived in the store and asked Eugene in an angry tone: Gene mopalit ka? (Gene, will you buy?). Eugene replied: What is this all about? We dont have any quarrel between us. Armando left the store but stood by the gate of the barbed-wired fence of the Mondragon Compound. His brothers Ricardo, Robito and Marciano, Jr. joined him. Ricardo and Robito were armed with knives. When Wilma told Eugene that she was closing the store already, he stood up and left the store on his way to Susanas house. At that time, Myrna Bawin, who was standing by the window of their house saw her brother Eugene going out of the store and proceeding to the house of Susana. She called out to him and advised him to go home. Myrna then left the window to pacify her crying baby. As Eugene walked by the gate of the Mondragon Compound, Armando suddenly grabbed Eugene towards the compound. Eugene resisted. Spontaneously, Ricardo, Marciano, Jr. and Robito joined Armando and assaulted Eugene. Armando took the wooden pole supporting the clothesline and hit Eugene with it. The latter tried to parry the blows of the Caballero brothers, to no avail. In the process, Eugene was stabbed three times. As Eugene was being assaulted, Myrna returned to the window of her house and saw the Caballero brothers assaulting Eugene. She shouted for help for her hapless brother. Wilma, who witnessed the whole incident, was shocked to immobility at the sudden turn of events. From the nearby house of Susana, Arnold saw the commotion and rushed to the scene to pacify the protagonists. Arnold told the Caballero brothers: Bay, what is the trouble between you and

Eugene? However, Ricardo accosted Arnold and stabbed the latter on the left side of his body. Forthwith, Robito, Marciano, Jr. and Armando ganged up on Arnold. Two of them stabbed Arnold on his forearm. Arnold fled for his life and hid under the house of a neighbor. For his part, Leonilo rushed from his house to where the commotion was. He was, however, met by Robito who stabbed him on the chest. Wounded, Leonilo retreated and pleaded to his uncle Lucio Broce for help: Tio, help me because I am hit. The commotion stopped only upon the arrival of Teresito Mondragon who was able to pacify the Caballero brothers. They all returned to the compound. In the meantime, Lucio Broce, the uncle of Leonilo brought the injured Eugene, Leonilo and Arnold to the Planters Hospital for medical treatment. Eugene and Leonilo eventually died from the stab wounds they sustained. Dr. Filped A. Maisog performed an autopsy on the cadaver of Eugene. He signed a postmortem report containing the following findings: POST-MORTEM EXAMINATION Name: Eugenio Tayactac, 22 years old, male, single Address: New Sumakwel, San Carlos City, Neg. Occ. Place of Incident: New Sumakwel, San Carlos City, Neg. Occ. Place of Examination: San Carlos City Hospital Date & Time of Incident: August 3, 1994 @ 8:30 P.M. Date & Time Examined: August 3, 1994 @ 10:40 P.M. Post-Mortem Findings: = Stab wound (L) anterior chest 2 cm. 5th ICS MCL directed postero laterally, lacerating (L) auricle of the heart, and the (L) pulmonary artery and the left middle lobe of the lungs; = = Stab wound (R) anterior chest 2 cm. long 5th ICS parasternal line directed posteriorly; Stab wound (R) posterior chest level 7th ICS 2 cm. long directed anteriorly.

CAUSE OF DEATH: Severe Hemorrhage secondary to Multiple Stab wounds with Massive Hemothorax (L) and Hemopneumothorax (R).[2] He testified that the stab wounds could have been caused by a sharp-edged single-bladed or double-bladed instrument, or by three instruments.[3] Dr. Jose Carlos L. Villarante performed an autopsy on the cadaver of Leonilo. He signed a postmortem report containing the following findings: POST-MORTEM EXAMINATION

Name: Leonilo Broce, 22 years old, male, married Address: New Sumakwel, San Carlos City, Neg. Occ. Place of Incident: New Sumakwel, San Carlos City, Neg. Occ. Place of Examination: San Carlos City Hospital Date & Time of Incident: Aug. 3, 1994 @ 8:30 P.M. Date & Time Examined: Aug. 3, 1994 @ 8:45 P.M. Post-mortem findings: = Stab wound, (R) post chest, about the level of the 6th and 7th RICS, post. axillary line.

CAUSE OF DEATH: Hypovolemic shock secondary to multiple organ injury.[4] Dr. Edgardo B. Quisumbing attended to and operated on Arnold Barcuma. He signed a medical certificate stating that Arnold sustained the following injuries: = = Lacerated wound 2 cm. (R) forearm middle 3rd Incised wound 2 inches (L) forearm middle 3rd = Stabbed wound, 2 inches in length (L) chest, anterior axillary line at the level of the 7th intercostal space, penetrating thoracic cavity and abdominal cavity. ... [5] On the witness stand, Dr. Quisumbing testified that the wounds sustained by Arnold could have been caused by three different sharp-pointed instruments.[6] He further testified that Arnold would have died because of the stab wound on his chest, were it not for the timely medical intervention. On August 5, 1994, Armando, Ricardo, Marciano, Jr. and Robito, were charged with Murder for the death of Leonilo Broce. The Information, docketed as Criminal Case No. RTC 1217 reads: That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San Carlos City, Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and helping one another, armed with pieces of wood and hunting knives, and with intent to kill, with treachery and evident premeditation, did, then and there, wilfully, unlawfully and feloniously, with the use of said weapons, attack, assault and use personal violence upon the person of one LEONILO BROCE, by striking the latter with the use of pieces of wood and stabbing him, thereby inflicting upon said Leonilo Broce physical injury described as follows: = Stabbed wound (R) chest penetrating thoracic cavity.

and which injury caused massive hemorrhage which resulted to the death of Leonilo Broce. That an aggravating circumstance of abuse of superior strength is attendant in the commission of the offense. CONTRARY TO LAW.[7] They were also charged with the same crime for the death of Eugene Tayactac in an Information docketed as Criminal Case No. RTC-1218, which reads: That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San Carlos City, Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and helping one another, armed with pieces of wood and hunting knives, and with intent to kill, with treachery and evident premeditation, did, then and there, wilfully, unlawfully and feloniously, with the use of said weapons, attack, assault and use personal violence upon the person of one EUGENE TAYACTAC, by striking the latter with use of pieces of wood and stabbing him thereby inflicting upon said Eugene Tayactac physical injuries which resulted to the death of the latter. That an aggravating circumstances of abuse of superior strength is attendant in the commission of the offense. CONTRARY TO LAW.[8] Another Information was filed against the Caballero brothers for frustrated murder for the injuries of Arnold Barcuma. Docketed as Criminal Case No. RTC-1219, it reads: That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San Carlos City, Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and helping one another, armed with pieces of wood and hunting knives, with intent to kill, with treachery and evident premeditation, did, then and there, wilfully, unlawfully and feloniously attack, assault and use personal violence upon the person of one ARNOLD BARCUMA, by striking him with the use of pieces of wood and stabbing him, thereby inflicting upon the latter physical injuries which would have resulted to the death of said Arnold Barcuma, thus performing all the acts of execution, which would have produced the crime of Murder, as a consequence, but nevertheless did not produce it, by reason of causes independent of the will of the accused that is, the timely medical assistance rendered to said Arnold Barcuma. That an aggravating circumstance of abuse of superior strength is attendant in the commission of the offense.[9] Ricardo, Armando and Marciano, Jr., assisted by counsel, were arraigned on September 15, 1994. They pleaded not guilty to all the charges. Robito Caballero remained at-large. Ricardo, Armando and Marciano, Jr. invoked the defenses of denial and alibi. They adduced evidence that Ricardo was employed as electrician in the Office of the City Engineer of San Carlos City. Armando was a motor cab driver. Robito resided in H.C. Rigor Street, San Carlos City while Marciano, Jr. was a resident of Don Juan Subdivision, San Carlos City and was employed with the Victorias Milling Corporation.

On August 3, 1994, at 8:00 a.m., Robito left San Carlos City and went to Bacolod City. Armando went to the house of his brother Ricardo to help in the construction of the latters house and to take care of Ricardos fighting cocks while he was in his office. Ricardo arrived home at 8:00 p.m. and had dinner with his family and Armando. Momentarily, their sister Mila and their younger brother Marciano, Jr. arrived in the house of Ricardo. Marciano, Jr. allegedly was mauled by a group of men and sustained an abrasion, a contusion and swelling of the left side of his face. Ricardo and Armando brought their brother Marciano, Jr. to the hospital for treatment. On August 4, 1994, Marciano, Jr. was treated for: = = = Linear abrasion (L) scapula region; Contusion (R) lower lip lateral side; Swelling left face.

No. of days of healing: 5-7 days barring complication.[10] Ricardo, Armando and Marciano, Jr. denied killing Eugene and assaulting Arnold. They also denied having any altercation with the victims. They also denied stabbing Leonilo. They had no idea why Wilma, Arnold and Myrna would implicate them for the deaths of Leonilo and Eugene and for the injuries of Arnold. After due proceedings, the trial court rendered judgment on May 7, 2001 finding all the three accused, now appellants guilty beyond reasonable doubt as principals of the crimes charged, the decretal portion of which reads: WHEREFORE, accused Armando Caballero, alias Baby, Ricardo Caballero, alias Ricky and Marciano Caballero, Jr., alias Jun, having been found GUILTY beyond reasonable doubt of the offenses charged them as principals, are hereby sentenced to suffer: 1. In Criminal Case No. RTC-1217 for the murder of Leonilo Broce, there being no mitigating circumstance present, with the attendant aggravating circumstances of treachery and abuse of superior strength, the maximum penalty of death and to pay the heirs of Leonilo Broce the sum of P75,000.00 as indemnity; 2. In Criminal Case No. RTC-1218, for the murder of Eugene or Eugenio Tayactac, there being no mitigating circumstance present, with the attendant aggravating circumstances of treachery and abuse of superior strength, the maximum penalty of death; and to pay the heirs of Eugene Tayactac the sum of P75,000.00 as indemnity; and 3. In Criminal Case No. RTC-1219, for Frustrated Murder, for having seriously inflicted injuries upon the person of Arnold Barcuma which nearly resulted to his death, there being no mitigating circumstance present, an imprisonment of twelve (12) years, as minimum, to seventeen (17) years, four (4) months and one (1) day, with no award as to damages, no evidence having been introduced to establish, the same; and 4. To pay the costs in all three (3) cases. SO ORDERED.[11]

In convicting the accused, the trial court found that all of them conspired to kill Eugene and Leonilo and cause injuries to Arnold. While the trial court stated that it was only appellant Armando who stabbed Eugene, and only the accused Robito who stabbed Leonilo, however, it concluded that all of them were equally liable for the deaths of Leonilo and Eugene and for the injuries of Arnold. In their Brief, the accused, now appellants assail the decision of the trial court contending that: I THE TRIAL COURT ERRED IN NOT ACQUITTING ACCUSED-APPELLANTS IN CRIMINAL CASES NOS. 12171219 DESPITE THE FACT THAT THEIR GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT. II THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE AGGRAVATING CIRCUMSTANCES OF TREACHERY AND ABUSE OF SUPERIOR STRENGTH ON THE ASSUMPTION THAT INDEED ACCUSEDAPPELLANTS KILLED THE VICTIMS. III THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH PENALTY UPON ACCUSED-APPELLANTS ON THE ASSUMPTION THAT INDEED THEY KILLED THE VICTIMS.[12] The Court will delve into and resolve the first two assignments of errors. The appellants aver that the prosecution failed to prove beyond reasonable doubt their respective guilt for the deaths of Eugene and Leonilo and for the injuries sustained by Arnold. They assert that the trial court committed reversible error in rejecting their defenses of denial and alibi. They claim that at the time of the incident they were in the San Carlos Hospital for the treatment of the injuries of appellant Marciano, Jr. The appellants are partly correct. The trial court correctly found that all the appellants conspired to kill Eugene and assault Arnold; hence, they are criminally liable for the death of Eugene and for the injuries sustained by Arnold. Article 8 of the Revised Penal Code provides that there is conspiracy when two or more persons agree to commit a felony and decide to commit it. Conspiracy is always predominantly mental in composition because it consists primarily of a meeting of minds and intent.[13] Conspiracy must be proved with the same quantum of evidence as the crime itself, that is, by proof beyond reasonable doubt.[14] However, direct proof is not required. Conspiracy may be proved by circumstantial evidence. Conspiracy may be proved through the collective acts of the accused, before, during and after the commission of a felony, all the accused aiming at the same object, one performing one part and another performing another for the attainment of the same objective, their acts though apparently independent were in fact concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments.[15] The overt act or acts of the accused may consist of active participation in the actual commission of the crime itself or may consist of moral assistance to his co-conspirators by moving them to execute or implement the criminal plan.[16]Direct proof of a person in agreement to commit a crime is not necessary. It is enough that at the time of the commission of a crime, all the malefactors had the same purpose and were united in their execution.[17] Once established, all the conspirators are criminally

liable as co-principals regardless of the degree of participation of each of them for in contemplation of the law, the act of one is the act of all.[18] Criminal conspiracy must always be founded on facts, not on mere inferences, conjectures and presumptions.[19] Mere knowledge, acquiescence to or approval of the act without cooperation or agreement to cooperate, is not enough to constitute one party to a conspiracy absent the intentional participation in the act with a view to the furtherance of the common objective and purpose.[20] Moreover, one is not criminally liable for his act done outside the contemplation of the conspirators. Co-conspirators are criminally liable only for acts done pursuant to the conspiring on how and what are the necessary and logic consequence of the intended crime.[21] In this case, when appellant Armando asked Eugene at the store of Wilma whether the latter was going to buy something from the store, Eugene was peeved and remonstrated that he and Armando had no quarrel between them. Appellant Armando was likewise irked at the reaction of Eugene because from the store, appellant Armando stationed himself by the gate of the Mondragon Compound near the sari-sari store of Wilma. Appellants Ricardo, Marciano, Jr. and Robito joined their brother, appellant Armando at the gate. Appellant Ricardo and accused Robito were armed with knives. When Eugene passed by the gate to the compound, appellant Armando pulled Eugene to the gate but when the latter resisted, all the appellants ganged up on Eugene. Appellant Armando took the wooden support of the clothesline and hit Eugene with it. Eugene was stabbed three times on his chest even as he tried to parry the thrusts. When Arnold rushed to the situs criminis to pacify the appellants and accused Robito, appellant Ricardo stabbed him on the left side of his body. The other appellants and accused Robito joined appellant Ricardo and ganged up on Arnold. They stabbed Arnold anew twice on his forearm. Teresito Mondragon, the father-in-law of appellant Ricardo intervened and forthwith, all the appellants, including accused Robito returned to the Mondragon Compound. Patently, all the appellants by their simultaneous collective acts before and after the commission of the crimes were united in one common objective, to kill Eugene, and cause injuries to Arnold for trying to intervene and prevent bloodshed. Hence, all the appellants are criminally liable for the death of Eugene and for the injuries of Arnold. It does not matter who among the appellants stabbed Eugene or inflicted injuries on Arnold. The act of one is the act of the others. However, for the death of Leonilo, the Court believes that the appellants are not criminally liable. The prosecution failed to adduce evidence that the appellants and the accused Robito conspired to kill Leonilo. The appellants did not actually see Leonilo rushing out from his house to the situs criminis. They had no foreknowledge that the accused Robito would stab Leonilo. There was no evidence presented by the prosecution to prove that all the appellants assisted the accused Robito in killing Leonilo. It must be recalled that Leonilo rushed out of his house when he saw the commotion, with the intention of aiding the victim or pacifying the protagonists. He was, however, stopped by accused Robito who suddenly stabbed him on the chest. Leonilo retreated and asked for help. Wilma Broce testified that only the accused Robito stabbed Leonilo: Q After that, what happened next? A Leonilo Broce came out of his house.

Q Where is the house of Leonilo Broce? A Still located at Sumakwel.

Q In that case, the very house where Eugene Tayaktak leaned on when he was ganged up by the four?

Yes.

Q What happened after that? A When he came out from the house and saw that it was Eugene Tayaktak, he proceeded to approach them but he was not able to approach them because he was met by Robit Bebot Caballero and stabbed by Robito Caballero.

Q Was LeoniloBroce (sic) hit when he was stabbed by Robito Caballero? A Yes. He immediately ran back and said: Tio, help me because I am hit.

INTERPRETERS (observation) Witness demonstrating by holding her left armpit. Q Was Eugene Tayaktak able to escape from the attach (sic) of the Caballero brothers? A Not (sic).

Q Now what happened to Eugene Tayaktak? A He appeared very weak and he was staggering.

Q Do you know where Eugene Tayaktak now? A Already dead.

