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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

L-43530 August 3, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. AURELIO LAMAHANG, defendant-appellant. Honesto K. Bausa for appellant. Office of the Solicitor-General Hilado for appellee. RECTO, J.: The defendant Aurelio Lamahang is before this court on appeal from a decision of the Court of First Instance of Iloilo, finding him guilty of attempted robbery and sentencing him to suffer two years and four months of prision correccional and to an additional penalty of ten years and one day of prision mayor for being an habitual delinquent, with the accessory penalties of the law, and to pay the costs of the proceeding. At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his beat on Delgado and C.R. Fuentes streets of the City of Iloilo, caught the accused in the act of making an opening with an iron bar on the wall of a store of cheap goods located on the last named street. At that time the owner of the store, Tan Yu, was sleeping inside with another Chinaman. The accused had only succeeded in breaking one board and in unfastening another from the wall, when the policeman showed up, who instantly arrested him and placed him under custody. The fact above stated was considered and declared unanimously by the provincial fiscal of Iloilo, the trial judge and the Solicitor-General, as constituting attempted robbery, which we think is erroneous. It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which has a logical relation to a particular, concrete offense; that, which is the beginning of the execution of the offense by overt acts of the perpetrator, leading directly to its realization and consummation. The attempt to commit an indeterminate offense, inasmuch as its nature in relation to its objective is ambiguous, is not a juridical fact from the standpoint of the Penal Code. There is no doubt that in the case at bar it was the intention of the accused to enter Tan Yu's store by means of violence, passing through the opening which he had started to make on the wall, in order to commit an offense which, due to the timely arrival of policeman Tomambing, did not develop beyond the first steps of its execution. But it is not sufficient, for the purpose of imposing penal sanction, that an act objectively performed constitute a mere beginning of execution; it is necessary to establish its unavoidable connection, like the logical and natural relation of the cause and its effect, with the deed which, upon its consummation, will develop into one of the offenses defined and punished by the Code; it is necessary to prove that said beginning of execution, if carried to its complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. Thus, in case of robbery, in order that the simple act of entering by means of force or violence another person's dwelling may be considered an attempt to commit this offense, it must be shown that the offender clearly intended to take possession, for the purpose of gain, of some personal property belonging to another. In the instant case, there is nothing in the record from which such purpose of the accused may reasonably

be inferred. From the fact established and stated in the decision, that the accused on the day in question was making an opening by means of an iron bar on the wall of Tan Yu's store, it may only be inferred as a logical conclusion that his evident intention was to enter by means of force said store against the will of its owner. That his final objective, once he succeeded in entering the store, was to rob, to cause physical injury to the inmates, or to commit any other offense, there is nothing in the record to justify a concrete finding.
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It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the material damage is wanting, the nature of the action intended (accion fin) cannot exactly be ascertained, but the same must be inferred from the nature of the acts executed (accion medio). Hence, the necessity that these acts be such that by their very nature, by the facts to which they are related, by the circumstances of the persons performing the same, and by the things connected therewith, they must show without any doubt, that they are aimed at the consummation of a crime. Acts susceptible of double interpretation , that is, in favor as well as against the culprit, and which show an innocent as well as a punishable act, must not and can not furnish grounds by themselves for attempted nor frustrated crimes. The relation existing between the facts submitted for appreciation and the offense which said facts are supposed to produce must be direct; the intention must be ascertained from the facts and therefore it is necessary, in order to avoid regrettable instances of injustice, that the mind be able to directly infer from them the intention of the perpetrator to cause a particular injury. This must have been the intention of the legislator in requiring that in order for an attempt to exist, the offender must commence the commission of the felony directly by overt acts, that is to say, that the acts performed must be such that, without the intent to commit an offense, they would be meaningless. Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts leading to the commission of the offense, are not punished except when they are aimed directly to its execution, and therefore they must have an immediate and necessary relation to the offense." Considering says the Supreme Court of Spain in its decision of March 21, 1892 that in order to declare that such and such overt acts constitute an attempted offense it is necessary that their objective be known and established, or that said acts be of such nature that they themselves should obviously disclose the criminal objective necessarily intended, said objective and finality to serve as ground for the designation of the offense: . . . . In view of the foregoing, we are of the opinion, and so hold that the fact under consideration does not constitute attempted robbery but attempted trespass to dwelling (People vs. Tayag and Morales, 59 Phil., 606, and decisions of the Supreme Court of Spain therein cited). Under article 280 of the Revised Penal Code, this offense is committed when a private person shall enter the dwelling of another against the latter's will. The accused may be convicted and sentenced for an attempt to commit this offense in accordance with the evidence and the following allegation contained in the information: "... the accused armed with an iron bar forced the wall of said store by breaking a board and unfastening another for the purpose of entering said store ... and that the accused did not succeed in entering the store due to the presence of the policeman on beat Jose Tomambing, who upon hearing the noise produced by the breaking of the wall, promptly approached the accused ... ." Under the circumstances of this case the prohibition of the owner or inmate is presumed. (U.S. vs. Ostrea, 2 Phil., 93; U.S. vs. Silvano, 31 Phil., 509' U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina, 21 Phil., 615; U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil., 292.) Against the accused must be taken into consideration the aggravating circumstances of nighttime and former convictions, inasmuch as the record shows that several final judgments for robbery and theft have been rendered against him and in his favor, the mitigating circumstance of lack of instruction. The breaking of the wall should not be taken into consideration as an aggravating circumstance

inasmuch as this is the very fact which in this case constitutes the offense of attempted trespass to dwelling. The penalty provided by the Revised Penal Code for the consummated offense of trespass to dwelling, if committed with force, is prision correccional in its medium and maximum periods and a fine not exceeding P1,000 (art. 280, par. 2); therefore the penalty corresponding to attempted trespass to dwelling is to degrees lower (art. 51), or, arresto mayor in its minimum and medium periods. Because of the presence of two aggravating circumstances and one mitigating circumstance the penalty must be imposed in its maximum period. Pursuant to article 29 of the same Code, the accused is not entitled to credit for one-half of his preventive imprisonment. Wherefore, the sentence appealed from is revoked and the accused is hereby held guilty of attempted trespass to dwelling, committed by means of force, with the aforesaid aggravating and mitigating circumstances and sentenced to three months and one day of arresto mayor, with the accessory penalties thereof and to pay the costs. Avancea, C.J., Abad Santos, Hull, and Vickers, JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 129433 March 30, 2000

PEOPLE OF THE PHILIPPINES, plaintiff, vs. PRIMO CAMPUHAN Y BELLO accused. BELLOSILLO, J.: On 3 April 1990 this Court in People v. Orita 1 finally did away with frustrated rape 2 and allowed only attempted rape and consummated rape to remain in our statute books. The instant case lurks at the threshold of another emasculation of the stages of execution of rape by considering almost every attempt at sexual violation of a woman as consummated rape, that is, if the contrary view were to be adopted. The danger there is that that concept may send the wrong signal to every roaming lothario, whenever the opportunity bares itself, to better intrude with climactic gusto, sans any restraint, since after all any attempted fornication would be considered consummated rape and punished as such. A mere strafing of the citadel of passion would then be considered a deadly fait accompli, which is absurd. In Orita we held that rape was consummated from the moment the offender had carnal knowledge of the victim since by it he attained his objective. All the elements of the offense were already present and nothing more was left for the offender to do, having performed all the acts necessary to produce the crime and accomplish it. We ruled then that perfect penetration was not essential; any penetration of the female organ by the male organ, however slight, was sufficient. The Court further held that entry of the labia or lips of the female organ, even without rupture of the hymen or laceration of the vagina, was sufficient to warrant conviction for consummated rape. We distinguished consummated rape from attempted rape where there was no penetration of the female organ because not all acts of execution were performed as the offender merely commenced the commission of a felony directly by overt acts. 3 The inference that may be derived therefrom is that

complete or full penetration of the vagina is not required for rape to be consummated. Any penetration, in whatever degree, is enough to raise the crime to its consummated stage. But the Court in Orita clarified the concept of penetration in rape by requiring entry into the labia or lips of the female organ, even if there be no rupture of the hymen or laceration of the vagina, to warrant a conviction for consummated rape. While the entry of the penis into the lips of the female organ was considered synonymous with mere touching of the external genitalia, e.g., labia majora, labia minora, etc.,4 the crucial doctrinal bottom line is that touching must be inextricably viewed in light of, in relation to, or as an essential part of, the process of penile penetration, and not just mere touching in the ordinary sense. In other words, the touching must be tacked to the penetration itself. The importance of the requirement of penetration, however slight, cannot be gainsaid because where entry into the labia or the lips of the female genitalia has not been established, the crime committed amounts merely to attempted rape. Verily, this should be the indicium of the Court in determining whether rape has been committed either in its attempted or in its consummated stage; otherwise, no substantial distinction would exist between the two, despite the fact that penalty-wise, this distinction, threadbare as it may seem, irrevocably spells the difference between life and death for the accused a reclusive life that is not even perpetua but only temporal on one hand, and the ultimate extermination of life on the other. And, arguing on another level, if the case at bar cannot be deemed attempted but consummated rape, what then would constitute attempted rape? Must our field of choice be thus limited only to consummated rape and acts of lasciviousness since attempted rape would no longer be possible in light of the view of those who disagree with this ponencia? On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and sentenced by the court a quo to the extreme penalty of death, 5 hence this case before us on automatic review under Art. 335 of the Revised Penal Code as amended by RA 7659. 6 As may be culled from the evidence on record, on 25 April 1996, at around 4 o'clock in the afternoon, Ma. Corazon P. Pamintuan, mother of four (4)-year old Crysthel Pamintuan, went down from the second floor of their house to prepare Milo chocolate drinks for her two (2) children. At the ground floor she met Primo Campuhan who was then busy filling small plastic bags with water to be frozen into ice in the freezer located at the second floor. Primo was a helper of Conrado Plata Jr., brother of Corazon. As Corazon was busy preparing the drinks, she heard one of her daughters cry, "Ayo'ko, ayo'ko!" 7 prompting Corazon to rush upstairs. Thereupon, she saw Primo Campuhan inside her children's room kneeling before Crysthel whose pajamas or "jogging pants" and panty were already removed, while his short pants were down to his knees. According to Corazon, Primo was forcing his penis into Crysthel's vagina. Horrified, she cursed the accused, "P - t - ng ina mo, anak ko iyan!" and boxed him several times. He evaded her blows and pulled up his pants. He pushed Corazon aside when she tried to block his path. Corazon then ran out and shouted for help thus prompting her brother, a cousin and an uncle who were living within their compound, to chase the accused. 8 Seconds later, Primo was apprehended by those who answered Corazon's call for help. They held the accused at the back of their compound until they were advised by their neighbors to call the barangay officials instead of detaining him for his misdeed. Physical examination of the victim yielded negative results. No evident sign of extra-genital physical injury was noted by the medico-legal officer on Crysthel's body as her hymen was intact and its orifice was only 0.5 cm. in diameter. Primo Campuhan had only himself for a witness in his defense. He maintained his innocence and assailed the charge as a mere scheme of Crysthel's mother who allegedly harbored ill will against him for his refusal to run an errand for her. 9 He asserted that in truth Crysthel was in a playing mood

and wanted to ride on his back when she suddenly pulled him down causing both of them to fall down on the floor. It was in this fallen position that Corazon chanced upon them and became hysterical. Corazon slapped him and accused him of raping her child. He got mad but restrained himself from hitting back when he realized she was a woman. Corazon called for help from her brothers to stop him as he ran down from the second floor. Vicente, Corazon's brother, timely responded to her call for help and accosted Primo. Vicente punched him and threatened to kill him. Upon hearing the threat, Primo immediately ran towards the house of Conrado Plata but Vicente followed him there. Primo pleaded for a chance to explain as he reasoned out that the accusation was not true. But Vicente kicked him instead. When Primo saw Vicente holding a piece of lead pipe, Primo raised his hands and turned his back to avoid the blow. At this moment, the relatives and neighbors of Vicente prevailed upon him to take Primo to the barangay hall instead, and not to maul or possibly kill him. Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997 found him guilty of statutory rape, sentenced him to the extreme penalty of death, and ordered him to pay his victim P50,000.00 for moral damages, P25,000.00 for exemplary damages, and the costs. The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan. He argues that her narration should not be given any weight or credence since it was punctured with implausible statements and improbabilities so inconsistent with human nature and experience. He claims that it was truly inconceivable for him to commit the rape considering that Crysthel's younger sister was also in the room playing while Corazon was just downstairs preparing Milo drinks for her daughters. Their presence alone as possible eyewitnesses and the fact that the episode happened within the family compound where a call for assistance could easily be heard and responded to, would have been enough to deter him from committing the crime. Besides, the door of the room was wide open for anybody to see what could be taking place inside. Primo insists that it was almost inconceivable that Corazon could give such a vivid description of the alleged sexual contact when from where she stood she could not have possibly seen the alleged touching of the sexual organs of the accused and his victim. He asserts that the absence of any external signs of physical injuries or of penetration of Crysthel's private parts more than bolsters his innocence. In convicting the accused, the trial court relied quite heavily on the testimony of Corazon that she saw Primo with his short pants down to his knees kneeling before Crysthel whose pajamas and panty were supposedly "already removed" and that Primo was "forcing his penis into Crysthel's vagina." The gravamen of the offense of statutory rape is carnal knowledge of a woman below twelve (12), as provided in Art. 335, par. (3), of the Revised Penal Code. Crysthel was only four (4) years old when sexually molested, thus raising the penalty, from reclusion perpetua to death, to the single indivisible penalty of death under RA 7659, Sec. 11, the offended party being below seven (7) years old. We have said often enough that in concluding that carnal knowledge took place, full penetration of the vaginal orifice is not an essential ingredient, nor is the rupture of the hymen necessary; the mere touching of the external genitalia by the penis capable of consummating the sexual act is sufficient to constitute carnal knowledge. 10 But the act of touching should be understood here as inherently part of the entry of the penis into the labias of the female organ and not mere touching alone of the mons pubis or the pudendum. In People v. De la Pea 11 we clarified that the decisions finding a case for rape even if the attacker's penis merely touched the external portions of the female genitalia were made in the context of the presence or existence of an erect penis capable of full penetration. Where the accused failed to achieve an erection, had a limp or flaccid penis, or an oversized penis which could not fit into the victim's vagina, the Court nonetheless held that rape was consummated on the basis of the victim's testimony that the accused repeatedly tried, but in vain, to insert his penis into her vagina and in all

likelihood reached the labia of her pudendum as the victim felt his organ on the lips of her vulva, 12 or that the penis of the accused touched the middle part of her vagina. 13 Thus, touching when applied to rape cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer of the victim's vagina, or the mons pubis, as in this case. There must be sufficient and convincing proof that the penis indeed touched the labias or slid into the female organ, and not merely stroked the external surface thereof, for an accused to be convicted of consummated rape. 14 As the labias, which are required to be "touched" by the penis, are by their natural situs or location beneath the mons pubis or the vaginal surface, to touch them with the penis is to attain some degree of penetration beneath the surface, hence, the conclusion that touching the labia majora or the labia minora of the pudendum constitutes consummated rape. The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area,e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is instantly visible within the surface. The next layer is the labia majora or the outer lips of the female organ composed of the outer convex surface and the inner surface. The skin of the outer convex surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which does not have any hair but has many sebaceous glands. Directly beneath the labia majora is the labia minora. 15 Jurisprudence dictates that the labia majora must be entered for rape to be consummated, 16 and not merely for the penis to stroke the surface of the female organ. Thus, a grazing of the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there can be no consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness. Judicial depiction of consummated rape has not been confined to the oft-quoted "touching of the female organ," 17but has also progressed into being described as "the introduction of the male organ into the labia of the pudendum," 18 or "the bombardment of the drawbridge." 19 But, to our mild, the case at bar merely constitutes a "shelling of the castle of orgasmic potency," or as earlier stated, a "strafing of the citadel of passion. A review of the records clearly discloses that the prosecution utterly failed to discharge its onus of proving that Primo's penis was able to penetrate Crysthel's vagina however slight. Even if we grant arguendo that Corazon witnessed Primo in the act of sexually molesting her daughter, we seriously doubt the veracity of her claim that she saw the inter-genital contact between Primo and Crysthel. When asked what she saw upon entering her children's room Corazon plunged into saying that she saw Primo poking his penis on the vagina of Crysthel without explaining her relative position to them as to enable her to see clearly and sufficiently, in automotive lingo, the contact point. It should be recalled that when Corazon chanced upon Primo and Crysthel, the former was allegedly in a kneeling position, which Corazon described thus: Q: How was Primo holding your daughter? A: (The witness is demonstrating in such a way that the chest of the accused is pinning down the victim, while his right hand is holding his penis and his left hand is spreading the legs of the victim). It can reasonably be drawn from the foregoing narration that Primo's kneeling position rendered an unbridled observation impossible. Not even a vantage point from the side of the accused and the victim would have provided Corazon an unobstructed view of Primo's penis supposedly reaching Crysthel's external genitalia, i.e., labia majora, labia minora, hymen, clitoris, etc., since the legs and arms of Primo would have hidden his movements from Corazon's sight, not to discount the fact that

Primo's right hand was allegedly holding his penis thereby blocking it from Corazon's view. It is the burden of the prosecution to establish how Corazon could have seen the sexual contact and to shove her account into the permissive sphere of credibility. It is not enough that she claims that she saw what was done to her daughter. It is required that her claim be properly demonstrated to inspire belief. The prosecution failed in this respect, thus we cannot conclude without any taint of serious doubt that inter-genital contact was at all achieved. To hold otherwise would be to resolve the doubt in favor of the prosecution but to run roughshod over the constitutional right of the accused to be presumed innocent. Corazon insists that Primo did not restrain himself from pursuing his wicked intention despite her timely appearance, thus giving her the opportunity to fully witness his beastly act. We are not persuaded. It is inconsistent with man's instinct of self-preservation to remain where he is and persist in satisfying his lust even when he knows fully well that his dastardly acts have already been discovered or witnessed by no less than the mother of his victim. For, the normal behavior or reaction of Primo upon learning of Corazon's presence would have been to pull his pants up to avoid being caught literally with his pants down. The interval, although relatively short, provided more than enough opportunity for Primo not only to desist from but even to conceal his evil design. What appears to be the basis of the conviction of the accused was Crysthel's answer to the question of the court Q: Did the penis of Primo touch your organ? A: Yes, sir. But when asked further whether his penis penetrated her organ, she readily said, "No." Thus Q: But did his penis penetrate your organ? A: No, sir. 20 This testimony alone should dissipate the mist of confusion that enshrouds the question of whether rape in this case was consummated. It has foreclosed the possibility of Primo's penis penetrating her vagina, however slight. Crysthel made a categorical statement denying penetration, 27 obviously induced by a question propounded to her who could not have been aware of the finer distinctions between touching and penetration. Consequently, it is improper and unfair to attach to this reply of a four (4)-year old child, whose vocabulary is yet as underdeveloped as her sex and whose language is bereft of worldly sophistication, an adult interpretation that because the penis of the accused touched her organ there was sexual entry. Nor can it be deduced that in trying to penetrate the victim's organ the penis of the accused touched the middle portion of her vagina and entered the labia of her pudendum as the prosecution failed to establish sufficiently that Primo made efforts to penetrate Crysthel. 22Corazon did not say, nay, not even hint that Primo's penis was erect or that he responded with an erection. 23 On the contrary, Corazon even narrated that Primo had to hold his penis with his right hand, thus showing that he had yet to attain an erection to be able to penetrate his victim. Antithetically, the possibility of Primo's penis having breached Crysthel's vagina is belied by the child's own assertion that she resisted Primo's advances by putting her legs close together; 24 consequently, she did not feel any intense pain but just felt "not happy" about what Primo did to her. 25 Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases where penetration was not fully established, the Court had anchored its conclusion that rape nevertheless

was consummated on the victim's testimony that she felt pain, or the medico-legal finding of discoloration in the inner lips of the vagina, or the labia minora was already gaping with redness, or the hymenal tags were no longer visible. 26 None was shown in this case. Although a child's testimony must be received with due consideration on account of her tender age, the Court endeavors at the same time to harness only what in her story appears to be true, acutely aware of the equally guaranteed rights of the accused. Thus, we have to conclude that even on the basis of the testimony of Crysthel alone the accused cannot be held liable for consummated rape; worse, be sentenced to death.
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Lastly, it is pertinent to mention the medico legal officer's finding in this case that there were no external signs of physical injuries on complaining witness' body to conclude from a medical perspective that penetration had taken place. As Dr. Aurea P. Villena explained, although the absence of complete penetration of the hymen does not negate the possibility of contact, she clarified that there was no medical basis to hold that there was sexual contact between the accused and the victim. 27 In cases of rape where there is a positive testimony and a medical certificate, both should in all respects complement each other; otherwise, to rely on the testimonial evidence alone, in utter disregard of the manifest variance in the medical certificate, would be productive of unwarranted or even mischievous results. It is necessary to carefully ascertain whether the penis of the accused in reality entered the labial threshold of the female organ to accurately conclude that rape was consummated. Failing in this, the thin line that separates attempted rape from consummated rape will significantly disappear. Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the offender commences the commission of rape directly by overt acts, and does not perform all the acts of execution which should produce the crime of rape by reason of some cause or accident other than his own spontaneous desistance. All the elements of attempted rape and only of attempted rape are present in the instant case, hence, the accused should be punished only for it. The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death for the offense charged, which is statutory rape of a minor below seven (7) years. Two (2) degrees lower is reclusion temporal, the range of which is twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, and in the absence of any mitigating or aggravating circumstance, the maximum of the penalty to be imposed upon the accused shall be taken from the medium period of reclusion temporal, the range of which is fourteen (14) years, eight (8) months and (1) day to seventeen (17) years and four (4) months, while the minimum shall be taken from the penalty next lower in degree, which is prision mayor, the range of which is from six (6) years and one (1) day to twelve (12) years, in any of its periods. WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY" CAMPUHAN Y BELLO guilty of statutory rape and sentencing him to death and to pay damages is MODIFIED. He is instead found guilty of ATTEMPTED RAPE and sentenced to an indeterminate prison term of eight (8) years four (4) months and ten (10) days of prision mayor medium as minimum, to fourteen (14) years ten (10) months and twenty (20) days ofreclusion temporal medium as maximum. Costs de oficio. SO ORDERED.
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Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur. Pnganiban, J., in the result.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 181492 December 16, 2008

