[G.R. No. 139542.

June 21, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, GONZALEZ, JR., accused-appellant. DECISION

GONZAGA-REYES, J.:

vs. INOCENCIO

Many unfortunate tragedies would not have happened if the improvident use of a firearm did not exacerbate a simple altercation over traffic. This is one of them. On a day intended to pay homage to the dead, a pregnant woman was shot to death in the course of her husbands altercation with the accused-appellant and his son along the Garden of Remembrance within the Loyola Memorial Park in Marikina. The trial court found the accused guilty of the complex crime of murder and two counts of frustrated murder and accordingly sentenced him to death. This case is before us on automatic review. The details of what actually transpired in the few seconds immediately preceding the shooting are controverted by both parties but the events leading to this tragedy are not disputed. In the afternoon of October 31, 1998 at about 2:30 p.m. both the families of the private complainant Noel Andres and that of the accused-appellant Inocencio Gonzalez were on their way to the exit of the Loyola Memorial Park. The appellant was driving a white Isuzu Esteem with his grandson and three housemaids, while the private complainant was driving a maroon Toyota FX with his pregnant wife Feliber Andres, his two year old son, Kenneth, his nephew Kevin and his sister-in-law, Francar Valdez. At the intersection near the Garden of Remembrance, while the accused-appellant Gonzalez was turning left towards the exit and the complainant Noel Andres was headed straight along the road to the exit their two vehicles almost collided. Noel Andres was able to timely step on the brakes. The appellant continued driving along his way while Noel Andres drove behind the appellants vehicle for some time and cut him off when he found the opportunity to do so.[1] Noel Andres then got out of his vehicle and knocked on the appellants car window.[2] This is as far as their versions of the incident coincide. The prosecutions version of the incident is that Noel Andres calmly told the appellant to be careful with his driving and informed the latter that he, Andres, is with his family and to this Gonzalez allegedly replied, Accidents are accidents, whats your problem. Andres stated that he saw the appellant turning red in anger so he decided to go back to his vehicle when he was blocked by the appellants son who said, Anong problema mo sa erpat ko. Andres testified that he felt threatened and so he immediately boarded his vehicle, sat at the drivers seat, closed the door, and partially opened the car window just wide enough to talk back to appellants son, Dino. Suddenly, one of his passengers said Binaril kami. He turned to his wife Feliber Andres and saw her bloodied and unconscious. He turned around and saw his son Kenneth and nephew Kevin were also wounded. Andres admitted in court that he and Dino were shouting at each

other so that he did not hear the shot. Andres then got out of his vehicle to warn the appellant not to flee. He then took the wounded members of his family to the exit where there was an ambulance standing by. The three were then taken to the Sta. Monica Hospital and were later transferred to the Quezon City Medical Center. The defenses version of the incident is that Andres cut the appellants path by positioning his FX obliquely along the appellants lane from the latters left side. Andres then got out of his vehicle, stood beside the appellants car window, and repeatedly cursed the appellant, Putang ina mo, ang tanda-tanda mo na hindi ka pa marunong magmaneho. Ang bobo-bobo mo.[3] The appellant stayed inside his car and allegedly replied, Pasensiya ka na hindi kita nakita, nasilaw ako. Aksidente lang. The appellant Gonzalez and another witness for the defense, Quidic, testified that Noel Andres went back to his vehicle to move it in such a way that it is straight in front of the appellants car. Andres allegedly got out of his vehicle again and continued shouting and cursing at the appellant.[4] Dino, the appellants son, who rode in another vehicle decided to go back when he did not see his fathers car behind him. When Dino arrived at the scene he confronted Andres and the two had an altercation. Both Dino and the appellant stated that Andres remained outside his vehicle during the altercation with Dino. When Andres suddenly reached for something inside his vehicle, Dino froze on the spot where he stood. This prompted the appellant to get his gun from the glove compartment and feeling that his son was threatened he got out of his car ready to shoot. When he saw that Andres did not have a weapon he put down his hand holding the gun. This is when the appellants daughter Trisha who was riding in Dinos car arrived at the scene, walked past Dino and Andres, and pushed the appellant away. She hugged her father and in the process held his hand holding the gun. The appellant tried to free his hand and with Trishas substantial body weight pushing against him the appellant lost his balance and the gun accidentally fired. The accused stated that he did not know he shot somebody until the private complainants sister-in-law, Francar Valdez, got out of the vehicle carrying a bloodied small boy. The defense claims that the appellant did not try to flee and even told the complainants sister-in-law to take the wounded to the hospital. On November 4, 1998 an Information for the complex crime of Murder, Double Frustrated Murder and Attempted Murder was filed against herein accused-appellant:

That on or about the 31st day of October 1998, in the city of Marikina, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously with intent to kill, attack, assault and employ personal violence by means of treachery and abuse of superior strength upon the person of Noel Andres y Tomas, by then and there shooting him with a Glock cal. 9mm pistol but instead hitting one Feliber Andres y Ordoo, on the left back portion of her head, thereby inflicting upon her serious and mortal wound which directly caused her death, as well as hitting John Kenneth Andres y Ordoo and Kevin Valdez y Ordoo physical injuries which ordinarily would have caused their death, 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 some cause or causes, independent of their will, that is, the timely and able medical assistance rendered to John Kenneth Andres y Ordoo and Kevin Valdez y Ordoo to their

damage and prejudice as well as to the damage and prejudice of the heirs of Feliber Andres y Ordoo.
On arraignment the accused-appellant pleaded not guilty to the crimes charged. The case records show that Feliber Andres, the wife of Noel Andres did not die instantaneously. She lived to give birth to a baby girl[5] by caesarian section and died the following morning on November 1, 1998. The Autopsy Report[6] states:

FINDINGS: Fairly nourished, fairly developed female cadaver, with post mortem lividity. Conjunctivae are pale. Lips and nail beds are cyanotic. Surgical incisions were noted at left tempero-parietal region. Surgical incisions is also noted at the abdominal region secondary to a caesarian section. HEAD: (1) gunshot wound, point of entry, left fronto-temporal region, measuring 1 by 0.9 cm, 9 cm from the anterior midline, with a uniform abraided collar measuring 0.2 cm., directed posteriorwards, slightly downwards, and medialwards, fracturing the frontal, and left temporal bones, lacerating the left cerebral hemisphere, with a deformed slug fragment embedded and recovered at the posterior lobe of the left cerebral hemisphere. (2) hematoma, left orbital region, measuring 4.5 by 2 cm, 4 cm from the anterior midline. There are subdural and subarachnoidal hemorrages. Stomach contains 1 glassful of partially digested food particles mostly rice and meaty material. CONCLUSION: Cause of death is gunshot wound on the head.
Kenneth and Kevin were treated for extraction of metallic fragments on their faces. They were discharged from the hospital six days later or on November 6, 1998. On June 25, 1999 the trial court rendered judgement finding that the shooting was attended by the qualifying circumstance of treachery and held the appellant guilty of the complex crime of murder for the death of Feliber Andres and for two counts of frustrated murder for the injuries sustained by Kenneth Andres and Kevin Valdez and sentenced the appellant to the maximum of the imposable penalty which is death. The trial court held:

Beforehand, the Court takes note of the judicial admissions on the verbal declarations of the accused that the court a quo has jurisdiction over the case; that he owns the black Gluck 9 mm. automatic pistol; that the said gun will never fire even if he drops it; that only one bullet was fired from his gun; and that the victim Feliber Andres is already dead. With this exegesis and the declarations in open court of the eyewitness of both the prosecution and some of the defense, there is no real dispute on the antecedent facts showing that the accused fired on Noel Andres but instead hit and caused the fatal injuries to the victims John Kenneth Andres, Kevin Valdez and Feliber Andres resulting to the ultimate death of the latter. The court takes further