Q What happened to Leonilo Broce, where is he now? A The two of them were (sic) already dead.

Q Now, when did the trouble stop if it stopped? A It stopped when Dodong Mondragon arrived.

Q What did the accused do after the trouble was stopped? A They went inside the compound of his (sic) father.

Q What happened next? A Nothing happened. Both of them were brought to the hospital.[22]

In sum, the trial court committed reversible error in convicting the appellants of murder for the death of Leonilo. As this Court held in People v. Flora:[23] However, we cannot find Edwin Flora similarly responsible for the death of Emerita Roma and the injury of Flor Espinas. The evidence only shows conspiracy to kill Ireneo Gallarte and no one else. For acts done outside the contemplation of the conspirators only the actual perpetrators are liable. In People v. De la Cerna, 21 SCRA 569, 570 (1967), we held: ... And the rule has always been that co-conspirators are liable only for acts done pursuant to the conspiracy. For other acts done outside the contemplation of the co-conspirators or which are not the necessary and logical consequence of the intended crime, only the actual perpetrators are liable. Here, only Serapio killed (sic) Casiano Cabizares. The latter was not even going to the aid of his father Rafael but was fleeing away when shot.

To conclude, appellant Edwin Flora is guilty beyond reasonable doubt only of the murder of Ireneo Gallarte. He has no liability for the death of Emerita Roma nor the injuries of Flor Espinas caused by his co-accused Hermogenes Flora.

Crimes Committed by Appellants In Criminal Case No. RTC-1218, the appellants are guilty as co-principals by direct participation of murder, qualified by treachery. In order that treachery may be considered as a qualifying circumstance, the prosecution is burdened to prove that: .... (1) the employment of means of execution that give the person attacked no opportunity to defend himself or to retaliate; and (2) the means of execution was deliberately or consciously adopted.[24] Even a frontal attack is treacherous if it is sudden and the victim is unarmed. The essence of treachery is a swift and unexpected attack on the unarmed victim.[25] In this case, Eugene was unarmed. He had no inkling that he would be waylaid as he sauntered on his way to his girlfriend Susanas house. On the other hand, appellant Armando was armed with a wooden pole while appellant Ricardo and accused Robito were armed with knives. The attack on the hapless Eugene was swift and unannounced. Undeniably, the appellants killed Eugene with treachery. In Criminal Case No. RTC-1219, the appellants are guilty of frustrated murder under Article 248 in relation to Article 6, first paragraph of the Revised Penal Code which reads: A felony is consummated when all the elements necessary 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 of causes independent of the will of the perpetrator. The essential elements of a frustrated felony are as follows: Elements: 1. 2. 3. 4. The offender performs all the acts of execution; All the acts performed would produce the felony as a consequence; But the felony is not produced; By reason of causes independent of the will of the perpetrator.[26]

In the leading case of United States v. Eduave,[27] Justice Moreland, speaking for the Court, distinguished an attempted from frustrated felony. He said that to be an attempted crime the purpose of the offender must be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has performed all the acts which should produce the crime as a consequence, which act it is his intention to perform. The subjective phase in the commission of a crime is that portion of the acts constituting the crime included between the act which begins the commission of the crime and the last act performed by the

offender which, with prior acts, should result in the consummated crime. Thereafter, the phase is objective. In case of an attempted crime, the offender never passes the subjective phase in the commission of the crime. The offender does not arrive at the point of performing all of the acts of execution which should produce the crime. He is stopped short of that point by some cause apart from his voluntary desistance. On the other hand, a crime is frustrated when the offender has performed all the acts of execution which should result in the consummation of the crime. The offender has passed the subjective phase in the commission of the crime. Subjectively, the crime is complete. Nothing interrupted the offender while passing through the subjective phase. He did all that is necessary to consummate the crime. However, the crime is not consummated by reason of the intervention of causes independent of the will of the offender. In homicide cases, the offender is said to have performed all the acts of execution if the wound inflicted on the victim is mortal and could cause the death of the victim barring medical intervention or attendance.[28] If one inflicts physical injuries on another but the latter survives, the crime committed is either consummated physical injuries, if the offender had no intention to kill the victim or frustrated or attempted homicide or frustrated murder or attempted murder if the offender intends to kill the victim. Intent to kill may be proved by evidence of: (a) motive; (b) the nature or number of weapons used in the commission of the crime; (c) the nature and number of wounds inflicted on the victim; (d) the manner the crime was committed; and (e) words uttered by the offender at the time the injuries are inflicted by him on the victim. In this case, appellant Armando was armed with a wooden pole. Appellant Ricardo and accused Robito used knives. Dr. Quisumbing, who attended to and operated on Arnold, testified that the stab wound sustained by Arnold on the left side of his body was mortal and could have caused his death were it not for the timely and effective medical intervention: Q And how about the size and the depth of the wounds and how big is each wound and how deep. A The first wound is 2 cm. and the 2nd is about 2 inches and the 3rd is 2 inches in the left, penetrating the chest near the thorax along the lateral line.

Q So, aside from the 3rd wound there are wounds which are not really very serious? A As I said before, the most serious is the 3rd wound.

Q So even without the other wounds the 3rd wound - - it could be the cause of the death of the victim? A Yes, Sir.[29]

It cannot be denied that the appellants had the intention to kill Arnold. The appellants performed all the acts of execution but the crime was not consummated because of the timely medical intervention. Treachery attended the stabbing of Arnold because he was unarmed and the attack on him was swift and sudden. He had no means and there was no time for him to defend himself. In sum, the appellants are guilty of frustrated murder.

The appellants denial of the crimes charged in Criminal Case Nos. RTC-1218 and RTC-1219 cannot prevail over Wilmas and Arnolds positive and straightforward testimonies that the appellants killed Eugene and stabbed Arnold. Moreover, Wilma and Arnold had no motive to falsely implicate the appellants for the said crimes; hence, their testimony must be accorded full probative weight.[30] Equally barren of merit is appellants defense of alibi. Alibi as a defense is inherently weak for it is easy to fabricate and difficult to disprove. To merit approbation, the appellants were burdened to prove with clear and convincing evidence that at the time the crimes were committed, they were in a place other than the situs of the crimes such that it was physically impossible for them to have committed said crimes.[31] The appellants dismally failed in this respect. They testified that they were at the house of appellant Ricardo, which was conveniently near the place where Eugene was killed and Arnold was assaulted. Moreover, the records show that Marciano, Jr. was treated for his superficial injuries on August 4, 1996, a day after the incident. This belies the claim of appellants Ricardo and Armando that they were allegedly in the hospital at the time of the incident.

Penalties Imposable on Appellants The trial court imposed the death penalty on appellants in Criminal Case No. RTC-1218 on its finding that treachery and abuse of superior strength were attendant in the killing of Eugene. The Solicitor General does not agree with the trial court and contends that abuse of superior strength was absorbed by treachery; hence, should not be considered as a separate aggravating circumstance in the imposition of the penalty on the appellants. The Court agrees with the Solicitor General. Abuse of superior strength, concurring with treachery is absorbed by treachery.[32] The penalty for murder under Article 248 of the Revised Penal Code, as amended by Republic Act 7659, is reclusion perpetua to death. Since aside from the qualified circumstance of treachery, no other modifying circumstance was attendant in the commission of the crime, the proper penalty for the crime is reclusion perpetua conformably with Article 63 of the Revised Penal Code. In Criminal Case No. RTC-1219, for frustrated murder, the Solicitor General contends that the indeterminate penalty of from 12 years of reclusion temporal as minimum, to 17 years, 4 months and 1 day of reclusion temporal as maximum, imposed on the appellants is not correct. The Court agrees with the Solicitor General. The penalty for frustrated murder is one degree lower than reclusion perpetua to death, which is reclusion temporal.[33] The latter penalty has a range of 12 years and 1 day to 20 years. The maximum of the indeterminate penalty should be taken from reclusion temporal, the penalty for the crime taking into account any modifying circumstances in the commission of the crime. The minimum of the indeterminate penalty shall be taken from the full range of prision mayor which is one degree lower than reclusion temporal. Since there is no modifying circumstance in the commission of frustrated murder, the appellants should be meted an indeterminate penalty of from nine (9) years and four (4) months of prision mayor in its medium period as minimum to seventeen (17) years and four (4) months of reclusion temporal in its medium period, as maximum.

Civil Liabilities of Appellants The trial court ordered the appellants in Criminal Case No. RTC-1218 to pay in solidum the heirs of the victim Eugene Tayactac, the amount of P75,000 by way of indemnity. The trial court did not award

moral damages to said heirs. This is erroneous. Since the penalty imposed on the appellants is reclusion perpetua, the civil indemnity should be only P50,000. The heirs of the victim should also be awarded the amount of P50,000 as moral damages.[34] In Criminal Case No. RTC-1219, the trial court did not award moral damages to the victim Arnold Barcuma on its finding that the prosecution failed to adduce any evidence to prove said damages. The Court disagrees with the trial court. The victim Arnold Barcuma himself testified on his injuries.[35] He is entitled to moral damages in the amount of P25,000.[36] Having suffered injuries and undergone medical treatment he is, as well entitled to actual damages, which in the absence of evidence would, nevertheless, entitle him to an award of temperate or moderate damages, herein fixed at P10,000.

The Verdict of the Court IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of San Carlos City (Negros Occidental), Branch 57, in Criminal Cases Nos. RTC-1217 up to RTC-1219 is AFFIRMED with the following MODIFICATIONS: 1. In Criminal Case No. RTC-1217, the Court, finding the appellants not guilty of the crime charged for failure of the prosecution to prove their guilt beyond reasonable doubt, REVERSES the judgment of the trial court and ACQUITS them of the said charge. 2. In Criminal Case No. RTC-1218, the appellants are found guilty beyond reasonable doubt of murder under Article 248 of the Revised Penal Code, qualified by treachery, and are sentenced to suffer the penalty of reclusion perpetua and ordered to pay in solidum the heirs of the victim Eugene Tayactac, the amounts of P50,000 as civil indemnity and P50,000 as moral damages. 3. In Criminal Case No. RTC-1219, the appellants are found guilty beyond reasonable doubt of frustrated murder under Article 248 in relation to Article 6, first paragraph of the Revised Penal Code and are hereby sentenced to suffer an indeterminate penalty of from nine (9) years and four (4) months of prision mayor in its medium period, as minimum, to seventeen (17) years and four (4) months of reclusion temporal in its medium period, as maximum. The appellants are hereby ordered to pay in solidum to the victim Arnold Barcuma the amount of P25,000 as moral damages and P10,000 as temperate or moderate damages. Costs de oficio. SO ORDERED.

[G.R. Nos. 141724-27. November 12, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. ARNULFO ORANDE y CHAVEZ, appellant. DECISION CORONA, J.:

This is an appeal from the decision[1] of the Regional Trial Court of Manila, Branch 18, in Criminal Case Nos. 97-159184, 97-159185, 97-159186 and 97-159187, convicting appellant for two counts of simple rape, one count of statutory rape and one count of frustrated rape, and sentencing him to suffer three counts of reclusion perpetua for the simple and statutory rapes, and an indeterminate penalty of 8 years to 14 years and 8 months of imprisonment for the frustrated rape. Complainant Jessica Castro charged appellant with raping her four times between January 1994 and November 1996. The informations filed against appellant by the City Prosecutor read: In Criminal Case No. 97-159184 That on or about January 14, 1996, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously, by means of force and intimidation, that is, by threatening to kill said Jessica Castro, had carnal knowledge of the latter against her will. CONTRARY TO LAW. In Criminal Case No. 97-159185That on or about April 15, 1994, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously, by means of force and intimidation, that is, by threatening JESSICA CASTRO Y DE LA CRUZ of death should she resist or report the matter to anybody, had carnal knowledge of said Jessica C. Castro, a minor, under 12 years of age, against her will. CONTRARY TO LAW. In Criminal Case No. 97-159186 That on or about March 12, 1995, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously, by means of force and intimidation, that is, by threatening Jessica Castro y de la Cruz of death should she resist or report the matter to anybody, had carnal knowledge of said Jessica C. Castro, a minor, under 12 years of age, against her will. CONTRARY TO LAW. In Criminal Case No. 97-159187That on or about November 17, 1996, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously, by means of force and intimidation, that is, by threatening to kill said Jessica Castro, had carnal knowledge of the latter against her will. CONTRARY TO LAW.[2] Arraigned on September 5, 1997, appellant pleaded not guilty.[3] Thereafter, trial on the merits ensued. However, the trial was subsequently postponed for eight months as Jessica was suffering from psychological and emotional trauma from her horrifying ordeal.[4] The lower court ordered the suspension of the trial to enable her to undergo psychological therapy at the Child Protection Unit of the

Philippine General Hospital. Trial resumed in November 1998 with the prosecution presenting Jessica as its first witness. Incidentally, prior to the filing of the aforementioned cases, Jessica also filed a criminal case against her mother, Girlie de la Cruz Castro, and the appellant for child abuse. The evidence of the prosecution showed that appellant was the common law husband of Jessicas mother Girlie. Appellant, a pedicab driver, started living with Girlie and her three children sometime in 1993 in a two-storey house in Paco, Manila owned by Girlies mother. They occupied a room on the ground floor which served as their bedroom, kitchen and living room. The adjacent room was occupied by Girlies brother and his family while the room on the second floor was occupied by Girlies sister and her family. Girlie gave birth to two more children by appellant. To earn a living, Girlie sold fish at the Paco Market, buying her stock from the Navotas fish market late at night and sometimes in the early hours of the morning. The first incident of rape, subject of Criminal Case No. 97-159185, happened sometime in April 1994 when Girlie was at the fish market. Appellant was left in the house with Jessica, her siblings and appellants two children with Girlie. Jessica was then watching television while her brothers and sisters were sleeping beside her. Appellant grabbed Jessicas right hand and lasciviously jabbed her palm with his finger. He ordered her to undress which she obeyed out of fear as appellant was armed with a knife. Appellant then removed his pants, placed himself on top of complainant and succeeded in partially penetrating her. Jessica felt pain in her vagina and saw it smeared with blood and semen. She tried to leave the room but appellant locked the door and threatened to kill her if she told her mother what happened. Jessica was then only nine years and four months old, having been born on December 19, 1983.[5] The second rape, subject of Criminal Case No. 97-159186, occurred on March 14, 1995 at around 11:00 a.m. when Jessica was 11 years and 3 months old. Girlie was in the market while Jessica and her siblings were left in the house watching television. Soon after, appellant arrived and sent the children, except Jessica, to play outside. Left alone with Jessica, appellant removed his clothes, pulled out a balisong and ordered Jessica to undress. He then held her by the shoulder and made her lie down. Then he mounted her. Appellant reached his orgasm shortly after penetrating her slightly. He stood up with semen still dripping from his penis. Apparently still not satisfied, he knelt down, kissed and fingered Jessicas vagina, then mashed her breasts. He only stopped what he was doing when someone knocked at the door. Appellant and Jessica hurriedly put on their clothes and, as appellant opened the door, Jessica went to the bathroom to wash herself. The third rape, subject of Criminal Case No. 97-159184, occurred on January 14, 1996, when Jessica was 12 years and 6 months old. She arrived from school at around 11:00 a.m. While she was changing her clothes, appellant ordered Jessicas brother and sister to visit their mother at the Paco Market and sent his children to play outside the house. When appellant and Jessica were alone, he removed his pants, got his knife and ordered her to undress. Since she was afraid, Jessica was forced to remove her clothes. Appellant then told her they would do what they did before, pulled her towards him and made her lie down on the floor. While holding the knife, he kissed and fingered her vagina, then mashed her breasts. Thereafter, he placed himself on top of her, partially penetrated her until he ejaculated. When Jessicas brother and sister arrived, appellant hurriedly put on his clothes. Jessica did the same. She then went to the bathroom to wash herself and change her bloodstained underwear.