THE PEOPLE OF THE PHILIPPINES, appellee, vs. SAMUEL OBMIRANIS y ORETA, appellant. DECISION TINGA, J.: This is an appeal filed by Samuel Obmiranis y Oreta (appellant) who was charged with violation of Section 5 in relation to Section 26 of Republic Act (R.A.) No. 9165.1 He was allegedly caught in a buy-bust operation by elements of the Manila Western Police District (MWPD) while offering to sell methylamphetamine hydrochloride, a dangerous drug locally known as shabu. The criminal information filed with the Regional Trial Court (RTC) of Manila, Branch 22 accused him as follows: That on or about May 18, 2004, in the City of Manila, Philippines, the said accused, not having been authorized by law to sell, trade, deliver or give away to another any dangerous drug, did then and there willfully, unlawfully and knowingly attempt to sell or offer for sale one (1) transparent plastic sachet containing TWO POINT EIGHT ZERO ZERO (2.800) grams of white crystalline substance known as "SHABU" containing methylamphetamine hydrochloride, a dangerous drug. Contrary to law.3 At the pre-trial, both the prosecution and the defense stipulated on the qualification of Forensic Chemist Elisa Reyes and, thus, both parties dispensed with her testimony. The prosecution further admitted that the forensic chemist who analyzed the seized the confiscated substance-which yielded positive for methylamphetamine hydrochloride content-did not have personal knowledge of the ultimate source of the drug.4 Appellant was brought to trial after having entered a negative plea.5 The prosecution then proceeded to prove the charge against him through the lone testimony of police officer Jerry Velasco (Velasco). Velasco was the alleged leader of the raiding team that apprehended appellant on 18 May 2004 at the corner of G.Tuazon and Jhocson Streets in Sampaloc, Manila.6 The narrative woven by Velasco established the following facts: On 17 May 2004, Police Superintendent Marcelino Pedrozo (Pedrozo) of the MWPD organized a buy-bust team on the information of a confidential informant that the latter was able to place an order for half a "bulto" of shabu with appellant. Velasco was designated as the team leader and the poseur-buyer, with Police Officers Wilfredo Cinco, Edgardo Palabay, Roberto Benitez and one7confidential informant as members.8 Pedrozo gave the team a marked 500-peso bill to be used as buy-bust money which was placed on top of a deck of boodle money. The team informed the Philippine Drug Enforcement Agency (PDEA) of the impending operation,9 entered the same in the blotter10 and proceeded to Bambang in G.Tuazon Street just before 12 a.m. of 18 May 2004-the appointed time and date that

the confidential informant and appellant had agreed to meet. The informant joined Velasco in his car, and they awaited the arrival of appellant at the corner of G.Tuazon and Jhocson Streets.11 At around 12:30 a.m., appellant on board a car arrived at the scene and seeing the informant he approached the latter. The informant introduced Velasco to appellant and said that Velasco would like to buy one-half "bulto" of shabu. Velasco negotiated with appellant to lower the price but the latter refused. Velasco then insisted that he must first see the merchandise. Appellant went back to his car, took the item and brought it to Velasco. Velasco readily recognized the item as a plastic sachet containing a white crystalline substance. When appellant asked for payment, he seemed to have recognized Velasco's co-officer because he uttered the words, "May pulis yata." At that point, he was arrested just as he was trying to get back to his car.12 According to Velasco, he was the one who effected the arrest but it was Cinco who seized the plastic sachet from appellant. He further stated that immediately after the arrest, he and his team brought the seized item to the police headquarters and there, in his presence, Cinco marked the same with the initials "SOO." At the trial, he identified the plastic sachet as that seized from appellant as well as the marking made by Cinco on it. Furthermore, he admitted on cross-examination that there was no evidence custodian designated and that he could not remember if the seized item had been inventoried and photographed in the presence of the accused; that Cinco put the item in his pocket after the same was recovered and did not mark it on the spot and that the markings made on the buy-bust money had not been entered in the blotter.13 The chemistry report issued at the instance of Pedrozo and signed by Forensic Chemical Officer Maritess Mariano of the PNP Crime Laboratory revealed that the specimen supposedly seized from appellant yielded positive of methylamphetamine hydrochloride content.14 Taking the stand, appellant boldly asserted that he was merely framed up by the buy-bust team, and strongly denied having transacted the alleged sale of shabu with Velasco and the confidential informant. He claimed that he was taken by Velasco and his team not on 18 May 2004 but rather on 17 May 2004 at 7:00 p.m. along Santa Teresita Street, Sampaloc, Manila;15 that he was there to see his girlfriend who was residing in that area; that when he was arrested by two men in civilian clothes, he was not committing any crime; that he asked them why they were arresting him but neither of them gave an answer and instead one of them grabbed him by his shoulder and ushered him inside a police car; that once inside the car, one of the men pulled out a gun with which he hit his neck, kicked him and uttered, "Makulit ka ha, yuko!"; that he asked them why they were doing that to him when in fact he merely told them to park their car properly on the street; that they cuffed his hands at the back and the driver, Velasco, asked if he could give them P200,000.00; that he answered he did not have that much money; that they drove the car around and told him that if he could not give them the money then he must just find for them someone who sells drugs in large-scale ("Magturo ka ng nagbebenta ng droga, iyong malakihan ha!"); that because he said he did not know anyone who was into selling drugs, he was taken to the U.N. Avenue police headquarters; that he was not detained at the headquarters but rather, he was brought to the second floor where the two arresting officers demanded P50,000.00 from him; that the demand was then reduced to P30,000.00 in exchange for the mitigation of his case.16 Olivia Ismael, another defense witness who introduced herself as a friend of appellant's girlfriend and who admitted having witnessed appellant's arrest, corroborated the material points of appellant's testimony.17 In its 23 February 2006 Decision, the RTC found appellant guilty beyond reasonable doubt of the offense charged. He was sentenced to suffer the penalty of life imprisonment, and to pay a P500,000.00 fine without subsidiary imprisonment as well as the costs.18 Appellant interposed an appeal with the Court of Appeals in which he reiterated that the prosecution was unable to establish his guilt beyond reasonable doubt in view of the failure to establish the chain

of custody of the illegal drugs and that it was likewise unable to establish the consummation of the alleged sale of drugs.19 For its part, the People, through the Office of the Solicitor General (OSG), posited that the fact that all the essential elements of a consummated sale of dangerous drug had not been completely shown was immaterial because the charge involved a mere attempt or offer to sell which had been duly established by the prosecution.20 It also maintained that the chain of custody of the seized shabu had been duly established because the requirements in taking custody of seized narcotics provided for in Dangerous Drugs Board Regulation No. 1, series of 200221 admit of liberal interpretation.22 In its 4 September 2007 Decision,23 the Court of Appeals affirmed in toto the trial court's decision. Appellant's Notice of Appeal24 was approved, and the records of the case were elevated to this Court. This Court's 24 March 2008 Resolution25 allowed the parties to file their supplemental briefs, but only appellant complied; the OSG manifested instead that there was no need for its part to file a supplemental brief as the merits of the case had already been extensively discussed in its brief before the appellate court.26 The appeal has to be granted. In criminal prosecutions, fundamental is the requirement that the elemental acts constituting the offense be established with moral certainty as this is the critical and only requisite to a finding of guilt. In prosecutions involving narcotics, the narcotic substance itself constitutes the corpus delicti of the offense and the fact of its existence is vital to sustain a judgment of conviction beyond reasonable doubt.27 It is therefore of prime importance that in these cases, the identity of the dangerous drug be likewise established beyond reasonable doubt.28 In other words, it must be established with unwavering exactitude that the dangerous drug presented in court as evidence against the accused is the same as that seized from him in the first place. The chain of custody requirement performs this function in that it ensures that unnecessary doubts concerning the identity of the evidence are removed.29 Board Regulation No. 1, series of 2002 defines chain of custody as "the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction." As a method of authenticating evidence, the chain of custody rule requires that the admission of the exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be.30 It would thus include testimony about every link in the chain, from the moment the item was seized to the time it is offered in court as evidence, such that every person who handled the same would admit how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. The same witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same.31 It is from the testimony of every witness who handled the evidence from which a reliable assurance can be derived that the evidence presented in court is one and the same as that seized from the accused. The prosecution evidence in the case at bar, however, does not suffice to afford such assurance. Of all the people who came into direct contact with the sachet of shabu purportedly seized from appellant, only Velasco was able to observe the uniqueness thereof in court. Cinco, who, according to Velasco, took initial custody of the plastic sachet at the time of arrest and who allegedly marked the same with the initials "SOO" at the police station, was not even presented in court to directly

observe the uniqueness of the specimen and, more importantly, to acknowledge the marking as his own. The same is true with respect to the laboratory personnel who could have but nevertheless failed to testify on the circumstances under which he received the specimen at the laboratory for analysis and testing, as well as on the conduct of the examination which was administered on the specimen and what he did with it at the time it was in his possession and custody. Aside from that, it was not reasonably explained why these same witnesses were not able to testify in court. While indeed the prosecution and the defense had stipulated on the qualification of the forensic chemist, dispensed with his testimony and admitted that said forensic chemist had no personal knowledge of the ultimate source of the drug submitted for examination, nevertheless, these stipulations and admission pertain only to a certain Elisa G. Reyes and not to Forensic Chemical Officer Maritess Mariano who, based on the chemistry report, was the one who examined the contents of the plastic sachet at the crime laboratory. In view of these loopholes in the evidence adduced against appellant, it can be reasonably concluded that the prosecution was unable to establish the identity of the dangerous drug and in effect failed to obliterate the hypothesis of appellant's guiltlessness. Be that as it may, although testimony about a perfect chain does not always have to be the standard because it is almost always impossible to obtain, an unbroken chain of custody indeed becomes indispensable and essential when the item of real evidence is a narcotic substance. A unique characteristic of narcotic substances such asshabu is that they are not distinctive and are not readily identifiable as in fact they are subject to scientific analysis to determine their composition and nature.32 And because they cannot be readily and properly distinguished visually from other substances of the same physical and/or chemical nature, they are susceptible to alteration, tampering, contamination,33 substitution and exchange-34 whether the alteration, tampering, contamination, substitution and exchange be inadvertent or otherwise not.35 It is by reason of this distinctive quality that the condition of the exhibit at the time of testing and trial is critical.36 Hence, in authenticating narcotic specimens, a standard more stringent than that applied to objects which are readily identifiable must be applied-a more exacting standard that entails a chain of custody of the item with sufficient completeness if only to render it improbable that the original item has either been exchanged with another or contaminated or tampered with.37 The Court certainly cannot reluctantly close its eyes to the possibility of substitution, alteration or contamination-whether intentional or unintentional-of narcotic substances at any of the links in the chain of custody thereof especially because practically such possibility is great where the item of real evidence is small and is similar in form to other substances to which people are familiar in their daily lives.38 Graham v. State39 in fact acknowledged this danger. In that case, a substance later shown to be heroin was excluded from the prosecution evidence because prior to examination, it was handled by two police officers who, however, did not testify in court on the condition and whereabouts of the exhibit at the time it was in their possession. The court in that case pointed out that the white powder seized could have been indeed heroin or it could have been sugar or baking powder. It thus declared that the state must be able to show by records or testimony the continuous whereabouts of the exhibit at least between the time it came into the possession of police officers until it was tested in the laboratory to determine its composition.40 Reasonable safeguards are provided for in our drugs laws to protect the identity and integrity of narcotic substances and dangerous drugs seized and/or recovered from drug offenders. Section 2141 of R.A. No. 9165 materially requires the apprehending team having initial custody and control of the drugs to, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice, and any elected public official who shall be required to sign the copies of the inventory and

be given a copy thereof. The same requirements are also found in Section 242 of its implementing rules43 as well as in Section 244 of the Dangerous Drugs Board Regulation No. 1, series of 2002.45 These guidelines, however, were not shown to have been complied with by the members of the buybust team, and nothing on record suggests that they had extended reasonable efforts to comply with the statutory requirements in handling the evidence. Velasco, the leader of the raiding team, himself admitted that as soon as appellant was arrested, Cinco had taken custody of the plastic sachet of shabu, placed it in his pocket and brought the same together with appellant to the police station. It was at the police station-and not at the place where the item was seized from appellant-where according to him (Velasco), Cinco had placed the initials "SOO" on the specimen. Velasco never even mentioned that the identifying mark on the specimen was placed in appellant's presence; he could not even remember whether or not the specimen had been properly inventoried and photographed at least in appellant's presence. Even more telling is the fact that, as elicited from Velasco himself during his cross-examination, no evidence custodian had been designated by the raiding team to safeguard the identity and integrity of the evidence supposedly seized from appellant.46 All these aforementioned flaws in the conduct of the post-seizure custody of the dangerous drug allegedly recovered from appellant, taken together with the failure of the key persons who handled the same to testify on the whereabouts of the exhibit before it was offered in evidence in court, militates against the prosecution's cause because it not only casts doubt on the identity of the corpus delicti but also tends to discredit, if not totally negate, the claim of regularity in the conduct of official police operation. What we can fairly assume is that the Court of Appeals had overlooked the significance of these glaring details in the records of the case as it placed blind reliance right away on the credibility of Velasco's testimony and on the presumption of regularity and thereby it failed to properly account for the missing substantial links in the chain of custody of the evidence. In the same vein the liberality, suggested by the OSG relative to post-seizure custody of narcotics under paragraph 1 Section 2 of Board Regulation No. 1, can hardly be given merit precisely because the proviso in that section of the regulation requires that the integrity and the evidentiary value of the evidence be properly preserved by the apprehending officer/team in order that non-compliance with the post-seizure custody requirements be excused on justifiable grounds.47 It needs no elucidation that the presumption of regularity in the performance of official duty must be seen in the context of an existing rule of law or statute authorizing the performance of an act or duty or prescribing a procedure in the performance thereof. The presumption, in other words, obtains only where nothing in the records is suggestive of the fact that the law enforcers involved deviated from the standard conduct of official duty as provided for in the law. Otherwise, where the official act in question is irregular on its face, an adverse presumption arises as a matter of course.48 There is indeed merit in the contention that where no ill motives to make false charges was successfully attributed to the members of the buy-bust team, the presumption prevails that said police operatives had regularly performed their duty, but the theory is correct only where there is no showing that the conduct of police duty was irregular. People v. Dulay49 and People v. Ganenas50 in fact both suggest that the presumption of regularity is disputed where there is deviation from the regular performance of duty. Suffice it to say at this point that the presumption of regularity in the conduct of police duty is merely just that-a mere presumption disputable by contrary proof and which when challenged by the evidence cannot be regarded as binding truth.51 It must be emphasized at this juncture that what can reasonably be presumed based on the records of this case is that Velasco is aware of his duties and responsibilities as an agent of the government in its anti-narcotics campaign. A member of the anti-narcotics division of the police since

1997,52 Velasco can be reasonably presumed to be adept in and mindful of the proper procedure in apprehending drug offenders, securing and taking custody of the evidence obtained in police operations such as this one and preserving the integrity of the evidence by protecting the chain of custody thereof.53 However, for reasons as obvious as intimated above, even this presumption is unworthy of credit. All told, in view of the deviation by the buy-bust team from the mandated conduct of taking postseizure custody of the dangerous drug in this case, there is no way to presume that the members thereof had performed their duties regularly. Even granting that we must blindly rely on the credibility of Velasco's testimony, still, the prosecution evidence would fall short of satisfying the quantum of evidence required to arrive at a finding of guilt beyond reasonable doubt inasmuch as the evidence chain failed to solidly connect appellant with the seized drug in a way that would establish that the specimen is one and the same as that seized in the first place and offered in court as evidence. The Court cannot indulge in the presumption of regularity of official duty if only to obliterate the obvious infirmity of the evidence advanced to support appellant's conviction. In Mallillin v. People,54 we categorically declared that the failure of the prosecution to offer in court the testimony of key witnesses for the basic purpose of establishing a sufficiently complete chain of custody of a specimen of shabu and the irregularity which characterized the handling of the evidence before the same was finally offered in court, materially conflict with every proposition as to the culpability of the accused. For the same plain but consequential reason, we will not hesitate to reverse the judgment of conviction in the present appeal. One final word. In no uncertain terms must it be stressed that basic and elementary is the presupposition that the burden of proving the guilt of an accused rests on the prosecution which must draw strength from its own evidence and not from the weakness of the defense. The rule, in a constitutional system like ours, is invariable regardless of the reputation of the accused because the law presumes his innocence until the contrary is shown. In dubio pro reo. When moral certainty as to culpability hangs in the balance, acquittal on reasonable doubt inevitably becomes a matter of right.55 WHEREFORE, the assailed Decision of the Court of Appeals in CA-G.R. CR.-H.C. No. 02158 affirming the judgment of conviction rendered by the Regional Trial Court of Manila, Branch 2, is REVERSED and SET ASIDE. Appellant Samuel Obmiranis y Oreta is ACQUITTED on reasonable doubt and is thus accordingly ordered released immediately from confinement, unless he is lawfully confined for another offense. The Director of the Bureau of Corrections is directed to implement this Decision and to report to this Court his action hereon within five (5) days from receipt hereof. SO ORDERED. DANTE O. TINGA Associate Justice

WE CONCUR: LEONARDO A. QUISUMBING Associate Justice Chairperson

CONCHITA CARPIO MORALES Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

ARTURO D. BRION Associate Justice

ATTESTATION I attest 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 Court's Division. LEONARDO A. QUISUMBING Associate Justice Chairperson, Second Division

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court's Division. REYNATO S. PUNO Chief Justice

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-6025 May 30, 1964

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AMADO V. HERNANDEZ, ET AL., accused, AMADO V. HERNANDEZ, ET AL., defendants-appellants. ----------------------------G.R. No. L-6026 May 30, 1964

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BAYANI ESPIRITU, ET AL., accused, BAYANI ESPIRITU and TEOPISTA VALERIO, defendants-appellants. LABRADOR, J.: This is the appeal prosecuted by the defendants from the judgment rendered by the Court of First Instance of Manila, Hon. Agustin P. Montesa, presiding, in its Criminal Case No. 15841, People vs. Amado V. Hernandez, et al., and Criminal Case No. 15479, People vs. Bayani Espiritu, et al. In Criminal Case No. 15841 (G.R. No. L-6026) the charge is for Rebellion with Multiple Murder, Arsons and Robberies; the appellants are Amado V. Hernandez, Juan J. Cruz, Genaro de la Cruz, Amado Racanday, Fermin Rodillas and Julian Lumanog; Aquilino Bunsol, Adriano Samson and Andres Baisa, Jr. were among those sentenced in the judgment appealed from, but they have withdrawn their appeal. In Criminal Case No. 15479 (G.R. No. L-6026) the charge is for rebellion with murders, arsons and kidnappings; the accused are Bayani Espiritu Teopista Valerio and Andres Balsa, Jr.; they all appealed but Andres Balsa, Jr. withdrew his appeal. The information filed against defendants Hernandez and others in Criminal Case No. 15481 alleged: I. That on or about March 15, 1945, and for some time before the said date and continuously thereafter, until the present time, in the City of Manila, Philippines, and the place which they had chosen as the nerve center of all their rebellious activities in the different parts of the Philippines, the said accused, conspiring, confederating and cooperating with each other, as well as with the thirty-one (31) defendants charged in Criminal Cases Nos. 19071, 14082, 14270, 14315 and 14344 of the Court of First Instance of Manila (decided May 11, 1951) and also with others whose whereabouts and identities are still unknown, the said accused and their other co-conspirators, being then high ranking officers and/or members of, or otherwise affiliated with the Communist Party of the Philippines (P.K.P.), which is now actively engaged in an armed rebellion against the Government of the Philippines thru act theretofore committed and planned to be further committed in Manila and other places in the Philippines, and of which party the "Hukbong Mapagpalaya Ng Bayan"(H.M.B.) otherwise or formerly known as the "Hukbalahaps" (Huks), unlawfully and did then and there willfully, unlawfully and feloniously help, support, promote, maintain, cause, direct and/or command the "Hukbong Mapagpalaya Ng Bayan" (H.M.B.) or the "Hukbalahaps" (Huks) to rise publicly and

take arms against the Republic of the Philippines, or otherwise participate in such armed public uprising, for the purpose of removing the territory of the Philippines from the allegiance to the government and laws thereof as in fact the said "Hukbong Mapagpalaya Ng Bayan" or "Hukbalahaps" have risen publicly and taken arms to attain the said purpose by then and there making armed raids, sorties and ambushes, attacks against police, constabulary and army detachments as well as innocent civilians, and as a necessary means to commit the crime of rebellion, in connection therewith and in furtherance thereof, have then and there committed acts of murder, pillage, looting, plunder, arson, and planned destruction of private and public property to create and spread chaos, disorder, terror, and fear so as to facilitate the accomplishment of the aforesaid purpose, as. follows, to wit: (Enumeration of thirteen attacks on government forces or civilians by Huks on May 6, 1946, August 6, 1946, April 10, 1947, May 9, 1947, August 19, 1947, June, 1946, April 28, 1949, August 25, 1950, August 26, 1950, August 25, 1950, September 12, 1950, March 28, 1950 and March 29, 1950.) II. That during the period of time and under the same circumstances herein-above indicated the said accused in the above-entitled case, conspiring among themselves and with several others as aforesaid, willfully, unlawfully and feloniously organized, established, led and/or maintained the Congress of Labor Organizations (CLO), formerly known as the Committee on Labor Organizations (CLO), with central offices in Manila and chapters and affiliated or associated labor unions and other "mass organizations" in different places in the Philippines, as an active agency, organ, and instrumentality of the Communist Party of the Philippines (P.K.P.) and as such agency, organ, and instrumentality, to fully cooperate in, and synchronize its activities as the CLO thus organized, established, led and/or maintained by the herein accused and their co-conspirators, has in fact fully cooperated in and synchronized its activities with the activities of the "Hukbong Mapagpalaya Ng Bayan" (H.M.B.) and other organs, agencies, and instrumentalities of the Communist Party of the Philippines (P.K.P.), to thereby assure, facilitate, and effect the complete and permanent success of the above-mentioned armed rebellion against the Government of the Philippines. The information filed against the defendants in Criminal Case No. 15479, Bayani Espiritu Andres Baisa, Jr. and Teopista Valerio, alleges: That on or about the 6th day of May, 1946, and for sometime prior and subsequent thereto and continuously up to the present time, in the City of Manila, the seat of the government of the Republic of the Philippines, which the herein accused have intended to overthrow, and the place chosen for that purpose as the nerve center of all their rebellious atrocities in the different parts of the country, the said accused being then high ranking officials and/or members of the Communist Party of the Philippines (P.K.P.) and/or of the "Hukbong Mapagpalaya Ng Bayan" (H.M.B.) otherwise or formerly known as the "Hukbalahaps" (HUKS), the latter being the armed forces of said Communist Party of the Philippines; having come to an agreement with the 29 of the 31 accused in Criminal Cases Nos. 14071, 14082, 14270, 14315, 14344 of the Court of First Instance of Manila and decided to commit the crime of rebellion, and therefore, conspiring and confederating with all of the 29 accused in said criminal cases, acting in accordance with their conspiracy and in furtherance thereof, together with many others whose whereabouts and identities are still unknown up to the filing of this information, and helping one another, did then and there willfully, unlawfully and feloniously promote maintain, cause, direct and/or command the "Hukbong Mapagpalaya Ng Bayan", (HMB) or the Hukbalahaps (HUKS) to rise publicly and take Arms against the Government or otherwise participate therein for the purpose of overthrowing the same, as in fact, the said "Hukbong Mapagpalaya Ng Bayan" or Hukbalahap (HUKS) have risen publicly and taken arms against the Government, by then and there making armed raids, sorties and ambushes, attacks against police, constabulary and army detachment, and as a necessary means to commit the crime of rebellion, in connection therewith and in furtherance thereof,