judicial admissions of the accused made in their memorandum demonstrating the existence of five (5) sequences of events leading to the death of Feliber Andres and the wounding of John Kenneth Andres and Kevin Valdez which are as follows: First is when Noel Andres overtook the car driven of the accused and cut cross his path; Second is when Noel Andres alighted from his vehicle and confronted Inocencio; Third is when Noel had an argument with Dino Gonzalez, the son of the accused; Forth is when, Inocencio seeing his son having confrontation with Noel, got his gun to protect Dino; and Fifth is when Inocencio had a struggle with his daughter. Trisha Gonzalez, who tried to reach for the gun and as a result of which Inocencio lost his balance and as he was falling backward to his side, his right arm holding the gun hit the rear window of the Tamaraw FX van and the gun accidentally went off hitting the victim, who were all then inside the van. The court likewise take judicial notice on the feature of the automatic pistol used in this case which is capable of unquestionable demonstration or ought to be known to judges because of their judicial functions. Practically, the stages before an automatic firearm would be capable of firing are as follows: 1) the loading of a bullet into the chamber of the gun; 2) the cocking of the hammer, if uncocked; 3) the releasing of the safety pin; 4) the pressing of the trigger to unleash the hammer so that the firing pin will hit the cartridge to propel the bullet out to hit the target. Realistically, it demonstrates that a gun will not fire even if the bullet is loaded in its chamber if the hammer is uncocked; or even if cocked if the safety pin is engaged; or even if the safety pin is disengaged if the trigger will not be pressed. However, even if the gun is fired if it is not aimed and leveled to the target, the purpose of firing it shall not be achieved. Contrarily, once a gun is drawn against a person, the means methods and forms employed for its execution is already conceived. And once it is tended directly and specifically to insure its execution, it consequently produces the conscious and deliberate intention. Finally if all the acts of execution had been effectively done without risk on the part of the offender arising from any defense coming from the offended party, treachery results. In brief, there is treachery when the offender commits any crime against persons, employing means, methods and forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from any defense which the offended party might make (People vs. Mesa 276 SCRA 407; People vs. Carlos Patrolla, Jr. G. R. No. 112445, March 7, 1996). To appreciate treachery two (2) conditions must be present, to wit: 1) the employment of means of execution that give the person attacked no opportunity to defend himself or retaliate; and 2) the means of execution were deliberately or consciously adopted. (People vs. Azugue, 268 SCRA 711; People vs. Pea, G. R. No. 116022, July 1, 1998, p. 1)

In the case at bar and guided with the above-quoted doctrinal cases, logically, the accused is positive of the crime charged against him. When he alighted with a drawn gun to protect his son and released all the safety measures of his gun as he fired and missed at Noel who was then unarmed, but instead hit Kevin Valdez, John Kenneth Andres and Feliber Andres which resulted to the death of the latter, demonstrate that the accused has executed the two (2) conditions to generate treachery enough to qualify the crime committed to murder.
XXXX XXXXX XXXX

WHEREFORE, foregoing premises considered, the accused Inocencio Gonzalez, Jr., y Esquivel is hereby found guilty beyond reasonable doubt of the complex crime of Murder with Double Frustrated Murder and Attempted Murder penalized under Art. 248, as amended by Republic Act No. 7659 in relation to Article 48 of the Revised Penal Code and is sentenced to suffer the maximum penalty of Death by lethal injection. The accused is further ordered to pay the following civil liabilities: 1. To the private complainant Noel Andres:
a) the amount of P50,000.00 as indemnity for the death of Feliber Andres; b) the amount of P3,363,663.60 as indemnity for the loss of earning capacity of the deceased Feliber Andres; c) the amount of P98,384.19 as funeral expenses; d) the amount of P271,800.56 for the hospitalization expenses incurred for the injuries sustained by the deceased Feliber Andres and the amount of P23,622.58 representing the expenses for the untimely delivery of the child Ma. Clarisse Andres; e) the amount of P51,566.00 representing the hospitalization expenses for the injuries sustained by the victim John Kenneth Andres; f) the amount of P150,000.00 as moral damages suffered for the untimely death of his wife Feliber Andres and for the injuries caused to his son John Kenneth Andres; g) the amount of P50,000.00 as and by way of attorneys fees and a fee of P2,000.00 per appearance; and h) the costs of the suit.

2. To the private complainant Nicasio Valdez:

a) the amount of P73,824.75 as actual damages for the injuries sustained by the victim Kevin Valdez; and b) the amount of P75,000.00 as and by way of moral damages.

SO ORDERED.
In his appeal, Gonzalez submits the following assignments of error:

1. The trial court committed reversible error when it found that treachery was present. 2. The trial court committed reversible error when it presumed that there was treachery by taking judicial notice of the feature of the automatic pistol involved in this case. 3. The trial court committed reversible error when it violated the constitutional right of the accused-appellant to due process when it took judicial notice of the feature of the automatic pistol involved in this case without notice. 4. The trial court committed reversible error when it found Accused-Appellant guilty beyond reasonable doubt of the complex crime of Murder with Double Frustrated Murder. 5. The trial court committed reversible error when it failed to appreciate the mitigating circumstances of passion or obfuscation, lack of intention to commit so grave a wrong, provocation or threat on the part of the offended party immediately preceded the act, incomplete defense of relative, and voluntary surrender. 6. The trial court committed reversible error when it failed to find that the shooting incident was accidental. 7. The trial court committed reversible error when it gave credence to the testimonies of prosecution witnesses Elmer Ramos and Moises Castro. 8. The trial court committed reversible error when it disregarded the basic principle that the accused is presumed innocent and his guilt must be proven beyond reasonable doubt. 9. The trial court committed reversible error when it ordered Accused-Appellant to pay for the civil liabilities.
The appellant seeks a reversal and prays that judgment be rendered exempting him from criminal and civil liabilities. Appellant declared that he had no intention to shoot Noel Andres much less his wife nor the children. He lost his balance when his daughter Trisha approached and pushed him backwards to stop him from joining Dino and Noel Andres but the appellant tried to free his right hand holding the gun and it accidentally fired. The single bullet fired hit the last window on the left side of the Tamaraw FX. The appellant claims that he did not see the

passengers inside the vehicle at the time of the shooting. This is corroborated by the testimony of two witnesses for the prosecution who testified that the windows of Andres vehicle are heavily tinted so that a person outside the vehicle would not be able to see if there are people inside. It is also argued that had the appellant intended to shoot Noel Andres he could have simply done so by shooting at him directly. The defense asserts that the evidence for the prosecution failed to establish the attendance of treachery and without the attendance of the said qualifying circumstance the crime committed is homicide, not murder. The appellant also points out that the trial court made the factual finding that the shooting happened in a matter of seconds and that it was preceded by a heated argument between the parties. Such being the case, it is argued that the shooting could not have been attended by treachery. There was no time for the appellant to consciously and deliberately employ the mode of attack against Noel Andres, nor against any one of the actual victims, to insure its execution and at the same time to eliminate any form of retaliation from the alleged intended victim. And yet, the trial court, contrary to the evidence on record, held that the loading of the bullet into the chamber of the gun, the cocking of the hammer, the release of the safety pin and the pulling of the trigger by the appellant of his automatic pistol constitute conscious and deliberate effort to employ the gun as a means of committing the crime and resultantly, qualified its commission by treachery. Such a finding presupposes that the appellant loaded the gun to shoot Noel Andres only that very moment when his son Dino and Noel Andres were arguing. This conclusion has no basis on record. The appellant testified that his gun was loaded before he left the house and two witnesses for prosecution stated in court that a few seconds after Noel Andres and Dino started shouting at each other, the appellant got out of his car and shot at the last window on the left side of the complainants vehicle. Further, the appellant assigns as error the procedure adopted by the trial court in taking judicial notice that the gun used by the appellant is an automatic pistol and as such, it will not fire unless aimed at the intended target. The procedure taken by the trial court is contrary to Section 3, Rule 129 of the Rules of Court. [7] The trial court should have given both parties the opportunity to present evidence, expert evidence, if necessary, to inform the court on the subject matter. The appellant argues that the factual finding borne by such erroneous procedure is equally erroneous. The gun used by the appellant is a semiautomatic and not an automatic pistol which means that the pistol used has no external safety pin to be released and that the hammer need not be cocked. The pulling of the trigger, intentional or not, will fire the gun. The use of a semi-automatic pistol does not necessarily imply treachery. Appellant also argues that the testimonies of prosecution witnesses Castro and Ramos were improperly given credence by the trial court. The appellant contends that a reading of their testimonies would show that their narration of the incident is rather absurd and would show that they did not witness the actual shooting. Defense witnesses, Gonzalez and his daughter, Trisha, on the other hand, testified that Castro and Ramos arrived at the scene only after the shooting. As regards the injuries sustained by Kevin and Kenneth, it is argued that considering that there was no intent to kill and that they stayed in the hospital only for six days, the crime committed is physical injuries. It is argued that the trial court erred in awarding damages. The bunch of receipts allegedly representing the medical expenses incurred for the injuries sustained by the victims was erroneously admitted in evidence, without first requiring the prosecution to establish the authenticity of the receipts. The appellant also points out that the award for loss of earning capacity has no basis as the deceased was unemployed at the time of the incident.