The last rape, subject of Criminal Case No. 97-159187, occurred sometime in November 1996, at around 11:00 p.m. Girlie was again in the public market while Jessica was at home with her siblings who were all asleep. Appellant told Jessica that they would again do what they did before but she refused, saying that she might get pregnant. Appellant brandished his balisong and threatened to kill her. He then covered himself and Jessica with a blanket, removed his pants and her shorts, and placed himself on top of her. His penis slightly penetrated her vagina. He mashed her breasts, inserted his finger into her vagina and kissed it. Jessica pushed him away and told him she wanted to sleep. Then she put on her shorts. Appellant also put on his pants and told Jessica not to tell her mother what he did to her. He assured her that she would not get pregnant because she was not yet menstruating. Sometime in March 1997, a teacher of Jessica, Mrs. Adoracion Mojica, noticed the unusual treatment of Jessica by appellant. When confronted by Mrs. Mojica, Jessica admitted that appellant had raped her several times. Mrs. Mojica called up Jessicas aunt, Mrs.Antonina de la Cruz, and narrated to her what Jessica had confessed. Mrs. De la Cruz then accompanied Jessica to the police station to file a complaint and to the Philippine General Hospital (PGH), Child Protection Unit, to be examined. Dr. Bernadette J. Madrid, Director of the Child Protection Unit, examined Jessica and the findings revealed the following: Genital Examination: Hymen: Estrogenized, Attenuated from 1 oclock position to 4 o clock position and from 6 o clock to 12 o clock position Notch at 5 oclock Healed hymenal tear at the 6 o clock position Anus: Normal rectal tone, no pigmentation, no scars, normal rugae[6] For his defense, appellant advanced denial and alibi. He denied ever raping Jessica and testified that, during the alleged second rape incident, he was driving his pedicab. His live-in partner Girlie testified that, during the purported first and second incidents of rape, appellant was with her to buy fish in Navotas and sell them in Paco market. Appellant argued that since Jessica disapproved of his relationship with her mother, she had the motive to falsely accuse him of raping her. Further, he pointed out the improbability of the alleged first and fourth incidents of rape inasmuch as the make-up of the room made it impossible for Jessicas siblings not to wake up during the commission of the crime. Appellant further contended that Jessicas failure to cry out for help, knowing that her mothers relatives were in the same house, made her story of rape unbelievable. The trial court gave credence to the testimony of Jessica and convicted the appellant: WHEREFORE, in Criminal Case No. 97-159184, Accused Arnulfo Orande y Chavez is convicted of simple rape under Article 335 of the Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua with all the accessory penalties provided by law. In Criminal Case No. 97-159185, the accused is also convicted of simple rape under Article 335 of the Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua with all the accessory penalties provided by law.

In Criminal Case No. 97-159186, the accused is likewise convicted of statutory rape under Article 335 of the Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua with all the accessory penalties provided by law. In Criminal Case No. 97-159187, the accused is convicted of frustrated rape under Article 335 of the Revised Penal Code and sentenced to suffer the indeterminate penalty of 8 years of prision mayor as minimum to 14 years and 8 months of reclusion temporal as maximum, and to pay the costs. On the civil liability of the accused in the four cases, he is ordered to pay the victim, Jessica Castro, moral, nominal and exemplary damages in the respective sums of P400,000.00, P200,000.00 and P100,000.00. SO ORDERED.[7] In this appeal, appellant assigns the following errors: I. THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF ONE COUNT OF STATUTORY RAPE, ONE COUNT OF FRUSTRATED RAPE AND TWO COUNTS OF SIMPLE RAPE. II. THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF FRUSTRATED RAPE DESPITE THE FACT THAT UNDER PREVAILING JURISPRUDENCE THERE IS NO SUCH CRIME.[8] The Office of the Solicitor General argues that appellants convictions should be upheld as the prosecution was able to prove his guilt beyond reasonable doubt. The appeal is partly meritorious. This Court finds that the prosecution was able to prove beyond reasonable doubt appellants guilt for two counts of statutory rape and two counts of simple rape, there being no such crime as frustrated rape in this jurisdiction. After a thorough review of the records, we find no reason to deviate from the well-established rule that the credibility of witnesses is a matter best assessed by the trial court because of its unique opportunity to observe them firsthand and to note their demeanor, conduct and attitude.[9] In the present case, the trial court found Jessicas testimony convincing, logical and credible. Moreover, the court a quo: xxx discerned from her demeanor the intense mental torture, embarrassment, emotional pain and bitterness she suffered whenever she was asked to recall and narrate the humiliating sexual ordeals she had gone through, and her ... desire for justice and the punishment of her defiler. She was continually in tears while testifying and the proceeding was interrupted several times to calm her down.[10] No young woman would allow an examination of her private part and subject herself to the humiliation and rigor of a public trial if the accusations were not true, or if her motive were other than a fervent desire to seek justice.[11] We do not subscribe to appellants theory that the filing of the rape charges was motivated by Jessicas dislike for him. To charge appellant with rape for the sole purpose of exacting revenge, as appellant implies in his brief, takes a certain kind of psychiatric depravity which this Court does not see in Jessica. The fact that Jessica had to undergo psychological treatment[12] after her first testimony in

February 1998 belies appellants defense. The need for such counseling came about after the defilement she suffered in the hands of appellant. In fact, it was the incidents of rape that caused her psychological and emotional imbalance which required therapy at the Child Protection Unit of the Philippine General Hospital. The alleged inconsistencies and improbabilities in Jessicas testimony did not discredit her nor reveal any fabrication. Inconsistencies regarding minor details were attributable to the fact that she was recalling details of incidents that happened three years before, not to mention the fact that these details pertained to something she had very little knowledge of, being then only nine years and three months old when the first rape was committed. We have consistently ruled that errorless recollection of a harrowing experience cannot be expected of a witness (a very young one at that) specially when she is recounting details of an occurrence so humiliating, so painful and, in this case, so alien as rape.[13] Appellant makes much of the fact that two incidents of rape happened inside the room where the other children were sleeping. This Court has repeatedly held that rape can be committed in the same room where other members of the family are also sleeping, in a house where there are other occupants or even in places which to many might appear unlikely and high-risk venues for its commission.[14] Also, the failure of Jessica to cry out for help during the incidents in question, inspite of the physical proximity of her relatives, or to report to them what happened, did not at all make her testimony improbable inasmuch as it is not uncommon for a young girl of tender age to be easily intimidated into silence and conceal for sometime the violation of her honor, even by the mildest threat to her life.[15] Besides, Girlie, Jessicas mother, had a rift with her siblings who lived in the same house and forbade Jessica to socialize with them. It was likewise highly probable that the strained relations between Jessicas mother, uncle and aunt prevented Jessica from confiding in them. In a number of cases, this Court has likewise ruled that delay, even of three years, in reporting the crime does not necessarily detract from the witness credibility as long as it is satisfactorily explained.[16] Jessica was threatened by appellant that he would kill her mother and relatives if she reported the rape. A young girl like Jessica can easily be mesmerized by fear of bodily harm and, unlike a mature woman, cannot be expected to have the courage or confidence to immediately report a sexual assault on her, specially when a death threat hangs over her head.[17] In view of the credible testimony of Jessica, appellants defenses of denial and alibi deserve no consideration. These weak defenses cannot stand against the positive identification and categorical testimony of a rape victim.[18] The court a quo convicted appellant of one count of frustrated rape in Criminal Case No. 97151987, the dispositive portion of which read: xxx xxx xxx.

In Criminal Case No. 97-159187, the accused is convicted of frustrated rape under Article 335 of the Revised Penal Code and sentenced to suffer the indeterminate penalty of 8 years of prision mayor as minimum, and to pay the costs. xxx SO ORDERED.[19] xxx xxx.

However, we agree with the observation of the Solicitor General that the court a quo was referring to Criminal Case No. 97-159185, and not Criminal Case No. 97-159187, in convicting appellant of frustrated rape: The trial court convicted appellant of simple rape in Criminal Case No. 97-159185. However, the factual basis thereof in the body of the decision reads: With regard to Criminal Case No. 97-159185, the Court has gathered that sometime in April, 1994, at around 11:00 p.m., Jessica and her two siblings together with the accused were in their house, while their mother, Girlie, was in Navotas buying fish. Jessica was watching TV in a lying position beside her two sleeping siblings, when the accused held Jessicas right hand and jabbed her palm with his finger. Then he told her to remove her short pants, panty and T-shirt, after which the accused removed his pants and with a balisong in his hand, he began kissing the sensitive parts of her body. Then he placed himself on top of her and tried to have sexual intercourse with her. He succeeded in nudging her sex organ with the tip of his penis, but was unable to accomplish penetration, due to the resistance offered by her by struggling and kicking him. Nonetheless, the accused had orgasm and Jessicas sex organ was smeared with his semen. (emphasis supplied, p. 2, Decision) Such was the only rape incident where the trial court concluded there was no penetration. On the other hand, the factual basis for the conviction in Criminal Case No. 97-159187 in the body of the trial courts decision reads: Anent Criminal Case No. 97-159187, the records further show that in November, 1996, at around 11:00 p.m., Jessica was watching TV while the other siblings were asleep and her mother was away, when accused again made sexual advances to her. She resisted and told accused she might become pregnant, but the accused persisted and threatened to kill her at that very moment if she would not submit to his lust. As in the previous occasions, he again succeeded in having carnal knowledge of the helpless and scared victim. After her defilement, the victim continually cried and the accused tried to calm her down by assuring her that she would not be impregnated, because she has not yet began to have menstruation (p. 3, Decision) Consequently the conviction for frustrated rape should pertain to the incident in April 1994 described in Criminal Case No. 97-159185 and not Criminal Case No. 97-159187 since this case refers to the November 1996 rape incident where the findings of the trial court was that there was carnal knowledge.[20] Moreover, the oversight of the court a quo in interchanging Criminal Case Nos. 97-159185 and 97159187 is further evidenced by the following paragraph found in page four of the trial court decision: In Criminal Case 97-159185 and 97-159184, the acts of the accused in having carnal knowledge of the victim by intimidation on two separate occasions in [the] early or middle part [of] 1996, and in November of the same year, constitute two separate crimes of qualified rape under R.A. 7659 and the penalty prescribed therefore is death by lethal injection.[21] (Emphasis Ours)

The rape incidents which occurred in 1996 were designated as Criminal Case Nos. 97-159184 and 97-159187, as borne out by the informations filed by the City Prosecutor.[22] Thus, the conviction for frustrated rape should pertain to Criminal Case No. 97-159185 and not Criminal Case No. 97-159187. Regarding Criminal Case No. 97-159185 (the April 1994 rape incident), the Court sustains appellants contention that there is no such crime as frustrated rape, as we have ruled in a long line of cases.[23] Recently, in People vs. Quinanola,[24] we again reiterated the rule: Let it be said once again that, as the Revised Penal Code presently so stands, there is no such crime as frustrated rape. In People vs. Orita, the Court has explicitly pronounced: Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim, he actually attains his purpose and, from that moment also all the essential elements of the offense have been accomplished. Nothing more is left to be done by the offender, because he has performed the last act necessary to produce the crime. Thus, the felony is consummated. In a long line of cases (People vs. Oscar, 48 Phil. 527; People vs. Hernandez, 49 Phil. 980; People vs. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People vs. Amores, G.R. No. L-32996, August 21, 1974, 58 SCRA 505), Wehave set the uniform rule that for the consummation of rape, perfect penetration is not essential. Any penetration of the female organ by the male organ is sufficient. Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the vagina is sufficient to warrant conviction. Necessarily, rape is attempted if there is no penetration of the female organ (People vs. Tayaba, 62 Phil. 559; People vs. Rabadan, et al., 53 Phil. 694; United States vs. Garcia, 9 Phil. 434) because not all acts of execution was performed. The offender merely commenced the commission of a felony directly by overt acts. Taking into account the nature, elements and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly conceivable how the frustrated stage in rape can ever be committed. Of course, We are aware of our earlier pronouncement in the case of People vs. Eriia, 50 Phil. 998 [1927] where We found the offender guilty of frustrated rape there being no conclusive evidence of penetration of the genital organ of the offended party. However, it appears that this is a stray decision inasmuch as it has not been reiterated in Our subsequent decisions. Likewise, We are aware of Article 335 of the Revised Penal Code, as amended by Republic Act No. 2632 (dated September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its penultimate paragraph, for the penalty of death when the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof. We are of the opinion that this particular provision on frustrated rape is a dead provision. The Eriia case, supra, might have prompted the law-making body to include the crime of frustrated rape in the amendments introduced by said laws. The Court is not unaware that Republic Act No. 7659, amending Article 335 of the Revised Penal Code, has retained the provision penalizing with reclusion perpetua to death an accused who commits homicide by reason or on the occasion of an attempted or frustrated rape. Until Congress sees it fit to define the term frustrated rape and thereby penalize it, the Court will see its continued usage in the statute book as being merely a persistent lapse in language. (emphasis ours) Thus, it was error for the trial court to convict appellant of frustrated rape. Besides, after a careful review of the records, we find that the rape was in fact consummated. Jessica initially testified that, although appellant did not succeed in inserting his penis in her vagina, she felt his sex organ touch hers and she saw and felt semen come out of his penis and smear her vagina.[25] In response to

the clarificatory questions asked by the prosecutor, Jessica testified that the appellant was able to slightly penetrate her because she felt pain and her vagina bled.[26] It has been held that, to be convicted of rape, there must be convincing and sufficient proof that the penis indeed touched the labia or slid into the female organ, and not merely stroked the external surface thereof.[27] Nevertheless, we have also ruled in cases where penetration is not established that the rape is deemed consummated if the victim felt pain, or the medico-legal examination finds discoloration in the inner lips of the vagina, or the labia minora is already gaping with redness, or the hymenal tags are no longer visible.[28]In the present case, the victim testified that she felt pain and her vagina bled, indisputable indications of slight penetration or, at the very least, that the penis indeed touched the labia and not merely stroked the external surface thereof. Thus, the appellant should be found guilty of (consummated) rape and not merely frustrated or attempted rape. Pursuant to Section 11 of RA 7659 or the Heinous Crimes Law, the penalty of death is imposed if rape is committed when the victim is under 18 years of age and the offender is the common-law spouse of the parent of the victim. However, the trial court was correct in not imposing the death penalty in Criminal Case Nos. 97-159184 and 97-159187 because the qualifying circumstances of age and relationship of the victim to the appellant were not alleged in the information.[29] Thus, appellant can only be convicted of simple rape punishable byreclusion perpetua under Article 335 of the Revised Penal Code. However, in Criminal Case Nos. 97-159185 and 97-159186, the appellant can be convicted of statutory rape also punishable by reclusion perpetua under Article 335 of the Revised Penal Code inasmuch as the age of Jessica was alleged in the information[30] and duly proven during the trial by the presentation of her birth certificate.[31] We award moral damages of P50,000 for each count of rape as moral damages are automatically awarded to rape victims without need of pleading or proof.[32] We also award civil indemnity ex delicto of P50,000 for each count of rape in the light of the ruling that civil indemnity, which is distinct from moral damages, is mandatory upon the finding of the fact of rape.[33] We likewise award exemplary damages of P25,000 for each count of rape consistent with the prevailing jurisprudence on the matter.[34] WHEREFORE, the decision of the Regional Trial Court of Manila, Branch 18, in Criminal Case Nos. 97-159 184 to 87 is AFFIRMED with the following MODIFICATIONS: 1. In Criminal Case No. 97-159 184, appellant is convicted of simple rape under Article 335 of the Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua. 2. In Criminal Case No. 97-159 185, appellant is convicted of statutory rape under Article 335 of the Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua. 3. In Criminal Case No. 97-159186, appellant is convicted of statutory rape under Article 335 of the Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua. 4. In Criminal Case No. 97-159187, appellant is convicted of simple rape under Article 335 of the Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua. For each count of rape, appellant is ordered to pay complainant Jessica Castro P50,000 as moral damages, P50,000 as civil indemnity and P25,000 as exemplary damages, or a total of P500,000. Costs against appellant. SO ORDERED.

[G.R. No. 138972-73. September 13, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff, vs. EUGENIO MARQUEZ y BRIONES, JOSE MAGTIBAY, ANSELMO MAGTIBAY and NICASIO BACOLO, accused, EUGENIO MARQUEZ y BRIONES, appellant. DECISION PANGANIBAN, J.: We reiterate the doctrine that, in the assessment of the credibility of witnesses and their testimonies, the findings of trial courts deserve utmost respect.