by then and there committing wanton acts of murder, spoilage, looting, arson, kidnappings, planned destruction of private and public buildings, to create and spread terrorism in order to facilitate the accomplishment of the aforesaid purpose, as follows to wit: (Enumeration of thirteen attacks on Government forces or civilians by Huks on May 6, 1946. August 6, 1946, April 10, 1947, May 9, 1947, August 19, 1947, June 1946, April 28, 1949, August 25, 1950, August 26, 1950, August 25, 1950, September 12, 1950, March 28, 1950 and March 29, 1950). A joint trial of both cases was held, after which the court rendered the decision subject of the present appeals. APPEAL OF AMADO V. HERNANDEZ After trial the Court of First Instance found, as against appellant Amado V. Hernandez, the following: (1) that he is a member of the Communist Party of the Philippines and as such had aliases, namely, Victor or Soliman; (2) that he was furnished copies of "Titis", a Communist publication, as well as other publications of the Party; (3) that he held the position of President of the Congress of Labor Organizations; (4) that he had close connections with the Secretariat of the Communist Party and held continuous communications with its leaders and its members; (5) that he furnished a mimeographing machine used by the Communist Party, as well as clothes and supplies for the military operations of the Huks; (6) that he had contacted well-known Communists coming to the Philippines and had gone abroad to the WFTU conference Brussels, Belgium as a delegate of the CLO, etc. Evidence was also received by the court that Hernandez made various speeches encouraging the people to join in the Huk movement in the provinces. The court also found that there was a close tie-up between the Communist Party and the Congress of Labor Organizations, of which Hernandez was the President, and that this Congress was organized by Hernandez in conjunction with other Huks, namely: Alfredo Saulo, Mariano Balgos, Guillermo Capadocia, etc. We will now consider the nature and character of both the testimonial as well as the documentary evidence, independently of each other, to find out if the said evidence supports the findings of the court. Testimonial Evidence Amado V. Hernandez took the oath as member of the Communist Party in the month of October, 1947, at the offices of the Congress of Labor Organizations at 2070 Azcarraga in the presence of Guillermo Capadocia, Ramon Espiritu, Pedro Castro, Andres Balsa, etc. As a Communist he was given the pseudonyms of Victor and Soliman, and received copies of the Communist paper "Titis". He made various speeches on the following dates and occasions: (1) On August 29, 1948 before the Democratic Peace Rally of the CLO at Plaza Miranda, in which he announced that the people will soon meet their dear comrade in the person of Comrade Luis Taruc. (2) On September 4, 1948 he conferred with Hindu Khomal Goufar at the Escolta, at which occasion Balgos told Goufar that the PKM, CLO and the Huks are in one effort that the PKM are the peasants in the field and the Huks are the armed forces of the Communist Party; and the CLO falls under the TUD of the Communist Party.
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(3) On October 2, 1948 he went abroad to attend the Second Annual Convention of the World Federation of Trade Unions and after arrival from abroad a dinner was given to him by the people of Gagalangin, at which Hernandez delivered a speech and he said that he preferred to go with the Huks because he felt safer with them than with the authorities of the Government. (4) In April, 1949, he made a speech before a group of tenants in Malabon attacking the frauds in the 1947 elections, graft and corruption in the elections and that if improvement cannot be made by the ballots, they could be made by bullets; and enjoined the people to go to the hills and join Luis Taruc the head of the dissidents in the Philippines. (5) On October 2, 1949 he delivered a speech on the occasion of the commemoration of the World Peace at the CLO headquarters at 330 P. Campa. He attacked the city mayor and incited the people to go to Balintawak and see Bonifacio there and thereafter join four comrades under the leadership of Luis Taruc. (6) On October 16, 1949 he delivered a speech before a convention of the unemployed at 330 P. Campa. He asked the unemployed to approve a resolution urging the Government to give them jobs. In conclusion he said that if the Government fails to give them jobs the only way out was to join the revolutionary forces fighting in the hills. He further said that Mao Tse Tung, leader of the People's Army in China, drove Chiang Kai Shek from his country, and that Luis Taruc was also being chased by Government forces run by puppets like Quirino, etc. (7) On January 13, 1950 there was another meeting at 330 P. Campa. In his talk Hernandez expressed regret that two foremost leaders of the CLO, Balgos and Capadocia, had gone to the field to join the liberation army of the HMB, justifying their going out and becoming heroes by fighting in the fields against Government forces until the ultimate goal is achieved. The above evidence was testified to by Florentino Diolata who was the official photographer of the CLO since August, 1948. On the tie-up between the Communist Party and the CLO Guillermo Calayag, a Communist and a Huk from 1942 to 1950, explained: (1) The ultimate goal of the Communist Party is to overthrow the president government by force of aims and violence; thru armed revolution and replace it with the so-called dictatorship of the proletariat the Communist Party carries its program of armed overthrow of the present government by organizing the HMB and other forms of organization's such as the CLO, PKM, union organizations, and the professional and intellectual group; the CLO was organized by the Trade Union Division TUD of the Communist Party. (2) A good majority of the members of the Executive Committee and the Central Committee of the CLO were also top ranking officials of the Communist Party; activities undertaken by the TUD - the vital undertaking of the TUD is to see that the directives coming from the organizational bureau of the Communist Party can be discussed within the CLO especially the Executive Committee. And it is a fact that since a good majority of the members of the Executive Committee are party members, there is no time, there is no single time that those directives and decisions of the organizational department, thru the TUD are being objected to by the Executive Committee of the CLO. These directives refer to how the CLO will conduct its functions. The executive committee is under the chairmanship of accused Amado V. Hernandez.

(3) The CLO played its role in the overall Communist program of armed overthrow of the present government and its replacement by the dictatorship of the proletariat by means of propaganda - by propagating the principles of Communism, by giving monetary aid, clothing, medicine and other forms of material help to the HMB. This role is manifested in the very constitution of the CLO itself which expounded the theory of classless society and the eradication of social classes (par. 5, Sec. 1, Art. 2, page 18 of the CLO Constitution contained in the Fourth Annual Convention Souvenir Program of the CLO Exh. "V-1579"). Thru propaganda, the CLO promoted the aims of Communist Party and disseminated Communist ideas by: (a) The conspicuous display of the portrait or, pictures of Crisanto Evangelista (Exh. V-1662), founder of Communism in the Philippines, in the session hall of the CLO headquarters at 2070 Azcarraga and then at 330 P. Campa; (b) The distribution of foreign communist reading materials such as the World Federation of Trade Union Magazine, International Union of Students magazine, Voice magazine of the marine cooks of the CLO, World Committee of the Defenders of the Peace magazine, Free Bulgaria magazine, Soviet Russia Today magazine and World Federation of Democratic Youth magazine (Exhs. V-911, V-907, V-910, V-899, V-912, V-853, W-996 and V-967); (c) The publication and distribution of some local subversive publications such as the "Titis", "Bisig", Kidlat", which are Communist Party organs; "The Philippine Labor Demands Justice" and "Hands Off Korea" authored by accused Amado V. Hernandez; (d) Principles of Communism were also propagated thru lectures, meetings, and by means of organization of committees in the educational department as well as researches in the Worker's Institute of the CLO. (4) The CLO also helped carry out the program of the Communist Party thru infiltration of party members and selected leaders of the HMB within the trade unions under the control of the CLO. The Communist Party thru the CLO assigned Communist Party leaders and organizers to different factories in order to organize unions. After the organization of the union, it will affiliate itself with the CLO thru the Communist leaders and the CLO in turn, will register said union with the Department of Labor; and the orientation and indoctrination of the workers is continued in the line of class struggle. After this orientation and infiltration of the Communist Party members and selected leaders of the HMB with the trade unions under the control of the CLO is already achieved and the group made strong enough to carry out its aims, they will begin the sporadic strikes and the liquidation of anti-labor elements and antiCommunist elements and will create a so-called revolutionary crisis. That revolutionary crisis will be done for the party to give directives to the HMB who are fighting in the countrysides and made them come to the city gates. The entry of the HMB is being paved by the simultaneous and sporadic strikes, by ultimate general strikes thru the management of the CLO. Important Documents Submitted at Trial 1. Documents which proved that Amado V. Hernandez used the aliases "Victor", or was referred to as "Victor" or "Soliman".

(a) Letter dated April 23, 1950 (signed) by Victor addressed to Julie telling the latter of his sympathies for other communists, describing his experiences with Communists abroad, telling Julie to dispose of materials that may be sent by Victor. (Exh. D-20012004) (b) "Paano Maisasagawa, etc." mentions different groups of labor unions of which Victor heads one group, consisting of the MRRCO, PTLD, PGWU, EMWU and IRWU (Exh. C-2001-2008) Cadres assigned to different industries. (Exh. V-40-41) (c) Handwritten certificate of Honofre Mangila states that he knew Amado Hernandez as Victor from co-party members Hugo and Ely. (Exh. LL) (d) Letter of Elias to Ka Eto requesting the latter to deliver attached letter to Victor. (Exh. 1103) (e) Saulo's letter about his escape, asks Victor why his press statement was not published in the newspapers. (Exh. C-362) Letter was however published by Hernandez in the Daily Mirror. (f) Letter of Taruc to Maclang directing the latter to give copy of Huk Story to Victor. (Exh. D-463-64) (g) Notes of Salome Cruz, Huk courier, stating that she went to Soliman at Pampanga St. to bring to the latter communications from the Communist Party. (Exh. D-1203) That Soliman was given copies of "Titis". (Exh. D-1209) (h) SEC directions to Politburo members, Soliman not to be involved with Nacionalista Rebels. (Exh. F-92-93. SEC) (i) Letter of SEC to Politburo reporting that Saulo be sent out and Soliman has "tendencies of careerism and tendency to want to deal with leaders of the party"; that he should be asked to choose to go underground or fight legally. (Exh. F-562) (j) Explanation given by Hernandez why he did not join Saulo in going underground. (Exh. V-87) (1) His election as councilor until December, 1951. (Exhs. V-42, W-9) (2) His election as President of CLO until August of following year. (Exhs. V-42, W-9) 2. Letters and Messages of Hernandez. (a) To Lyden Henry and Harry Reich, tells Huks still fighting. (Exh. V-80) (b) To SOBSI Jakarta that Filipinos are joining other communist countries of the East. (Exh. V-82) (c) Press release on Saulo's disappearance published by Amado Hernandez. (Exh. W-116-120) (d) To Hugh and Eddie, July 8, 1949 Extends greetings to National Union of Marine Cooks and Stewards, states that labor has one common struggle "the liberation of all the peoples from the chains of tyranny, fascism and imperialism". (Exh. V-259)

(e) To Kas. Pablo and Estrada - talks of the fight - fight of labor. (Exh. V-85-89) (f) Appeal to the Women and Asia. (Exh. V-5-10) (g) Letter to Julie (Exh. V-2001-2004) (h) Letter to Chan Lieu - states that leaders during the war are being persecuted, like Taruc. Tells of reward of P100,000.00 on Taruc's head. (Exh. X-85-88) (i) Letter to John Gates of the Daily Worker condemns Wall Street maneuvers; corruption and graft in Quirino administration, etc. (Exh. V-83) (j) Cablegram: CLO join ILWU commends Harry Bridges, US Communist. (Exh. V79) (k) Communication of Hernandez to CLO at MRRCO Praises Balgos and Capadocia for joining the Huks. (Exhs. V-12-22, V-289) (l) "Philippine labor Demands Justice" Attacks czars of Wall Street and U.S. Army and Government. (Exh. V-94) . (m) Letter to Taruc June 28, 1948.-States solidarity among the CLO Huks and PKM. Attacks North Atlantic Pact. Praises Mao Tse Tung (contained in Exh. V-94) (n) "Philippines Is Not A Paradise" States of a delegation to Roxas attacking unemployment. (Exh. V-90-93) (o) Article "Progressive Philippines" (Exh. V-287) (p) Article "Hands Off Korea" (Exhs. V-488-494, 495-501, 509-515, W-25-26) (q) "Limang Buwang Balak Sa Pagpapalakas Ng Organisasyon". (Exh. X-35-38) (r) Press statement of Hernandez opposes acceptance of decorations from Greece by Romulo. (Exh. V-72) 3. Other Activities of Hernandez. (a) Hernandez received clothes from Pres. Lines thru P. Campa, which clothes he sent to the field. Letters show of sending of supplies to Huks. (Exh. S-383) (b) Hernandez was asked to furnish portable typewriter, which he did furnish to Huks. (Exh. C-364) (c) Hernandez brought Taruc's letter about facts and incidents about Huks to Bulosan for inclusion in Bulosan's book. (Exh. FF-1) (d) Had conference with Kumar Goshal a Hindu, about the Huks and their armed forces. (Photographs, Exhs. X-6 RR-54-55A)

(e) Supervised taking of pictures of sons of Capadocia and Joven. (Photographs, Exhs. T-1, RR-136-138A) (f) Had knowledge of the going underground of Capadocia and Balgos and issued press release about their going underground. (Exh. F-91) (g) Victor mentioned to continue as contact for Chino. (Exh. C-362) (h) Taruc's letter to Maclang shows that Soliman had sent 7 lessons to Taruc. (Exh. D-451-451-A) (i) Associated with fellow ranking Communist leaders. The Court upon consideration of the evidence submitted, found (1) that the Communist Party was fully organized as a party and in order to carry out its aims and policies a established a National Congress, a Central Committee (CC), Politburo PB, Secretariat (SEC), Organization Bureau (OB), and National Courier or Communication Division (NCD), each body performing functions indicated in their respective names; (2) that in a meeting held on August 11, 1950 the SEC discussed the creation of a Military Committee of the Party and a new GHQ, under which on September 29, 1950 the SEC organized a special warfare division, with a technological division; (3) that on May 5, 1950 a body known as the National Intelligence Division was created, to gather essential military intelligence and, in general, all information useful for the conduct of the armed struggle (4) that a National Finance Committee was also organized as a part of the Politburo and answerable to it; (5) that the country was divided into 10 Recos, the 10th Reco comprising the Manila and suburbs command; (6) that since November, 1949 the CPP had declared the existence of a revolutionary situation and since then the Party had gone underground and the CPP is leading the armed struggle for national liberation, and called on the people to organize guerrillas and coordinate with the HMB on the decisive struggle and final overthrow of the imperialist government; (7) that in accordance with such plan the CPP prepared plans for expansion and development not only of the Party but also of the HMB; the expansion of the cadres from 3,600 in July 1950 to 56,000 in September 1951, the HMB from 10,800 in July 1950 to 172,000 in September 1951, et seq. Around the month of January, 1950 it was decided by the CPP to intensify HMB military operations for political purposes. The Politburo sanctioned the attacks made by the Huks on the anniversary of the HMB on March 25, 1950. The HMB attacks that were reported to the PB were those made in May, 1946; June, 1946; April 10, 1947; May 9, 1947; August 19, 1947; August 25, 1950; August 26, 1950; October 15 and 17, 1950; May 6, 1946; August 6, 1946; April 10, 1947; May 9, 1947; August 19, 1947; April 29, 1949; August 25, 1950; August 26, 1950; September 12, 1950; March 26, 1950; March 29, 1950. The theory of the prosecution, as stated in the lower court's decision, is as follows: The evidence does not show that the defendants in these cases now before this Court had taken a direct part in those raids and in the commission of the crimes that had been committed. It is not, however, the theory of the prosecution that they in fact had direct participation in the commission of the same but rather that the defendants in these cases have cooperated, conspired and confederated with the Communist Party in the prosecution and successful accomplishment of the aims and purposes of the said Party thru the organization called the CLO (Congress of Labor Organizations). The Court found that the CLO is independent and separate from the CPP, organized under the same pattern as the CPP, having its own National Congress, a Central Committee (which acts in the

absence of and in representation of the National Congress), an Executive Committee (which acts when the National Congress and the Executive Committee are not in session), and seven permanent Committees, namely, of Organization, Unemployment and Public Relations, Different Strikes and Pickets, Finance, Auditing, Legislation and Political Action. Members of the Communist Party dominate the committees of the CLO. The supposed tie-up between CPP and the CLO of which Hernandez was the President, is described by the court below in finding, thus: Just how the CLO coordinates its functions with the Communist Party organ under which it operates was explained by witness Guillermo S. Calayag, one-time ranking member of the Communist Party and the CLO who typewrites the "Patnubay sa Education" from a handwritten draft of Capadocia, which is one of the texts used in the Worker's institute of the CLO. According to him, the CLO plays its role by means of propaganda, giving monetary aid, clothing, medicine and other material forms of help to the HMB, which constitutes the armed forces of the Communist Party. Propaganda is done by lectures, meetings, and the organization of committees of the educational department as well as researches at the CLO Worker's Institute. Another way of helping the Communist Party of the Philippines is by allowing the Communist Party leaders to act as organizers in the different factories in forming a union. These Party Members help workers in the factories to agitate for the eradication of social classes and ultimately effect the total emancipation of the working classes thru the establishment of the so-called dictatorship of the proletariat. It is the duty of these Communist Party members to indoctrinate uninitiated workers in the union to become proselytes of the Communist Party ideology. After the right number is secured and a union is formed under a communist leader, this union is affiliated with the CLO and this in turn registers the same with the Department of Labor. The orientation and indoctrination of the masses is continued with the help of the CLO. The primary objective of the CLO is to create what is called a revolutionary crisis. It seeks to attain this objective by first making demands from the employers for concessions which become more and more unreasonable until the employers would find it difficult to grant the same. Then a strike is declared. But the strikes are only preparation for the ultimate attainment of the Communist goal of armed overthrow of the government. After the workers in the factories have already struck in general at the behest of the Communist Party thru the CLO a critical point is reached when a signal is given for the armed forces of the Communist Party, the HMB, to intervene and carry the revolution now being conducted outside to within the city. On the basis of the above findings, the court below found Hernandez guilty as principal of the crime charged against him and sentenced him to suffer the penalty of reclusion perpetua with the accessories provided by law, and to pay the proportionate amount of the costs. Our study of the testimonial and documentary evidence, especially those cited by the Court in its decision and by the Solicitor General in his brief, discloses that defendant-appellant Amado V. Hernandez, as a Communist, was an active advocate of the principles of Communism, frequently exhorting his hearers to follow the footsteps of Taruc and join the uprising of the laboring classes against capitalism and more specifically against America and the Quirino administration, which he dubbed as a regime of puppets of American imperialism. But beyond the open advocacy of Communistic Theory there appears no evidence that he actually participated in the actual conspiracy to overthrow by force the constituted authority. Hernandez is the founder and head of the CLO. As such, what was his relation to the rebellion? If, as testified to by Guillermo S. Calayag, the CLO plays merely the role of propagation by lectures, meetings and organization of committees of education by Communists; if, as stated, the CLO merely allowed Communist Party leaders to act as organizers in the different factories, to indoctrinate the

CLO members into the Communist Party and proselytize them to the Communist ideology; if, as also indicated by Calayag, the CLO purports to attain the ultimate overthrow of the Government first by making demands from employers for concessions until the employers find it difficult to grant the same, at which time a strike is declared; if it is only after the various strikes have been carried out and a crisis is thereby developed among the laboring class, that the Communist forces would intervene and carry the revolution it is apparent that the CLO was merely a stepping stone in the preparation of the laborers for the Communist' ultimate revolution. In other words, the CLO had no function but that of indoctrination and preparation of the members for the uprising that would come. It was only a preparatory organization prior to revolution, not the revolution itself. The leader of the CLO therefore, namely Hernandez, cannot be considered as a leader in actual rebellion or of the actual uprising subject of the accusation. Hernandez, as President of the CLO therefore, by his presidency and leadership of the CLO cannot be considered as having actually risen up in arms in rebellion against the Government of the Philippines, or taken part in the conspiracy to commit the rebellion as charged against him in the present case; he was merely a propagandist and indoctrinator of Communism, he was not a Communist conspiring to commit the actual rebellion by the mere fact of his presidency of the CLO. The court below declares that since November 1949 the Communist Party of the Philippines had declared the existence of the revolutionary situation and since then the Party had gone underground, with the CPP leading the struggle for national integration and that in the month of January 1950, it was decided by the said Party to intensify the HMB military operations for political purposes. The court implicates the appellant Hernandez as a co-conspirator in this resolution or acts of the Communist Party by his mere membership thereto. We find this conclusion unwarranted. The seditious speeches of Hernandez took place before November, 1949 when the CPP went underground. The court below has not been able to point out, nor have We been able to find among all acts attributed to Hernandez, any single fact or act of his from which it may be inferred that he took part in the deliberations declaring the existence of a revolutionary situation, or that he had gone underground. As a matter of fact the prosecution's evidence is to the effect that Hernandez refused to go underground preferring to engage in what they consider the legal battle for the cause. We have also looked into the different documents which have been presented at the time of the trial and which were confiscated from the office of the Politburo of the Communist Party. The speeches of Hernandez were delivered before the declaration by the Communist Party of a state of revolutionary situation in 1949. Neither was it shown that Hernandez was a member of the Executive Committee, or of the SEC, or of the Politburo of the Communist Party; so NO presumption can arise that he had taken part in the accord or conspiracy declaring a revolution. In short, there has been no evidence, direct or indirect, to relate or connect the appellant Hernandez with the uprising or the resolution to continue or maintain said uprising, his participation in the deliberations leading to the uprising being inferred only from the fact that he was a communist. The practice among the top Communists, as declared by the trial court appears to have been for important members, if they intend actually to join the rebellion, to go underground, which meant leaving the city, disappearing from sight and/or secretly joining the forces in the field. The document, Exhibit F-562, which is quoted in the decision, contains the directive of the SEC of September 1, 1950, to Saulo and Hernandez, which reads: 11. In view of the new developments in the city, send out Elias who prefers to work outside. Present problem of fighting legally to Com. Soliman. If Soliman is prepared for martyrdom, retain him to fight legally. If not, send him out with Elias. Same goes with Com. Mino and other relatively exposed mass leaders.