Finally, the appellant assigns as error the trial courts rejection of the mitigating circumstances pleaded by the defense which allegedly attended the commission of the crime, i.e., lack of intent to commit so grave a wrong, passion and obfuscation, incomplete defense of a relative and voluntary surrender. The appellant asserts that these mitigating circumstances were duly proven during the trial and are supported by the evidence on record. The private complainant Noel Andres testified that he saw the appellant getting red in anger after they, Andres and the appellant, had a heated argument immediately prior to the shooting. These admitted circumstances show that the appellant was not in his proper state of mind at the time of the shooting. First, he was angered by Andres abusive language and later he got out of his car with a loaded gun to protect his son from a perceived danger. The appellant clams that his willingness to help the injured and his voluntary surrender to the police should likewise be considered as mitigating circumstances in the imposition of penalties. The Solicitor-General agrees with the appellant that the crime was not attended by the qualifying circumstance of treachery and hence the crime committed by the appellant for the death of Feliber Andres is homicide, not murder. The appellee takes into consideration that the shooting was preceded by a heated argument and that the supposed victim was placed on guard that attack was imminent. It also appears that the shooting was done impulsively. There is no evidence that the appellant deliberately employed the means of attack to insure execution of the crime and at the same time eliminate the risk of retaliation from the private complainant. The appellee also agrees with the appellant that the trial court erred in equating the use of an automatic pistol with treachery. The trial court made the factual finding that the appellants automatic pistol would not fire unless aimed and the trigger is deliberately pulled and hence treachery attended the shooting. The appellee submits that if we follow the reasoning of the trial court it would appear that the appellant intended to shoot at the complainants vehicle only as the shot was fired at the last window on the left side of the FX away from where Andres was allegedly seated. The fact that the gun was drawn and fired does not mean that the mode of attack was consciously and deliberately employed. However, with respect to the injuries sustained by Kevin and Kenneth, the appellee disagrees with the contention that the appellant is liable only for slight physical injuries. The injuries sustained by both children are head injuries and could have caused their death if not for the immediate medical attention given them. The number of days spent in the hospital is not determinative of the severity of the wounds. Their nature and location should instead be considered. The appellant cannot escape liability for frustrated homicide for the injuries of the two children on the ground that he fired a single shot at the vehicle of Noel Andres. He is liable for all the consequences of his unlawful act even if the crime committed is different from that intended. As regards the pleaded mitigating circumstances, appellee asserts that none can be considered in favor of the appellant. There is evidence on record that the appellant did not voluntarily surrender to the police and it appears from the testimonies of witnesses that he entertained the possibility of flight but his car was stuck in traffic along the exit of the memorial park. His pretense of incomplete defense of a relative is belied by his own admission that when he saw that Noel Andres did not have a gun he lowered his hand holding the gun. There was allegedly no threat on the life of his son at the time of the shooting, no uncontrollable fear nor irresistible force that would mitigate the commission of the offense.

The Solicitor-General also seeks to uphold the pecuniary awards granted by the trial court. The appellee alleges that it is not denied by the appellant that Feliber Andres was a 38 year old registered nurse at the time of the shooting. Although she was then unemployed on account of her pregnancy, she still had earning capacity and the trial court properly applied the salary of a government nurse under the salary standardization scheme in the computation of damages for the loss of earning capacity. The receipts presented in evidence by the prosecution to establish hospitalization and other medical expenses incurred by the private complainants by reason of the injuries suffered by the victims were duly authenticated by the prosecution witnesses and there is no dispute that they are exact copies of the original receipts presented in court. The objections raised by the appellant in this regard were duly met by the evidence presented by the private complainants. In sum, the appellee asserts that considering that the appellant fired a single shot and in the process committed four offenses the appellant should be held liable for the complex crime of homicide for the death of Feliber Andres, double frustrated homicide against Kevin and Kenneth and attempted homicide against Noel Andres. Under the rules on complex crimes the penalty for the gravest offense, i.e., reclusion temporal for homicide, should be imposed in its maximum period. The appeal has merit. Treachery under par.16 of Article 14 of the Revised Penal Code is defined as the deliberate employment of means, methods or forms in the execution of a crime against persons which tend directly and specially to insure its execution, without risk to the offender arising from the defense which the intended victim might raise. For treachery to be appreciated two elements must concur: 1) the employment of means of execution that would insure the safety of the accused from retaliatory acts of the intended victim and leaving the latter without an opportunity to defend himself and 2) the means employed were deliberately or consciously adopted by the offender.[8] The suddenness of the attack, the infliction of the wound from behind the victim, the vulnerable position of the victim at the time the attack was made or the fact that the victim was unarmed do not by themselves render the attack as treacherous.[9] This is of particular significance in a case of an instantaneous attack made by the accused whereby he gained an advantageous position over the victim when the latter accidentally fell and was rendered defenseless.[10] The means employed for the commission of the crime or the mode of attack must be shown to have been consciously or deliberately adopted by the accused to insure the consummation of the crime and at the same time eliminate or reduce the risk of retaliation from the intended victim.[11] Accordingly, it has been consistently held by this court that chance encounters, impulse killing or crimes committed at the spur of the moment or that were preceded by heated altercations are generally not attended by treachery for lack of opportunity of the accused to deliberately employ a treacherous mode of attack.[12] Thus, the sudden attack made by the accused due to his infuriation by reason of the victims provocation was held to be without treachery. Sudden attacks made by the accused preceded by curses and insults by the victim or acts taunting the accused to retaliate or the rebellious or aggressive behavior of the victim were held to be without treachery as the victim was sufficiently forewarned of reprisal.[13] For the rules on treachery to apply the sudden attack must have been preconceived by the accused, unexpected by the victim and without provocation on the part of the latter.[14]

This Court has also had occasion to state that whether or not the attack succeeds against its intended victim or injures another or whether the crime committed is graver than that intended is immaterial, as long as it is shown that the attack is attended by treachery, the said qualifying circumstance may still be considered by the court.[15] Thus, the determining factor on whether or not the commission of a crime is attended by treachery is not the resulting crime committed but the mode of attack employed in its execution.[16] Treachery is never presumed. It is required that the manner of attack must be shown to have been attended by treachery as conclusively as the crime itself. [17] We affirm the recommendation of the Solicitor-General that the shooting was not attended by treachery and accordingly the crime committed for the death of Feliber Andres is homicide and not murder. The encounter between Noel Andres and the appellant was a chance encounter. They were total strangers before their vehicles almost collided at an intersection inside the memorial park. Unfortunately, heated exchange of remarks that followed the near collision was fanned by a short temper, which in the case of the appellant, was augmented by the improvident use of a firearm. From a reading of the transcript of the testimonies of the witnesses, it would appear that Noel Andres, who had his pregnant wife and child with him, among others, on board the Tamaraw FX provoked the altercation. After the near collision of his vehicle with that of the appellant, he tailed behind the latters car towards the exit until he had the chance to cut him off to scold him for his failure to observe traffic rules.[18] Andres stated in court that he calmly told the appellant to be careful with his driving and denied that he was angry when he alighted from his vehicle to confront the appellant.[19] His statement is belied by the witnesses, two prosecution witnesses included, who uniformly testified that Andres quarreled with or shouted and cursed at the appellant for the latters recklessness at the intersection.[20] The appellant narrated in court that Andres repeatedly shouted at him, Putang ina mo, ang tanda-tanda mo na gago ka pa.[21] Andres hostile behavior towards the appellant is evident from his statement in court that he noticed the appellant turning red in anger.[22] It is highly improbable for Gonzalez to have turned red in anger had Andres been polite, as he claims he was, in scolding Gonzalez. Andres could have simply communicated to the appellant his disgust for the latters bad driving when he overtook the appellants car near the scene of the shooting but instead he chose to block the appellants path, insult and virtually provoke the appellant to retaliate. Andres stated in court that when he noticed Gonzalez infuriation he immediately walked towards his vehicle, because according to him the altercation was over. On his way to his FX he met another man, whom he later found out to be the appellants son, Dino. It appears that the altercation was far from over because again Andres had a shouting match this time with Dino.[23] In a matter of seconds, the appellant alighted from his car and fired a single shot at the last window on the left side of Andres vehicle at an angle away from Noel Andres. The single bullet fired hit Feliber Andres on the forehead near the temporal region above the left eye and the two children with metallic fragments of the bullet on their faces, one at the cheek and the other below his left eye. The prosecution did not present evidence as to the exact seating arrangement of the victims inside the vehicle; suffice it to say, that an examination of the pictures of the vehicle[24] one of