The Case Eugenio Briones y Marquez appeals the May 12, 1998 Judgment[1] rendered by the Regional Trial Court (RTC) of Lucena City, Branch 53. In Criminal Case No. 95-555, the RTC convicted him of frustrated robbery with homicide and frustrated homicide; and in Criminal Case No. 95-557, of illegal possession of firearm. The charges stemmed from a bus holdup, which resulted in the killing of the bus conductor and the wounding of a police officer on February 17, 1995. In Criminal Case No. 95-555, appellant, Jose Magtibay, Anselmo Magtibay and Nicasio Bacolo were charged in an Amended Information dated November 22, 1995,[2] as follows: That on or about the 17th day of February 1995, along Maharlika Highway at Barangay Sampaloc II, Municipality of Sariaya, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a caliber .38 Smith & Wesson revolver and bladed and pointed weapons, conspiring and confederating together and mutually helping one another, with intent to gain and to rob, by means of force, violence, threats and intimidation, did then and there willfully, unlawfully and feloniously hold-up JAC Liner bus with Plate No. NYE-839, thus performing all the acts of execution which should have produced the crime of robbery as a consequence, but which nevertheless did not produce it by reason of causes independent of the will of the accused, that is, by the timely intervention of SPO1 Rizaldy Merene, one of the passengers of said bus; and that on the occasion of said robbery, said accused, still in pursuance of their conspiracy, with intent to kill and taking advantage of their superior strength, did then and there willfully, unlawfully and feloniously attack, and shoot with said firearm Joselito Estrareja Halum, the conductor of said bus, thereby inflicting upon the latter gunshot wound, which directly caused his death, and also inflicting gunshot wounds and injuries on vital part of the body of SPO1 Rizaldy Merene, thus performing all the acts of execution which should have produced the crime of homicide as a consequence, but which nevertheless did not produce it by reason of causes independent of the will of the accused, that is, by the timely and able medical attendance rendered to said SPO1 Rizaldy Merene, which prevented his death.[3] In Criminal Case No. 95-557, appellant was indicted in an Information[4] dated May 24, 1995, as follows:

That on or about the 17th day of February 1995, at Barangay Sampaloc II, Municipality of Sariaya, Province of Quezon, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession, custody and control one (1) caliber .38 revolver Smith and Wesson, by keeping and carrying the same without first securing the necessary license or permit, and further using the same in the commission of an offen*s+e. During his arraignment,[5] appellant, assisted by Counsel de Oficio Uldarico Jusi, pleaded not guilty. The other accused, except Jose Magtibay, remained at large. The two cases were consolidated and tried jointly. Thereafter, on May 12, 1998, the trial court rendered its assailed Decision, the dispositive portion of which reads as follows: WHEREFORE, premises considered, the Court in Criminal Case No. 95-555 finds Eugenio Marquez y Briones guilty beyond reasonable doubt of the crime of frustrated robbery with homicide and frustrated homicide punished under Article 297 of the Revised Penal Code and applying the Indeterminate Sentence Law, with no mitigating or aggravating circumstance present, Eugenio Marquez is sentenced to suffer reclusion perpetua and he is ordered to pay the costs. Eugenio Marquez is ordered to pay the heirs of Joselito Halum P50,000.00 as death indemnity. He is also ordered to reimburse SPO1 Rizaldy Merene the sum of P9,000.00 which he incurred for his medical treatment. The case against Jose Magtibay is dismissed for insufficiency of evidence. His release from detention unless he is being detained for another cause, is ordered. In Criminal Case No. 95-557 the Court finds Eugenio Marquez y Briones guilty beyond reasonable doubt of the crime of illegal possession of firearm punished under Section I of Presidential Decree No. 1866 as amended by Republic Act No. 8294 and, applying the Indeterminate Sentence Law, [of] the commission of homicide as an aggravating circumstance. Eugenio Marquez is hereby sentenced to suffer the penalty of four (4) years and two (2) months of prision correccional as minimum to six (6) years of prision correccional as maximum and he is ordered to pay a fine of P15,000.00 and to pay the costs. The officer-in-charge of this court is directed to deposit the caliber .38 revolver Smith and Wesson (Exhibit A in Criminal Case No. 95-555 and Exhibit A in Criminal Case No. 95-557) and the envelope with the three (3) live bullets and one slug (Exhibit A-1 in Criminal Case No. 95-555 and Exhibit A-1 in Criminal Case No. 95-557) with the Philippine National Police at Camp Nakar, Lucena City, in accordance with existing rules.[6]

The Facts Version of the Prosecution The solicitor general summarized the evidence for the prosecution in this wise:[7] *O+n the evening of February 17, 1995, a JAC Liner bus driven by Modesto Ferrer with Joselito Halum as conductor was on its way from Metro Manila to Lucena City. Among the passengers was SPO1 Rizaldy Merene of the Southern Police District Command. Merene was seated directly behind the driver (TSN, p. 3, February 9, 1996). Another passenger, Manuel Fleta, occupied the third seat on the left side of the

bus. When the bus reached the Mazapan junction in Barangay Santo Cristo, Sariaya, Quezon, four men boarded the bus (TSN, p. 6, September 9, 1996). Two or three kilometers away from the Mazapan junction, two passengers stood up as if to alight from the bus (TSN, PP. 2-4, February 16, 1996[)]. When they reached the front portion of the bus, however, one of the men (later found to be appellant Marquez) poked a gun at the driver and announced a holdup. His companion poked a knife at the conductor[.] Merene who was seated right behind quickly drew his firearm, but Marquez was able to fire at him first. Although hit, Merene returned fire. Panicking, Marquez and his companion jumped out of the bus. The conductor, Halum, fell to the floor of the bus, fatally wounded (TSN, pp. 4-7, February 9, 1996; pp. 7-8, September 9, 1996)[.] After the hold-up men left the bus, Merene asked the driver to bring him to the nearest hospital where he was treated for his wound. Manuel Fleta, who witnessed the announcement of the hold-up and the exchange of fire between one of the hold-up men and SPO1 Merene, went to the PNP Sariaya station to report the incident. Chief of Police Concordio Tapulayan and PO3 Enrico Perez accompanied Fleta to the place where the incident happened and later to the Greg Hospital where SPO1 Rizaldy Merene was questioned (TSN, p. 12, December 16, 1996). While they were there, the police officers received a radio message from the Candelaria police station informing them that a wounded man was brought to the Bolaos Hospital in Candelaria (Ibid., at p. 13). This was followed by another broadcast declaring that the wounded man was transferred to the Quezon Memorial Hospital in Lucena City. With this information, PO3 Perez with two other policemen and Manuel Fleta went to the Quezon Memorial Hospital. At the emergency room there, Manuel Fleta identified the wounded man to the police officers as one of the hold-up men, Eugenio Marquez (TSN, pp. 14-15, December 16, 1996). At the time the hold-up inside the JAC Liner bus was taking place, spouses Mauricio and Zenaida Ilao and their children were watching a movie inside their house at Barangay Sampaloc II, Sariaya, Quezon. Their house was about 30 meters away from the Maharlika Highway and 100 meters away from the Lagnas bridge. A few minutes after the aborted hold-up (which the Ilao family was unaware of), a man suddenly appeared at the door of their house, naked above the waist, bloodied and asking for help (TSN, PP. 1-3, March 12, 1997). Mauricio asked the man if he knew a person in their barangay. The man mentioned the name of Julie Ann Veneosa who, the couple knew, was working at the poultry farm nearby. Zenaida Ilao, accompanied by her daughter Irene, went to fetch Julie Ann. They returned with Julie Ann on board a jeep (Ibid., p. 4). When Julie Ann arrived, she recognized him as Eugenio Marquez and immediately brought him to the hospital in Candelaria (Ibid., at p. 5). The next morning, Mauricio Ilao was surprised to find a firearm at the back of their house. He immediately went to the Sariaya police station to report this. Four policemen went with him to his house where the .38 caliber gun with three live bullets was found (TSN, pp. 18-19, March 12, 1997).

Version of the Defense On the other hand, appellants version of the incident is as follows:[8]

On February 17, 1995, herein accused-appellant went to the house of Julie Anne Venenosa, a distant relative and friend, in Montecillo, Sariaya, Quezon. Upon arriving thereat at about 6:00 in the evening, he was informed by Gladys Venenosa, mother of Julie Anne, that the latter was still at her work. After spending some ten (10) minutes in that house, he decided to go to the place of work of Julie Anne in Sampaloc II at Max Tabangcora Poultry, and he went to the junction at Sto. Cristo, Sariaya to wait for any passenger vehicle, and after sometime he hailed and boarded an air-conditioned bus, JAC Liner, with plate No. NYE 839, which was then with many passengers. He boarded said bus alone. After he ha[d] boarded the bus some other six passengers also hailed and boarded said bus. Reaching the place of his destination at Sampaloc II, Sariaya, he stood up and walked towards the conductor to tell the latter that he was unboarding, but when he was barely two seats away from the driver, herein accusedappellant heard some*one+ saying hold-up ito, and saw a man poking his gun at the driver of the bus, and suddenly there was exchange of fire. He was about to go back to his seat but he was hit by a bullet. During the exchange of fire many of the passengers jumped out of the bus, and he also jumped out. After jumping out of the bus he saw a house, some twenty meters away, which [later], turned out to be owned by Zenaida Ilao, from whom he requested that his cousin Julie Anne Venenosa be fetched to take him to a hospital. First he was taken to Bolanos Hospital, then to Quezon Memorial Hospital, then later transferred to Philippine General Hospital, where he was confined for a week. When he was released from the hospital, he was taken by Sariaya Police to the Municipal Jail, and after two (2) months, he was transferred to the Provincial Jail[.] (TSN, Eugenio Marquez y Briones, August 11, 1997, pp. 3-10) When arraigned, he pleaded NOT GUILTY to the two (2) charges. Prosecution presented its witnesses and rested its case, and so with the defense. Herein accusedappellant himself testified in open court.

The Trial Courts Ruling In convicting appellant of frustrated robbery with homicide and frustrated homicide, the court a quo gave full faith and credence to the testimonies of the primary prosecution witnesses, SPO1 Rizaldy Merene and Manuel Fleta. It underscored their straightforward and cohesive identification of appellant as the culprit who had announced the holdup and exchanged gunfire with Merene, resulting in the wounding of the police officer and the killing of the bus conductor. The court a quo debunked the assertion of appellant that he was a mere passenger who had been injured in the crossfire. It was convinced that his actions and the circumstances surrounding the incident indubitably showed his participation in the attempted robbery, as well as in the consequent wounding of Merene and death of the bus conductor. The trial court likewise found appellant guilty beyond reasonable doubt of illegal possession of firearm. It stressed the fact that the gun which was subsequently identified by Merene as the weapon used in the attempted robbery -- was found at the back of Mauricio Ilags house, the place where appellant had sought solace after being injured. Hence, this appeal.[9]

The Assigned Errors

In his Brief, appellant bewails the following alleged errors of the trial court: I In convicting the accused on the basis of the testimonies of SPO1 Rizaldy Merene and Manuel Fleta, despite grave contradictions on material points in their testimonies, and in concluding that appellant was the same person who engaged in fire fight with said police officer, despite absence of any direct evidence, or sufficient circumstantial evidence pointing at him as the person who announced the hold up and as the person who engaged in the exchange of fire with said police officer. II In convicting the appellant of the crimes charged despite doubt as to his identity and culpability, and in not acquitting him on ground of reasonable doubt; in convicting the appellant under Section 1, PD 1866, despite the fact that the subject .38 revolver was not found in his possession.[10]

The Courts Ruling The appeal is partly meritorious.

First Issue: Credibility of Witnesses In impugning the testimonies of Prosecution Witnesses SPO1 Rizaldy Merene and Manuel Fleta, appellant points out the alleged ambivalence of their testimonies. He contends that these two witnesses differed in their narrations with regard to the positions of the holduppers and the bus conductor during the holdup, even if the two were then seated near them. That Merene admitted during trial that he was not sure if he had shot the holdupper during their gunfight is also stressed by appellant. The latter further avers that, before the holdup was announced, Fleta had been watching a bus movie and, during the gunfight, was crouching to avoid being hit; thus, this witness was not in a position to identify the culprit. We are not persuaded. True, there is a marked discrepancy between the testimonies of Merene and Fleta as regards the whereabouts of the bus conductor before, during and immediately after the holdup. It must be noted, however, that the points of recall of the two witnesses were different. Merene was an active participant in the gunfight; thus, he could not be expected to remember the peripherals of the incident. Fleta was a passive eyewitness; as such, he was able to observe things that the former might have overlooked. Moreover, the Court has held that *t+otal recall or perfect symmetry is not required as long as witnesses concur on material points.[11] It must be emphasized that the above-mentioned testimonial disparity does not negate the fact that appellant was positively identified by both witnesses as the malefactor who had announced the holdup and exchanged gunshots with the police officer. There is no contrariety with regard to this vital fact. Both witnesses consistently, cohesively and certainly identified appellant as the culprit. Merene testified thus:

Assistant Provincial Prosecutor Salamillas: Q A Q A Q A Q A Q A Q A Q A Q A Q A SPO1 Merene*,+ on February 18, 1995 at about seven oclock to seven twenty do you *still+ recall where you were? Yes sir. Where were you then? I was abroad a bus JAC Liner Bus going to Lucena City from Manila. At that time were there other passengers in that JAC Liner bus? Yes sir. How many of them if you know? More or less fifteen passengers. When the bus that you were then boarding was at the vicinity of Sariaya, Quezon can you still recall if some unusual incident occurred during that time? Yes sir, there was. What was that unusual incident that took place when the bus reached Sto. Cristo, Sariaya, Quezon? Two passengers alighted before reaching the Lagnas Bridge. Four men stood up inside the bus and the one who was behind the driver announced a hold up. Where were the other three at that time? One was positioned at the estribo running board, and the two were on the road. Four men alighted from the bus. You stated that two of the passengers went down the bus how did it happen that four men alighted from the bus? When the two passengers alighted from the bus the two followed. Do you know what these two men who alighted ahead [of] the two passengers did? One of the men poked a gun at the driver the other one poke[d] a knife [at] the conductor.

COURT: Q A Where was the conductor at that time? On the road.

Assistant Provincial Prosecutor Salamillas: Q Do you know why the conductor alighted from the bus?

Atty. Jusi: Incompetent. COURT:

Sustained. Assistant Provincial Prosecutor Salamillas: Q A Q Where was the conductor at that time when the hold up was announced? He was already on the ground near the door. Why was he [on] the ground near the door?

Atty. Jusi: Incompetent. COURT: Sustained. Q A What did you do Mr. Witness when you heard that there was an announcement of hold up? As I was about to draw my .38 caliber firearm one of the hold[-]uppers who was poking his gun at the driver saw me and he suddenly poked his gun at me and immediately fired a shot.

COURT: Q A Q A How far were you from that holdupper who poked his gun at you? One seat away. You were seated at the drivers side? Yes your Honor.

Assistant Provincial Prosecutor Salamillas: Q A Q A Q A Q A How many times were you fired upon by the holdupper? Two times, sir. Were you hit by the second shot? No sir. What did you do after you felt that you were hit? I drew my .38 caliber gun and immediately fired at the holdupper. What happened to the holdupper who fired at you? I think I hit the holdupper, after that he jumped out of the bus.

COURT: At the time that you fired at the holdupper two of the robbers were already on the ground? A Yes your Honor. xxx Q A xxx xxx

And when the holdupper jumped out of the bus where was the fourth holdupper? He was running away.

Q A

What about the other passengers at the bus[,] do you know what happened to them? They remained on their seats.[12] xxx xxx xxx

Q A Q A Q A Q A Q A Q A

If one or two of those persons [are] present in Court now will you be able to point [to] them? Yes sir. Please point to him[.] Witness pointing to accused Eugenio Marquez. What about the other person[,] can you point to him? Accused pointing to accused Jose Magtibay. How about the two other holduppers[,] are [they] present in Court? They are not here. If you will see them again [will] you recognize them? Yes sir. Can you still recall what was the participation of the accused Eugenio Marquez? He was the one who poked a gun at the driver and the one who shot me.[13]

Fleta, the other witness, narrated the holdup incident in this manner: PROS. R. SALAMILLAS Q Where were you on February 17, 1995 at about 7:00 to 7:15 in the evening? A I was on board the passenger bus JAC Liner Bus, sir. xxx Q A Q A xxx xxx

x x x [W]here did you come from at that time? From San Pablo City, sir. In what particular place in the bus were you seated at that time? At the 3rd seat, right side of the conductor*+ side. xxx xxx xxx

COURT xxx Q A xxx xxx

[Was] there anything unusual that happened while the bus was negotiating the distance from San Pablo to Lucena City? Yes, your Honor.