And the lower court itself found that whereas Saulo went underground and joined the underground forces outside the City, Hernandez remained in the City, engaged in the work of propaganda, making speeches and causing the publication of such matters as the Communist Party leaders directed him to publish. That Hernandez refused to go underground is a fact which is further corroborated by the following reasons (excuses) given by him for not going underground, namely (1) that his term of councilor of the City of Manila was to extend to December, 1951; and (2) that he was elected President of the CLO for a term which was to end the year 1951. As a matter of fact the SEC gave instructions to Hernandez not to be involved with Nacionalista Rebels, and reported to the Politburo that Hernandez "has tendencies of careerism, and tending to want to deal with leaders of the Nacionalista Party instead of following CPP organizational procedures." The court below further found that Hernandez had been furnishing supplies for the Huks in the field. But the very document dated December 3, 1949, Exhibit D-420422, cited in the decision (printed, p. 49), is to the effect that clothes and shoes that Hernandez was supposed to have sent have not been received. It is true that some clothes had been sent thru him to the field, but these clothes had come from a crew member of a ship of the American President Lines. He also, upon request, sent a portable typewriter to the SEC or Politburo. Furthermore, a certain Niagara Duplicating machine received by Hernandez from one Rolland Scott Bullard a crew member of the SS President Cleveland, appease later to have been forwarded by him to the officers of the SEC or the Politburo. Lastly, it further appears that Taruc and other CPP leaders used to send notes to appellant Hernandez, who in turn issued press releases for which he found space in the local papers. His acts in this respect belong to the category of propaganda, to which he appears to have limited his actions as a Communist. The acts of the appellant as thus explained and analyzed fall under the category of acts of propaganda, but do not prove that he actually and in fact conspired with the leaders of the Communist Party in the uprising or in the actual rebellion, for which acts he is charged in the information. And his refusal to go underground because of his political commitments occasioned by his term of election as president of the CLO and the impressions caused by his acts on the Communist leaders, to the effect that he was in direct communication or understanding with the Nacionalista Party to which he was affiliated, creates in Us the reasonable doubt that it was not his Communistic leanings but his political ambitions, that motivated his speeches sympathizing with the Huks. For which reason We hold that the evidence submitted fails to prove beyond reasonable doubt that he has conspired in the instigation of the rebellion for which he is held to account in this criminal case. The question that next comes up for resolution is: Does his or anyone's membership in the Communist Party per se render Hernandez or any Communist guilty of conspiracy to commit rebellion under the provisions of Article 136 of the Revised Penal Code? The pertinent provision reads: ART. 136. Conspiracy and proposal to commit rebellion or insurrection. The conspiracy and proposal to commit rebellion or insurrection shall be punished, respectively, by prision correccional in its maximum period and a fine which shall not exceed 5,000 pesos, and by prision correccional in its medium period and a fine not exceeding 2,000 pesos.

The advocacy of Communism or Communistic theory and principle is not to be considered as a criminal act of conspiracy unless transformed or converted into an advocacy of action. In the very nature of things, mere advocacy of a theory or principle is insufficient unless the communist advocates action, immediate and positive, the actual agreement to start an uprising or rebellion or an agreement forged to use force and violence in an uprising of the working class to overthrow constituted authority and seize the reins of Government itself. Unless action is actually advocated or intended or contemplated, the Communist is a mere theorist, merely holding belief in the supremacy of the proletariat a Communist does not yet advocate the seizing of the reins of Government by it. As a theorist the Communist is not yet actually considered as engaging in the criminal field subject to punishment. Only when the Communist advocates action and actual uprising, war or otherwise, does he become guilty of conspiracy to commit rebellion. Borrowing the language of the Supreme Court of the United States: In our jurisprudence guilt is personal, and when the imposition of punishment on a status or on conduct can only be justified by reference to the relationship of that status or conduct to other concededly criminal activity (here advocacy of violent overthrow), that relationship must be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under the Due Process Clause of the Fifth Amendment. Membership, without more, in an organization engaged in illegal advocacy, it is now said, has not heretofore been recognized by this Court to be such a relationship. ... . What must be met, then, is the argument that membership, even when accompanied by the elements of knowledge and specific intent, affords an insufficient quantum of participation in the organization's alleged criminal activity, that is, an insufficiently significant form of aid and encouragement to permit the imposition of criminal sanctions on that basis. It must indeed be recognized that a person who merely becomes a member of an illegal organization, by that "act" alone need be doing nothing more than signifying his assent to its purposes and activities on one hand, and providing, on the other, only the sort of moral encouragement which comes from the knowledge that others believe in what the organization is doing. It may indeed be argued that such assent and encouragement do fall short of the concrete, practical impetus given to a criminal enterprise which is lent for instance by a commitment on the part of the conspirator to act in furtherance of that enterprise. A member, as distinguished from a conspirator, may indicate his approval of a criminal enterprise by the very fact of his membership without thereby necessarily committing himself to further it by any act or course of conduct whatever. (Scales v. United States, 367 U.S. 203, 6 L. ed. 782) The most important activity of appellant Hernandez appears to be the propagation of improvement of conditions of labor through his organization, the CLO. While the CLO of which he is the founder and active president, has communistic tendencies, its activity refers to the strengthening of the unity and cooperation between labor elements and preparing them for struggle; they are not yet indoctrinated in the need of an actual war with or against Capitalism. The appellant was a politician and a labor leader and it is not unreasonable to suspect that his labor activities especially in connection with the CLO and other trade unions, were impelled and fostered by the desire to secure the labor vote to support his political ambitions. It is doubtful whether his desire to foster the labor union of which he was the head was impelled by an actual desire to advance the cause of Communism, not merely to advance his political aspirations. Insofar as the appellant's alleged activities as a Communist are concerned, We have not found, nor has any particular act on his part been pointed to Us, which would indicate that he had advocated action or the use of force in securing the ends of Communism. True it is, he had friends among the leaders of the Communist Party, and especially the heads of the rebellion, but this notwithstanding, evidence is wanting to show that he ever attended their meetings, or collaborated and conspired with said leaders in planning and encouraging the acts of rebellion, or advancing the cause thereof.

Insofar as the furnishing of the mimeograph machine and clothes is concerned, it appears that he acted merely as an intermediary, who passed said machine and clothes on to others. It does not appear that he himself furnished funds or material help of his own to the members of the rebellion or to the forces of the rebellion in the field. But the very act or conduct of his in refusing to go underground, in spite of the apparent desire of the chief of the rebellion, is clear proof of his non-participation in the conspiracy to engage in or to foster the rebellion or the uprising. We next consider the question as to whether the fact that Hernandez delivered speeches of propaganda in favor of Communism and in favor of rebellion can be considered as a criminal act of conspiracy to commit rebellion as defined in the law. In this respect, the mere fact of his giving and rendering speeches favoring Communism would not make him guilty of conspiracy, because there was no evidence that the hearers of his speeches of propaganda then and there agreed to rise up in arms for the purpose of obtaining the overthrow of the democratic government as envisaged by the principles of Communism. To this effect is the following comment of Viada: CUESTION 10. El que hace propaganda entre sus convecinos, induciendoles a que el dia que se anunciara la subasta de consumes se echaran a la calle para conseguir aunque fuera preciso acudir a la fuerza el reparto entre los vecinos ricos solamente, sera responsable de un delito de conspiracion para la sedicion? El Tribunal Supreme ha resuelto la negative al casar cierta sentencia de la Audiencia de Valencia, que entendio lo contrario: "Considerando que, con areglo a lo que dispone el art. 4. del Codigo Penal, hay conspiracion cuando dos o mas personas se conciertan para la execution de un delito y resuelven cmeterlo; y no constando que existiera ese concierto en cuanto a los hechos que se refieren en la tercera pregunta del veredicto, pues en ella solo se habla de los actos de induccion que el procesado realizo, sin expresar el efecto que la mismo produjo en el animo de las personas a quienes se dirigian, ni si estas aceptaron o no lo que se las propuso, resulta evidence que faltan los clementos integrantes de la conspiracion, etc." (Se. de 5 de Julio de 1907, Gaceta de 7 de Enero de 1909.) (Viada, Tomo I, Codigo Penal, p. 152) In view of all the above circumstances We find that there is no concrete evidence proving beyond reasonable doubt that the appellant (Hernandez) actually participated in the rebellion or in any act of conspiracy to commit or foster the cause of the rebellion. We are constrained, in view of these circumstances, to absolve, as We hereby absolve, the appellant Amado V. Hernandez from the crime charged, with a proportionate share of the costs de oficio. APPEAL OF OTHER DEFENDANTS-APPELLANTS All the other defendants were found guilty as accomplices in the crime of rebellion as charged in the information and were each sentenced to suffer the penalty of 10 years and 1 day of prision mayor, with the accessories provided by law, and to pay their proportionate share of the costs. Legal Considerations. Before proceeding to consider the appeals of the other defendants, it is believed useful if not necessary to lay dawn the circumstances or facts that may be determinative of their criminal responsibility or the existence or nature thereof. To begin with, as We have exhaustively discussed in relation to the appeal of Hernandez, we do not believe that mere membership in the Communist Party or in the CLO renders the member liable, either of rebellion or of conspiracy to commit rebellion, because mere membership and nothing more merely implies advocacy of abstract theory or principle without any action being induced thereby; and that such advocacy becomes criminal only if it is coupled with action or advocacy of action, namely, actual rebellion or conspiracy to commit rebellion, or acts conducive thereto or evincing the same.

On the other hand, membership in the HMB (Hukbalahap) implies participation in an actual uprising or rebellion to secure, as the Huks pretend, the liberation of the peasants and laboring class from thraldom. By membership in the HMB, one already advocates uprising and the use of force, and by such membership he agrees or conspires that force be used to secure the ends of the party. Such membership, therefore, even if there is nothing more, renders the member guilty of conspiracy to commit rebellion punishable by law. And when a Huk member, not content with his membership, does anything to promote the ends of the rebellion like soliciting contributions, or acting as courier, he thereby becomes guilty of conspiracy, unless he takes to the field and joins in the rebellion or uprising, in which latter case he commits rebellion. In U.S. v. Vergara, infra, the defendants organized a secret society commonly known as the "Katipunan", the purpose of which was to overthrow the government by force. Each of the defendants on various times solicited funds from the people of Mexico, Pampanga. The Court held that the defendants were guilty of conspiracy and proposal to commit rebellion or insurrection and not of rebellion or insurrection itself. Thus, the Court ruled that: From the evidence adduced in this case we are of the opinion that the said defendants are guilty, not of inciting, setting or foot, or assisting or engaging in rebellion, but rather of the crime of conspiring to overthrow, put down, and destroy by force the Government of the United States in the Philippine Islands, and therefore we find that said defendants, and each of them, did, together with others, in the months of February and March, 1903, in the Province of Pampanga, Philippine Islands, conspire to overthrow, put down, and to destroy by force the Government of the United States in the Philippine Islands. (U.S. v. Vergara, et al., 3 Phil. 432, 434.) JUAN J. CRUZ The court found him to be a Communist with various aliases, a member of the Central Committee of the CLO member of the Central Committee of the CPP and as such committed to the establishment of the dictatorship of the proletariat To the same effect is the testimony of Guillermo Calayag. There is no evidence to connect him with the rebellion or to the conspiracy to commit rebellion. He should therefore be absolved of the charges contained in the information. AMADO RACANDAY The trial court found him guilty as a Communist, a Secretary and Executive Committee member of the CLO a communications center of the Communist Party, having been found in possession of letters from Federico Maclang to Salome Cruz, and solicitor of contributions for the Huks. Racanday admits being a member of the Executive Committee of the CLO Editor of the Kidlat of the Government Workers Union, receiving copies of the Titis. Calayag testified that he was a member of the Central Committee of the Communist Party entrusted with the duty of receiving directives of the Regional Committee of the Communist Party. The letters found in his possession are dated February 14, 1950, before the Communist Party went underground. We have been unable to find the evidence upon which the court bases its conclusion that he received contributions for the Huks. With these circumstances in mind, We are not convinced beyond reasonable doubt that as a Communist he took part in the conspiracy among the officials of the Communist Party to take part and support the rebellion of the Huks.

We are, therefore, constrained to absolve him of the charges filed against him. GENARO DE LA CRUZ The court found him to be a Communist since 1945, an officer of an organized Communist branch in Pasay City, a member of the Central Committee and Treasurer of the CLO. He admitted his membership and his position as member of the executive committee and treasurer of the CLO these facts being corroborated by the witness Guillermo Calayag. His membership in the Communist Party dates as far back as the year 1945. As a communist, Genaro de la Cruz received quotas and monetary contributions coming from the areas under his jurisdiction, and one time he made a receipt from a member from Caloocan at the CLO headquarters at Azcarraga signing the receipt as "Gonzalo" which is one of his aliases. He also distributed copies of the "Titis" magazine. ` While his membership in the Communist Party plus his having received contributions for the party indicate that he is an active member, it was not shown that the contributions that he received from Communist Party members were received around the year 1950 when the Central Committee of the Communist Party had already agreed to conspire and go underground and support the Huk rebellion. Under these circumstances We cannot find him guilty of conspiracy to commit rebellion because of the lack of evidence to prove his guilt beyond reasonable doubt. JULIAN LUMANOG The court found him to be an organizer of HMB among the mill workers, solicited contributions for the HMB and Central Committee member of the CLO as per Testimony of Guillermo Calayag. He admitted that he joined the Communist Party because he was made to believe that the Party is for the welfare of the laborers. He also admitted being a member of the Central Committee of the CLO Calayag testified that Lumanog organized the HMB units of the Communist Party in the Lumber Unions and attended a Communist meeting held by Maclang. Domingo Clarin testified that he (Julian Lumanog) used to give the money collected by him to one Nicasio Pamintuan, one of the members of the HMB Special Unit Trigger Squad) in Manila for the use of the said unit. Considering that the HMB was engaged in a rebellion to overthrow the government, it is evident that by giving his contributions he actually participated in the conspiracy to overthrow the government and should, therefore, be held liable for such conspiracy, and should be sentenced accordingly. FERMIN RODILLAS The trial court found that Fermin Rodillas was a member of the CPP and the CLO that his activities consisted in soliciting contributions, in cash and in kind, from city residents for the use of the HMB, turning over said collections to the Party; that he has given asylum to a wanted Hukbalahap at his house at Juan Luna St., Gagalangin, which house was used as Military post. The above findings of the court are fully supported by the testimony of Domingo Clarin. Considering that while he has not actually taken part in the rebellion, he has shown sympathy with the cause by soliciting contributions for it and had given shelter to the Huks. We feel that the court

was fully justified in finding him guilty, but We hold that he should be declared liable merely as a coconspirator in the crime of conspiracy to commit rebellion, and should be sentenced accordingly. BAYANI ESPIRITU This appellant was found by the court to be a Communist, he having admitted membership in the Communist Party since 1945; that his duties as a Communist was to help in the office of the National Finance Committee, assorting papers and written documents; that sometimes he accompanied the purchaser of medicines, shoes, papers, foodstuffs and clothing to be given to the Huks; that he is a member of the Communication Division of the CPP in Manila, in charge of distribution of letters or communications; that he admits having written to Salome Cruz, courier of the Communist Party, when he asked for his necessities, such as money and shoes, etc. The facts found by the court are sufficiently supported by the communications and evidence submitted by the prosecution. The exhibits show that he was in constant communication with the communists; serving them as courier. His oath as a member of the Communist Party was submitted in court and in it he admits obedience to all orders of the Party and to propagate the stability of the PKP. Considering that the PKP was engaged in an actual uprising against the constituted Government and that Bayani Espiritu was in constant communication with the Communist Party and served it as courier, We believe that the court was fully justified in finding him guilty. However, We believe that not having actually taken up arms in the uprising he may only be declared guilty of conspiracy to commit rebellion. TEOPISTA VALERIO The court below found that this appellant joined the Communists in 1938 in San Luis, Pampanga, under Casto Alejandrino, who later became her common-law husband; that her aliases are "Estrella" and "Star"; that she was found in possession of various documents written to top Communists like Alejandrino, Lava and Romy, as well as a letter from Taruc congratulating her for the delivers, of a son. Jose Taguiang testified that she was a member of the Provincial Committee of the CPP in Nueva Ecija, later Chairman of the Finance Department, and then promoted to Finance Officer of the Central Luzon Committee. Alicia Vergara, a Huk courier, testified that she delivered letter from the mountains to Teopista Valerie, who was in turn also a courier. Without considering the close relationship that she had with top Communist Casto Alejandrino, We are satisfied that she herself was, aside from being a Huk courier, also a Huk, a member of the HMB from 1942 to 1951. As she was a Communist and at the same time a member of the HMB, and considering that the HMB was engaged in an uprising to uproot the legitimate government, there cannot be any question that she was in conspiracy with the other members of her Party against the constituted government. We hold, therefore, that the evidence proves beyond reasonable doubt that she is guilty of conspiracy to commit rebellion. DEFENDANTS NOT INCLUDED IN DECISION In Crim. Case No. 15841 (G.R. No. L-6025) the charge against Guillermo Capadocia, Mariano P. Balgos, Alfredo B. Saulo and Jacobo Espino was dismissed because they have not been apprehended at the time of the trial.

PEOPLE VS. EVANGELISTA, 57 PHIL. 354 AND REPUBLIC ACT NO. 1700, DISTINGUISHED In the case at bar the prosecution is for actual rebellion which consists in rising publicly and taking aims against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippines, or any part thereof, etc., a crime defined in Article 134 of the Revised Penal Code; whereas Evangelista was charged and convicted for inciting to rebellion under Art. 138, Revised Penal Code (formerly Sec. 2, Act No. 292). As the specific charge against appellants is that of rising up in arms in actual rebellion against the Government, they cannot be held guilty of inciting the people to arms under Article 138, which is a different offense. On the other hand, Rep. Act 1700, known as the Anti-subversion Act, which penalizes membership in any organization or association committed to subvert the Government, cannot be applied to the appellants because said Act was approved on June 20, 1957 and was not in force at the time of the commission of the acts charged against appellants (committed 1945-1950) ; the Anti-Subversion Act punishes participation or membership in an organization committed to overthrow the duly constituted Government, a crime district from that of actual rebellion with which appellants are charged. CONCLUSION WHEREFORE, in Criminal Case No. 15841 (G.R. No. L-6025) defendants-appellants Amado V. Hernandez, Juan J. Cruz, Amado Racanday and Genaro de la Cruz are absolved from the charges contained in the information, with their proportionate share of the costs de oficio. The defendantsappellants Julian Lumanog and Fermin Rodillas in Criminal Case No. 15841 (G.R. No. L-6025) and the defendants-appellants Bayani Espiritu and Teopista Valerio in Criminal Case No. 15479 (G.R. No. L-6026) are hereby found guilty of the crime of conspiracy to commit rebellion, as defined and punished in Article 136 of the Revised Penal Code, and each and everyone of them is hereby sentenced to suffer imprisonment for five years, four months and twenty-one days of prision correccional, and to pay a fine of P5,000.00, with subsidiary imprisonment in case of insolvency and to pay their proportional share of the costs. So ordered. Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Paredes, Dizon and Makalintal, JJ., concur. Padilla, Barrera and Regala, JJ., took no part.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 153559 June 8, 2004