which shows a mass of blood stains on the left side (towards the drivers seat) of the white seat cover below the head rest[25], would show that the deceased Feliber must have been seated at the front passengers seat and the children at the middle row behind the drivers seat.[26] Another picture shows a bullet hole on the last window on the left side of the vehicle[27] and another shows that the front windshield appears undamaged.[28] A ballistics expert appeared in court for the prosecution and testified that the bullet fired at the FX came from the appellants gun, which fact was admitted by the defense. The prosecution did not inquire from the ballistics expert regarding the trajectory of the bullet or the approximate distance of the appellant from the FX when he fired his gun to establish whether or not the appellant aimed for Noel or Feliber or simply fired indiscriminately at the latters vehicle.[29] At first blush it would seem that the shooting of Feliber Andres was attended by treachery as she was inside the FX witnessing her husbands altercation, first, with the appellant then with the appellants son, totally defenseless from the shot that came suddenly from her left side. Public outrage over the death of Feliber was heightened by the fact that she was then pregnant with her second child and her death left a new born baby girl and a two year old boy motherless. However, a meticulous review of the evidence prevents a conclusive finding of treachery and any doubt must be resolved, like the fact of the commission of an offense, in favor of the accused. The pictures indicate that Gonzalez fired at the FX at an angle away from Noel Andres and that Gonzalez was not aiming at anybody in particular. It is not disputed that the appellants car was directly behind the complainants FX and that Gonzalez who was then seated at the drivers seat alighted from his car, took a few steps then fired at the left side of the FX. Whether Noel Andres was seated at the drivers seat inside his vehicle when Gonzalez fired at the FX, as the prosecution asserts, or was standing by the door of the drivers seat outside his vehicle, as the defense submits, it is clear that the shot was fired away from Noel Andres. The bullet hit Feliber near her temple above the left eye indicating that she was facing left towards her husband when the shot was fired.[30] The direct hit on Felibers head shows that the angle of the shot was indeed away from Noel Andres. Even the eyewitness for the prosecution testified that had the appellant intended to kill Noel Andres he could have shot directly at him, considering that Noel Andres was just a few steps away from him[31] and that Noel Andres was visible from the outside because his window was partially open.[32] The pictures show that the bullet hole was on the third window on the left side of the Tamaraw FX[33] belying any attempt to shoot Noel Andres. Two prosecution witnesses Ramos and Castro unequivocally declared that nothing or no one prevented Gonzalez from shooting directly at Noel Andres and that Gonzalez could have simply done so if he wanted to. But after alighting from his car, Gonzalez took a few steps and shot at the left side window of the FX.[34] The fact that the appellant fired his gun from behind the victim does not by itself amount to treachery. There is no evidence on record that the appellant deliberately positioned himself behind the victim to gain advantage over him when he fired the shot. On the contrary, the evidence before us reveals that the position of the appellants car was not of his own doing but it became so when Noel Andres overtook his car and cut off his path. We note further, that the appellant did not act belligerently towards Noel Andres even after the latter cut off the appellants path. Andres stated in court that the appellant did not alight from his car nor opened his window until he, Andres, tapped on it.[35] For his part Gonzalez categorically stated in court that he did not point his gun nor threatened Andres during their short

spat.[36] Gonzalez, although he had his gun in his car, did not react to Andres cursing until the latter was having an altercation with the appellants son, Dino. Gonzalez claimed that he perceived that his son was in imminent danger.[37] Whether he overreacted or he shot at Andres vehicle out of rage over Andres aggressive behavior, one thing appears clear to us, that the shooting was not done in cold blood. It is undisputed that the windows of the FX are heavily or darkly tinted so that a person outside would not see if anybody was inside.[38] The pictures of the FX[39] on record confirm the testimonies of both prosecution and defense witnesses that the other passengers of the FX were not visible from the outside. Gonzalez admitted in court that Noel Andres mentioned that he has passengers with him while he was shouting and cursing at Gonzalez but there is no indication that Gonzalez had any opportunity to see the passengers when he fired the shot. The totality of the evidence on record fails to support a conclusion that Gonzalez deliberately employed the mode of attack to gain undue advantage over the intended nor the actual victim. Without any decisive evidence to the contrary, treachery cannot be considered; thus the crime committed is homicide.[40] The trial courts finding that the loading of the gun, the cocking of the hammer and finally the pulling of the trigger constitute a deliberate effort on the part of appellant to use the gun as a means of a treacherous attack is patently erroneous. A single and continuous attack cannot be divided into stages to make it appear that treachery was involved.[41] The entire incident happened in a matter of minutes, as testified to by witnesses, and as noted by the trial court.[42] It was error to our mind for the trial court to divide the assault in stages to arrive at the conclusion that the mode of attack was consciously employed by the appellant. Contrary to the finding of the trial court that the appellant prepared the gun before getting out of his car, the appellant testified that he loaded his gun before he left the house and that it was ready to fire when he alighted his car. There was no time for him to reflect on the mode of attack since he just picked up his gun and alighted from his car and shot at the FX a few seconds after Dino and Noel Andres started shouting at each other.[43] We note further that the trial court pointed out that from the fact that the appellant prepared his gun to shoot, this was an indication of the deliberate employment of the gun as a means to kill; i.e. that the use of an automatic pistol shows that the shooting was attended by treachery. We do not agree that the weapon used, by itself, is determinative of treachery, unless it is shown, and it is not herein shown, that the appellant deliberately used the gun to insure the commission of the crime and to render the unarmed victim defenseless. As discussed above, the encounter between the appellant and the Andresses was a chance encounter and the appellants gun was in the glove compartment of his car even before he left his house. The shooting was clearly a spur of the moment or impulsive decision made by the appellant preceded by a heated altercation at the instance of the private complainant. Jurisprudence teaches us that under the circumstances, treachery is not obtaining. In the case of People vs. Valles,[44] the accused, a security guard, fired his Armalite and mortally wounded the victim when the latter approached the accused four times insisting on entering the workplace wearing improper uniform, then cursed and insulted and challenged the accused to a fight. We held that the shooting was not attended by treachery as the shooting was preceded by a heated altercation at the instance of the victim. It is to be noted that the kind of weapon used against an unarmed victim was not taken into consideration in determining the attendance of treachery; it is the mode of attack employed by the accused under the particular circumstances of a case that determines its attendance in the commission of a crime. We find that the prosecution has not discharged its burden to show that

the shooting was attended by treachery and we are convinced that the crime committed for the death of Feliber Andres is homicide. As regards the injuries sustained by the two children we find that the crime committed are two counts of slight physical injuries. The intent to kill determines whether the crime committed is physical injuries or homicide and such intent is made manifest by the acts of the accused which are undoubtedly intended to kill the victim.[45] In a case wherein the accused did not know that a person was hiding behind a table who was hit by a stray bullet causing superficial injuries requiring treatment for three days, the crime committed is slight physical injuries.[46] In case of doubt as to the homicidal intent of the accused, he should be convicted of the lesser offense of physical injuries.[47] We have earlier pointed out that the intent to kill is absent in this case. It was also found that one small metallic fragment was extracted from Kenneth below his left eye while another fragment was extracted from Kevin immediately below the level of his skin before the cheek bone.[48] An examination of the testimonies of the attending physicians, showed that the wounds sustained by the two children from the metallic fragments are not in themselves fatal but may cause death if left untreated. One of the attending physician testified in court that the fragments themselves will not cause complication, it is the entry of the fragment or the open wound that is susceptible to infection.[49] Two small fragments were no longer extracted from the face of Kevin Valdez, as the doctor deemed it to be without danger of complication.[50] We note that the various sizes of the metallic fragments were not established, at least to give an indication of the severity of the wounds sustained. Both children were discharged after six days of treatment and there is no showing that they required subsequent treatment or that they were immobilized for a greater number of days by reason of the injuries sustained. Considering the nature and location of their injuries and the number of days required for their treatment, we find that the crime committed for the injuries sustained by the children are two counts of slight physical injuries under Art. 266 of the Revised Penal Code which imposes a penalty of arresto menor or imprisonment for 1 to 30 days for injuries sustained that has incapacitated the victim for one to nine days or required medical attendance for the same period. For evident lack of criminal intent to kill the complainant, Noel Andres, as above stated, the information for attempted homicide must fail. The mitigating circumstances of voluntary surrender, passion and obfuscation, incomplete defense of a relative and lack of intent to commit so grave a wrong, pleaded by the defense, were not convincingly proved and none can be considered in the imposition of penalties. The testimony of prosecution witness contradicts the appellants pretense of voluntary surrender. Witness Ramos testified that the appellant drove away towards the gate of the memorial park while he was questioning him after the shooting and had not Noel Andres and onlookers blocked his path the appellant could have fled the scene of the crime.[51] The mitigating circumstance of passion and obfuscation is also not obtaining. For this mitigating circumstance to be considered, it must be shown that (1) an unlawful act sufficient to produce passion and obfuscation was committed by the intended victim; (2) that the crime was committed within a reasonable length of time from the commission of the unlawful act that produced the obfuscation in the accuseds mind; and that (3) the passion and obfuscation arose from lawful sentiments and not from a spirit of lawlessness or revenge.[52] Noel Andres act of shouting at the appellants son, who was then a nurse and of legal age, is not sufficient to produce passion and obfuscation as it is claimed by the accused. Besides, the appellants son, Dino was shouting back at Noel Andres. It was not a case wherein the appellants son appeared