Q A

What was that unusual incident? There was a hold-up that happened, your Honor. xxx xxx xxx

PROS. SALAMILLAS Q A Will you please tell the Honorable Court how that hold-up took place? At the junction near Mazapan, two passengers alighted from the bus then four (4) persons boarded the bus taking their seats at the different parts of the bus. xxx PROS. SALAMILLAS Q A What happened immediately before the hold-up? Before the holdup one *of+ the holduppers said, Dito na lang pala kami, sir. xxx Q A Did the driver stop the bus? Yes, your Honor. One of the holduppers announced it was a hold up and he raised the revolver he was holding.[14] xxx Q A xxx xxx xxx xxx xxx xxx

After the announcement of the hold-up, what happened? There was an exchange of gunfire, sir. xxx xxx xxx

Q A

x x x [W]here did the exchange of gunfire come from? One coming from the person seated behind the drivers seat and the other one from the man beside the conductor who announced the hold-up sir. xxx xxx xxx

Q A

What about the person who announced the hold-up, what happened to him? They jumped out of the bus and they [fled], sir. xxx xxx xxx

Q A Q A Q A

You said there were four men who held up this bus, if ever you will [see] them again will you be able to identify them? I can recognize the one holding the revolver, sir. If that man is in court now will you be able to identify him? Yes, sir. Will you please point to him. That man, sir. (Witness pointing to a person who identified himself as Eugenio Marquez)[15]

xxx ATTY. JUSI:

xxx

xxx

Q You claimed that the alleged robber who sat across the place where you were [was] the one who announced the holdup? A Q A Q A Q A Q Yes, sir. And after the announcement of the holdup it [was] also the person who announced the hold-up who raised his gun? Yes, sir. And after the announcement of said hold up there was an exchange of fire? Yes, sir. And you heard according to you four firing shots? Yes, sir. And immediately after hearing the first firing shot you ducked at your seat and only after you stood up you found out that the conductor was lying face down and the person who identified himself as a policeman ordered the driver to bring him to the hospital, is that correct? Yes, sir. You claimed during your direct testimony that the policeman who identified himself as such was seated at the back of the drivers seat? Yes, sir.

A Q A

Q By your answer, do I get from you that the alleged holdupper was at the back of the policeman considering that according to you he was seated at the 3rd seat? A No, sir. When he announced the hold up he was already there at the side of the driver.

Q It is not correct to say that he was [on] the 3rd seat when he announced the holdup? A I did not say that he was [on] the third seat, sir.

COURT: Q A The court would just like to find out if that man who was seated on the third seat behind the driver is the person who also said dito na lang po pala kami*?+ Yes, Your Honor, After that man said that he moved towards x x x the driver.

ATTY. JUSI: Q A Q And so he was on the right side of the driver when the shooting took place? He was not on the right side, he was on the side of the driver and conductor when the shooting took place, sir. When the alleged holdupper said that dito na lang po pala kami did this allege holdupper immediately [stand] up and [go] to the exit door of the bus?

No, sir.

ATTY. JUSI: Q A Q A Q A Q A Before the two holduppers allegedly alighted from the bus, did you notice whether the bus conductor also alighted? No, sir. You mean he stood still near the driver*+ seat and *let+ the two companions of the holdupper to go down? Yes, sir. Before the exchange of fire that you claimed that you notice[d] did you see what kind of firearm the policeman was holding? Revolver also, sir. And you cannot determine from whom or x x x how many shots were made by the policeman or the holdupper, only four shots were heard by you? Yes, sir.

ATTY. JUSI: Q A Q A Q A Q A You claimed that it was only on February 17, 1995 at 7:00 oclock in the evening more or less when you first saw the person whom you just identified? Yes, sir. And the second time that you saw him according to you was x x x today, is that correct? Yes, sir. Do you have [such] photographic memory to remember the face of a person after a lapse of one year? I could remember, because that was a hold up, sir. How about the other companion of the person whom you had just identified, if you could see them again, could you recognize them? What I can recognize only is the one who drew the gun and announced the holdup, aside from that I could not recognize the three others, sir.[16]

The quoted testimonies of Merene and Fleta indubitably establish that on February 17, 1995, between 7:00 and 7:20 p.m., a JAC Liner bus going to Lucena City was held up; and that appellant was identified as the culprit who had announced the holdup and engaged Merene in a gunfight. The proximity of these witnesses to appellant, in addition to the fact that there was no showing of ill will or motive on their part, give credence to their testimonies. The Court regards as too incredulous appellants version of the holdup incident: that he was a mere passenger who -- caught, hit and wounded in the crossfire -- jumped off the bus to save himself. First, the JAC Liner bus was air-conditioned, and so its windows were closed. Thus, the passengers would not have been able to immediately open and jump from those windows. Second, because the gunfight happened in front, appellant could not have jumped out of the bus from its door, which was located

near that area. Lastly, given his gunshot wounds, the flight of appellant from the scene of the crime casts doubts on his protestations of innocence; more important, he was positively identified as one of the culprits. We agree with the court a quos assessment of the credibility of the witnesses, specifically with regard to the identification of appellant. In this case, we adhere to the legal truism that such assessment is accorded great weight and respect, for the trial court had the opportunity to observe the witnesses demeanor and deportment as they testified before it.[17] Likewise, we hold that appellants denial cannot prevail over the positive identification by credible witnesses.[18]

Second Issue: Crime and Punishment Appellant was charged with, and eventually convicted of, frustrated robbery with homicide and frustrated homicide, as well as violation of PD 1866 (illegal possession of firearms). In robbery with homicide, it is imperative that the prosecution prove a direct relation between the robbery and the killing. It must convincingly show that robbery was the original criminal design of the culprit, and that homicide was perpetrated with a view to the consummation of the robbery, by reason or on occasion thereof.[19] That appellant intended to rob the passengers of the JAC Liner bus is evident. The robbery was foiled, however, when SPO1 Rizaldy Merene decided to fight back. Were it not for the presence and the bravery of this police officer, appellant and his cohorts would have successfully consummated their original plan. In the gunfight that ensued between appellant and Merene, bus conductor Joselito Halum was killed. Clearly, his death occurred by reason or as an incident of the robbery. Even if it was merely incidental (he was caught in the crossfire), still, frustrated robbery with homicide was committed.[20] With regard to the charge of frustrated homicide, appellant, in shooting Merene almost pointblank, had performed all the acts necessary to kill the latter, who survived because of timely medical intervention. Thus, appellants conviction for frustrated robbery with homicide and frustrated homicide must be sustained. On the other hand, we agree with the Office of the Solicitor General that the trial courts conviction of appellant for violation of PD 1866 should be reversed; he should be acquitted. In crimes involving illegal possession of firearm, the prosecution has the burden of proving the following: (1) the existence of the subject firearm and (2) the fact that the accused who owns it does not have a license or permit to carry it.[21] In the present case, it must be emphasized that the subject gun was not found in the possession of appellant; rather, it was discovered at the back of the house of Mauricio Ilao, from whom the former had sought solace after the holdup incident. While the prosecution, considering the circumstances, assumes that the gun was brought there by appellant, such conjecture does not satisfy the elements of the crime; it is clearly not enough to prove beyond reasonable doubt that he was guilty of illegal possession of firearm. Furthermore, in People v. Molina,[22] this Court has ruled that the use of an unlicensed firearm merely aggravates a killing and may no longer be the source of a separate conviction for the crime of illegal possession of a deadly weapon. This doctrine was reiterated in People v. Feloteo[23] and People v.

Narvasa.[24] In People v. Macoy[25] it was held that, being favorable to the accused, the same may be invoked even if the illegal possession had been committed prior to the effectivity of RA 8294 on July 6, 1997.[26] In view, however, of the failure of the prosecution to prove illegal possession on the part of appellant, we cannot even apply the Molina doctrine to aggravate the penalty. WHEREFORE, the appeal is PARTIALLY GRANTED. The Decision of the Regional Trial Court in Criminal Case No. 95-557 is REVERSED and SET ASIDE, and Appellant Eugenio Briones y Marquez is hereby ACQUITTED of violation of PD 1866. However, his conviction for frustrated robbery with homicide and frustrated homicide, together with the penalty imposed by the trial court in Criminal Case No. 95-555, is AFFIRMED. SO ORDERED.

PEOPLE V. HERRERA DECISION

AZCUNA, J.:

Petitioners Pat. Edgardo Herrera y Baltoribio and Pat. Redentor Mariano y Antonio, together with the other accused, Pat. Roberto Barrera and Pat. Rodolfo Alcalde, all members of the Paraaque Police Station, were charged with two (2) counts of murder, FOR THER KILLING OF Shi Shu Yang and George Go y Tan, before public respondent Sandiganbayan in Criminal Case Nos. 16674 and 16675. The original informations, both dated December 4, 1990, against the petitioners and two other accused alleged: In Criminal Case No. 16674: That on or about the 28th day of December, 1989 in the Municipality of [Paraaque], Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused who were then public officers, being then members of the Paraaque Police Force, and armed with guns, and conspiring and confederating and mutually helping and aiding one another, with intent to kill and with treachery and by taking advantage of their public positions as members of the Paraaque Police Force, then and there willfully, unlawfully and feloniously shoot one SHI SHU YANG on the different parts of his body, thereby inflicting serious and mortal wounds upon said victim, which were the direct and immediate cause of his death, to the damage and prejudice of the heirs of said victim, in such amount as may be awarded to them under the provision of the Civil Code of the Philippines.

CONTRARY TO LAW.[1]

In Criminal Case No. 16675: That on or about the 28th day of December, 1989 in the Municipality of Paraaque, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused who were then public officers, being then members of the Paraaque Police Force, armed with guns, conspiring and confederating and mutually helping and aiding one another, with intent to kill and with treachery and by taking advantage of their public positions as members of the Paraaque Police Force, did then and there willfully, unlawfully and feloniously shoot one GEORGE GO Y TAN on the different parts of his body, thereby inflicting serious and mortal wounds upon said victim, which were the direct and immediate cause of his death, to the damage and prejudice of the heirs of said victim, in such amount as may be awarded to them under the provision of the Civil Code of the Philippines. CONTRARY TO LAW.[2]

On March 18, 1992, petitioners and the other accused were arraigned but they pleaded not guilty. Petitioners then filed a joint petition for bail raising the issue of lack of jurisdiction on the ground that the prosecution failed to allege in the informations that the crimes were committed by the petitioners in relation to their office citing the case of Bartolome v. People.[3] On March 18, 1992, public respondent Sandiganbayan ordered the amendment of the informations and stated that the evidence adduced during the pre-trial of the case and the hearing on the petition for bail shall be deemed automatically reproduced as evidence during the trial of the case on the merits.

The amended informations, both dated July 15, 1992, against the petitioners and the two accused alleged: In Criminal Case No. 16674: That on or about the 28th day of December, 1989 in the Municipality of Paraaque, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused who were then public officers being then members of the Paraaque Police Force and armed with guns, and conspiring and confederating and mutually helping and aiding one another, committing the offense in relation to their public position or office, with intent to kill and with treachery and by taking advantage of their public positions as members of the Paraaque Police Force, then

and there willfully, unlawfully and feloniously shoot one SHI SHU YANG on the different parts of his body, thereby inflicting serious and mortal wounds upon said victim, which were the direct and immediate cause of his death, to the damage and prejudice of the heirs of said victim, in such amount as may be awarded to them under the provision of the Civil Code of the Philippines. CONTRARY TO LAW.[4]

In Criminal Case No. 16675: That on or about the 28th day of December, 1989 in the Municipality of Paraaque, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused who were then public officers being then members of the Paraaque Police Force and armed with guns, and conspiring and confederating and mutually helping and aiding one another, committing the offense in relation to their public position or office, with intent to kill and with treachery and by taking advantage of their public positions as members of the Paraaque Police Force, then and there willfully, unlawfully and feloniously shoot one GEORGE GO Y TAN on the different parts of his body, thereby inflicting serious and mortal wounds upon said victim, which were the direct and immediate cause of his death, to the damage and prejudice of the heirs of said victim, in such amount as may be awarded to them under the provision of the Civil Code of the Philippines. CONTRARY TO LAW.[5]

Arraigned anew on September 18, 1992, petitioners Herrera and Mariano entered their pleas of not guilty[6] and withdrew their objections to the issue of lack of jurisdiction of public respondent Sandiganbayan over the case and moved that the proceedings and evidence presented during their petition for bail be adopted in toto. The two other accused, Barrera[7] and Alcalde, remained at large. During the pre-trial on March 30, 1993, the parties stipulated that during the commission of the crimes, the petitioners were public officers. Whereupon, the cases were consolidated and a joint trial on the merits ensued.

The prosecutions evidence consisted of the following:

Reynaldo Ong was the manager of Chow Chow Restaurant which was owned by Spouses George Go, one of the victims, and Edna Ong Go, located at 5 Country Homes Commercial Center, Dr. A. Santos Avenue, Paraaque, Metro Manila. Ong was the younger brother of Edna Go. At about 4:00 am of December 28, 1989, Ong heard two explosions. He proceeded to the third floor of the restaurant to check on what had happened and as he looked down, he saw accused Pat. Roberto Barrera and his friend lighting firecrackers at the back of restaurant. Ong descended the stairs toward the ground floor of the restaurant where he saw the victims George Go and Shi Shu Yang. George Go asked for some firecrackers from him and proceeded to the kitchen to light the firecrackers. From a distance outside the restaurant, accused Barrera shouted, Pare, meron pa ba? (asking if there are still firecrackers) to which George Go responded, Marami pa. (There are still plenty.) After George Go responded in the affirmative, accused Barrera went to the restaurant armed with a .38 caliber pistol tucked in his waist. George Go then went upstairs, took his .45 caliber pistol from an attache case, tucked it in his waist, and went back to the kitchen. Moments later, accused Barrera approached George Go, introduced himself as a Paraaque policeman, and disarmed him (George Go) of his licensed .45 caliber pistol. Barrera then shouted at his (Barreras) companion, a policeman, who was upstairs, Ilabas mo iyong mahaba (ordering the companion to bring out the long firearm) while commanding George Go to come out as he had went to the parking lot to hide there. Ong pleaded with Barrera and told him that George Go would surface only if Barrera would not shoot him. As soon as George Go emerged from the parking lot, Barrera said, Tarantado kang Chekwa ka, ako yung nagbigay sa iyo ng sobre (uttering invective upon the victim with the use of the pejorative term for Chinese as he referred to his Christmas solicitation from the victim who gave him twenty pesos (P20) and two t-shirts). George Go was quiet. Barrera also demanded that George Go present the license of his firearm which the latter readily showed. Barrera then told George Go that he would bring the firearm to the police station for verification. He then called the police station informing them that he had just disarmed George Go.[8]

At about 6:00 a.m. of that same day, George Go and his Taiwanese friend, the victim Shi Shu Yang, were brought to the Paraaque Police Station. Reynaldo Ong proceeded, but went back to the house to inform Edna Go, wife of George Go, to go to the police station. When she arrived at the police station, Edna Go saw her husband, who was making a telephone call, and Shi Shu Yang. She heard Barrera demanding George Go to produce his license to carry a firearm. Barrera also told George Go to undergo

medical examination, but the latter refused. Thus, Barrera, together with the petitioners and accused Alcalde, shoved George Go to the wall and made him and Shi Shu Yang ride a police car waiting nearby. They took the victims to the Paraaque Community Hospital for medical

examination. Thereafter, the two were brought to Timothy Street along Multinational Village where they were shot to death.[9]

Edna Go also testified that George Go was an agent of Stanley Work Sales and operator of Chow Chow Restaurant. She said she had spent for the wake and funeral of her husband and, estimated the expenses for the wake to be at around P10,000 as she was not able to keep the receipts. However, she presented the receipt issued by La Funeraria Paz amounting to P11,500 as expenses for the casket and funeral services. She stated that she was in a state of shock and became frightened upon learning of the death of her husband.[10]

Cristina Winterhalter y Siscar, a resident of nearby Saint Anthony Street, witnessed the killing of the two victims with the use of a pair of binoculars lent to her by a neighbor, as she viewed it from a distance of about 80 to 90 meters. She testified that at around 11:00 a.m. of December 28, 1989, she was standing by the window, waiting for her daughter and an Italian neighbor to come home, when she noticed a Ford Fiera patrol van, with Paraaque Police Mobile appearing on both sides, parked along Timothy Street. From a distance of between 80 to 90 meters, she saw seven persons inside the van, two seated in front while five stayed at the back. When the van was parked, she saw two men alight from the backseat, one was in civilian clothes (referring to Pat. Alcalde) and one in police uniform and carrying a rifle (referring to Pat. Barrera). They were followed by George Go and an unidentified man in black shirt. They took out Shi Shu Yang who was seated at the back. The one seated at the passenger side was petitioner Herrera while petitioner Mariano was the one driving the van. Petitioner Mariano went to the front area of the van and wrote something on a piece of paper. Pat Barrera hit George Go on the face and, together with petitioner Mariano, they fired about 20 successive shots at the victim. They also kicked Shi Shu Yang and fired about four times. Petitioner Herrera also fired at the victims lying on the pavement. They placed the bodies of the victims inside the van and headed for Fortunate Village. Winterhalter and a neighbor went to the crime scene and found bloodstains on the pavement, a set of dentures, and a pair of eyeglasses. Later, she executed a sworn statement

before the NBI to narrate what she witnessed. A diagram (Exhibits L and L-1) was made to give a clearer picture of the location of her house and that of the crime scene. [11]

Dr. Roberto Garcia, Medico Legal Officer of the National Bureau of Investigation (NBI), conducted an autopsy on the body of George Go at around 5:30 p.m. of December 28, 1989 at the Rizal Funeral Homes, Pasay City. The Autopsy Report No. 89-4195 (Exhibit A) showed that George Go sustained eight (8) fatal gunshot wounds on his jaw, chest, abdomen, and arms, as follows: gunshot wound no. 1 had entry point (4 by 61/2 centimeters) on the right jaw with exit point (1.8 by 1.5 centimeters) on the left forehead; gunshot wound no. 2 had entry point (0.6 by 1 centimeters) on the upper left chest right with exit point (1.8 by 1.5 centimeters in diameter) on the upper left back; gunshot wound no. 3 had entry point (0.6 by 0.8 centimeters) below the left collar bone with exit point (3.2 by 2.8 centimeters) on the upper right back; gunshot wound no. 4 had entry point (0.5 by 0.7 centimeters) on the upper right chest with exit point (4 by 2.8 centimeters) on upper right back; gunshot wound no. 5 had entry point (0.7 by 1.3 centimeters) on the upper right abdomen with exit point (1.5 by 1.3 centimeters) on the upper right back; gunshot wound no. 6 had entry point (0.5 by 0.8 centimeters) on the abdomen area which was just above the navel with exit point (2.6 by 1.9 centimeters in diameter) on the lower right back; gunshot wound no. 7 had entry point (0.6 by 0.8 centimeters) on the lower left abdomen with exit point on the lower right (2.6 by 1.9 centimeters) on the lower right back; and gunshot wound no. 8 had entry point (0.5 by 0.7 centimeters) on the left arm with exit point (1.8 by 1.6 centimeters) on the left arm. He estimated that the probable distance from the muzzle of the gun to the victim was about an armslength of 24 inches. He prepared a diagram (Exhibit B) indicating the different gunshot wounds sustained by the victim and issued a Certificate of Post-Mortem Examination (Exhibit C). With the trajectory of the bullet, he said that it was possible that after the first shot was fired, the victim assumed a kneeling position or was lying on the pavement as the assailant continued to fire the successive shots. The body of the victim was later identified by Edna Go, wife of George Go.