PEOPLE OF THE PHILIPPINES, appellee, vs. ANTONIO COMADRE, GEORGE COMADRE and DANILO LOZANO, appellants. DECISION PER CURIAM: Appellants Antonio Comadre, George Comadre and Danilo Lozano were charged with Murder with Multiple Frustrated Murder in an information which reads: That on or about the 6th of August 1995, at Brgy. San Pedro, Lupao, Nueva Ecija, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with intent to kill and by means of treachery and evident premeditation, availing of nighttime to afford impunity, and with the use of an explosive, did there and then willfully, unlawfully and feloniously lob a hand grenade that landed and eventually exploded at the roof of the house of Jaime Agbanlog trajecting deadly shrapnels that hit and killed one ROBERT AGBANLOG, per the death certificate, and causing Jerry Bullanday, Jimmy Wabe, Lorenzo Eugenio, Rey Camat, Emelita Agbanlog and Elena Agbanlog to suffer shrapnel wounds on their bodies, per the medical certificates; thus, to the latter victims, the accused commenced all the acts of execution that would have produced the crime of Multiple Murder as consequences thereof but nevertheless did not produce them by reason of the timely and able medical and surgical interventions of physicians, to the damage and prejudice of the deceaseds heirs and the other victims. CONTRARY TO LAW.1 On arraignment, appellants pleaded "not guilty".2 Trial on the merits then ensued. As culled from the records, at around 7:00 in the evening of August 6, 1995, Robert Agbanlog, Jimmy Wabe, Gerry Bullanday,3 Rey Camat and Lorenzo Eugenio were having a drinking spree on the terrace of the house of Roberts father, Barangay Councilman Jaime Agbanlog, situated in Barangay San Pedro, Lupao, Nueva Ecija. Jaime Agbanlog was seated on the banister of the terrace listening to the conversation of the companions of his son.4 As the drinking session went on, Robert and the others noticed appellants Antonio Comadre, George Comadre and Danilo Lozano walking. The three stopped in front of the house. While his companions looked on, Antonio suddenly lobbed an object which fell on the roof of the terrace. Appellants immediately fled by scaling the fence of a nearby school.5 The object, which turned out to be a hand grenade, exploded ripping a hole in the roof of the house. Robert Agbanlog, Jimmy Wabe, Gerry Bullanday, Rey Camat and Lorenzo Eugenio were hit by

shrapnel and slumped unconscious on the floor.6 They were all rushed to the San Jose General Hospital in Lupao, Nueva Ecija for medical treatment. However, Robert Agbanlog died before reaching the hospital.7 Dr. Tirso de los Santos, the medico-legal officer who conducted the autopsy on the cadaver of Robert Agbanlog, certified that the wounds sustained by the victim were consistent with the injuries inflicted by a grenade explosion and that the direct cause of death was hypovolemic shock due to hand grenade explosion.8 The surviving victims, Jimmy Wabe, Rey Camat, Jaime Agbanlog and Gerry Bullanday sustained shrapnel injuries.9 SPO3 John Barraceros of the Lupao Municipal Police Station, who investigated the scene of the crime, recovered metallic fragments at the terrace of the Agbanlog house. These fragments were forwarded to the Explosive Ordinance Disposal Division in Camp Crame, Quezon City, where SPO2 Jesus Q. Mamaril, a specialist in said division, identified them as shrapnel of an MK2 hand grenade.10 Denying the charges against him, appellant Antonio Comadre claimed that on the night of August 6, 1995, he was with his wife and children watching television in the house of his father, Patricio, and his brother, Rogelio. He denied any participation in the incident and claimed that he was surprised when three policemen from the Lupao Municipal Police Station went to his house the following morning of August 7, 1995 and asked him to go with them to the police station, where he has been detained since.11 Appellant George Comadre, for his part, testified that he is the brother of Antonio Comadre and the brother-in-law of Danilo Lozano. He also denied any involvement in the grenade-throwing incident, claiming that he was at home when it happened. He stated that he is a friend of Rey Camat and Jimmy Wabe, and that he had no animosity towards them whatsoever. Appellant also claimed to be in good terms with the Agbanlogs so he has no reason to cause them any grief.12 Appellant Danilo Lozano similarly denied any complicity in the crime. He declared that he was at home with his ten year-old son on the night of August 6, 1995. He added that he did not see Antonio and George Comadre that night and has not seen them for quite sometime, either before or after the incident. Like the two other appellants, Lozano denied having any misunderstanding with Jaime Agbanlog, Robert Agbanlog and Jimmy Wabe.13 Antonios father, Patricio, and his wife, Lolita, corroborated his claim that he was at home watching television with them during the night in question.14 Josie Comadre, Georges wife, testified that her husband could not have been among those who threw a hand grenade at the house of the Agbanlogs because on the evening of August 6, 1995, they were resting inside their house after working all day in the farm.15 After trial, the court a quo gave credence to the prosecutions evidence and convicted appellants of the complex crime of Murder with Multiple Attempted Murder,16 the dispositive portion of which states: WHEREFORE, in view of the foregoing, judgment is hereby rendered: 1. Finding accused Antonio Comadre, George Comadre and Danilo Lozano GUILTY beyond reasonable doubt of the complex crime of Murder with Multiple Attempted Murder and sentencing them to suffer the imposable penalty of death;

2. Ordering Antonio Comadre, George Comadre and Danilo Lozano to pay jointly and severally the heirs of Robert Agbanlog P50,000.00 as indemnification for his death, P35,000.00 as compensatory damages and P20,000.00 as moral damages; 3. Ordering accused Antonio Comadre, George Comadre and Danilo Lozano to pay jointly and severally Jimmy Wabe, Rey Camat, Gerry Bullanday and Jaime Agbanlog P30,000.00 as indemnity for their attempted murder. Costs against the accused. SO ORDERED. Hence, this automatic review pursuant to Article 47 of the Revised Penal Code, as amended. Appellants contend that the trial court erred: (1) when it did not correctly and judiciously interpret and appreciate the evidence and thus, the miscarriage of justice was obviously omnipresent; (2) when it imposed on the accused-appellants the supreme penalty of death despite the evident lack of the quantum of evidence to convict them of the crime charged beyond reasonable doubt; and (3) when it did not apply the law and jurisprudence for the acquittal of the accused-appellants of the crime charged.17 Appellants point to the inconsistencies in the sworn statements of Jimmy Wabe, Rey Camat, Lorenzo Eugenio and Gerry Bullanday in identifying the perpetrators. Wabe, Camat and Eugenio initially executed a Sinumpaang Salaysay on August 7, 1995 at the hospital wherein they did not categorically state who the culprit was but merely named Antonio Comadre as a suspect. Gerry Bullanday declared that he suspected Antonio Comadre as one of the culprits because he saw the latters ten year-old son bring something in the nearby store before the explosion occurred. On August 27, 1995, or twenty days later, they went to the police station to give a more detailed account of the incident, this time identifying Antonio Comadre as the perpetrator together with George Comadre and Danilo Lozano. A closer scrutiny of the records shows that no contradiction actually exists, as all sworn statements pointed to the same perpetrators, namely, Antonio Comadre, George Comadre and Danilo Lozano. Moreover, it appears that the first statement was executed a day after the incident, when Jimmy Wabe, Rey Camat and Lorenzo Eugenio were still in the hospital for the injuries they sustained. Coherence could not thus be expected in view of their condition. It is therefore not surprising for the witnesses to come up with a more exhaustive account of the incident after they have regained their equanimity. The lapse of twenty days between the two statements is immaterial because said period even helped them recall some facts which they may have initially overlooked. Witnesses cannot be expected to remember all the details of the harrowing event which unfolded before their eyes. Minor discrepancies might be found in their testimony, but they do not damage the essential integrity of the evidence in its material whole, nor should they reflect adversely on the witness credibility as they erase suspicion that the same was perjured.18 Honest inconsistencies on minor and trivial matters serve to strengthen rather than destroy the credibility of a witness to a crime, especially so when, as in the instant case, the crime is shocking to the conscience and numbing to the senses.19 Moreover, it was not shown that witnesses Jimmy Wabe, Rey Camat, Lorenzo Eugenio and Gerry Bullanday had any motive to testify falsely against appellants. Absent evidence showing any reason or motive for prosecution witnesses to perjure, the logical conclusion is that no such improper motive exists, and their testimony is thus worthy of full faith and credit.

The trial court is likewise correct in disregarding appellants defense of alibi and denial. For the defense of alibi to prosper, the accused must prove not only that he was at some other place at the time of the commission of the crime but also that it was physically impossible for him to be at the locus delicti or within its immediate vicinity.20 Apart from testifying with respect to the distance of their houses from that of Jaime Agbanlogs residence, appellants were unable to give any explanation and neither were they able to show that it was physically impossible for them to be at the scene of the crime. Hence, the positive identification of the appellants by eyewitnesses Jimmy Wabe, Jaime Agbanlog, Rey Camat and Gerry Bullanday prevails over their defense of alibi and denial.21 It was established that prior to the grenade explosion, Rey Camat, Jaime Agbanlog, Jimmy Wabe and Gerry Bullanday were able to identify the culprits, namely, appellants Antonio Comadre, George Comadre and Danilo Lozano because there was a lamppost in front of the house and the moon was bright.22 Appellants argument that Judge Bayani V. Vargas, the Presiding Judge of the Regional Trial Court of San Jose City, Branch 38 erred in rendering the decision because he was not the judge who heard and tried the case is not well taken. It is not unusual for a judge who did not try a case to decide it on the basis of the record for the trial judge might have died, resigned, retired, transferred, and so forth.23 As far back as the case of Co Tao v. Court of Appeals24we have held: "The fact that the judge who heard the evidence is not the one who rendered the judgment and that for that reason the latter did not have the opportunity to observe the demeanor of the witnesses during the trial but merely relied on the records of the case does not render the judgment erroneous." This rule had been followed for quite a long time, and there is no reason to go against the principle now.25 However, the trial courts finding of conspiracy will have to be reassessed. The undisputed facts show that when Antonio Comadre was in the act of throwing the hand grenade, George Comadre and Danilo Lozano merely looked on without uttering a single word of encouragement or performed any act to assist him. The trial court held that the mere presence of George Comadre and Danilo Lozano provided encouragement and a sense of security to Antonio Comadre, thus proving the existence of conspiracy. We disagree. Similar to the physical act constituting the crime itself, the elements of conspiracy must be proven beyond reasonable doubt. Settled is the rule that to establish conspiracy, evidence of actual cooperation rather than mere cognizance or approval of an illegal act is required.26 A conspiracy must be established by positive and conclusive evidence. It must be shown to exist as clearly and convincingly as the commission of the crime itself. Mere presence of a person at the scene of the crime does not make him a conspirator for conspiracy transcends companionship.27 The evidence shows that George Comadre and Danilo Lozano did not have any participation in the commission of the crime and must therefore be set free. Their mere presence at the scene of the crime as well as their close relationship with Antonio are insufficient to establish conspiracy considering that they performed no positive act in furtherance of the crime. Neither was it proven that their act of running away with Antonio was an act of giving moral assistance to his criminal act. The ratiocination of the trial court that "their presence provided

encouragement and sense of security to Antonio," is devoid of any factual basis. Such finding is not supported by the evidence on record and cannot therefore be a valid basis of a finding of conspiracy. Time and again we have been guided by the principle that it would be better to set free ten men who might be probably guilty of the crime charged than to convict one innocent man for a crime he did not commit.28 There being no conspiracy, only Antonio Comadre must answer for the crime. Coming now to Antonios liability, we find that the trial court correctly ruled that treachery attended the commission of the crime. For treachery to be appreciated two conditions must concur: (1) the means, method and form of execution employed gave the person attacked no opportunity to defend himself or retaliate; and (2) such means, methods and form of execution was deliberately and consciously adopted by the accused. Its essence lies in the adoption of ways to minimize or neutralize any resistance, which may be put up by the offended party. Appellant lobbed a grenade which fell on the roof of the terrace where the unsuspecting victims were having a drinking spree. The suddenness of the attack coupled with the instantaneous combustion and the tremendous impact of the explosion did not afford the victims sufficient time to scamper for safety, much less defend themselves; thus insuring the execution of the crime without risk of reprisal or resistance on their part. Treachery therefore attended the commission of the crime. It is significant to note that aside from treachery, the information also alleges the "use of an explosive"29 as an aggravating circumstance. Since both attendant circumstances can qualify the killing to murder under Article 248 of the Revised Penal Code,30 we should determine which of the two circumstances will qualify the killing in this case. When the killing is perpetrated with treachery and by means of explosives, the latter shall be considered as a qualifying circumstance. Not only does jurisprudence31 support this view but also, since the use of explosives is the principal mode of attack, reason dictates that this attendant circumstance should qualify the offense instead of treachery which will then be relegated merely as a generic aggravating circumstance.32 Incidentally, with the enactment on June 6, 1997 of Republic Act No. 829433 which also considers the use of explosives as an aggravating circumstance, there is a need to make the necessary clarification insofar as the legal implications of the said amendatory law vis--vis the qualifying circumstance of "by means of explosion" under Article 248 of the Revised Penal Code are concerned. Corollary thereto is the issue of which law should be applied in the instant case. R.A. No. 8294 was a reaction to the onerous and anachronistic penalties imposed under the old illegal possession of firearms law, P.D. 1866, which prevailed during the tumultuous years of the Marcos dictatorship. The amendatory law was enacted, not to decriminalize illegal possession of firearms and explosives, but to lower their penalties in order to rationalize them into more acceptable and realistic levels.34 This legislative intent is conspicuously reflected in the reduction of the corresponding penalties for illegal possession of firearms, or ammunitions and other related crimes under the amendatory law. Under Section 2 of the said law, the penalties for unlawful possession of explosives are also lowered. Specifically, when the illegally possessed explosives are used to commit any of the crimes under the Revised Penal Code, which result in the death of a person, the penalty is no longer death, unlike in P.D. No. 1866, but it shall be considered only as an aggravating circumstance. Section 3 of P.D. No. 1866 as amended by Section 2 of R.A. 8294 now reads: Section 2. Section 3 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows:

Section 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives. The penalty of prision mayor in its maximum period to reclusion temporal and a fine of not less than Fifty thousand pesos (P50,000.00) shall be imposed upon any person who shall unlawfully manufacture, assemble, deal in, acquire, dispose or possess hand grenade(s), rifle grenade(s), and other explosives, including but not limited to "pillbox," "molotov cocktail bombs," "fire bombs," or other incendiary devices capable of producing destructive effect on contiguous objects or causing injury or death to any person. When a person commits any of the crimes defined in the Revised Penal Code or special law with the use of the aforementioned explosives, detonation agents or incendiary devises, which results in the death of any person or persons, the use of such explosives, detonation agents or incendiary devices shall be considered as an aggravating circumstance. (shall be punished with the penalty of death is DELETED.) xxx xxx x x x.

With the removal of death as a penalty and the insertion of the term "xxx as an aggravating circumstance," the unmistakable import is to downgrade the penalty for illegal possession of explosives and consider its use merely as an aggravating circumstance. Clearly, Congress intended R.A. No. 8294 to reduce the penalty for illegal possession of firearms and explosives. Also, Congress clearly intended RA No. 8294 to consider as aggravating circumstance, instead of a separate offense, illegal possession of firearms and explosives when such possession is used to commit other crimes under the Revised Penal Code. It must be made clear, however, that RA No. 8294 did not amend the definition of murder under Article 248, but merely made the use of explosives an aggravating circumstance when resorted to in committing "any of the crimes defined in the Revised Penal Code." The legislative purpose is to do away with the use of explosives as a separate crime and to make such use merely an aggravating circumstance in the commission of any crime already defined in the Revised Penal Code. Thus, RA No. 8294 merely added the use of unlicensed explosives as one of the aggravating circumstances specified in Article 14 of the Revised Penal Code. Like the aggravating circumstance of "explosion" in paragraph 12, "evident premeditation" in paragraph 13, or "treachery" in paragraph 16 of Article 14, the new aggravating circumstance added by RA No. 8294 does not change the definition of murder in Article 248. Nonetheless, even if favorable to the appellant, R.A. No. 8294 still cannot be made applicable in this case. Before the use of unlawfully possessed explosives can be properly appreciated as an aggravating circumstance, it must be adequately established that the possession was illegal or unlawful, i.e., the accused is without the corresponding authority or permit to possess. This follows the same requisites in the prosecution of crimes involving illegal possession of firearm 35 which is a kindred or related offense under P.D. 1866, as amended. This proof does not obtain in the present case. Not only was it not alleged in the information, but no evidence was adduced by the prosecution to show that the possession by appellant of the explosive was unlawful. It is worthy to note that the above requirement of illegality is borne out by the provisions of the law itself, in conjunction with the pertinent tenets of legal hermeneutics. A reading of the title36 of R.A. No. 8294 will show that the qualifier "illegal/unlawful ...possession" is followed by "of firearms, ammunition, or explosives or instruments..." Although the term ammunition is separated from "explosives" by the disjunctive word "or", it does not mean that "explosives" are no

longer included in the items which can be illegally/unlawfully possessed. In this context, the disjunctive word "or" is not used to separate but to signify a succession or to conjoin the enumerated items together.37 Moreover, Section 2 of R.A. 8294,38 subtitled: "Section 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives", clearly refers to the unlawfulmanufacture, sale, or possession of explosives. What the law emphasizes is the acts lack of authority. Thus, when the second paragraph of Section 3, P.D. No. 1866, as amended by RA No. 8294 speaks of "the use of the aforementioned explosives, etc." as an aggravating circumstance in the commission of crimes, it refers to those explosives, etc. "unlawfully" manufactured, assembled, dealt in, acquired, disposed or possessed mentioned in the first paragraph of the same section. What is per se aggravating is the use of unlawfully "manufactured or possessed" explosives. The mere use of explosives is not. The information in this case does not allege that appellant Antonio Comadre had unlawfully possessed or that he had no authority to possess the grenade that he used in the killing and attempted killings. Even if it were alleged, its presence was not proven by the prosecution beyond reasonable doubt. Rule 110 of the 2000 Revised Rules on Criminal Procedure requires the averment of aggravating circumstances for their application.39 The inapplicability of R.A. 8294 having been made manifest, the crime committed is Murder committed "by means of explosion" in accordance with Article 248 (3) of the Revised Penal Code. The same, having been alleged in the Information, may be properly considered as appellant was sufficiently informed of the nature of the accusation against him.40 The trial court found appellant guilty of the complex crime of murder with multiple attempted murder under Article 48 of the Revised Penal Code, which provides: Art. 48. Penalty for complex crimes. When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means of committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period. The underlying philosophy of complex crimes in the Revised Penal Code, which follows the pro reo principle, is intended to favor the accused by imposing a single penalty irrespective of the crimes committed. The rationale being, that the accused who commits two crimes with single criminal impulse demonstrates lesser perversity than when the crimes are committed by different acts and several criminal resolutions. The single act by appellant of detonating a hand grenade may quantitatively constitute a cluster of several separate and distinct offenses, yet these component criminal offenses should be considered only as a single crime in law on which a single penalty is imposed because the offender was impelled by a "single criminal impulse" which shows his lesser degree of perversity.41 Under the aforecited article, when a single act constitutes two or more grave or less grave felonies the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period irrespective of the presence of modifying circumstances, including the generic aggravating circumstance of treachery in this case.42Applying the aforesaid provision of law, the maximum penalty for the most serious crime (murder) is death. The trial court, therefore, correctly imposed the death penalty.

Three justices of the Court, however, continue to maintain the unconstitutionality of R.A. 7659 insofar as it prescribes the death penalty. Nevertheless, they submit to the ruling of the majority to the effect that the law is constitutional and that the death penalty can be lawfully imposed in the case at bar. Finally, the trial court awarded to the parents of the victim Robert Agbanlog civil indemnity in the amount of P50,000.00, P35,000.00 as compensatory damages and P20,000.00 as moral damages. Pursuant to existing jurisprudence43 the award of civil indemnity is proper. However, the actual damages awarded to the heirs of Robert Agbanlog should be modified, considering that the prosecution was able to substantiate only the amount of P18,000.00 as funeral expenses.44 The award of moral damages is appropriate there being evidence to show emotional suffering on the part of the heirs of the deceased, but the same must be increased to P50,000.00 in accordance with prevailing judicial policy.45 With respect to the surviving victims Jaime Agbanlog, Jimmy Wabe, Rey Camat and Gerry Bullanday, the trial court awarded P30,000.00 each for the injuries they sustained. We find this award inappropriate because they were not able to present a single receipt to substantiate their claims. Nonetheless, since it appears that they are entitled to actual damages although the amount thereof cannot be determined, they should be awarded temperate damages of P25,000.00 each.46 WHEREFORE, in view of all the foregoing, the appealed decision of the Regional Trial Court of San Jose City, Branch 39 in Criminal Case No. L-16(95) is AFFIRMED insofar as appellant Antonio Comadre is convicted of the complex crime of Murder with Multiple Attempted Murder and sentenced to suffer the penalty of death. He is ordered to pay the heirs of the victim the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages and P18,000.00 as actual damages and likewise ordered to pay the surviving victims, Jaime Agbanlog, Jimmy Wabe, Rey Camat and Gerry Bullanday, P25,000.00 each as temperate damages for the injuries they sustained. Appellants Gregorio Comadre and Danilo Lozano are ACQUITTED for lack of evidence to establish conspiracy, and they are hereby ordered immediately RELEASED from confinement unless they are lawfully held in custody for another cause. Costs de oficio. In accordance with Section 25 of Republic Act 7659 amending Article 83 of the Revised Penal Code, upon finality of this Decision, let the records of this case be forwarded to the Office of the President for possible exercise of pardoning power. SO ORDERED. Davide, Jr., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 169962 July 12, 2007 (Formerly G.R. No. 157022) PEOPLE OF THE PHILIPPINES, Appellee, vs. RAUL CENAHONON, Appellant. DECISION NACHURA, J.: Before us is the Decision1 dated June 3, 2005 of the Court of Appeals (CA) and the Decision2 dated October 20, 2001 of the Regional Trial Court (RTC) of Paraaque City, Branch 259, in Criminal Case No. 99-248, both finding accused Raul Cenahonon (Cenahonon) and Ranilo Erdaje (Erdaje) guilty of kidnapping for ransom and imposing upon them the death penalty. The case arose from the Information3 dated November 29, 1999, the accusatory portion of which reads: That on or about November 25, 1999 in Paraaque City and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, did then and there, by force and intimidation, and with the use of a gun, willfully, unlawfully and feloniously take, carry away and deprive KENNETH MEDINA of his liberty against his will for the purpose of extorting money as in fact a demand for money was made as a condition for his release. CONTRARY TO LAW. Upon arraignment, both accused pled "not guilty." Thereafter, Erdaje escaped from detention and, thus, was triedin absentia. The facts, as established by the prosecution evidence, are as follows: On November 25, 1999, around 9:00 a.m., Jometh Magaway (Magaway), the driver of spouses Fortunato and Daisy Medina, was driving a red Honda CRV (CRV) bearing plate number WPP 502 out of the Medina residence in BF Homes, Paraaque City, to bring the couples four-year-old son, Kenneth, to school. A man, later identified as Erdaje, suddenly approached, poked a gun at Magaway, opened the vehicle door, and told Magaway to move over from the driver's seat. Magaway followed and sat with Kenneth at the front passenger seat. Erdaje's companion, later identified as Cenahonon, occupied the back seat. Erdaje handed the gun to Cenahonon, who poked it at Magaway from behind. Erdaje then drove the car away.4 The maid of the Medinas, who saw the incident, immediately reported to Fortunato, then descending from the house, what happened. Fortunato tried to intercept the CRV at the village gate, but failed. He returned home and called Daisy at their office in Alabang, Muntinlupa City. He told her about the