helpless and oppressed that the appellant lost his reason and shot at the FX of Noel Andres. The same holds true for the appellants claim of provocation on the part of Noel Andres. Provocation must be sufficient to excite a person to commit the wrong committed and that the provocation must be commensurate to the crime committed. The sufficiency of provocation varies according to the circumstances of the case.[53] The aggressive behavior of Noel Andres towards the appellant and his son may be demeaning or humiliating but it is not sufficient provocation to shoot at the complainants vehicle. The plea for the appreciation of the mitigating circumstance of incomplete defense of a relative is also unmeritorious since the act of Andres in cursing and shouting at the appellant and his son do not amount to an unlawful aggression against them, Dino Gonzalez. Finally, the plea for the appreciation of the mitigating circumstance of lack of intent to commit so grave a wrong is likewise devoid of merit. This mitigating circumstance is obtaining when there is a notable disparity between the means employed by the accused to commit a wrong and the resulting crime committed. The intention of the accused at the time of the commission of the crime is manifested from the weapon used, the mode of attack employed and the injury sustained by the victim.[54] The appellants use of a gun, although not deliberately sought nor employed in the shooting, should have reasonably placed the appellant on guard of the possible consequences of his act. The use of a gun is sufficient to produce the resulting crimes committed. For the death of Feliber Andres, and in the absence of any mitigating circumstance, the appellant is hereby sentenced to an indeterminate sentence of 8 years and 1 day of prision mayor, in its medium period, as minimum to 14 years 8 months and 1 day of reclusion temporal in its medium period, as maximum. For each count of the slight physical injuries committed against Kenneth Andres and Kevin Valdez, the appellant is hereby sentenced to 20 days of arresto menor in its medium period. The rules on the imposition of penalties for complex crimes under Art. 48 of the Revised Penal Code are not applicable in this case. Art. 48 applies if a single act constitutes two or more grave and less grave felonies or when an offense is a necessary means of committing another; in such a case, the penalty for the most serious offense shall be imposed in its maximum period. Art. 9 of the Revised Penal Code in relation to Art. 25 defines grave felonies as those to which the law attaches the capital punishment or afflictive penalties from reclusion perpetua to prision mayor; less grave felonies are those to which the law attaches a penalty which in its maximum period falls under correctional penalties; and light felonies are those punishable by arresto menor or fine not exceeding two hundred pesos. Considering that the offenses committed by the act of the appellant of firing a single shot are one count of homicide, a grave felony, and two counts of slight physical injuries, a light felony, the rules on the imposition of penalties for complex crimes, which requires two or more grave and/or less grave felonies, will not apply. The pecuniary award granted by the trial court for actual damages was duly established by the testimonies of the prosecution witnesses as supported by the original receipts for hospitalization and other medical expenses presented in evidence by the prosecution. The award for loss of earning capacity is likewise sustained for the reason that while Feliber Andres was pregnant and was unemployed at the time of death, it is not disputed that she was a registered nurse and had earning capacity. Noel Andres also testified that he and his wife had plans to go back to Saudi Arabia to work after Feliber had given birth to their second baby. While there is no evidence as to Felibers actual income at the time of her death, in view of her temporary

separation from work because of her pregnancy, we do not consider it reversible error for the trial court to peg her earning capacity to that of the salary of a government nurse under the salary standardization law, as a fair estimate or reasonable assessment of her earning capacity at the time of her death. It would be grossly inequitous to deny her spouse and her minor children damages for the support that they would have received, considering clear evidence on record that she did have earning capacity at the time of her death. The awards for moral damages for the death of Feliber Andres and for the injuries sustained by the two children, which under the circumstances are reasonable, are likewise sustained. WHEREFORE, the decision of the trial court is hereby MODIFIED. The appellant is hereby found guilty of homicide for the death of Feliber Andres and is sentenced to an indeterminate sentence of 8 years and 1 day of prision mayor in its medium period, as minimum, to 14 years 8 months and 1 day of reclusion temporal in its medium period, as maximum. For each count of the slight physical injuries committed against Kenneth Andres and Kevin Valdez, the appellant is hereby sentenced to 20 days of arresto menor. The pecuniary awards granted by the trial court are hereby sustained. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Vitug, Mendoza, Quisumbing, Buena, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur. Pardo, J., see dissenting opinion. Puno, Kapunan, and Panganiban, JJ., joins the dissenting opinion of J. Pardo.

G.R. No. L-12629

December 9, 1959

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. ALFREDO ARAQUEL, defendant-appellee. Acting Solicitor General Guillermo E. Torres and Solicitor Camilo D. Quiason for appellant. Francisco Villanueva for appellee.

GUTIERREZ DAVID, J.: This is an appeal by the Government from an order of the Court of First Instance of Ilocos Sur, dismissing the information for homicide filed against the accused Alfredo Araquel on the ground of double jeopardy. The record shows that on January 30, 1955, the acting chief of police of Narvacan, Ilocos Sur, filed with the justice of the peace court of that municipality a complaint for homicide against Alfredo Araquel accusing him of having hacked and killed Alberto Pagadian with a bolo. More than a year and a half later, or on July 3, 1956, while said complaint, for reason nor stated, was still pending in the justice of the peace court, the chief of police of Narvacan moved for the amendment thereof, alleging that upon reinvestigation of the facts he found that the crime committed by the accused was not homicide as charged in the original complaint but that of homicide under exceptional circumstances as provided for in article 247 of the Revised Penal Code. Finding the motion to be well taken, the justice of the peace court, on July 16, allowed the filing of the amended complaint which charged the accused with "the crime of HOMICIDE UNDER EXCEPTIONAL CIRCUMSTANCES defined and punished under Article 247 of the revised Penal Code." That same day, the accused was arraigned under the amended complaint. And as he entered a plea of "guilty", the justice of the peace court, also on that same day, sentenced him to suffer the penalty of destierro for a period of one year to any place not within the radius of at least 25 kilometers from the municipal building of Narvacan, Ilocos Sur. During the service of the sentence by the accused, the acting Provincial Fiscal of Ilocos Sur was informed of the case through the Department of Justice to which the private prosecutor had lodged a complaint. And after conducting an investigation, the said acting provincial fiscal on February 16, 1957, filed with Court of First Instance of the province an information against the accused Alfredo Araquel charging him with homicide as defined and penalized under Article 249 of the Revised Penal Code for the killing Alberto Pagadian. On July 9, 1957, the accused moved to quash the information on the ground of double jeopardy, invoking the previous charge against him for homicide under exceptional circumstances and the subsequent sentence passed upon him by the justice of the Peace Court of Narvacan, Ilocos Sur. The fiscal opposed the motion, but the trial court, in this order of July 18, 1957, sustained the plea of double jeopardy and dismissed the information. Hence, this appeal. The plea of jeopardy made by the accused was, to our minds, erroneously sustained by the lower court. In order that a defendant may legally be placed in jeopardy, one of the necessary and indispensable conditions is that he should have been tried before a court of competent jurisdiction. (Sec. 9 Rule 113, Rules of Court.) The court below, in upholding the plea of double jeopardy, held that the Justice

of the Peace Court of Narvacan, Ilocos Sur, had jurisdiction to take cognizance of the complaint for "homicide under exceptional circumstances defined and punished under Article 247 of the Revised Penal Code," on the theory that "the act defined" in that article "is a felony" which is penalized with destierro and, consequently, falls under the jurisdiction of the inferior court, following the ruling laid down in the case of Uy Chin Hua vs. Dinglasan, et al., (86 Phil., 617; 47 Off. Gaz. No. 12, Supp., p. 233) There can of course be no question that, under the rule enunciated in the case of Uy Chin Hua vs. Dinglasan et al., supra, offenses penalized with destierro fall under the jurisdiction of the justice of the peace and municipal courts. (See also De los Angeles vs. People, 103 Phil., 295.) That rule, however, cannot be made to apply to the present case, for it is apparent that Article 247 of the Revised Penal Code does not define a crime distinct and separate from homicide, parricide, or murder, as the case may be, depending, in so far as those crimes are concerned, upon the relationship of the victim to the killer and the manner by which the killing is committed. The article in question reads: ART. 247. Death or physical injuries under exceptional circumstances. Any legally married person who, having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injuries, shall suffer the penalty of destierro. If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment. These rule shall be applicable, under the same circumstances, to parents with respect to their daughters under eighteen years of age, and their seducers, while the daughters are living with their parents. Any person who shall promote or facilitate the prostitution of his wife or daughter, or shall otherwise have consented to the infidelity of the other spouse, shall not be entitled to the benefts of this article. This article is found under Section One of Chapter One, Title Eight of Book Two of the Revised Penal Code. Title Eight refers to Crimes against Persons, Chapter One is entitled Destruction to Life and Section One thereof treats of the crimes of parricide, murder and homicide. As may readily be seen from its provision and its place in the Code, the above-quoted article, far from defining a felony, merely, provides or grants a privilege or benefit--amounting practically to an exemption from an adequate punishment to a legally marries person or parent who shall surprise his spouse or daughter in the act of committing sexual intercourse with another, and kill any or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury. Thus, in case of death or serious physical injuries, considering the enormous provocation and his righteous indignation, the accused who would otherwise be criminally liable for the crime of homicide, parricide, murder, or serious physical injury, as the case may be is punished only withdestierro. This penalty is mere banishment and, as held in a case, is intended more for the protection of the accused than a punishment. (People vs. Coricor, 79 Phil., 672.)And where physical injuries other than serious are inflicted, the offender is exempted from punishment circumstances mentioned therein, amount to an exempting circumstances, for even where death or serious physical injuries is inflicted, the penalty is so greatly lowered as to result to no punishment at all. A different interpretation, i. e., that it defines and penalizes a distinct crime, would make the exceptional circumstances which practically exempt the accused from criminal liability integral elements of the offense, and thereby compel the prosecuting officer to plead, and, incidentally, admit them, in the