At around 7:00 p.m., Dr. Garcia also conducted an autopsy on the body of Shi Shu Yang in the said funeral parlor. The Autopsy Report No. 89-4196 (Exhibit D) indicated that Shi Shu Yang sustained three gunshot wounds. He made a diagram (Exhibit E) identifying the locations of the gunshot wounds and, likewise, issued a Certificate of Post-Mortem Examination (Exhibit F). Illustrating a

distance of about 24 inches, the entry point of gunshot wound no. 1 was at the back of the head of the victim with no exit point as the deformed bullet was lodged therein. `The entry point of gunshot wound no. 2 was on the left side of the neck of the victim (0.6 by 0.8 centimeters) and exit point on the right side of the neck (1.2 by 1 centimeter in cross diameter). He concluded that the assailant must have been at the left of the victim when the shot was fired. As for gunshot wound no. 3, the distance between the muzzle of the gun and the right arm could have been more than 24 inches and that the assailant was at the oblique front right of the victim.[12]

Edwin Purificando, Senior Forensic Chemist of the NBI, examined the blood type of the victims, as follows, blood type B for George Go per Biology Report No. B-89-2490 (Exhibit M-2) and blood type A for Shi Shu Yang per Biology Report No. B-89-2491 (Exhibit M-1). He also analyzed the specimen of the blood obtained by the NBI Duty Chemists, Aida Pascual and Bella Arriola, from the pavement located along Timothy Avenue, called blood scraping as shown Biology Examination Report No. B-892498 (Exhibit M), and found that it only yielded blood type B which matched with the blood type of George Go. He repeated the blood scraping procedure and no evidence of blood type A was found Biology Examination Report No. B-90-15 (Exhibit N and N-1).[13]

Aida Veloria Magsipoc, Supervising Forensic Chemist of the NBI, testified that on December 28, 1989, acting upon the requests for paraffin test (Exhibit I and I-1) by P/Cpl. Glen Tiongson and P/Cpl Jose Suarez, respectively, she conducted the diphenylamine-paraffin tests on the dorsal of the left and right hands of the victims and per Chemistry Report No. C-89-1605 for George Go (Exhibit H) and Chemistry Report No. C-89-1606 for Shi Shu Yang (Exhibit H-1), they were found negative of nitrates which proved that the victims never fired a gun.[14]

Teodoro Ubia y Janeo, a Medical Technologist of the NBI, took pictures of the cadaver of George Go (Exhibits K to K-4) and an unidentified person, later known to be, Shi Shu Yang (Exhibits J to J-2) to show the different locations where the victims were shot.[15]

Atty. Leoncio Evangelista, an agent of the NBI, conducted investigation on the killing incident.

On the other hand, the evidence for the defense, are as follows:

Rodolfo Ver y Foronda, Fingerprint Examiner II of the NBI, presented the following documents relative to the shooting incident that resulted in the death of the two victims, to wit; Progress Report dated December 28, 1989 (Exhibits 1 and 1-a); Initial Investigation Report signed by Col. Rogelio Pureza (Exhibit 2); Request for Paraffin Test dated December 28, 1989 (Exhibit 3); Sworn Stateme nts of Pat Barrera, petitioner Mariano, Pat. Alcalde, and petitioner Herrera (Exhibits 4, 4 -a, 5, 5-a, 6, 6-a, 7, and 7-a); photocopies of a picture of the Paraaque Police van No. 102 (Exhibits 8, 8-a to 8-g) and a Certification issued by Capt. Abraham Gatchillano dated January 5, 1990 (Exhibits 9 and 9-a).[16] Col. Rogelio Pureza y Abutan, PNP District Director of the NPD, CAMANABA testified that he approved the Progress Report dated December 28, 1989 (Exhibits 1 and 1-a) of Rodolfo Ver. The report addressed to the Regional Commander (Exhibit 11) was based on the investigation conducted on petitioners Herrera and Mariano, Pat. Alcalde, Pat. Barrera, and Edwin Maquinay, and the report of the investigator on the case. He narrated that at about noontime of December 28, 1989, Edna Go came to his office requesting Col. Pureza for assistance with regard to her husbands case, but he told her to await for the outcome of the investigation as the cases for Illegal Possession of Firearms and Resisting Arrest were already filed with the Prosecutors Office and it would be inappropriate for him to intercede in the case. While he was talking with Go, SPO4 Ticzon called to inform him about a shooting incident involving the husband of Go. Since he was not sure if George Go was already dead when the call came in, he did not relay the information to Go. Thereafter, he came to know that George Go was brought to the Paraaque Community Hospital by petitioners and accused Barrera and Alcalde, together with one Shi Shu Yang. As a result of the investigation conducted, he and the other police officers filed a case for homicide against two of their policemen based on the evaluation report of their investigator. He turned over the petitioners and the accused to the NBI for investigation. The two (2) reports stated that one of the victims was carrying a caliber 45 firearm and that said firearm was forwarded to the PCCI laboratory

for verification and also for the purpose of determining if it was previously involved in a crime and to the Firearms and Explosive Unit for the issuance of a certification as to the veracity of its license.[17] SPO4 Glenn Fuentes Ticson testified that on December 28, 1989, he was assigned as Duty Investigator at the CID, Paraaque Police Station and, as such, was tasked to investigate criminal cases referred to him by their Desk Officer or immediate supervisor. On December 28, 1989, Cpl. Antonio Batola, Duty Officer, reported to him about a shooting incident and that the victims were already brought to the Paraaque Community Hospital. He and Pat. Oscar dela Cruz immediately proceeded to the said hospital and upon arrival, the hospital personnel informed them that the victims were pronounced dead on arrival. The victims were identified through their identification cards. The bodies of the victims sustained multiple gunshot wounds and were bathed in blood. When he was informed that the victims were brought by four (4) policemen, he interviewed two (2) of them (accused Barrera and Alcalde) and they admitted having shot the victims but claimed self-defense. He called up their Station Commander informing him about the shooting incident involving Paraaque policemen. He retrieved the service firearms belonging to the two accused and proceeded to the scene of the crime past noon. The people within the vicinity told him that while they did not see the actual shooting incident, they heard successive gunshots. The patrol van used by the petitioners and the two accused suspects was left in the hospital and, later brought to the police station. Ticzon declared further that after the incident, he instructed his co-investigator to get the statement of the wife of the victim George Go at the Chow Chow restaurant. Prior to the shooting incident, he was informed that George Go was previously arrested by accused Barrera in connection with a case for Illegal Possession of Firearms. He was familiar with the people in Timothy street to avoid traffic in going to the police headquarters. On the same day of the shooting incident, he requested the NBI to conduct an autopsy on the cadaver of the victims. Thereafter, he prepared two (2) reports which he submitted to Col. Pureza at about 9:00 oclock pm. of December 28, 1989. The pictures of the police van used in transporting the deceased to the hospital were taken at about3:00 0clock p.m. at the police station but he had nothing to do with the taking of those pictures. The extent of his investigation with respect to the shooting incident from the beginning to the end and before the case was turned over to the NBI are all included in Exhibit 1. upon arrival at the police headquarters coming from the scene of the crime, he reported to Col. Pureza. Before the turn-over of the case to the NBI, Col. Pureza assigned Pat. De la Cruz and Pat. Octavio to assist him in the investigation of the incident. As head investigator, his duties include any

request for autopsy and paraffin tests but he did not recommend that paraffin test be conducted upon the two victims. Before the turn-over of this case to the NBI, he did not gather the firearms involved in this case for ballistic examination. The Cal. 45 firearm recovered from George Go was in the custody of Col. Pureza which was turned over by Pfc. Biong but he does not know if Col. Pureza signed any receipt for said firearm. He only saw the serial no. of said firearm, which was tampered, in the office of Col. Pureza in the afternoon of December 28, 1989.[18]

SPO3 Gil Labay y Cantor declared that on January 8, 1990, he was assigned at the Physical Identification Division of the PNP Crime Laboratory at Camp Crame, Quezon City and among his duties was to perform macro-etching on firearms and motor vehicles. On January 8, 1990, he examined one (1) Cal. 45 bearing serial no. 198842 (Exhibit 16). His findings showed that there were signs of filing and grinding on the metal surface where the serial no. is located. His examination was based upon the letter-request of the Station Commander of the Paraaque police station (Exhibit 17). Said request was received by their duty officer but they did not retain a copy of the receipt that was issued to the requesting party. He does not know if said firearm was first submitted to the PC Crime Laboratory and said firearm was received by one Pat. Bustillo (Exhibit 18-a). the serial number of the firearm was tampered and he did not see the original serial number of the said firearm. In the course of his examination, he could not determine the approximate period of time when the allege.d tempering of the firearm was made because of the super-imposition of the number. He did not verify from the Firearms and Explosive Unit whether the firearm was licensed or not.[19]

Testifying in his defense, petitioner Redentor Mariano declared that on December 28, 1181, he was connected with the Paraaque Police Station and assigned with the Mobile Patrol Division, with his tour of duty being from 6:00 oclock p.m. to6:00 oclock a.m. At about 5:30 oclock a.m. in the morning of December 28, 1181, he received a radio message from their radio operator to proceed to the police head quarters to assist accused Barrera in bringing persons for medical examination. Upon arrival at the police headquarters, accused Alcalde and Barrera alighted from the mobile patrol van while he stayed inside the mobile car. At about 10:30 oclock a.m. of the same day, accused Alcalde, Barrera, Herrera and himself brought two persons to the Paraaque Community Hospital. In going to the said hospital, they passed through Fortunate Village and Multinational Village and, upon arrival at the hospital,

accused Alcalde and Barrera accompanied the two persons. At about 11:00 oclock a.m., on their way back to the Paraaque police station, he heard accused Alcalde saying George, ano ka ba, bitiwan mo ang baril mo and not long after, he heard successive shots. When he looked back, he saw George Go grappling for the possession of a firearm with accused Alcalde. He stopped the van and alighted in order to pacify what was happening inside the van but he heard again successive shots and thereafter, he saw the two Chinese nationals fall inside the van bathed with blood. He told his companions to bring the victims to the hospital and later informed their Chief of Police about the incident. Upon arrival at the hospital, he told his companions to request the hospital personnel to get the two dead persons inside the van. After the incident, he was investigated and his statement was taken.[20]

On cross-examination, he declared that the reason why the two Chinese nationals were brought to the hospital in the morning of December 28, 1181 for medical examination was because he learned that there was a case filed against George Go. In going to the hospital, he was in front of the van just besides the driver, while accused Alcalde, Barrera, George Go and the latters companion were at the back. He and the driver were both armed with cal. 38 while accused Alcalde was armed with M-16 armalite rifle and accused Barrera was armed with a Cal. 38. While inside the van, George Go was handcuffed while his companion was not. Accused Alcalde and Barrera were seated fronting the two Chinese nationals. The distance from the seat where accused Alcalde and Barrera were seated to the seat where the two victims were seated would be more or less 2 feet but there was a gap between the knees of the passengers seated which was about 12 inches. From the time he heard the first shot up to the time the police van stopped, they had traveled more or less 5 to 10 meters. He was shocked when he heard the first shot and when he looked back, he saw George Go trying to grab the firearm of the accused Alcalde by holding the butt and almost the muzzle of the firearm. He did not see the finger of accused Alcalde on the trigger guard of his firearm immediately after he heard the series of shots because the incident happened too fast. While at the police headquarters, he asked accused Alcalde and Barrera what happened and they told him that George Go tried to grab the firearm of accused Alcalde but he was not able to ask them who shot George Go.[21]

In the morning of December 21, 1181, they were submitted for paraffin tests at the PNP Crime Laboratory and with respect to him, the findings was negative but he does not know what was the result

of the findings with respect to accused Barrera and Alcalde. They left the hospital before 1:00 oclock p.m. and it was only a matter of minutes before they reached Multinational village. The investigator did not take photographs at the scene of the incident at that time. in the night of march 3, 1111, Mrs. Edna Go came to see him at Camp Bicutan and asked him why the other policemen did not see her when in fact an agreement that the case be settled before the NAPOLCOM had been reached.

Dr. Frederick Singson y Soliven, Resident Physician of the Paraaque Community Hospital testified that on December 28, 1181, he examined George Go and found out that the latter was positive for alcohol breath but no signs of physical injuries. At about 11:45 a.m. of the same day, George Go was brought back to the hospital with six gunshot wounds and was declared dead on arrival (Exhibit 11a). He also treated accused Herrera on the same day and found out that said patient was negative of alcohol breath and had a linear abrasion which was 1 cm. in size (Exhibit 20-a). He was not the one who prepared the entries in Exhibit 11-a and there was no initial of the person who made the handwritten notations therein. George Go was brought to the hospital by the policemen and one of them was accused Herrera but he did not ask the policemen the purpose why George Go was to be examined. He did not take the blood chemistry of George Go to determine whether alcohol existed in his blood. He admitted that he was not the one who wrote the notations of the dorsal portion of Exhibit 20. The first portion of the medical report of George Go was written by Dr. Bautista and the lower portion was written by him (Exhibit x and y). According to accused Herrera, the abrasion inflicted on his neck was due to an alleged scuffle with somebody but said injury could also be self-inflicted.[22]

SPO2 Armand Octavio, a member of the Paraaque police Station testified that on December 28, 1181, he was instructed to take the statement of accused Barrera (Exhibit 21, 21-a and 21-b). He also received an investigation report from the office of the Investigation Division signed by SPO3 Ticzon and Col. Pureza. Aside from these reports, he was also furnished a certification from the Firearms and Explosive Unit and an investigation report regarding the charge for Illegal Possession of Firearms against accused George Go.[23]

Testifying in his defense, petitioner Edgardo Herrera declared that he had been a member of the Paraaque Police Station. On December 28, 1181, he reported at the police headquarters and his tour

of duty was from 6:00 oclock p.m. to 6:00 oclock a.m. and his companions were accused Mariano and Alcalde. At about 6:00 oclock a.m. of December 28, 1181, they received a radio message from their headquarters, directing them to report to the Chief of Police. Upon arrival at the police headquarters, their Desk Officer ordered them to bring a certain George Go to the Paraaque Community Hospital for medical examination. Before George Go was brought to the hospital, he was very unruly at the police headquarters and refused to be brought to the hospital. On their way to the hospital, they took Sucat road and proceeded towards Fortunata Village and then to Multinational Village to avoid traffic jams. After the examination of George Go, they brought him back to the police headquarters but upon reaching Timothy Street in Multinational Village, a shooting incident happened. While he was at the steering wheel, he heard accused Alcalde saying George, bitiwan mo ang baril ko and not long after, he heard a gunshot. He looked back and when he saw that the muzzle of an Armalite rifle was almost at his back, he tried to parry it but it went off successive shots. He immediately jumped out of the vehicle and pulled out his firearm and saw the two Chinese nationals already lying on the floor of the police van. He immediately drove the police van and brought the victims back to

the Paraaque Community Hospital. After the incident, he was investigated and his statement was taken (Exhibits 7 and 7-a). He was also subjected to paraffin tests and the result was negative.[24]