incident and instructed her to call the Presidential Anti-Organized Crime Task Force (PAOCTF). He, in turn, called the Paraaque City Police Department.5 Meanwhile, inside the CRV, both accused informed Magaway that they would call the Medina family to demand aP5 million ransom. Upon reaching Las Pias City, the former ordered Magaway to alight.6 Magaway proceeded to Medina's office in Alabang and related to Daisy how Kenneth was abducted.7 Daisy instructed Magaway to return to the Medina residence where the Paraaque Police and the PAOCTF men were waiting.8 Around 1:00 p.m. that day, somebody called the Medina residence and talked to Fortunato. A speaker phone was used so everyone in the house heard the telephone conversation. The caller demanded P5,000,000.00 for Kenneth's release. A PAOCTF member instructed Fortunato to negotiate. The caller made several calls that same afternoon to negotiate for the ransom. At about 6:00 p.m., the caller agreed to reduce the ransom to P100,000.00. He instructed Fortunato to put the money in a black plastic bag and give it to Magaway who would then turn it over at Mon-El Village along Sucat Avenue near the Baliwag Lechon Manok stall, in exchange for the keys of the CRV, with Kenneth inside the car.9 Sr. Inspector Edgar Allan Okubo (Okubo) of the PAOCTF and his team placed the boodle money inside a black plastic bag and gave it to Magaway. Magaway proceeded to the appointed place aboard a Tamaraw FX vehicle (Tamaraw FX) of the Medinas, driven by a PAOCTF operative. Two teams were dispatched to follow the Tamaraw FX. Okubo led one team while Sr. Inspector Loreto Delelis (Delelis) led the other.10 Both teams parked their unmarked vehicles in front of the McDonald's restaurant beside Mon-El Village. The Tamaraw FX was parked in front of the Baliwag Lechon Manok stall.11 At around 8:00 p.m., Erdaje arrived and approached the Tamaraw FX. Magaway got down and gave the bag of boodle money to him. Upon receipt, Erdaje left without turning over the keys of the CRV.12 Okubo and the PAOCTF operatives saw Erdaje board a dark gray Gemini sedan (Gemini) parked in front of McDonald's. The PAOCTF operatives then followed the Gemini towards the Sucat Airport road. Meanwhile, Magaway and his companion returned to the Medina residence.13 The PAOCTF operatives pursued the Gemini to a house in Barangay Molino, Bacoor, Cavite. Erdaje alighted from the car and went inside the house. After a few minutes, he left and drove away. Okubo ordered Delelis' team to tail Erdaje while his team stayed and knocked at the door of the house. Elizabeth Alamag (Alamag) answered. The team introduced themselves and asked for the identity of the man who just left. Alamag replied that the man is her uncle, Ranilo Erdaje, who was looking for Cenahonon and a child. She informed the operatives that she told Erdaje that both were in Trece Martires, Cavite.14 Okubo informed Alamag that they were searching for kidnap victim Kenneth Medina who probably was the same child Erdaje was looking for. Okubo asked Alamag to cooperate and tell them what she knew.15 Alamag acceded and narrated that that morning, Erdaje requested her to allow the boy to stay for some time because his friend Cenahonon, allegedly the child's father, and the latter's wife were fighting over the boy's custody. She refused but advised Erdaje to bring the boy to her mother's house in Trece Martires. When Erdaje asked her to accompany him, she obliged. On their way to Cavite, she met the boy and Cenahonon inside the car. The boy was crying and looking for his mother. At Trece Martires, Alamag sought the permission of her stepfather to allow Cenahonon and

the child to stay in their house. The stepfather agreed. Thereafter, Erdaje left. Alamag went home a little later.16 Alamag volunteered to accompany the PAOCTF team to her mother's house.17 When they arrived there, Delelis' team had already surrounded the area.18 The Gemini was parked alongside the carnapped CRV nearby. The operatives then raided the house, safely rescued Kenneth, and arrested Erdaje and Cenahonon. The team took them to their office in Camp Crame, Quezon City. At about 10:30 p.m. that evening, Okubo phoned his superior, Col. Agustin, then at the Medina residence, and informed him that they had already rescued Kenneth.19 The next day, November 26, 1999, Magaway and Kenneth identified Erdaje and Cenahonon as their abductors in a police line-up.20 As sole witness for the defense, Cenahonon testified that, around 9:00 a.m. of November 25, 1999, he reported for work as a carpenter in Indang, Trece Martires, Cavite. Later, at around 11:00 a.m., he excused himself from his employer to go to the market and buy something. As he was about to leave the market, somebody tapped his shoulder, poked a gun at him, and blindfolded him. He was forced inside a vehicle and taken to an unknown place. When they arrived at their destination, the blindfold was removed and Cenahonon saw three armed men in fatigue pants. The armed men brought him to a small house. There, the men took his short pants and wallet and ordered him to take care of a child. That night, he was arrested without a warrant by the PAOCTF. The three armed men who earlier took him were nowhere at the time of the arrest. The PAOCTF brought him to Camp Crame and there he met for the first time his co-accused Erdaje.21 In its Decision22 dated October 20, 2001, the trial court found Cenahonon and Erdaje guilty of kidnapping for ransom and meted to them the penalty of death by lethal injection. The dispositive portion of the decision reads: WHEREFORE, PREMISES CONSIDERED, finding Raul Cenahonon and Ranilo Erdaje GUILTY beyond reasonable doubt of the crime of Kidnapping for Ransom as defined and penalized under Art. 267 of the Revised Penal Code as amended by RA 7659 particularly the penultimate paragraph thereof, with reference to Kidnapping committed for the purpose of extorting money from the victim or any other person, both accused are hereby sentenced to the supreme penalty of death by lethal injection and to suffer the accessory penalties provided by law specifically Art. 40 of the Revised Penal Code. The Clerk of Court is directed to prepare the Mittimus for the immediate transfer of Raul Cenahonon to the New Bilibid Prisons, Muntinlupa City from [the] Paraaque City Jail and to prepare an alias Warrant of Arrest for Ranilo Erdaje who is now considered a fugitive from justice. The Clerk of Court is also directed to forward all the records to the Supreme Court for automatic review in accordance with Section 9, Rule 122 of the Revised Rules of Court and Art. 47 of the Revised Penal Code as amended by Section 22 of RA 7659. SO ORDERED.23 This case was elevated for automatic review to this Court and originally docketed as G.R. No. 157022. The Public Attorney's Office (PAO) filed an appellants' brief for both Cenahonon and Erdaje.24 The Office of the Solicitor General (OSG), representing the People of the Philippines, filed the corresponding appellee's brief.25 Accused-appellants, thru the PAO, filed their reply brief.26 In a Resolution27 dated October 12, 2004, this Court transferred the records of the case to the CA for appropriate action and disposition pursuant to People of the Philippines v. Efren Mateo28 which

modified Sections 3 and 10 of Rule 122, Section 13 of Rule 124, and Section 3 of Rule 125, all of the Revised Rules on Criminal Procedure, and allowed intermediate review by the Court of Appeals. Upon review, the CA rendered its Decision29 dated June 3, 2005, affirming in toto the decision of the trial court, the dispositive portion of which reads: WHEREFORE, the Decision dated October 20, 2001 of the Regional Trial Court of the City of Paraaque, Branch 259, in Criminal Case No. 99-248, finding accused-appellants Raul Cenahonon and Ranilo Erdaje guilty beyond reasonable doubt of the crime of kidnapping for ransom and imposing upon them the death penalty is AFFIRMED. SO ORDERED.30 Upon elevation of this case back to this Court, now docketed as G.R. No. 169962, the parties were directed to file their respective supplemental briefs within thirty (30) days from notice, if they so desired.31 The People, thru the OSG, moved that its brief already filed be adopted as its supplemental brief.32 However, only Cenahonon, thru the PAO, prayed that appellants' brief filed earlier be adopted as his supplemental brief.33 It must be remembered that Erdaje escaped from jail after his arraignment. The trial court tried him in absentia, found him guilty of the crime charged together with Cenahonon, and likewise sentenced him to death. While it appears that Cenahonon is the lone appellant in this case, this Court, in line with its ruling in People v. Esparas34and in subsequent similar cases,35 is mandated by law to automatically review the conviction and the death sentence imposed on both Cenahonon and Erdaje, and promulgate the appropriate judgment. As the brief drafted by the PAO was initially filed for both accused, the Court will also consider the same with respect to Erdaje. Further, as the entire case is thrown open for scrutiny, it is the duty of this Court to correct any error, if any, that may be found in the judgment under review, whether or not an appeal brief is filed, and if there is, whether or not such error is assigned. Thus, for review is the following assignment of errors: I. THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANTS OF THE CRIME CHARGED DESPITE THE FAILURE OF THE PROSECUTION TO PROVE THEIR GUILT BEYOND REASONABLE DOUBT. II. THE COURT A QUO GRAVELY ERRED IN FINDING THAT THERE WAS CONSPIRACY IN THE CASE AT BAR. Cenahonon assails the credibility of prosecution witnesses Jometh Magaway and Elizabeth Alamag. He points to certain inconsistencies which, according to him, discredit their testimony. Firstly, Cenahonon claims that Magaway, on direct examination pointed to him as the person who approached him, poked a gun at him, demanded that he transfer to the front passenger seat, and drove the CRV away from the Medina residence; but, on cross-examination, testified that it was Erdaje, the person who collected the money from him, who poked the gun at him, demanded his transfer, and drove the vehicle with the boy.

Secondly, Cenahonon points out that Alamag testified that she voluntarily accompanied him and the boy to her mother's house and was not threatened by her uncle, Erdaje, but she also affirmed the contents of her affidavit wherein she stated that her uncle threatened her. The argument does not persuade. As correctly observed by the OSG and as found by the CA, the alleged inconsistencies in the testimony of Magaway are more apparent than real. Indeed, Magaway committed a mistake in identifying the person who poked the gun at him and drove the CRV away with the child. Noteworthy is that, on re-direct examination, he was able to explain the apparent inconsistency, and correct the mistake in this wise: Q: Mr. witness, in your answer in this transcript of stenographic notes dated June 8, 2000 on page 8 thereof, you said that the one who directed you to transfer to the right portion of the car, in the front side, and also the one who drove the car was one of the accused named Raul Cenahonon. In the transcript, you said that. Now when you were asked by the defense counsel who directed you to transfer to the right portion of the front seat of the car and the one who drove the car, your answer was the person who is not present here in court, or that it was not Raul Cenahonon. My question is, why did you say in your statement here made on June 8, 2000 that it was Raul Cenahonon who drove the car and the one who also ordered you to transfer to the right portion of the car? A: Because Fiscal Macapagal mentioned the name, sir. I only knew them by their faces kaya nalilito po ako. Q: And you said also that the one who is not present here in court was the one who poked a gun at you and the one who drove the car. Now, while that person was driving the car, did you come to know where he placed the gun that was poked on you? A: He handed it to his other companion, sir. Q: And that companion or that person is not present in court, is he present in this office? ATTY. OCTAVA: Your Honor please, matters that have to be taken by during re-direct examination are matters that have been taken up during the cross-examination. And these matters were not taken up during the cross-examination, your Honor. STATE PROS. MACAPAGAL: It is material, your Honor, because there was a mistake committed by the witness on identifying who poked the gun and drove the car because I mentioned, this representation happened to mention the name of the accused which he did not know. Now, I'm clarifying the matter by making the witness point to that person who was then the companion of the one who is not present in court, for the clarification of the Honorable Court. ATTY. OCTAVA: By the way, your Honor, I have vividly asked the witness a while ago that if that statement he made before was not true and he affirmed, your Honor. He affirmed that he was lying.

STATE PROS. MACAPAGAL: No. There was no affirmation that he was lying. It is just that he committed a mistake because this representation mentioned the name which he did not know. COURT: May answer. A: Yes, ma'am. He is here. STATE PROS. MACAPAGAL: Q: Will you please point to him? A: Siya po. (Witness pointed to a person who, when asked his name, answered Raul Cenahonon). Q: And what did that person whom you pointed do to the gun? A: He poked the gun at the left portion of my waist, sir. Q: So the one who poked the gun on you while you were already on board the car and that the one who is not present was driving the car away is the person whom you just identified here in court? A: Yes, ma'am.36 What Magaway made was an honest mistake that does not destroy his credibility as a witness. Even the most truthful witness can commit errors, but such innocent lapses do not necessarily affect his credibility. The testimonies of witnesses must be calibrated in their entirety, not merely by their truncated portions or isolated passages.37 Similarly, the truthfulness of Alamag's testimony is not affected by the alleged inconsistency as to whether she was threatened or not by her uncle (Erdaje). The discrepancy is of such a minor nature that it does not belie the occurrence of the abduction of Kenneth Medina by Cenahonon and Erdaje. In fact, such trivial inconsistencies even serve to strengthen the case of the prosecution as they erase suspicion of a rehearsed or perjured testimony.38 In this case, both Magaway and Alamag proved to be credible witnesses as there was nothing to show that they were actuated by any ill motive to testify against Cenahonon and Erdaje. Hence, the presumption that these witnesses were not moved by improper motive or bias, and thus, entitled to full faith and credit, holds.39 On the other hand, Cenahonon interposed the defenses of alibi and denial, stating that he was merely coerced to take care of Kenneth and that he met Erdaje for the first time at Camp Crame. Ranged against this lame excuse is the positive identification of both accused by Magaway and by Kenneth himself. Magaway and Kenneth identified both Cenahonon and Erdaje as the kidnappers in a police line-up the day following the kidnapping.40 Following the "totality test rule" laid down in People of the

Philippines v. Teehankee,41this out-of-court identification is admissible and reliable. Indeed, Magaway had sufficient time to familiarize himself with Cenahonon and Erdaje when he and Kenneth were taken on board the CRV, and more so with Erdaje when the latter collected the boodle money from him. There was a short interval of time between the abduction on November 25, 1999 and the police line-up identification on November 26, 1999. Kenneth Medina, the kidnap victim himself, and at his young age, reinforced Magaways identification of Cenahonon and Erdaje as the abductors. It is natural for victims to strive to recall the faces of the culprits and how the crime was committed against them.42 During trial, however, only Cenahonon was positively identified by Magaway, as Erdaje had already escaped from prison. An affirmative testimony merits greater weight than a negative one, especially when the former comes from a credible witness. Categorical and positive identification of an accused, without any showing of ill motive on the part of the witness testifying on the matter, prevails over alibi and denial, which are negative and self-serving evidence undeserving of real weight in law unless substantiated by clear and convincing evidence.43 In this case, Cenahonon's version that he was forced to take care of the kidnap victim is simply unbelievable. For testimony to be believed, it should not only come from a credible witness but must also be credible in itself.44 It would be inconceivable that kidnappers would entrust the performance of an essential and sensitive phase of their well-planned scheme to people not in collaboration with them, and who had no knowledge whatsoever of the details of their reprehensible plan.45 Cenahonons narrative even strengthens the prosecutions case, as it partakes of an admission that he participated in depriving the child of his liberty.
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Cenahonon also points out in the reply brief that it was incredulous for him and Erdaje to release Magaway after the latter had seen their faces. According to him, it is unnatural for criminals to risk their identification.46 The contention lacks merit. Following this line, if they were careful not to risk identification, then they should have worn masks in the first place. What occurred, and as was proven during trial, was not improbable or unnatural. It should also be remembered that Erdaje escaped from prison after he was duly arraigned. His flight can only be indicative of his guilt. Flight means the act of evading the natural course of justice by voluntarily withdrawing oneself to avoid arrest, detention, or the institution or continuance of criminal proceedings. In jurisprudence, it has always been a strong indication of guilt betraying a desire to evade responsibility.47 It is hardly consistent with a claim of innocence.48 In fine, there is no showing that the lower court has overlooked, misunderstood, or misapplied any fact or circumstance of weight and substance that would warrant the reversal of the conviction. Further, the assessment of the credibility of witnesses by the trial court is binding and conclusive on appeal because the trial court had the opportunity to evaluate conflicting testimonies and observe the demeanor of witnesses while on the stand.49 As regards the issue of conspiracy, the prosecution has proffered sufficient evidence that Cenahonon and Erdaje had unity of purpose in the perpetration of the kidnapping for ransom of Kenneth Medina. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.50While it is mandatory to prove it by competent evidence, direct proof is not essential to show conspiracy it may be deduced from the mode, method, and manner by which the offense was perpetrated, or inferred from the acts of the accused

themselves when such acts point to a joint purpose and design, concerted action and community of interest.51 Cenahonon and Erdaje were shown to have clearly acted towards a common goal to abduct Kenneth Medina and to extort ransom from his family. It was Erdaje who drove the CRV while Cenahonon poked a gun at Magaway from the back seat. They took Kenneth to Alamag in Molino, Bacoor, Cavite, where Cenahonon posed as the father of the boy, and then proceeded to the house Alamag's mother in Trece Martires, Cavite. Erdaje left Cenahonon and Kenneth to collect the ransom from the Medina spouses and later returned to that house in Trece Martires. The elements of kidnapping for ransom under Article 26752 of the Revised Penal Code (RPC), as amended by Republic Act (R.A.) 7659 warranting the imposition of the death penalty, are as follows: (a) intent on the part of the accused to deprive the victim of his liberty; (b) actual deprivation of the victim of his liberty; and (c) motive of the accused, which is extorting ransom for the release of the victim.53 Neither actual demand for nor payment of ransom is necessary for the consummation of the felony. It is sufficient that the deprivation of liberty was for extorting ransom even if none of the four circumstances mentioned in Article 267 were present in its perpetration.54 Based on the evidence proven during trial and as above discussed, the elements of the crime were present. Necessarily, the assailed decisions should be affirmed. However, with the advent of R.A. 9346,55 prohibiting the imposition of the death penalty, Cenahonon and Erdaje should be meted the penalty of reclusion perpetua with all its accessory penalties and without eligibility for parole under Act 4103,56 as amended. WHEREFORE, the Decision dated October 20, 2001 in Criminal Case No. 99-248 of the RTC, Branch 259, Paraaque City, finding Raul Cenahonon and Ranilo Erdaje guilty of kidnapping for ransom of Kenneth Medina, and the Decision dated June 3, 2005 of the CA, affirming in toto the Decision of the RTC, are AFFIRMED. On Cenahonon and Erdaje is imposed, in lieu of the death penalty by lethal injection, the penalty of reclusion perpetua with all its appurtenant accessory penalties and without eligibility for parole. Pursuant to Section 4 of R.A. 9346, in relation to Article 83 of the RPC, let the records of this case be forwarded to the President of the Philippines for the possible grant of executive clemency.57 Costs against appellant Cenahonon. SO ORDERED. ANTONIO EDUARDO B. NACHURA Associate Justice WE CONCUR: REYNATO S. PUNO Chief Justice LEONARDO A. QUISUMBING Associate Justice (On leave) CONSUELO YNARES-SANTIAGO Associate Justice ANTONIO T. CARPIO

ANGELINA SANDOVAL-GUTIERREZ* Associate Justice MA. ALICIA AUSTRIA-MARTINEZ Associate Justice CONCHITA CARPIO MORALES Associate Justice DANTE O. TINGA Associate Justice CANCIO C. GARCIA Associate Justice

Associate Justice

RENATO C. CORONA Associate Justice ADOLFO S. AZCUNA Associate Justice MINITA V. CHICO-NAZARIO Associate Justice PRESBITERO J. VELASCO, JR. Associate Justice

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, I certify 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 Court. REYNATO S. PUNO Chief Justice

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 178198 December 10, 2008

PEOPLE OF THE PHILIPPINES, appellee, vs. EVELYN BOHOL y TALAOGAN a.k.a. EVELYN BOHOL, a.k.a. EVELYN BOHOL DAVIS, a.k.a. DIANITA BOHOL DAVIS, appellant. DECISION NACHURA, J.: This is an appeal interposed by appellant Evelyn Bohol seeking the reversal of the Court of Appeals (CA) Decision1 dated December 28, 2006 which in turn affirmed with modification the Regional Trial Court2 (RTC) Decision3 dated November 25, 2004. The facts of the case follow: The victim, Steven Alston Davis (Steven), a 31-year old British national, was the Chief Technology Officer of JC Software, a local subsidiary of Hong Kong based corporation JADECOOL Entertainment. Together with his business associate and long-time friend Michael Thomas Dunn (Michael), a Canadian citizen, Steven resided at a two-storey apartment unit at No. 5958 Firmina Street, Barangay Poblacion, Makati City.4 Steven married appellant Evelyn Bohol in Hong Kong sometime in March 1997, when the latter was only 17 years old. Together with their two minor children, Steven and the appellant shared a house at No. 1823 Fifth Street, Villasol Subdivision in Angeles City, Pampanga. Steven spent his weekdays in the Makati apartment, and stayed with his family in Angeles City during weekends.5 On July 17, 2002, Steven and Michael worked until around ten oclock in the evening at the principal office of JC Software in Makati. At about 10:45 p.m., they headed to their rented apartment. Steven proceeded to his room, did some computer work, then went to sleep. At about 11:30 p.m., Michael went to the airport to fetch his girlfriend Jennifer Castillo (Jennifer), who was then arriving from Hong Kong. Michael and Jennifer returned to the apartment at one oclock in the morning of July 18, 2002. They went to bed a short moment thereafter.6 At around two oclock in the morning, Jennifer told Michael that a person seemed to be moving and flashing a light outside their room. Suspecting that the person outside the room was Steven, and that the latter was just trying to play a practical joke on them, Michael inquired "What are you doing tonight?" Instead of Steven answering back, three men with drawn handguns suddenly entered their room. These three individuals were later positively identified during the trial to be Arnold Adoray (Arnold), Alexander Dagami (Alexander), and accused-turned-state-witness Robin Butas (Robin). Arnold, whose gun was aimed at Michael, asked, "Ito ba? Ito ba?" Alexander thereafter grabbed Jennifer by the hand and locked her inside Michaels bathroom. After taking Michaels keys, wallet, and cellular phone, the three men proceeded to Stevens room.7 Upon seeing the then sleeping Steven, Arnold fired four consecutive shots upon the former, hitting the latter at the back. The three

men then hurriedly left the house.8 After he was sure that Arnold, Alexander and Robin were no longer inside the apartment, Michael immediately went to Stevens room. There, Michael saw the lifeless body of Steven. After checking Stevens pulse, Michael administered cardiopulmonary resuscitation (CPR) on the formers chest but he no longer made any response.9 Thereafter, Philippine National Police (PNP) personnel arrived at the scene of the crime; then an ambulance took Stevens body to the Makati Medical Center where he was pronounced dead on arrival.10 Michael made numerous attempts to reach the appellant by phone immediately after the incident, but his efforts were all in vain. Finally, he was able to contact her through her mobile phone at around six oclock in the morning; the former immediately informed the latter of the killing of her husband. When Michael met Evelyn at ten oclock in the morning, he readily observed that appellant showed no signs of sadness or mourning despite the violent death of her husband.11 After the autopsy of the cadaver in the afternoon of July 18, 2002, the National Bureau of Investigation (NBI) Medico-Legal officer found that Steven sustained four gunshot wounds at the upper left portion of his back, including four bullet holes at the back of his upper left arm, just below the shoulder.12 Arnold and Alexander were thus charged with murder on August 16, 2002.13 Trial thereafter ensued. The information was later amended14 charging the appellant, together with Robin, with the crime of murder, in conspiracy with Arnold and Alexander. The accusatory portion of the information reads: That on or about the 18th day of July, 2002, in the City of Makati, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with an automatic pistol and revolver, conspiring and confederating together, and all of them mutually helping and aiding one another, with intent to kill, and by means of treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault, and shot one STEVEN ALSTON DAVIS, on the different parts of his body, thereby inflicting upon the latter serious and mortal gunshot wound which directly caused his death. CONTRARY TO LAW.15 Considering that at the time the appellant was arrested, the trial of the case, in which Arnold and Alexander were eventually convicted,16 was almost complete, a separate trial for the appellant was held. Upon arraignment, the appellant pleaded "Not guilty."17 To ensure impartiality, the presiding judge inhibited himself, and the case of the appellant was re-raffled to Branch 141. It appears that Robin was discharged as a state witness.18 Robin contended that the appellant was responsible for inducing/persuading him, Arnold, and Alexander to perpetrate the killing of Steven. He further stated that the appellant and Arnold (as in fact admitted to him by the appellant) were having a love affair, as he would oftentimes see them caress and kiss each other in the living room of their house in Angeles City. Robin also testified that, at about eleven oclock in the evening of July 17, 2002, appellant roused him from sleep and required him to join them.19 Robin then rode a white car together with Arnold, Alexander and the appellant, who acted as the guide in proceeding towards Stevens apartment. Upon reaching Stevens place, appellant gave Arnold the keys of the house, and forthwith ordered the group to alight from the car. Upon gaining entry, the three performed all the acts of execution. Riding the same car, Arnold, Alexander, Robin and Evelyn returned to Angeles City. Even as they were traveling, Evelyn warned them never to tell anybody about the incident. Robin, however, divulged the violent incident to his wife Gina Bohol Butas (Gina), Evelyns sister. In essence, the material points of Robins testimony were wholly corroborated by Gina. According to Gina, the appellant admitted that she was in love with Arnold. She added that the appellant confided to her the plan to kill Steven in order for the appellant and Arnold to freely stay together.20