information. Such and interpretation would be illogical if not absurd, since a mitigating and much less an exempting circumstance cannot be an integral element of the crime charged. Only "acts or omissions . . . constituting the offense" should be pleaded in a complaint or information, and a circumstance which mitigates criminal liability or exempts the accused therefrom, not being an essential element of the offense charged but a matter of defense that must be proved to the satisfaction of the court need not be pleaded.(Sec. 5, Rule 106, Rules of Court; U.S.vs. Campo, 23 Phil., 368.) That the article in question defines no crime is made more manifest when we consider that its counterpart in the old Penal Code (Article 423) was found under the General Provision (Chapter VIII) of Title VIII covering crimes against persons. There can, we think, hardly be any dispute that as part of the general provisions, it could not have possibly provided for a distinct and separate crime. We also note that under Republic Act No. 296, the jurisdiction of the justice of the peace and municipal courts, as enlarged, extends only to "assaults where the intent to kill is not charged or evident at the trial."(Section 87 [c]). Afortiori, where the intent to kill is evident as in cases of homicide under the exceptional circumstances provided in Article 247 of the Revised Penal Code the case must necessarily fall beyond the jurisdiction of the inferior courts. An absurb situation would, indeed, be created if the justice of the peace courts could exercise jurisdiction over a case involving an acting killing, when they lack jurisdiction to try even a case of slight physical injury where the intent to kill was evident. Such could not have been the intendment of the law. It may not be amiss to state here that the killing under exceptional circumstances under both the old (Art. 423)and Revised Penal Code (Art. 247) had invariably been tried before the Courts of First Instance under an information charging the accused with either homicide, parricide, or murder. (See U.S. vs. Vargas, et al., 2 Phil., 194; U.S. vs.Melchor, 2 Phil., 588; U.S. vs. Posoc, et al., 10 Phil., 711; U.S. vs. Alano, 32 Phil., 381; U.S. vs. Verzola, 33 Phil., 285; People vs. Zamora de Cortez, 59 Phil., 568; People vs. Gonzales, 69 Phil., 66; People vs. Dumon, 72 Phil., 41; People vs. Coricor, 79 Phil., 672; People vs. Sabilul, 89 Phil., 283; 49 Off. Gaz., 2743.) In all the above-cited cases, the accused merely invoked the privilege or benefit granted in Article 247 of the Revised Penal Code or Article 423 of the old Penal Code. We, therefore, conclude that Article 247 of the Revised Penal Code does not define and provide for a specific crime, but grants a privilege or benefit to the accused for the killing of another or the infliction of serious physical injuries under the circumstances therein mentioned. Consequently, a complaint or information charging homicide under the exceptional circumstances provided in Article 247 must fall under the jurisdiction of the Courts of First Instance, the offense charged being actually that of homicide. The fact that the exceptional circumstances are also pleaded as was done in the amended complaint filed with the Justice of the Peace Court of Narvacan would not affect the nature of the crime charged. For they are not integral elements of the crime charged but are matters which the accused has to prove in order to warrant the application of the benefit granted by the law. As unnecessary and immaterial averments to the crime charged, they may be stricken out as surplusage and still leave the offense fully described. Conformably to the above finding, we hold that defendant was not tried by a court of competent jurisdiction when he was arraigned before the Justice of the Peace Court of Narvacan upon the amended complaint for "homicide under exceptional circumstances" filed against him by the chief of police of the municipality, and consequently, has not legally been placed in jeopardy in the present case. Wherefore, the order appealed from is set aside and the case remanded to the court a quo for further proceedings. No special pronouncement as to costs.

Bengzon, Labrador and Endencia, JJ., concur. Bautista Angelo and Barrera, JJ., concur in the result.

Separate Opinions

PARAS, C.J., concurring: I concur in the result for the same reasons set forth in my concurring opinion in the case of Uy Chin Hua, vs. Hon. Judge Rafael Dinglasan, supra, promulgated June 30, 1950, which reads as follows: In the scale of penalties provided in Article 71 of the Revised Penal Code, as amended by Commonwealth Act No. 217, the two penalties successively lower than arresto mayor is destierro and arresto menor. Under article 25, destierro is classified as a correctional penalty and, under article 27, its duration is from 6 months and 1 day to 6 years. Upon the other hand, the duration of arresto mayor, classified also as a correctional penalty (Article 25), is from 1 month and 1 day to 6 months (Article 27). There can be no question that, pursuant to the Judiciary Act of 1948 (Republic Act No. 296), the consummated offense of corruption of public officials, penalized with arresto mayor in its medium and maximum periods, or from 2 months and 1 day to 6 months, comes within the original jurisdiction of the justice of the peace or municipal court. Under article 51, the penalty for an attempt to commit the offense of corruption of public officials is two degrees lower than arresto mayor in its medium and maximum periods. Said penalty if scale in article 71 of the Revised Penal Code, as amended by Commonwealth Act No. 217, is to be followed to the letter isdestierro in its minimum and medium periods, or from 6 months and 1 day to 4 years and 2 months, with the result that an attempt would fall, pursuant also to the judiciary Act of 1948, under the original jurisdiction of the Court of First Instance. This is the theory of counsel for respondent Judge. According to this theory, an attempted offense is penalized with a greater penalty than the consummated offense and is to be tried by a higher court than that which will try the consummated offense. This absurd result would not have been contemplated by the lawmakers in amending article 71 of the Revised Penal Code and should accordingly be avoided. An attempt to commit a felony is certainly lower than the consummated felony, and this the reason why article 51 of the Revised Penal Code specially provides that a penalty lower by two degrees than that prescribed by law for the consummated felony shall be imposed upon the principals in an attempt to commit said felony. If this fundamental provision is, as it should be, given effect, the penalty for the attempted offense of corruption of public officials, which is a penalty lower by two degrees than arresto mayor in its medium and maximum periods (from 2 months and 1 day to 6 months), is arresto menor in its minimum and medium periods (from 1 day to 30 days). The penalty for said attempted offense should not be taken fromdestierro, because the duration of this penalty is from 6 months and 1 day to 6 years, and is therefore equal to and co-extensive in duration with prision correccional, a penalty

higher than arresto mayor in the scale provided by article 71 of the Revised Penal Code, as amended by Commonwealth Act No. 217. Althoughdestierro may not be an "Imprisonment", it is nonetheless a "deprivation of liberty" (People vs. Abilong, 82 Phil., 172; 46 off. Gaz., 1012). It is noteworthy that before article 71 was amended by Commonwealth Act No. 217, the scale of penalties from which a lower or higher penalty was taken, was that provided by article 70, under which the penalty lower than arresto mayor was arresto menor. Destierro was not included. The obvious reason is thatdestierro is an exceptional penalty, prescribed as a principal penalty only in two cases (articles 247 and 334) and as an additional penalty only in one case (article 284). The exceptional character of destierro is recognized in the fact that although it is classified as a correctional in parity with prision correccional, it is placed in the scale fixed in article 70 of the Revised Penal Code, as amended by Commonwealth Act No. 217, below arresto menor, as regard severity and for purposes of successive service of sentence; and in the scale provided in article 71, as amended by Commonwealth Act No. 217, it is placed below arresto mayor. But, as hereto fore stated, if the scale in article 71 is followed literally, we shall have the unthinkable and absurd situation that the consummated offense of corruption of public official is penalized with arresto mayor in its medium and maximum periods (from 2 months and 1 day to 6 months) originally triable in the justice of the peace or municipal court, whereas the lower offense of attempted corruption of Public officials is penalized with destierro in its minimum and medium period (from 6 months and 1 day to 4 years and 2 months) and originally triable in the Court of First Instance. To avoid this absurdity, I am constrained to hold that the penalty of destierro is to be considered only when it is specifically imposed and is to be disregarded in the scale provided in article 71. It is true that in the case of People vs. Ng Pek, 81 Phil., 562; 46 Off. Gaz., 360, decided on October 2, 1948, we held that the penalty lower by two degrees than arresto mayor in its medium and maximum periods isdestierro in its minimum and medium periods; but in said case the point decided in the case at bar was not actually raised and passed upon. Upon the otherhand, in the case of Rivera vs. Geronimo, 43 Off. Gaz., 841, decided on July 22, 1946, we ruled that the penalty lower by two degrees than prision correccional in its minimum and medium periods is arresto mayor in its minimum period, the penalty of destierro having been disregarded." MONTEMAYOR, J., dissenting: The facts in this case are correctly stated in the majority opinion, the pertinent portion of which I am reproducing below for purposes of ready reference: This is an appeal by the Government from an order of the Court of First Instance of Ilocos Sur, dismissing the information for homicide filed against the accused Alfredo Araquel on the ground of double jeopardy. The record shows that on January 30, 1955, the acting chief of police of Narvacan, Ilocos Sur, filed with the justice of the peace court of that municipality a complaint for homicide against Alfredo Araquel accusing him of having hacked and killed Alberto Pagadian with a bolo. More than a year and a half later, or on July 3, 1956, while said complaint, for reasons not stated, was Narvacan moved for the amendment thereof, alleging that upon reinvestigation of the facts he found that the crime committed by the accused was not homicide as charged in the original complaint but that of homicide under exceptional circumstances as provided for in article 247 of the Revised Penal Code. Finding the motion