On cross-examination, he declared that he did not see who placed handcuffs on the hands of George Go but when he saw the latter seated at the back of the police van, he was not handcuffed. Before they brought George Go to the hospital, he saw Gos wife who was insisting to go with them but George Go did not allow her and, instead, he took along his Taiwanese friend, one Shi Shu Yang. Apart from George Go and Shi Shu Yang, there were four (4) of them who boarded the police van and alighted at the hospital but did not go back with them to the police headquarters. All of them, except Maquinay, were armed. Being the driver of the police van for almost a year, he was familiar with the different roads coming from the police station to the Paraaque Community Hospital. In fact, there are two routes in going to the said hospital, one of which is Dr. Santos Avenue up to Sucat road and other is thru Fortunata Village and then to Multinational Village. There are houses and business establishments along Dr. Santos Ave. while there are few houses and unfinished structures along Timothy Street in Multinational Village. He was the one who decided to

take Multinational Village in going back to the police headquarters to avoid traffic. The road leading

to Fortunata Village is not a bumpy road. In fact, he can reach the police station from the hospital if he passes thru Multinational Village without passing thru Timothy Street. He claimed that George Go and Shi Shu Yang were not forced to go down by accused Barrera and Alcalde from the police van when it passed thru Timothy Street. After hearing the gunshots, he stopped the vehicle. When they went back to the scene of the crime, he saw blood dripping and blood stains on the sidewalk.[25]

On December 13, 1994, public respondent Sandiganbayan[26] convicted each of the petitioners of two (2) counts of murder. The dispositive portion of its Decision reads as follows: WHEREFORE, after joint trial on the merits in the above-numbered cases, judgment is hereby rendered in the following: I. In Crim. Case No. 16674 accused Edgardo Herrera y [B]altoribio and Redentor Mariano y Antonio are hereby found guilty beyond reasonable doubt as coprincipals in the offense of Murder, as defined and penalized by Article 248 of the Revised Penal Code, qualified by treachery and with the generic aggravating circumstance of taking advantage of their public positions, abuse of superior strength, in band and use of a motor vehicle, without any mitigating circumstance in offset, and each of the accused is hereby sentenced to suffer the penalty of reclusion perpetua in said case, with the accessory penalties of imposed by law; to indemnify, jointly and severally, the heirs of the late George Go in the amounts of P11,500.00 as actual damages, plus P500,000.00 in the form of unrealized earnings and income. II. In Crim. Case No. 16675 accused Edgardo Herrera y [B]altoribio and Redentor Mariano y Antonio are herby found GUILTY beyond reasonable doubt as coprincipals in the offense of Murder, defined and penalized by Article 248 of the Revised Penal Code, qualified by treachery and with the generic aggravating circumstance of taking advantage of their public positions, abuse of superior strength, in band and use of a motor vehicle, without any mitigating circumstance in offset, and each of the accused is hereby sentenced to suffer the penalty of reclusion perpetuain said case, with the accessory penalties of [i]mposed by law; to indemnify, jointly and severally, the heirs of the late Shi Shu Yang in the amounts of P50,000.00; III. Both accused to pay their proportionate share of the costs of these actions. [27]

On March 28, 1995, public respondent Sandiganbayan denied petitioners joint motion for reconsideration. On April 3, 1995, petitioner Herrrera filed a notice of appeal and thereafter on May 30,

1995, together with petitioner Mariano, he filed a petition for review on certiorari with this Court alleging the following grounds:

1. THE RESPONDENT SANDIGANBAYAN ERRED IN CONVICTING THE PETITIONERS FOR MURDER UNDER THE AMENDED INFORMATIONS; 2. THE RESPONDENT SANDIGANBAYAN ERRED IN REFUSING TO ALLOW THE PETITIONERS TO CONDUCT FURTHER CROSS EXAMINATION ON PROSECUTION WITNESS WINTERHALTER; THE RESPONDENT SANDIGANBAYAN ERRED IN NOT FINDING AND CONCLUDING THAT THE TESTIMONY OF ALLEGED EYEWITNESS WINTERHALTER WAS WANTING IN CREDIBILITY; THE RESPONDENT SANDIGANBAYAN ERRED IN NOT FINDING AND CONCLUDING THAT PROSECUTION WITNESS NBI MEDICO-LEGAL OFFICER AND HIS REAL EVIDENCE SUPPORT THE THEORY OF THE DEFENSE; THE RESPONDENT SANDIGANBAYAN ERRED IN NOT FINDING AND CONCLUDING THAT THERE WAS TOTAL ABSENCE OF EVIDENCE TO SUPPORT CONSPIRACY; THE RESPONDENT SANDIGANBAYAN ERRED IN NOT FINDING AND CONCLUDING THAT THE PETITIONERS ARE ENTITLED TO THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF OFFICIAL ACTS; AND THE RESPONDENT SANDIGANBAYAN ERRED IN NOT FINDING AND CONCLUDING THAT THE EVIDENCE OF THE PROSECUTION FAILED TO ESTABLISH THE GUILT OF THE PETITIONERS BEYOND REASONABLE DOUBT.

3.

4.

5.

6.

7.

The Court affirms the conviction.

First. Petitioners insist that respondent Sandiganbayan erred in convicting them for the crime of murder under the amended informations as they had earlier been arraigned under the original informations for murder and their rearraignment under the amended informations placed them in double jeopardy.

The rule on double jeopardy does not apply. Public respondent Sandiganbayan ordered the amendment of the informations and made it of record that the evidence adduced during the pre-trial of the case and the hearing on the petition for bail shall be deemed automatically reproduced as evidence during the trial of the case on the merits. Double jeopardy did not attach by virtue of petitioners plea

of not guilty under the amended information. For a claim of double jeopardy to prosper, the following requisites must concur: (1) there is a complaint or information or other formal charge sufficient in form and substance to sustain a conviction; (2) the same is filed before a court of competent jurisdiction; (3) there is a valid arraignment or plea to the charges; and (4) the accused is convicted or acquitted or the case is otherwise dismissed or terminated without his express consent.[28]

In the present case, petitioners and the other accused pleaded not guilty to the original informations. Thereafter, at the instance of the petitioners, through a joint petition for bail, they raised the issue of lack of jurisdiction on the ground that the prosecution failed to allege in the informations that the crimes were committed in relation to their office. On the same day, respondent court ordered the amendment of the informations accordingly. Thus, the first requirement for double jeopardy to attach, that is, that the informations against the petitioners were valid, has not been complied with.

Likewise, the fourth element was lacking. Petitioners cannot be validly convicted on the basis of the original information as the prosecution failed to allege in the informations that the crimes were committed in relation to their office. Petitioners were thus not placed in danger of being convicted when they entered their plea of not guilty to the insufficient information. Moreover, there was no dismissal or termination of the case against petitioners.

Furthermore, it was well-within the power of public respondent Sandiganbayan to order the amendment of the information under Section 4, Rule 117 of the Rules on Criminal Procedure which states that if the motion to quash is based on an alleged defect of the complaint or information which can be cured by amendment, the court shall order that an amendment be made. If it is based on the ground that the facts charged do not constitute an offense, the prosecution shall be given by the court an opportunity to correct the defect by amendment. The motion shall be granted if the prosecution fails to make the amendment, or the complaint or information still suffers from the same defect despite the amendment.

Second. Petitioners make much of the fact the public respondent Sandiganbayan should have allowed their counsel to conduct further cross-examination on prosecution witness Winterhalter.

Rule 132, Section 6 of the Revised Rules on Evidence provides that upon the termination of the direct examination, the witness may be cross-examined by the adverse party as to any matter stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias or the reverse, and to elicit all important facts bearing upon the issue. The cross-examination of a witness is a right of a party against whom he is called. Article III, Section 14(2) of the Constitution states that the accused shall have the right to meet the witnesses face to face. Rule 115, Section 1(f) of the Revised Rules of Criminal Procedure also states that, in all criminal prosecutions, the accused shall have the right to confront and cross-examine the witnesses against him. Indeed, petitioners counsel has conducted an extensive cross-examination of witness Winterhalter on the scheduled dates of hearing. Petitioners, therefore, cannot claim there has been any procedural infirmity in the proceedings.

Moreover, the trial court has the power to direct the course of the trial either to shorten or to extend the direct or cross examination of a counsel. Under Rule 133, Section 6 of the Revised Rules on Evidence, the court may stop the introduction of further testimony upon any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive. But this power should be exercised with caution. Thus, it is within the prerogative of the trial court to determine when to terminate the presentation of the evidence of the prosecution or the defense.

Third. Petitioners attempt to destroy the credibility of prosecution witness Winterhalter fails. The trial court had the opportunity to observe first-hand the demeanor and deportment of the witnesses, and, therefore, its findings that the witnesses for the prosecution are to be believed over those of the defense are entitled to great weight. Winterhalter recognized the petitioners as the ones who cooperated with Pat. Barrera in killing the victims. She saw the events unfolding with the use of her binoculars 80-90 meters away. She established the identity of the petitioners as the companions of Pat. Barrera when he effected the killing. It has been ruled that findings of fact of the trial court on

credibility of witnesses should be accorded the highest respect. The Court has refrained from interfering with the judgment of the trial court in passing on the credibility of witnesses unless there appears on record some fact or circumstance of weight and influence which has been overlooked or the significance of which as been misapprehended or misinterpreted. None exists in this case.

After the incident, Winterhalters neighbor, who was also a foreigner, has been receiving death threats. She herself has been getting death threats too, yet she voluntarily testified in order to shed light on the commission of the crime. In fact, she did not even know the two victims. Indeed, where there is nothing to indicate that a witness was moved by improper motives, his positive and categorical declarations on the witness stand, made under solemn oath, should be given full faith and credence. It has not been shown that Winterhalter has any reason to falsely implicate petitioners.

Winterhalter narrated that Pat. Barrera and Pat. Alcalde, together with petitioners, were responsible for the death of the victims. This was confirmed by the post mortem report prepared by Dr. Roberto Garcia, medico legal officer of the NBI, showing the gunshot wounds on the different parts of the victims body.

Fourth. Petitioners would persuade the Court that the testimony of the NBI-Medico Legal Officer, a prosecution witness, supports the theory of the defense that they acted in self-defense.

This argument cannot stand. By invoking the justifying circumstance of self-defense, petitioners assume the onus of proving: (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or repel the unlawful aggression; and (3) lack of sufficient provocation on the part of the person defending himself. Petitioners failed to discharge this burden.

To proceed with the argument that there was unlawful aggression by the two deceased who tried to get the pistol tucked in the waist of one of the police officers, petitioners should prove that they used reasonable means in repelling the aggression. Considering that both deceased where handcuffed and unarmed and had restricted movements, it could only mean that the perceived threat to petitioners lives were not sufficiently serious, in which case they were not justified in shooting the

hapless victims who were unarmed. Petitioners could have simply subdued the two victims in a manner as to engage them in a fight without necessarily killing them. Moreover, the autopsy reports showing the extent of the wounds sustained by George Go and Shi Shu Yang tend to discredit the version of the defense.

Fifth. Petitioners assert that there was total absence of evidence to support the theory that conspiracy attended the commission of the crime.

Conspiracy can be inferred from the acts of the accused which clearly manifest a concurrence of wills, a common intent or design to commit a crime. The familiar rule in conspiracy is that when two or more persons agree or conspire to commit a crime, each is responsible, when the conspiracy is proven, for all the acts of the others, done in furtherance of the conspiracy.[29] In this case, petitioner Herrera drove the vehicle along Timothy Street to a place which was less conspicuous to passersby. There, Pat. Alcalde, Pat. Barrera, and petitioner Mariano brought out the two victims from the back portion of the van in order to perpetuate the killing. Petitioner Mariano alighted from the right front seat of the van and stood beside Pat. Alcalde and Pat. Barrera who began shooting the victims. According to Winterhalter, petitioner Mariano even appeared to be writing something on a sheet of paper immediately before the shooting, although it cannot be determined with certainty as to whether he was making an inquiry or merely noting the names of the victims. While it was Pat. Barrera who actually shot the two victims, the evidence showed a common design on the part of both petitioners as they did not do anything to prevent him from killing the victims, thus, indicative of the fact that they are in unison with the criminal design of the Pat. Barrera. Petitioner Herrera alighted form the van without doing anything to prevent the killing, and worse, after the killing took place along the street, petitioner Herrera even helped carry the two victims into the van while petitioner Mariano, the driver, remained in the vehicle during the incident. Consequently, applying the rule that the act of one is the act of all, petitioners are thus as guilty as Pat. Barrera and Pat. Alcalde. In fact, conspiracy need not be established by direct evidence but may be inferred from the surrounding circumstances.

Sixth. Intertwined with their argument that they were acting in self-defense, petitioners want this Court to appreciate the presumption of regularity in the performance of their official acts.

This contention has no merit. In order to consider the defense of fulfillment of a duty, it must be shown that: (1) the accused acted in the performance of a duty or in the lawful exercise of a right or office; and (2) the injury caused or the offense committed is the necessary consequence of the due performance of duty or the lawful exercise of a right or office.[30] There was no showing that petitioners should resort to inflicting injuries and even to the extent of killing the victims as there was no resistance at all from them when they were apprehended. The two victims were handcuffed and unarmed while the petitioners and the other police officers were armed with pistols and a rifle. Aida Veloria Magsipoc, Supervising Forensic Chemist of the NBI, per Chemistry Report No. C-89-1606, conducted the paraffin test on George Go and Shi Shu Yang which yielded negative results, thus showing that the victims never fired a gun and were totally defenseless in the face of the fully armed police officers.

Petitioners anchor their argument that they merely acted in self-defense. This contention has no merit. The accused who invokes self-defense thereby admits having killed the victim, and the burden of evidence is shifted on him to prove, with clear and convincing evidence, the confluence of the following essential elements: (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person defending himself.[31]

Moreover, the nature and number of wounds inflicted by the accused are constantly and unremittingly considered as important indicia which disprove a plea of self-defense or defense of stranger because they demonstrate a determined effort to kill the victim and not just defend oneself.[32] The victims were repeatedly shot at close range and on vital parts of their bodies, thus indicia that the police officers really intended to kill them. Clearly, the presumption of regularity in the performance of official duties on the part of the petitioners and the other police officers does not apply.

Seventh. Petitioners maintain that the prosecution failed to establish their guilt beyond reasonable doubt.

On the contrary, the killing of the two victims was proved to have been committed with the qualifying circumstance of treachery. The essence of treachery is a deliberate and sudden attack, affording the hapless, unarmed and unsuspecting victim no chance to resist or to escape. Frontal attack can be treacherous when it is sudden and unexpected and the victim is unarmed. What is decisive is that the execution of the attack made it impossible for the victim to defend himself/herself or to retaliate.[33]

The records are extant on the findings of respondent Sandiganbayan that when petitioner Herrera drove the patrol car along Timothy Street to an practically deserted area and isolated from traffice and pedestrians, Pat. Alcalde, Pat. Barrera, and petitioner Mariano brought out the two victims from the back portion of the patrol car in order to eventually salvage them which showed that all the police officers had a community of criminal design. Petitioner Mariano mad the pretense of writing down something prior to the shooting incident. It would appear that he was faking an alleged interrogation or trying to get the name of Shi Shu Yang, whose identity was not immediately known, yet the fact remains that he did not do anything to prevent the killing and even helped in loading the body of George Go inside the patrol car.

Clearly, the elements of murder have been proven: 1). that the two victims were killed; 2). that petitioners and the two other accused killed the victims; 3). that the killing was attended by the qualifying circumstance of treachery committed by the petitioners and the two other accused who conspired together in killing the victims; and 4). that the killing was not parricide or infanticide.