to be well taken, the justice of the peace court, on July 16, allowed the filing of the amended complaint which charged the accused with "the crime of HOMICIDE UNDER EXCEPTIONAL CIRCUMSTANCES defined and punished under Article 247 of the Revised Penal Code." That same day, the accused was arraigned under the amended complaint. And as he entered a plea of `guilty', the justice of the peace court, also on that same day, sentenced him to not within the radius of at least 25 kilometers from the municipal building of Narvacan, Ilocos Sur. During the service of the sentence by the accused, the acting Provincial Fiscal of Ilocos Sur was informed of the case through the Department of Justice to which the private prosecutor had lodged a complaint. And after conducting an investigation, the said acting provincial fiscal, on February 16, 1957, filed with the Court of First Instance of the province an information against the accused Alfredo Araquel charging him with homicide as defined and penalized under Article 249 of the Revised Penal Code for the killing of Alberto Pagadian. On July 9, 1957, the accused moved to quash the information on the ground of double jeopardy, invoking the previous charge against him for homicide under exceptional circumstances and the subsequent sentence passed upon him by the Justice of the Peace Court of Narvacan, Ilocos Sur. The fiscal opposed the motion, but the trial court, in its order of July 18, 1957, sustained the plea of double jeopardy and dismissed the information. Hence this appeal. I just want to add that the reasons given by the Chief of Police in moving for the amendment of the original complaint for homicide were: 1. That upon a careful reinvestigation of the facts and evidence in the above-entitled case, the undersigned found from all the declarations on record as well as the declarations of Rodolfo Cachola (Annex A); Emilia Rabanal (Annex B) and Laureana Torqueza (Annex C) that the crime committed by the accused is not Homicide as charged in the original complaint but that of Homicide under exceptional circumstances defined and punished under Art. 247 of the Revised Penal Code; 2. That in the face of the testimony of the witnesses available, the undersigned believes that since the cannot possibly have evidence to sustain the prosecution of the accused under the original complaint, the interest of justice require that the complaint be amended to conform with the known facts and evidence available. (Annex "B") It may be of interest to know that the original complaint for homicide was filed only by the Acting Chief of Police, whereas the amended complaint was filed by the regular incumbent Chief of Police. The majority opinion readily admits that offenses penalized with penalized with destierro fall under the jurisdiction of the Justice of the Peace and Municipal Courts, under the doctrine laid down in the case of Uy Chin Hua vs. Dinglasan (47 Off. Gaz., No. 12, Supp. December 1951; p. 233), and more recently, in the case of De los Angelesvs. People 103 Phil., 295 thereby making it unnecessary in this dissent to prove and establish that rule. However, in spite of said admission that the Justice of the Peace Court has jurisdiction over offenses penalized withdestierro, in the present case, it holds that the Justice of the Peace Court of Narvacan, Ilocos Sur, had no jurisdiction over the case, although according to the facts, the killing should be penalized with destierro. The reason given is that "Article 247 does not define a crime distinct and separate from homicide, parracide or murder . . ." and that "far from defining a felony, merely provides or grants a privilege or benefit amounting practically to an exemption from an adequate punishment. . . . The majority contends that the case should have been tried in the Court of First Instance as a case of ordinary homicide, and that if the

defendant proved the special circumstances defined in Article 247, the said court could and should impose the penalty of destierro, I regret to disagree. Article 247 reads thus: ART. 247. Death or physical injuries inflicted under exceptional circumstances. Any legal married person who, having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury shall suffer the penalty of destierro. If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment. These rules shall be applicable, under the same circumstances, to parents with respect to their daughters, under eighteen years of age and their seducers, while the daughters are living with their parents. Any person who shall promote or facilitate the prostitution of his wife or daughter, or shall otherwise have consented to the infidelity of other spouse shall not be entitled to the benefits of the article. To me, the killing under Article 247 of the Revised Penal Code is a special crime, namely, that of a person who kills under certain circumstances. It has some similarity to the killing on the occasion of a robbery or in a tumultuous affray, in which case, the prosecuting attorney should state clearly the facts and circumstances under which a man is killed. So is the crime of rape when committed on the occasion of the robbery. It should be described by the prosecution not an isolated crime against chastity, but a crime committed on the occasion of robbery, thereby making it a special offense. I cannot agree that Article 247 of the Revised Penal Code, according to the majority opinion, "merely provides or grants a privilege or benefit amounting practically to an exemption from an adequate punishment". If that were so, then its provision have no right or business to be under Title VIII (Crimes Against Persons), and Chapter 1 thereof (Destruction of Life), found almost at the end of the Revised Penal Code, but should have been placed under Chapter 2 of the Title I, entitled, "Justifying Circumstances and Circumstances which Exempt from Criminal Liability," found at the beginning of the same Code. Under Article 11 of said Chapter 2, Title I, we find that the following persons do not incur any criminal liability: anyone who acts in defense of the person or right of his spouse, ascendants or decendants, etc., and even of strangers, under certain circumstances. Following the theory of the majority opinion, the provisions of Article 247 of the Revised Penal Code should have been placed under or added to said cases, in the following manner: Any legally married person who in defense of his honor and the sanctity of his home or family should kill his spouse or the person caught by him in sexual intercourse with said spouse, or both of them. However, that has not been done, and as already stated, Article 247 is placed under Title VIII, entitled, "Crimes Against Persons," and found between Articles 246 (parricide) and 248 (murder), and Article 249 (homicide) Again, the majority says that Article 247 does not defines a felony. Does it not? I hold that it does. It is a separate article of the Penal Code, different and distinct from , say, Article 246 (parricide) or 248 (murder)or Article 249 (homicide), although are all under the same Title VIII, Chapter 1 and Section 1 of the Code. What better proof that it defines a felony is there than that Article 247 has its own title "Death or Physical Injuries Inflicted under Exceptional Circumstances"; it indicates and mentions the person included in and liable under its provisions; it specifies the circumstances under which the death is caused by him, and declares the penalty imposable on him? To me, the definition of the crime is complete does Article 248 (murder) which punishes a person who kills another who is not

his father, mother, child, spouse, etc., under any of the following circumstances, such as, treachery, promise of reward, evident premeditation, etc. In my opinion, Article 247 is considered and classified as a special crime, and what is more, the corresponding penalty is attached to it. Consequently, person may be charged with its violation. Article 247 is quite similar to Article 251 entitled, "Death Caused in a Tumultuous Affray," which reads as follows: ART. 251. Death caused in a tumultuous affray. When, while several persons, not composing groups organized for the common purpose of assauling and attacking each other reciprocally, quarrel and assault each other in a confused and tumultuous manner, and in the course of the affray someone is killed, and it cannot be ascertained who actually killed the deceased, but the person or person who inflicted serious physical injuries can be identified, such person or person shall be punished by prision mayor. If it cannot be determined who inflicted the serious physical injuries on the deceased, the penalty of prision correccional in its medium and minimum periods shall be imposed upon all those who shall have used violence upon the person of the victim. This article, like Article 247, also falls under Title VIII(Crimes Against Persons), Chapter 1 (Destruction of Life),and the same Section 1. Will the majority contend and claims, as it does as regards Article 247, that Article 251 does not define a felony but merely extends a mitigating circumstance and imposes a lesser penalty, and that consequently one involved in our falling under its provisions (Death Caused in a Tumultuous Affray) should be charged with homicide under 249, and that it is up him to invoke and prove the circumstances mentioned in Article 251, even when the prosecution already knows those circumstances to have attended or surrounded the death of the deceased? If the prosecution from its investigation is convinced that the accused comes under the provisions of said Article 251, in that he inflicted serious physical injuries on the person killed, it should charge him with causing "death in a tumultuous affray". It should not charge him with, say homicide and let or rather compel him to prove the facts already known to the prosecution, namely that he was among several persons, not composing groups organized for the common purpose of assaulting or attacking each other, but that he was engaged in a quarrel in a confused and tumultuous manner, and that all he did was to inflict serious physical injuries on the deceased. For the prosecution to suppress facts known to it, which facts are favorable to the accused, and file a charge of, say, homicide, and compel the defendant to prove those facts would not be playing fair and square. That would involve mental dishonesty. The duty of the Government is not to prosecute and convict one of a crime higher and more serious than that actually committed, but rather to charge the accused with what he had actually committed and the circumstances surrounding said commission, this, to serve the interest of justice. Otherwise, the Government would be undertaking and promoting persecution instead of prosecution. If in a case, the Fiscal, after his investigation, is convinced that the accused abducted a woman with her consent, he should file a charge for abduction with her consent, under Article 343 of the Revised Penal Code (Abduction with Consent), penalized with prision correccional in its minimum and medium period and not with forcible abduction, punished with reclusion temporal, and leave it to the defendant to prove consent of the girl. Again, if an accused is found to have had sexual intercourse with a girl and the Fiscal from his investigation knows that the girl consented to said intercourse because of deceit, promise of marriage, etc., then he should charge said accused with simple seduction under Article 338, penalized only with arresto mayor and not with rape under Article 35, Revised Penal Code, punished with reclusion temporal, and leave it to said accused to prove what the Fiscal already knew that sexual intercourse was not committed with force or intimidation, but