Eighth. Public respondent Sandiganbayan did not grant any award of damages in favor of the heirs of Shi Shu Yang and George Go y Tan. When death occurs due to a crime, the following damages may be awarded: (1) civil indemnity ex delictofor the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; and (5) temperate damages.[34]

Civil indemnity is mandatory and granted to the heirs of the victim without need of proof other than the commission of the crime. Under prevailing jurisprudence, the award of P50,000 to the heirs of the victims as civil indemnity is in order.[35] In cases of murder and homicide, moral damages may be

awarded without need of allegation and proof of the emotional suffering of the heirs, other than the death of the victim, since the emotional wounds from the vicious killing of the victims cannot be denied. Thus, the award of P50,000 is proper.[36]

As to the award of actual damages, Edna Go testified that she incurred funeral expenses of P11,500. Moreover, the award of exemplary damages of P25,000 is proper since the qualifying circumstance of treachery attended the killing of the victims. Article 2230 of the Civil Code allows the award of exemplary damages as part of the civil liability when the crime was committed with one or more aggravating circumstances. The term aggravating circumstance as used therein should be construed in its generic sense since it did not specify otherwise.[37]

WHEREFORE, the petition is DENIED for lack of showing that public respondent Sandiganbayan committed any reversible error. The Decision of public respondent Sandiganbayan, dated December 13, 1994, finding petitioners Pat. Eduardo Herrera y Baltoribio and Pat. Redentor Mariano y Antonio guilty beyond reasonable doubt as co-principals for two (2) counts of murder and sentencing each of them to suffer the penalty of reclusion perpetua with the accessory penalties of civil interdiction during the time of their sentence and perpetual absolute disqualification for public office is AFFIRMED WITH MODIFICATION. Additionally, petitioners are ORDERED to pay the heirs of Shi Shu Yang and George Go y Tan each in the amount of P50,000 as civil indemnity, P50,000 as moral damages, P11,500 for actual damages, and P25,000 as exemplary damages. Costs against the petitioners.

SO ORDERED.

[G.R. No. 144621. May 9, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. ISAGANI GUITTAP y PENGSON (Acquitted), WILFREDO MORELOS y CRUZ (Acquitted), CESAR OSABEL @ DANILO MURILLO @ DANNY @ SONNY

VISAYA @ BENJIE CANETE, ARIEL DADOR y DE CHAVEZ (Discharge), DECENA MASINAG VDA. DE RAMOS, LUISITO GUILLING @ LUISITO (Acquitted), and JOHN DOE @ PURCINO, accused. DECENA MASINAG VDA. DE RAMOS, appellant. DECISION YNARES-SANTIAGO, J.: Appellant Decena Masinag Vda. de Ramos assails the decision[1] of the Regional Trial Court of Lucena City, Branch 60, in Criminal Case No. 92-387, finding her and accused Cesar Osabel guilty beyond reasonable doubt of the crime of Robbery with Homicide and sentencing each of them to suffer the penalty of reclusion perpetua, with all the accessory penalties provided by law, and to indemnify the heirs of the victims the amounts of P100,000.00 as civil indemnity and P67,800.00 as actual damages. On September 1, 1992, an Amended Information for Robbery with Double Homicide was filed against appellant Masinag, Isagani Guittap y Pengson, Wilfredo Morelos y Cruz, Cesar Osabel,[2] Ariel Dador y De Chavez, Luisito Guilling and John Doe @ Purcino. The accusatory portion of the information reads: That on or about the 17th day of July 1992, in the City of Lucena, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the said accused, conspiring and confederating with one another, armed with bladed weapons, by means of violence, and with intent to gain, did then and there willfully, unlawfully and feloniously take, steal and carry away certain personal items, to wit: one (1) solid gold ring valued at P8,000.00 one (1) diamond ring valued at P40,000.00 one (1) necklace with pendant valued at P2,000.00 cash money in the amount of P4,500.00 one (1) samsonite bag valued at P650.00 one (1) .22 Cal. Squibbman with SN 64130 valued at P5,000.00 one (1) pair of sandal valued at P650.00 one (1) music mate (karaoke) valued at P5,000.00 one (1) jacket (adidas) valued at P1,000.00; and one (1) pair of shoes valued at P1,000.00 with a total value of P67,800.00, owned by and belonging to spouses Romualdo Jael and Lionela[3] Caringal, without the consent and against the will of the latter, to the damage and prejudice of the aforementioned offended parties in the aforestated sum of P67,800.00, Philippine Currency, and, on the same occasion of such robbery, the said accused, conspiring and confederating with one another, armed with the same bladed weapons, taking advantage of superior strength, and employing means to weaken the defense or of means or persons to insure or afford impunity, and with intent to kill, did then and there willfully, unlawfully and feloniously stab both of said spouses Romualdo Jael and Lionela Caringal thereby inflicting upon the latter several fatal wounds which directly caused the death of the aforenamed spouses. Contrary to law.[4]

Upon arraignment, appellant Masinag pleaded not guilty. Trial on the merits thereafter ensued. Accused Ariel Dador was discharged as a state witness while accused Purcino remained at large. On February 15, 2000, the trial court rendered its decision, the dispositive portion of which states: WHEREFORE, premises considered, this court finds Cesar Osabel and Decena Masinag GUILTY beyond reasonable doubt of the crime of robbery with homicide and they are sentenced to RECLUSION PERPETUA with all the accessory penalties provided by law. For insufficiency of evidence, the accused Isagani Guittap, Wilfrido Morelos and Luisito Guilling are hereby ACQUITTED. The accused Cesar Osabel and Decena Masinag are also ordered to indemnify the heirs of the deceased Romualdo Jael and Leonila Caringal Jael in the amount of (P100,000.00) One Hundred Thousand Pesos plus actual damages of (P67,800.00) Sixty Thousand and Eight Hundred Pesos, Philippine Currency. SO ORDERED.[5] During the trial, state witness Ariel Dador testified that in the evening of July 15, 1992, Cesar Osabel asked him and a certain Purcino to go with him to see appellant Masinag at her house in Isabang, Lucena City. When they got there, Osabel and Masinag entered a room while Dador and Purcino waited outside the house. On their way home, Osabel explained to Dador and Purcino that he and Masinag planned to rob the spouses Romualdo and Leonila Jael. He further told them that according to Masinag, the spouses were old and rich, and they were easy to rob because only their daughter lived with them in their house. The following day, at 7:00 p.m., Dador, Osabel, and Purcino went to the house of the Jael spouses to execute the plan. Osabel and Purcino went inside while Dador stayed outside and positioned himself approximately 30 meters away from the house. Moments later, he heard a woman shouting for help from inside the house. After two hours, Osabel and Purcino came out, carrying with them one karaoke machine and one rifle. Osabels hands were bloodied. He explained that he had to tie both the victims hands with the power cord of a television set before he repeatedly stabbed them. He killed the spouses so they can not report the robbery to the authorities. Osabel ordered Dador to hire a tricycle while he and Purcino waited inside the garage of a bus line. However, when Dador returned with the tricycle, the two were no longer there. He proceeded to the house of Osabel and found him there with Purcino. They were counting the money they got from the victims. They gave him P300.00. Later, when Dador accompanied the two to Sta. Cruz, Manila to dispose of the karaoke machine, he received another P500.00. Osabel had the rifle repaired in GulangGulang, Lucena City. Dador and Osabel were subsequently arrested for the killing of a certain Cesar M. Sante. During the investigation, Dador executed an extrajudicial confession admitting complicity in the robbery and killing of the Jael spouses and implicating appellant and Osabel in said crime. The confession was given with the assistance of Atty. Rey Oliver Alejandrino, a former Regional Director of the Human Rights Commission Office. Thereafter, Osabel likewise executed an extrajudicial confession of his and appellants involvement in the robbery and killing of the Jaels, also with the assistance of Atty. Alejandrino. Simeon Tabor, a neighbor of the Jaels, testified that at 8:00 in the morning of July 17, 1992, he noticed that the victims, who were known to be early risers, had not come out of their house. He

started calling them but there was no response. He instructed his son to fetch the victims son, SPO1 Lamberto Jael. When the latter arrived, they all went inside the house and found bloodstains on the floor leading to the bathroom. Tabor opened the bathroom door and found the lifeless bodies of the victims. Dr. Vicente F. Martinez performed the post-mortem examination on the bodies of the victims and testified that since rigor mortis had set in at the back of the neck of the victims, Romualdo Jael died between six to eight hours before the examination while Leonila Jael died before midnight of July 16, 1992. The cause of death of the victims was massive shock secondary to massive hemorrhage and multiple stab wounds. Appellant Masinag, for her part, denied involvement in the robbery and homicide. She testified that she knew the victims because their houses were about a kilometer apart. She and Osabel were friends because he courted her, but they never had a romantic relationship. She further claimed that the last time she saw Osabel was six months prior to the incident. She did not know Dador and Guilling at the time of the incident. According to her, it is not true that she harbored resentment against the victims because they berated her son for stealing their daughters handbag. On the whole, she denied any participation in a conspiracy to rob and kill the victims. From the decision convicting appellant Masinag and Osabel, only the former appealed, based on the lone assigned error: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF CONSPIRING WITH HER CO-ACCUSED TO COMMIT THE CRIME OF ROBBERY WITH HOMICIDE DESPITE THE ABSENCE OF HER ACTUAL PARTICIPATION IN THE COMMISSION OF THE SAID CRIME. The appeal is meritorious. While it is our policy to accord proper deference to the factual findings of the trial court, [6] owing to their unique opportunity to observe the witnesses firsthand and note their demeanor, conduct, and attitude under grueling examination,[7] where there exist facts or circumstances of weight and influence which have been ignored or misconstrued, or where the trial court acted arbitrarily in its appreciation of facts,[8] we may disregard its findings. Appellant contends that the extrajudicial confessions of Osabel and Dador were insufficient to establish with moral certainty her participation in the conspiracy. Firstly, Dador was not present to hear appellant instigate the group to rob the Jael spouses. He only came to know about the plan when Osabel told him on their way home. Thus, Dador had no personal knowledge of how the plan to rob was actually made and of appellants participation thereof. Secondly, while Osabel initially implicated her in his extrajudicial confession as one of the conspirators, he repudiated this later in open court when he testified that he was forced to execute his statements by means of violence. On direct examination, Dador narrated what transpired in the house of appellant on July 15, 1992, to wit: PROSECUTOR GARCIA: Q. And do you remember the subject or subjects of that conversation that transpired among you? A. Yes, sir.

Q. Please tell us what was the subject or subjects of the conversation that transpired among you on July 15, 1992 at the house of Decena Masinag? A. The subject of our conversation there was the robbing of Sps. Jael, sir. Q. How did that conversation begin with respect to the proposed robbery of Sps. Jael? A. It was only the two (2) who planned that supposed robbery, Daniel Murillo and Decena Masinag, sir. Q. And why were you able to say that it was Danilo Murillo and Decena Masinag who planned the robbery? A. Because they were the only ones who were inside the house and far from us and they were inside the room, sir. xxx xxx xxx

Q. On that night, July 15, 1992 did you ever have any occasion to talk with Decena Masinag together with your companions Danilo Murillo and Purcino? A. No, sir. Q. Was there any occasion on the same date that Decena Masinag talk to you? ATTY. FLORES: Already answered, your Honor. COURT: Witness, may answer. WITNESS: None, sir. (emphasis ours)[9] We find that the foregoing testimony of Dador was not based on his own personal knowledge but from what Osabel told him. He admitted that he was never near appellant and that he did not talk to her about the plan when they were at her house on July 15, 1992. Thus, his statements are hearsay and does not prove appellants participation in the conspiracy. Under Rule 130, Section 36 of the Rules of Court, a witness can testify only to those facts which he knows of his own personal knowledge, i.e., which are derived from his own perception; otherwise, such testimony would be hearsay. Hearsay evidence is defined as evidence not of what the witness knows himself but of what he has heard from others.[10] The hearsay rule bars the testimony of a witness who merely recites what someone else has told him, whether orally or in writing.[11] In Sanvicente v. People,[12] we held that when evidence is based on what was supposedly told the witness, the same is without any evidentiary weight for being patently hearsay. Familiar and fundamental is the rule that hearsay testimony is inadmissible as evidence.[13] Osabels extrajudicial confession is likewise inadmissible against appellant. The res inter alios acta rule provides that the rights of a party cannot be prejudiced by an act, declaration, or omission of another.[14] Consequently, an extrajudicial confession is binding only upon the confessant and is not admissible against his co-accused. The reason for the rule is that, on a principle of good faith and mutual convenience, a mans own acts are binding upon himself, and are evidence against him. So are

his conduct and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that a man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be bound by the acts of strangers, neither ought their acts or conduct be used as evidence against him.[15] The rule on admissions made by a conspirator, while an exception to the foregoing, does not apply in this case. In order for such admission to be admissible against a co-accused, Section 30, Rule 130 of the Rules of Court requires that there must be independent evidence aside from the extrajudicial confession to prove conspiracy. In the case at bar, apart from Osabels extrajudicial confession, no other evidence of appellants alleged participation in the conspiracy was presented by the prosecution. There being no independent evidence to prove it, her culpability was not sufficiently established. Unavailing also is rule that an extrajudicial confession may be admissible when it is used as a corroborative evidence of other facts that tend to establish the guilt of his co-accused. The implication of this rule is that there must be a finding of other circumstantial evidence which, when taken together with the confession, establishes the guilt of a co-accused beyond reasonable doubt.[16] As earlier stated, there is no other prosecution evidence, direct or circumstantial, which the extrajudicial confession may corroborate. In People v. Berroya,[17] we held that to hold an accused liable as co-principal by reason of conspiracy, he must be shown to have performed an overt act in pursuance or furtherance of the conspiracy. That overt act may consist of active participation in the actual commission of the crime itself, or it may consist of moral assistance to his co-conspirators by being present at the time of the commission of the crime, or by exerting moral ascendancy over the other co-conspirators by moving them to execute or implement the conspiracy. In the case at bar, no overt act was established to prove that appellant shared with and concurred in the criminal design of Osabel, Dador and Purcino. Assuming that she had knowledge of the conspiracy or she acquiesced in or agreed to it, still, absent any active participation in the commission of the crime in furtherance of the conspiracy, mere knowledge, acquiescence in or agreement to cooperate is not sufficient to constitute one as a party to a conspiracy.[18] Conspiracy transcends mere companionship.[19] Conspiracy must be proved as convincingly as the criminal act itself. Like any element of the offense charged, conspiracy must be established by proof beyond reasonable doubt.[20] Direct proof of a previous agreement need not be established, for conspiracy may be deduced from the acts of appellant pointing to a joint purpose, concerted action and community of interest. Nevertheless, except in the case of the mastermind of a crime, it must also be shown that appellant performed an overt act in furtherance of the conspiracy.[21] All told, the prosecution failed to establish the guilt of appellant with moral certainty. Its evidence falls short of the quantum of proof required for conviction. Accordingly, the constitutional presumption of appellants innocence must be upheld and she must be acquitted. WHEREFORE, in view of the foregoing, the appealed decision of the Regional Trial Court of Lucena City, Branch 60 in Criminal Case No. 92-487, insofar only as it finds appellant guilty beyond reasonable doubt of the crime of Robbery with Homicide, is REVERSED andSET ASIDE. Appellant Decena Masinag Vda. De Ramos is ACQUITTED of the crime of Robbery with Homicide. She is ORDERED RELEASED unless there are other lawful causes for her continued detention. The Director of Prisons is DIRECTED to inform this Court, within five (5) days from notice, of the date and time when appellant is released pursuant to this Decision.

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 Medionas residence was located near the houses of Dominador and Antonio. As Antonio passed by, he saw Dominador in front of Pelagios house. Antonio was shocked when, from behind and on Dominadors 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 Dominadors 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, Dominadors brother-in-law, was travelling along the road of Barangay Liwayway on his motocycle. As he neared Pelagios 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 Dominadors nephew. Miranda even used to borrow kettle from the couple. Manaog had been Leticias 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 post-mortem findings, to wit: FINDINGS: 1. Lacerated wound at the left side of the forehead extending vertically measuring 2 inches in length.

2. Stab wound at the left side of the face, inch lateral to the outer corner of the left eye measuring inch in length. 3. Stab wound at the left anterior portion of the thorax, at the same level of the left nipple and 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, inch below the level of wound No. 3 and 1/3 inch lateral to the mid-sternal line measuring 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 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 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 inches in length. The edge of the wound has a blackish coloration. 10. Lacerated wound at the right posterior portion of the thorax, 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 inch in diameter. CAUSE OF DEATH: Profuse hemorrhage due to shot-gun 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 Peoples 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 Zosimos 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, Zosimos mother, Susana Candelaria, about 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 Leonardos 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, Cristitos wife, corroborated the testimony of Arturo Manaog. Castor Mones testified that he and Artemio Elloraba went to work for Benyong Fernandez in the latters 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, Artemios 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 on December 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-INLAW OF DOMINADOR GALVEZ, EXCULPATING HEREIN ACCUSED-APPELLANT, 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 PROSECUTIONS 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 NONPARTICIPATION IN THE OFFENSE CHARGED.[4]

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 Dominadors 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. (Appellants 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. 913). 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 appellants 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. Appellants 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 victims widow and appellants 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 victims 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.