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rather with the consent of the girl. There should be sincerity and candor in the actuations of a prosecuting attorney. In the present case, the Chief of Police of Narvacan where the crime was committed, who being a resident of the place, was in a better position to know the real facts of the case, after his investigation, found as a matter of fact that the accused killed the deceased when he found him in actual sexual intercourse with his (defendant's) wife. This must have been known to the Fiscal who also must have known that the defendant had already been charged with causing death under exceptional circumstances under Article 247 of the Revised Penal Code, found guilty under said article, and had served sentence; and yet, the prosecution in this case filed a charge of homicide, omitting or suppressing the facts and circumstances surrounding the killing. To me, that was wrong, unjust, and unfair. I hold that Article 247 clearly defines a crime and attaches to it the corresponding penalty. It is complete in definition and in the fixing of punishment, like parricide, murder and homicide, which like them, is included in the same Title VIII, Chapter 1, and Section 1 of the Revised Penal Code. It is not a mere exemption or mitigating circumstances which are included in a distinct and separate portion of the Revised Penal Code, namely, Title 1, Chapter 2 and Chapter 3. Continuing with its theory that the provisions of Article 247 only mention an exempting circumstances, the majority opinion says that it is a matter of defense on the part of the accused which he to prove, and that to consider said article as defining and penalizing a distinct crime, then the prosecuting officer would be obliged to plead and admit the said circumstance in his information, which would be illogical if not absurd, since a mitigating or exempting circumstance cannot be an integral element to the crime charged. In my opinion, therein lies the flaw in the majority's theory, all because its premise is incorrect. The reason why justifying circumstances are a matter of defense is because they involved several elements which need proof. For instance, in the matter of selfdefense, the accused must prove that there was unlawful aggression, that the means employed by him to prevent or repel it were reasonable and necessary, and that there was lack of sufficient provocation on his part. All these are matters only known to the accused himself and which he must establish to the satisfaction of the court in order to be exempted from criminal liability. However, where the accused is a married man and he surprises his wife and the deceased in the act of sexual intercourse and he kills anyone of them or both of them, there is nothing complicated and difficult of proof these circumstances and when the prosecuting official knows it, as he did in this case, there is nothing illogical, much less absurd, in his sincerely, ingenuously and candidly including them in his complaint, so as to fall under the provisions of article 247, all in the interest of justice. And knowing that the penalty attached to it is only destierro, he should file it in the justice of the Peace Court or Municipal Court, as did the Chief of Police in this case. Why should the person accused of killing under article 247 be compelled to submit to a mere preliminary investigation by the Justice of the Peace Court and later be sent up to the Court of First Instance, with all the attendant expense and trouble and instances under which killed the deceased, because the very Chief of Police and the Fiscal and the witnesses for the prosecution admit to know it? We should make the administration of justice as simple, speedy and inexpensive as possible, and fair to the accused. Here, Chief of Police who presumably acted in all sincerity and according to his conscience, filed an amended complaint according to the facts found by him. The Justice of the Peace knowing that the penalty attached to the criminal act committed under said circumstances was penalized with destierro, which according to the majority opinion itself fell under his jurisdiction, took cognizance thereof and after court proceedings, rendered judgment. The accused served the sentence for according to the appealed order of the trial court in this case, at the time said decision was rendered, defendant's service of sentence had been completed. But the tragedy and the misfortune that visited the unfortunate accused evidently had not ended, because now here comes the Government itself, who invoking a supposed technicality as to jurisdiction, seeks to disregard and sweep away all the court proceedings so far held, and again indicts and, in my opinion, harasses the said unfortunate defendant with another prosecution, and all for what? To try him for

the same offense, this time in the Court of First Instance, and if found guilty, which of course, the defendant himself admits that he committed the act, to impose the same penalty of destierro and for the accused to serve it all over again. I do not believe that is justice. But one might claim that there could have been fraud, collusion or connivance in the filing of the amended complaint in the Justice of the Peace Court, the arraignment of the accused on said amended complaint and his sentence thereon. However, the record of the case fails to show any such fraud, connivance or collusion. On this point, the trial court in its order of dismissal, has this to say: There being no showing that the first conviction in the Justice of the Peace Court was procured, through fraud, connivance or collusion of the accused, it would not seem pertinent, to discuss the contention of the Fiscal that the rule of the double jeopardy could not apply if the first conviction was secured under those circumstances. Furthermore, the judgment of the Justice of the Peace Court in the original case, reproduced in the order of dismissal of the trial court, in part reads thus: A motion to amend complaint was filed by the Chief of Police of Narvacan, Ilocos Sur, attaching thereto annexes "A", "B" and "C", together with the Amended Complaint.
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The motion was set hearing on July 9, 1956 on which date Atty. Constante R. Ayson appeared as private prosecutor in collaboration with the chief of Police. Atty. Francisco D. Villanueva appeared as a defense counsel. The counsels agreed to postpone the consideration of the motion filed by the Chief of Police for July 16, 1956 at which time the private prosecutor manifested to the Court that he will file his objections to the motion to amend the complaint filed by the Chief of Police. On July 16, 1956 when the case was heard the private prosecutor did not appear and the Chief of Police filed a motion to correct a clerical error committed in the complaint. (Emphasis supplied) It is, therefore, clear that considering that there was a private prosecutor representing the offended party in the first case; that although said private prosecutor at first manifested his intention to file an objection to the motion to amend the complaint, nevertheless, when hearing on said amendment of the complaint was held, said private prosecutor did not appear, showing that he no longer objected to the amendment, or that he acquiesced in said amendment, it is safe to say that there has been no collusion, connivance or fraud in the case. The unfortunate defendant here has more than sufficiently suffered, what with the proven infidelity of his wife, the attack upon his honor, the wrecking of his home, his subjection to a criminal prosecution and the service of the penalty imposed upon him. In my opinion, the ends of justice have been more than served. I agree with the trial court in dismissing the second complaint filed by the Chief of Police on the ground of double jeopardy. For the foregoing reasons, I dissent.

G.R. Nos. 119660-61

February 13, 2009

PAT. EDGARDO HERRERA y BALTORIBIO and PAT. REDENTOR MARIANO y ANTONIO, Petitioners, vs. HONORABLE SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, Respondents. 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 guilty6 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, Barrera7 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-89-2498 (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 Statements of Pat Barrera, petitioner Mariano, Pat. Alcalde, and petitioner Herrera (Exhibits "4," "4a," "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 selfdefense. 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 about 3:00 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. to 6:00 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 M16 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 11-a). 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 Sandiganbayan26 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 co-principals 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 co-principals 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 perpetua in 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; 3. THE RESPONDENT SANDIGANBAYAN ERRED IN NOT FINDING AND CONCLUDING THAT THE TESTIMONY OF ALLEGED EYEWITNESS WINTERHALTER WAS WANTING IN CREDIBILITY; 4. 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; 5. THE RESPONDENT SANDIGANBAYAN ERRED IN NOT FINDING AND CONCLUDING THAT THERE WAS TOTAL ABSENCE OF EVIDENCE TO SUPPORT CONSPIRACY; 6. 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

7. 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. 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 delicto for 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 perpetuawith 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. ADOLFO S. AZCUNA Associate Justice WE CONCUR: REYNATO S. PUNO Chief Justice Chairperson ANTONIO T. CARPIO Associate Justice RENATO C. CORONA Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S. PUNO Chief Justice