By way of defense, appellant theorized that it was physically impossible for her to have a direct and material participation in the killing of Steven as she was absent from the scene of the crime, and she lacked the ill motive to orchestrate the murder of her husband. She also contended that she was at home with her children at the time of the commission of the felony.21 On November 25, 2004, the RTC rendered a Decision22 finding the appellant guilty beyond reasonable doubt of murder, qualified by treachery, and sentenced her to suffer the penalty of reclusion perpetua. The court also made her liable to pay civil indemnity in the amount of P50,000.00. The court found sufficient evidence to establish conspiracy to kill Steven. It likewise held that treachery was adequately proven, thus, establishing the crime of murder. It, however, refused to recognize the aggravating circumstance of evident premeditation because of insufficiency of evidence. It is undisputed that the appellant was married to Steven; however, the trial court concluded that she could not be held liable for parricide in view of the nullity of their marriage, for having been contracted at the time when appellant was only 17 years old.23 This decision was affirmed by the CA in its Decision dated December 28, 2006, with an added award ofP50,000.00 representing moral damages due the heirs of Steven.24 In her final attempt to seek the reversal of her conviction, appellant comes before this Court, raising the following as lone error: THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE FACT THAT HER GUILT FOR THE CRIME OF MURDER WAS NOT PROVEN BEYOND REASONABLE DOUBT.25 Appellant bewails the fact that the trial and the appellate courts accorded great weight to the testimony of Robin. She posits that having turned state witness, Robin was motivated to testify solely by his desire to be exculpated from liability.26 Appellant adds that her motive to kill Steven was not established at all.27 She further avers that her conviction should not have been based on Robins testimony, or on the weakness of the evidence for the defense.28 Lastly, appellant insists that in no way could she be convicted of murder for lack of sufficient evidence to prove the qualifying circumstance of treachery.29 After a careful review of the records and evidence presented, we find no cogent reason to reverse the decision of the RTC, as affirmed by the CA. Nevertheless, we deem it proper to discuss the issues raised by the appellant. First, whether Robins testimony is credible. As this Court has consistently said, where the culpability or innocence of an accused would hinge on the issue of the credibility of witnesses, the findings of fact of the CA affirming those of the trial court, duly supported by sufficient and convincing evidence, must be accorded the highest respect, even finality, by this Court, and are not to be disturbed on appeal.30 The only exception is when certain facts of substance and value have been overlooked which, if considered, might affect the result of the case.31 Moreover, as enunciated in People v. Bocalan,32 the simple fact that Robin was originally charged with the appellant as a co-conspirator but was later discharged as a state witness and was no longer prosecuted for the crime charged does not render his testimony incredible or lessen its probative weight. Otherwise stated, the barefaced fact that Robin was charged as a co-conspirator in the commission of the crime before he was discharged as a state witness does not disqualify him as a witness or discredit his testimony.33 While his testimony should be taken with caution, there is no

reason why it cannot be given credence, it appearing that the same was corroborated by the testimony of his wife who happens to be appellants sister. Besides, appellant offered no evidence to show that Robin was actuated by an ill or devious motive to testify against her. Appellants claim that Robin testified against her only because he was motivated by his desire to be exculpated from his liability as a co-conspirator is likewise bereft of merit. Considering his close relationship with the appellant, the latter being his sister-in-law, there was no other reason for Robin to have testified against the appellant except his desire to tell the truth. This was bolstered by the fact that appellants own sister corroborated Robins testimony. More importantly, Robins testimony was corroborated by physical evidence, namely, the autopsy report that Steven sustained four gunshot wounds at the upper left portion of his back, including four bullet holes at the back of his upper left arm, just below the shoulder,34 which was thus consistent with his testimony that upon seeing Steven who was then asleep, Arnold fired four consecutive shots upon the former, hitting him at the back.35 Second, whether appellant was correctly convicted of murder. Murder is committed by any person who, not falling within the provisions of Article 24636 of the Revised Penal Code (RPC), kills another, if the killing is committed with treachery.37 There is treachery when the offender commits any of the crimes against persons, employing means, methods or forms which tend directly and specially to ensure its execution, without risk to himself arising from the defense which the offended party might make.38 Hence, for treachery to be appreciated, two conditions must be met, to wit: (1) the employment of means, methods or manner of execution that would ensure the offenders safety from any defense or retaliatory act on the part of the offended party; and (2) the offenders deliberate or conscious choice of means, method or manner of execution.39 The essence of treachery is the sudden and unexpected attack by an aggressor on an unsuspecting victim, depriving the latter of any real chance to defend himself and thereby ensuring its commission without risk to himself.40 The circumstances obtaining in the instant case show that treachery attended the killing of the victim. It is undisputed that the killing occurred at around two oclock in the morning, an hour when generally people are asleep. The witnesses are also one in saying that upon entering Stevens room, the assailants immediately shot the former and caused the latters death. Both the testimonial and the physical sets of evidence also show that Steven was shot from behind. Evidently, the victim was caught unaware, totally defenseless against the armed invaders.41 While it is true that appellant did not directly participate in shooting Steven, nevertheless, evidence clearly shows that she was part of the conspiracy to commit the crime. There is conspiracy when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.42 It must be proved with the same quantum of evidence as the crime itself. However, direct proof is not required, as conspiracy may be proved by circumstantial evidence. It may be established through the collective acts of the accused before, during and after the commission of a felony that all the accused aimed at the same object, one performing one part and the other performing another for the attainment of the same objective; and that their acts, though apparently independent, were in fact concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments.43 In the present case, the CA correctly outlined the circumstances showing the appellants participation, viz.: First, Evelyn [appellant herein] provided for the effective and compelling inducement for Arnold to carry into effect the killing of Steven. Second, Evelyn personally summoned and

"recruited" Robin to come along with them for possible backup or perhaps as "additional ammunition" in case of resistance or retaliation on the part of their target. Third, it is apparent that the three men were not aware of Stevens location, and thus Evelyn acted as the guide who directed the group towards the residence of Steven at Makati. And fourth, Evelyn provided the group with the keys in order for them to enter the apartment with ease and unnoticed.44 Indubitably, conspiracy was established. Appellant seeks refuge in the defense of alibi which we have consistently regarded as the much abused sanctuary of felons and which is considered as an argument with a bad reputation. It is, to say the least, the weakest defense which must be taken with caution being easily fabricated.45 Such defense cannot prevail over the positive identification of appellant as one of the conspirators in killing Steven. Though she did not participate in the actual shooting of Steven, it was sufficiently established that she traveled from Angeles City to Makati City, together with the assailants; she waited for the assailants inside the car; and she traveled back to Angeles City, again with her coconspirators, after the commission of the felony. Furthermore, appellant failed to establish that it was physically impossible for her to have been at the scene of the crime at the time of its commission. Angeles City is only a few kilometers away from Makati and only a few hours of travel by land. This is coupled by the fact that when Michael was trying to reach her through her mobile and residence phones, she was not available until six oclock in the morning, which was only about four hours after the incident. Clearly, it was possible for her to be at the place where the felony was committed. Besides, as earlier discussed, considering the appellants participation as a co-conspirator, her absence from the place of commission does not negate her culpability. We would like to clarify at this point that although admittedly, appellant was the wife of the victim, she could not be convicted of parricide as provided in Article 246 of the RPC. Records show that appellants relationship with the victim was not alleged in the information.46 Hence, she can be convicted only of murder. Under Article 248 of the RPC, the penalty imposed for the crime of murder is reclusion perpetua to death. There being no aggravating or mitigating circumstance, the penalty imposed on appellant is reclusion perpetua. The prison term imposed by the trial court and as affirmed by the CA is, therefore, correct. Lastly, whether the damages awarded to the heirs of Steven are proper. We affirm the award of civil indemnity and moral damages but we deem it proper to order the payment of an additional amount of P25,000.00 as exemplary damages. Civil indemnity is mandatory and granted to the heirs of the victim even without need of proof other than the commission of the crime. The amount of P50,000.00 awarded by the trial and appellate courts is in line with prevailing jurisprudence.47 As to moral damages, the same is mandatory in cases of murder and homicide, without need of allegation and proof other than the death of the victim.48 The amount of P50,000.00 was, therefore, correctly awarded. In addition, exemplary damages should be awarded to the heirs of the victim, since the qualifying circumstance of treachery was proven by the prosecution.49 When a crime is committed with an aggravating circumstance, either qualifying or generic, an award of P25,000.00 as exemplary damages is justified under Article 2230 of the New Civil Code. This kind of damage is intended to

serve as a deterrent to serious wrongdoings, and as a vindication of undue sufferings and wanton invasion of the rights of an injured or a punishment for those guilty of outrageous conduct.50 WHEREFORE, we AFFIRM the December 28, 2006 Decision of the Court of Appeals in CA-G.R. CR-HC No. 00551 finding appellant Evelyn Bohol y Talaogan guilty beyond reasonable doubt of murder, with theMODIFICATION that the victims heirs are also entitled to the award of exemplary damages of P25,000.00. SO ORDERED. ANTONIO EDUARDO B. NACHURA Associate Justice

WE CONCUR: CONSUELO YNARES-SANTIAGO Associate Justice Chairperson MA. ALICIA AUSTRIA-MARTINEZ Associate Justice MINITA V. CHICO-NAZARIO Associate Justice

RUBEN T. REYES Associate Justice

ATTESTATION I attest 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. CONSUELO YNARES-SANTIAGO Associate Justice Chairperson

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify 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

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 171020 March 14, 2007

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ALFREDO PANGILINAN y TRINIDAD, Accused-Appellant. DECISION CHICO-NAZARIO, J.: For review is the decision1 of the Court of Appeals in CA-G.R. CR-H.C. No. 01414 dated 16 November 2005 which affirmed with modification the decision2 of the Regional Trial Court (RTC) of Dinalupihan, Bataan, Branch 5, in Criminal Cases Nos. DH 586-97 and 587-97, finding appellant Alfredo Trinidad Pangilinan guilty of two counts of rape. The Court of Appeals upheld the two death sentences imposed on appellant but modified the award of damages.
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Two informations were filed charging appellant with raping AAA,3 his daughter. The informations read: Crim. Case No. DH-586-97 That in or about the month of September 1995 at Brgy. Pita, Dinalupihan, Bataan, Philippines, and within the jurisdiction of this Honorable Court, the said accused, thru force and intimidation, did then and there willfully, unlawfully and feloniously lie and succeed to have sexual intercourse with the offended party, AAA, an eleven (11) year old minor girl, who is his daughter against the will and consent of the latter, to her damage and prejudice.4 Crim. Case No. DH-587-97 That in or about the month of January 1997 at Brgy. Pita, Dinalupihan, Bataan, Philippines, and within the jurisdiction of this Honorable Court, the said accused, thru force and intimidation, did then and there willfully, unlawfully and feloniously lie and succeed to have sexual intercourse with the offended party, AAA, an eleven (11) year old minor girl, who is his daughter against the will and consent of the latter, to her damage and prejudice.5 On 5 May 1997, appellant, who was arrested and detained with no bail recommended, filed a petition for bail.6 In the hearings for the petition for bail, the prosecution presented the private complainant-victim, BBB, and Dr. Melinda Layug. From the evidence presented, the prosecutions version of what transpired, as summarized by the Office of the Solicitor General, is quoted by the Court of Appeals:

BBB is the wife of appellant Alfredo Pangilinan. On May 9, 1985, BBB gave birth to AAA. Their family lived in Barangay Pita, Bayan-bayanan, Bataan. On September 9, 1995, around 9 oclock in the evening, AAA, her brother and two (2) sisters were asleep. Suddenly, she felt her father, herein appellant, approach their bed, remove her shorts and lay on top of her. She could not move. Appellant proceeded to remove the rest of her clothes. AAA struggled with all her strength even though her hands were pinned down by appellant above her head. AAA cried and shouted for help, but appellant quickly covered her mouth. When appellant attempted to insert his penis into her vagina, AAA unceasingly resisted until appellant finally stopped his attack and left her. Around 11 oclock the following night, appellant once again crawled beside AAA while she was asleep beside her siblings. He removed all her clothes. When AAA woke up, she resisted appellant with all her strength and shouted for her grandmothers help, but he quickly covered her mouth, thus stifling her cries. Appellant, who was naked, mounted AAA and kissed her on different parts of her body. After a while, AAAs energy waned. AAA felt excruciating pain when appellant forcibly inserted his penis in her vagina and had sexual intercourse with her. The following morning, AAA was feverish. She saw blood oozing out of her vagina. Scared and confused, AAA confided to her eight (8) year-old brother CCC that appellant raped her the previous night. The following week, appellant repeated his dastardly act. While his children were playing in the creek behind their house, appellant pulled AAA, who was busy washing dishes, inside their house. Appellant brought her upstairs and pushed her down to the floor. As before, AAA tried to push appellant away and scream for help but he covered her mouth and easily overcame her resistance. Appellant removed AAAs clothes, mounted her and had sexual intercourse with her. After a few minutes, appellant stood up, put on his clothes and ordered AAA to take a bath.
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That same evening, appellant raped AAA again. After doing so, he threatened to kill her and her siblings should she report him to the authorities. During the month of September in 1995, appellant repeatedly raped AAA. AAA lost count of the number of times appellant had raped her. Fearing for her safety and that of her siblings, AAA kept her silence. For a while, AAA thought that appellant would no longer abuse her. She was wrong. Around 11 oclock in the evening of January 5, 1997, AAA felt her father grope for her while she was sleeping in their room. Like in the past, appellant removed her clothes. AAA resisted and struggled to free herself in vain. Appellant was too heavy. Appellant mounted her, inserted his penis into her vagina and had sexual intercourse with her. AAAs fear of her father intensified. His stares stopped her from confiding her ordeal to her mother, who had just arrived from Singapore. On March 16, 1997, BBB informed her children that she was leaving for Singapore again. DDD, AAAs grandmother, advised BBB not to leave her children. She told BBB that appellant had been molesting AAA. Shocked by the revelation, BBB confronted AAA. AAA tearfully confessed everything to her mother. BBB could only embrace her daughter tightly after hearing the sordid details. That same day, BBB confronted appellant. As expected, appellant denied any wrongdoing and hastily left their house. After the confrontation, BBB decided to leave appellant.

On March 17, 1997, BBB brought AAA to the Dinalupihan District Hospital where she was examined by Dra. Melinda Layug. The examination revealed that the victim had a non-parous introitus with an old healed hymenal laceration at the 4 oclock position. Thus the instant case was filed.7 On 30 October 1997, the prosecution formally offered its evidence consisting of Exhibits "A" to "E," with sub-markings, and the testimonies of its witnesses, praying that they be admitted and considered in the resolution of the petition for bail, and that the same be considered as part of its evidence in chief.8 On 15 December 1997, appellant filed his comment and/or opposition to the prosecutions offer of evidence.9 In an Order dated 23 April 1998, the trial court, finding that the evidence against the accused is strong, denied appellants petition for bail.10 Thereafter, the defense presented its evidence with appellant as the sole witness. Appellant testified as follows: Appellant narrated that he left for Saudi Arabia on 27 May 1990 and returned on 22 September 1992. Upon his return, a lot of people informed him that his wife was having an affair. Complainant even told him he is not the father of his youngest daughter. As a result, he lost interest in going back to Saudi Arabia, merely stayed at home and did not look for work. He revealed that before he left for Saudi Arabia, his daughter AAA was sweet to him, that is, she hugged and kissed him. When he returned from Saudi Arabia, he said AAA became sweeter. In September 1995, his wife was in Singapore working as an overseas contract worker. He kept in touch with her through phone and letters. Once, while he was writing a letter to his wife, he said he became drunk and was not able to finish the letter. He felt dizzy, lay down and slept. He was awakened by the embraces and kisses of a person who turned out to be his daughter, AAA. He said there was malice in the way his daughter embraced and kissed him. He wondered why his daughter was kissing him the way she did. He embraced her but he did not allow anything to happen, she being his daughter. Appellant further testified that the same incident happened again, but this time, he was not drunk. He said AAA approached him wanting to have sex with him by pointing her finger on her palm. He advised her that sex is only done by married couples. He claimed he did not have any sexual relationship with her although she seduced him. He added he did not know of any reason why she is mad at him and why she filed the rape cases against him. On 9 June 1999, the trial court, having discovered that appellant had not yet been arraigned, scheduled his arraignment. On 17 June 1999, appellant, with the assistance of counsel de oficio, pleaded not guilty to the charges against him.11 Since the prosecution adopted all the evidence it adduced during the hearing for the petition for bail as part of its evidence-in-chief, which evidence the trial court admitted, the trial court deemed the cases submitted for decision. In its Decision dated 9 September 1999, the trial court convicted appellant of two counts of rape and imposed on him the capital punishment for each count. The dispositive portion of the decision reads: WHEREFORE, this Court finds the accused Alfredo Pangilinan Y Trinidad GUILTY beyond reasonable doubt of RAPE in both cases, Criminal Cases Nos. DH-586-97 and 587-97, and hereby sentences him to suffer the penalty of DEATH for each case and to indemnify the victim, AAA, with the sum of FIFTY THOUSAND (P50,000.00) PESOS.12 The trial court was convinced that private complainant was raped several times by her father during the month of September 1995, and once on 5 January 1997. It accorded credence to the testimony of private complainant who, at 12 years old testified in a spontaneous and direct manner. It found

private complainant to be immature, innocent, nave, unfamiliar with sex and incapable of inventing or fabricating charges against her own father when the sexual assaults were committed in September 1995 and January 1997 when she was only 10 or 11 years old. The trial court brushed aside appellants defense of denial. It said it is simply unbelievable for a tenyear old girl to be as malicious as appellant described his daughter. It explained that the minor inconsistencies in private complainants testimony did not in any way affect her credibility. In conclusion, the trial court said: In this society, at a time when incestuous acts are not uncommon, and with the situation where the accused and offended party were in, when the wife of the accused was away working in Singapore, it is easy to believe that his loneliness urged him to sexually abuse his daughter. The offended party had no ill motive in filing the case against him. It was even the paternal grandmother who initially informed her mother that the accused was raping his daughter while she was gone. For fear that the accused might do it again, the paternal grandmother was trying to prevail over the mother who was again planning to leave for abroad. The one responsible for bringing the matter to the attention of the mother who later reported to the police was no less tha(n) the mother of the accused. A mother would not allow herself to be used to make her son suffer, (e)specially if the charges are fabricated. She heard the cries/shouts from the offended party while the accused was sexually assaulting her. What she did was to tell the truth. Is accused blaming her own mother for simply telling the truth?13 Inasmuch as the penalty it imposed was the death penalty, the trial court forwarded the records of the case to the Supreme Court for automatic review pursuant to Section 10, Rule 122 of the 2000 Rules of Criminal Procedure.14However, pursuant to our ruling in People v. Mateo,15 the case was transferred to the Court of Appeals for appropriate action and disposition.16 On 16 November 2005, the Court of Appeals affirmed the death penalties imposed by the trial court but modified the amounts of damages awarded. The decretal portion of the decision reads: WHEREFORE, premises considered, the Decision dated September 9, 1999 of the Regional Trial Court, Branch V, Dinalupihan, Bataan in Criminal Case Nos. 586-97 and 1257 (sic), finding appellant Alfredo Pangilinan guilty beyond reasonable doubt of rape in both cases and sentencing him to suffer the supreme penalty of death is AFFIRMED with the modification that he is ordered to pay the victim AAA, P75,000.00 as civil indemnity andP50,000.00 as moral damages in each case. Appellant is further ordered to pay an additional amount ofP25,000.00 as exemplary damages, also in each case.17 On 27 January 2006, the Court of Appeals elevated the records of the case to the Supreme Court for automatic review.18 Thereafter, in our resolution dated 28 February 2006, the parties were required to submit supplemental briefs, if they so desired, within thirty (30) days from notice. The parties opted not to file supplemental brief on the ground they had fully argued their positions in their respective briefs. Appellant makes the following assignment of errors: I THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF TWO (2) COUNTS OF RAPE DESPITE THE FACT THAT HE WAS NOT PROPERLY ARRAIGNED, AND WAS NOT INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM BEFORE THE EVIDENCE FOR THE PROSECUTION WAS PRESENTED.

II THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT DESPITE THE INSUFFICIENCY OF EVIDENCE FOR THE PROSECUTION. On the first assigned error, appellant assails his conviction because he was not properly arraigned. Since he was arraigned only after the case was submitted for decision, said irregularity, he argues, is a procedural error which is prejudicial to the appellant and is tantamount to denial of his constitutional right to be informed of the accusation against him. He claims that his subsequent arraignment did not cure the defect in the trial proceedings because at the time the petition for bail was heard, the trial court had not yet acquired jurisdiction over his person. Appellant is mistaken. When the hearings for his petition for bail were conducted, the trial court had already acquired jurisdiction over his person. Settled is the rule that jurisdiction over the person of the accused is acquired upon his arrest or voluntary appearance.19 In the case at bar, the trial court acquired jurisdiction over the person of the appellant when he was arrested on 19 March 1997. His arrest, not his arraignment, conferred on the trial court jurisdiction over his person. Arraignment is the formal mode and manner of implementing the constitutional right of an accused to be informed of the nature and cause of the accusation against him.20 The purpose of arraignment is, thus, to apprise the accused of the possible loss of freedom, even of his life, depending on the nature of the crime imputed to him, or at the very least to inform him of why the prosecuting arm of the State is mobilized against him.21 Admittedly, appellant was arraigned after the case was submitted for decision. The question is: Were appellants rights and interests prejudiced by the fact that he was arraigned only at this stage of the proceedings? We do not think so. Appellants belated arraignment did not prejudice him. This procedural defect was cured when his counsel participated in the trial without raising any objection that his client had yet to be arraigned. In fact, his counsel even cross-examined the prosecution witnesses. His counsels active participation in the hearings is a clear indication that he was fully aware of the charges against him; otherwise, his counsel would have objected and informed the court of this blunder. Moreover, no protest was made when appellant was subsequently arraigned. The parties did not question the procedure undertaken by the trial court. It is only now, after being convicted and sentenced to two death sentences, that appellant cries that his constitutional right has been violated. It is already too late to raise this procedural defect. This Court will not allow it. In People v. Cabale22 and People v. Atienza23 where the same issue was raised under similar circumstances, we held that while the arraignment of appellant was conducted after the cases had been submitted for decision, the error is non-prejudicial and has been fully cured. Since appellants rights and interests were not prejudiced by this lapse in procedure, it only follows that his constitutional right to be informed of the nature and cause of the accusation against him was not violated. With the procedural issue resolved, we now go to the substantial issues raised by appellant. Appellant tries to discredit private complainant by citing several circumstances that tend to create doubt as to his guilt, to wit: (1) the alleged molestations could not have been perpetrated within the confines of the small room in the "upstairs" portion of their house in the presence and within the hearing distance of the victims brother and two sisters in September 1995, and of her mother in

January 1997; (2) the failure of private complainant to immediately report the sexual attacks to her maternal relatives and to her mother upon her arrival from abroad, and the delay of more than one (1) year from the alleged offense in September 1995 and more than two (2) months from the alleged felony in January 1997 before they were reported to the police or to any barangay official, before private complainant reported the incidents, render doubtful her charges of rape; (3) private complainants declaration in her sworn statement contradicted her testimony in court as to how she reported the incidents; (4) the alleged material inconsistencies in the testimony of private complainant; and (5) the result of the medical examination that there was no sign of violence on the person of private complainant is an indication that she was not a victim of rape. To determine the innocence or guilt of the accused in rape cases, the courts are guided by three well-entrenched principles: (1) an accusation of rape can be made with facility and while the accusation is difficult to prove, it is even more difficult for the accused, though innocent, to disprove; (2) considering that in the nature of things, only two persons are usually involved in the crime of rape, the testimony of the complainant should be scrutinized with great caution; and (3) the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence for the defense.24 After examining the testimony of the private complainant, we find no compelling reason to deviate from the findings of the trial court as affirmed by the Court of Appeals. When it comes to credibility, the trial courts assessment deserves great weight, and is even conclusive and binding, if not tainted with arbitrariness or oversight of some fact or circumstance of weight and influence. The reason is obvious. Having the full opportunity to observe directly the witnesses deportment and manner of testifying, the trial court is in a better position than the appellate court to evaluate properly testimonial evidence.25 In the case at bar, there being overwhelming evidence showing that in September 1995 and in January 2000 appellant had carnal knowledge of private complainant by means of force and intimidation, we have no reason not to apply the rule and to apply the exception. In a clear and straightforward manner, private complainant recounted her ordeal as follows: Prosec. Tanciongco: Now, in this month of September 1995, while you were there at your house together with your brother and sisters, and with your father, do you recall of any unusual incident that happened to you? Witness: Yes, sir. Prosec. Tanciongco: What was that unusual incident that you remember that happened to you? a. I was molested by my father, sir. Atty. Danan: Ginamit? Court:

What do you mean be "ginamit". a. I was raped, sir. Atty. Danan: Ginamit, ginahasa, rape. Prosec. Tanciongco: I was raped by my father. q. When you said you were raped by your father, you are referring to the accused in this case, Alfredo Pangilinan? Witness: Yes, sir. Prosec. Tanciongco: How were you raped by your father? a. It was night time, sir, my brother and sisters, sir, including me, sir, were already sleeping, I just felt that my father was removing my short. q. Where were you then at the time when you felt that your father was removing your short? a. I was in my bed, sir. q. You said a while ago that night time, what time more or less of the night? a. Between the hours of 9 and 10 oclock in the evening, sir. Prosec. Tanciongco: We would like to make on record that the witness is crying at the time she is testifying. Court: Take note of that. The Court has observed that the witness is crying. Prosec. Tanciongco: And where were your brother and sisters at that time that your father was molesting you? a. They were already sleeping, sir. q. Were were your brother and sisters sleeping at that time?

a. Upstairs, sir. q. Where were you sleeping? a. Upstairs also, sir. Prosec. Tanciongco: How about your father, where was he sleeping? a. Also upstairs, sir. q. In relation to your father, where were you sleeping? In what part of the house were you sleeping? Court: Sama-sama ba kayo? a. We were in the same room, sir. Prosec. Tanciongco: Now, according to you your father was removing your shorts, was he able to remove your shorts? a. Yes, sir. q. What else did your father do aside from removing your shorts if he did anything? Witness: He raised my clothes, sir. Prosec. Tanciongco: How about you, what were you doing at that time that he raised your clothes and removing your shorts, what were you doing then? a. I was preventing him from doing so, but he was so strong I cannot control him. q. After the accused, your father raised your shirt, what happened next? a. I was fighting back sir, but both of my hands were pinned by him. q. You mean both of your hands were pinned by your father? a. Yes, sir. q. And then what happened to you?

Witness: Sumigaw po ako. "Inang, inang tulungan po ninyo ako inaasawa po ako ng papa ko." (I was shouting. "Inang, inang tulungan po ninyo ako, inaasawa po ako ng Papa ko.") xxxx Witness: Hindi pa rin niya po ako tinitigilan, tapos po sumisikad na po ako, hindi pa rin po siya umaalis. Tapos po hinahalikan niya ang suso ko. Court: You translate it first. Court Interpreter: He still continued with what he was doing, I am kicking him, but he is (sic) continue to kiss my breast, sir. Prosec. Tanciongco: What else did the accused do if any, aside from kissing your breast? a. He followed my vagina, sir. Court: What do you mean by that? Prosec. Tanciongco: What do you mean by that when you said, "he followed your vagina? Witness: He placed himself on top of me, sir. q. What happened when he was on top of you? a. Tapos po kumikinyud po siya sa akin. (He was pumping, sir.) q. How long was he pumping if you know? a. Less than five (5) minutes, sir. q. Now, after he was pumping, what happened next?

a. Hindi niya makuha ang gusto niya. Umalis na po siya. (He was not able to succeed of what he wanted to do, so he left) Court: What do you mean? Prosec. Tanciongco? Why? Witness: Because I was fighting back, sir. q. Was he able to insert his penis into your vagina? a. He was forcing to insert it, sir. q. But he was not able to completely insert his penis? xxxx Court: Yes, that is the question. And the answer is, Yes, sir. Prosec. Tanciongco: Now, after that, what happened? a. The following evening, sir, the same thing was also repeated by my father. He repeated what he had done to me. q. When you said the same thing was repeated what do you mean? Witness: He repeated what he had done on the first night. Prosec. Tanciongco: Can you tell this Honorable Court, what was that same thing that was done to you again by your father? a. He removed my pants and panty and raised my clothes, sir. q. What were you doing then at the time your father was doing that? a. I was shouting and struggling, sir, because my father was very heavy.

q. What time more or less of the night was that done by your father? a. Between ten (10) to eleven (11), sir. q. Where were your brother and sisters at that time while your father was doing that to you? a. There were sleeping during that time, sir. Prosec. Tanciongco: And your father was the only person awake at that time? a. Yes, sir. q. Now, after that he raised your skirt and removed your shorts and panty, what happened next? a. I was shouting sir, but he was covering my mouth, sir. q. Covering your mouth? a. Yes, sir. q. After that what happened next? a. He was kissing my breast, sir, then he placed himself on top of me, sir. Prosec. Tanciongco: How about you, when he placed himself on top of you, what were you doing? a. I was kicking my feet, sir. q. After he was on top of you, can you tell us what was he doing when he was on top of you? a. He was pumping, sir. q. While he was pumping, what happened? a. He was able to take my virginity, sir. Court: What do you mean by, he was able to take your virginity? a. He was able to completely penetrate his penis inside my vagina, sir. Prosec. Tanciongco:

How about you when you feel that he was able to completely penetrate his penis inside your vagina, what is your reaction? How do you feel? Witness: Its painful, sir. Prosec. Tanciongco: What did you do? a. After his penetration a thick fluid came out from his penis.26 question: Now, while you were there at your house in the month of January 1997, by the way in the first week of January to be specific, Your Honor, do you recall of any incident that happened to you? Witness: Yes, sir. question: Will you please tell that before this Honorable Court? answer: I was raped by my father, sir. Prosec. Tanciongco: You are referring to the accused Alfredo Pangilinan, in this case? Witness: Yes, sir. question: Where were you raped by your father? answer: In our house, sir. question: In what portion of your house were you raped by your father?

answer: Upstairs, sir. question: What time more or less were you raped by your father? answer: Between the hours of ten (10) to eleven (11) oclock in the evening, sir. Prosec. Tanciongco: In the evening or in the morning? answer: In the evening, sir. question: Can you tell this Honorable Court, how were you [raped] by your father? answer: I was sleeping then and suddenly I felt my father was removing my clothes including my short and panty and he was raising my shirt, sir. And then, I felt he was on top of me. question: By the way, what was your father wearing at that time? answer: He was wearing shorts, sir. Prosec. Tanciongco: At that time that he was on top of you, was he wearing anything? answer: No more, sir. question: Now, at the time he was removing your panty, raised your shirt, what did you do?

answer: I was fighting back, sir. I was kicking and pushing him, but he was so heavy so I cant push him, sir. question: When you stated that he was on top of you, what happened when he was on top of you? Witness: He was pumping, sir. Prosec. Tanciongco: While he was pumping, what were you doing at that time? answer: I was pushing him sir, but he was so heavy, I was not able to push him. Prosec. Tanciongco: I would like to make of record that the witness is crying while testifying. Court: Make that on record. Prosec. Tanciongco: Now, while he was pumping and you were trying to push him and failed to do so, what happened next? Witness: Something sticky came out from him, sir. And then, he stopped.27 This Court has held time and again that testimonies of rape victims who are young and immature deserve full credence, considering that no young woman, especially of tender age, would concoct a story of defloration, allow an examination of her private parts, and thereafter pervert herself by being subject to a public trial, if she was not motivated solely by the desire to obtain justice for the wrong committed against her.28 Youth and immaturity are generally badges of truth.29 It is highly improbable that a girl of tender years, one not yet exposed to the ways of the world, would impute to any man a crime so serious as rape if what she claims is not true.30 A rape victims testimony against her parent is entitled to great weight since Filipino children have a natural reverence and respect for their elders. These values are so deeply ingrained in Filipino families and it is unthinkable for a daughter to brazenly concoct a story of rape against her, if such were not true.31 Her credibility was bolstered beyond reproach by her spontaneous emotional breakdown during trial.32

In this case, considering that the victim was of tender age, has undergone a harrowing experience, and has exposed herself to the rigors of public trial, we find it very unlikely that she would impute so grave a crime to her father. Appellants contention that it is impossible for him to have consummated the rapes in the "upstairs room" without her brother and two sisters becoming aware thereof is untenable. It has been oft said that lust is no respecter of time or place. Neither the crampness of the room, nor the presence of other people therein, nor the high risk of being caught, has been held sufficient and effective obstacle to deter the commission of rape.33 There have been too many instances when rape was committed under circumstances as indiscreet and audacious as a room full of family members sleeping side by side.34 There is no rule that a woman can only be raped in seclusion.35 As testified to by the private complainant, her brother and two sisters were sleeping soundly and were not awakened by the commotion36 She further said that when the rape was perpetrated on 5 January 1997, her mother was in the sala downstairs sleeping while her father proceeded upstairs to commit the dastardly act on her.37 With her brother and sisters sleeping soundly, and her mother sleeping downstairs (during the rape committed on 5 January 1997), appellant had all the opportunity to carry out, which he did, his dissolute plan. Appellants argument that the delay of more than one (1) year from September 1995 and more than two (2) months from January 1997 before reporting the sexual attacks to her maternal relatives, mother or to the authorities is a clear indication that the claimed sexual assaults never happened does not persuade. The delay and initial reluctance of a rape victim to make public the assault on her virtue is neither unknown nor uncommon. Particularly in incestuous rape, this Court has consistently held that delay in reporting the offense is not indicative of a fabricated charge.38 It has been repeatedly held that the delay in reporting a rape incident due to death threats cannot be taken against the victim.39 The fact of delay does not necessarily lead to an acquittal. In several cases we have decided,40 the delay lasted for two years or more; nevertheless, the victims were found to be credible. The charge of rape is rendered doubtful only if the delay was unreasonable and unexplained. Private complainant was only 10 years old when she was sexually molested by her father in September 1995 and 11 years old when her father satisfied his bestial desire in January 1997. Private complainant explained to the satisfaction of the Court why she did not immediately report the matter to anybody. She disclosed that she is afraid of her father and that the latter threatened to kill her and her siblings if she would report the matter. Though she told her eight-year old brother of her ordeal, her brother likewise did not report to the authorities because he was also afraid of his father. 41 She added that she really wanted to tell her mother after she arrived from abroad but every time she went near her mother, her father kept staring at her. Exercising moral ascendancy and influence over his children, appellant clearly instilled fear in them, causing them not to go to the authorities. Her unwillingness to report which caused the delay does not diminish her credibility or weaken the charge of rape. Appellant further attacks private complainants credibility because the latters declaration in her sworn statement as to how she reported the incidents contradicted her testimony in court. In her sworn statement,42 it was stated that she reported the rapes to her mother in January 1997, but in her testimony in court, she said that she reported the matter on 16 March 1997. Settled is the rule that affidavits, being taken ex parte, are almost always incomplete and often inaccurate for lack of searching inquiries by the investigating officer or due to partial suggestions, and are thus generally considered to be inferior to the testimony given in open court.43 In the instant

case, the said contradiction between private complainants sworn statement and her statement in court was fully explained by her. She made it clear in court that this portion of her sworn statement was wrong and what was correct was her declaration in court. She explained in court that she informed the investigator about the mistake in her sworn statement but the latter told her to just sign it and that he will change this portion. However, the investigator never corrected the same.44Having fully explained the discrepancy, her credibility has not been impaired. Appellant ascribes to private complainant several alleged material inconsistencies that affect the veracity of private complainants testimony. These are: (1) whether the rapes were committed inside or outside the room in the "upstairs" portion of their house; (2) whether private complainant was able to shout or utter the words "Inang, inang tulungan po ninyo ako inaasawa po ako ng papa ko"; (3) whether the sticky fluid coming out of her fathers penis was ejected inside or outside her vagina; and (4) whether it was private complainant or her grandmother who told Dr. Melinda Layug that she was abused. These inconsistencies refer to minor and collateral matters. Inconsistencies in the testimony of the witness with regard to minor or collateral matters do not diminish the value of his testimony in terms of truthfulness or weight. The gravamen of the felony is the carnal knowledge by the appellant of the private complainant under any of the circumstances provided in Article 335 of the Revised Penal Code, as amended. Where the inconsistency is not an essential element of the crime, such inconsistency is insignificant and cannot have any bearing on the essential fact testified to.45 In fact, these inconsistencies bolster the credibility of the witnesss testimony as they erase the suspicion of the witness having been coached or rehearsed.46 It is when the testimony appears totally flawless that a court might have some misgiving on its veracity. This is especially true in rape cases where victims are not expected to have a total recall of the incident.47 Appellant tries to utilize the first and second inconsistencies in order to show that the rapes could not have happened in a room in the presence and within hearing distance of other people. As discussed above, a rape can be committed inside a house where there are other occupants, and even in the same room where there are other members of the family who are sleeping. More importantly, what is clear from the evidence adduced is the fact that, regardless of whether private complainant was able to shout or not, appellant was shown to have carnal knowledge of private complainant in the room located in the "upstairs" portion of their house. On the third inconsistency, appellant makes a big fuss as to where appellants sperm was ejected. Whether the sperm was ejected inside or outside the vagina of private complainant is of no moment. It is clear from the testimony of private complainant that appellant already consummated the crime of rape when the latter tried to insert his sexual organ into her vagina during the first time that he molested her because his penis already touched her hymen.48 It is a settled rule that for rape to be consummated, the hymen of the private complainant need not be penetrated or ruptured. It is enough that the penis reaches the pudendum, or at the very least, the labia. The briefest of contacts under circumstances of force, intimidation or unconsciousness, even without laceration of the hymen, is deemed to be rape in our jurisprudence. The mere introduction of the penis into the aperture of the female organ, thereby touching the labia of the pudendum, already consummates the crime of rape.49 As to the last inconsistency regarding the person who informed Dr. Melinda Layug that private complainant had been abused, we find this to be very trivial as to affect her credibility. To support his claim that private complainant was not a victim of rape, appellant uses the answer elicited from Dr. Layug that she had not observed any physical violence or force perpetrated on the body of private complainant, specifically on the area surrounding the private organ.

This is not sufficient to exonerate him. The trial court addressed this issue in this wise: As to the absence of violence, accused pointed out that the physical examination revealed that there were no signs of violence. This is understandable since the offense took place in September 1995 and January 5, 1997 while the physical examination was conducted on March 17, 1997 or almost two (2) years and two (2) months, respectively. Whatever signs of physical violence or wounds/injuries there may be at the time of the commission of the offense the same had healed in time.50 Though there were no longer physical manifestations of violence outside the sexual organ of private complainant, there was, however, an indication that the vagina had been injured.51 The medical certificate issued52 by Dr. Layug contains, among other things, a finding that reads "Internal Examination revealed non-parous introitus with old healed hymenal laceration at 4 oclock position." The finding that the victim had a healed laceration at 4 oclock position on her hymen substantiates her claim that appellant had sexual intercourse with her. Hymenal lacerations, whether healed or fresh, are the best evidence of forcible defloration.53] And when the consistent and forthright testimony of a rape victim is consistent with medical findings, there is sufficient basis to warrant a conclusion that the essential requisites of carnal knowledge have been established.54] Against a deluge of damning evidence from the prosecution, appellant merely raises the defense of denial. He denies sexually molesting her daughter. He even claimed that private complainant seduced him and wanted to have sex with him, but he refused. His defense, unsubstantiated and uncorroborated, must certainly fail. Mere denial, if unsubstantiated by clear and convincing evidence, has no weight in law and cannot be given greater evidentiary value than the positive testimony of a rape victim.55 Denial is intrinsically weak, being a negative and self-serving assertion.56 The trial court had this to say: It is unbelievable for a ten (10)-year old girl to be as malicious as accused described the offended party. At age ten (10), girls still play games that children normally play, but definitely not sex. If indeed accused had good relationship with the offended party, he would not destroy the reputation or character of his daughter just to save himself from punishment of his immoral and bestial act. Following his line of defense, offended party would not file charges against the accused had the latter treated her well, respected her as a child and cared for her like a precious jewel. Had the offended party enjoyed this treatment and did not suffer in his hands, the former would not have any reason nor have a heart to file charges against the (latter). x x x.57 Moreover, appellants statement that he does not know of any reason why his daughter filed the rape charges58further bolstered the credibility of private complainant. When there is no evidence to show any improper motive on the part of the rape victim to testify falsely against the accused or to falsely implicate him in the commission of a crime, the logical conclusion is that the testimony is worthy of full faith and credence.59 Since the felonies were committed in September 1995 and in January 1997, the provisions of Republic Act No. 7659,60 which was the law in effect on the day when the rapes were committed, shall apply. The gravamen of the offense of rape is sexual congress with a woman by force and without consent. If the woman is under 12 years of age, proof of force is not an element of statutory rape, but the absence of a free consent is presumed. Conviction will therefore lie, provided sexual intercourse is proven. But if the woman is 12 years of age or over at the time she was violated, sexual intercourse must be proven and also that it was done through force, violence, intimidation or threat.61

As provided for in the Revised Penal Code,62 sexual intercourse with a girl below 12 years old is statutory rape. The two elements of statutory rape are: (1) that the accused had carnal knowledge of a woman; and (2) that the woman is below 12 years of age. Sexual congress with a girl under 12 years old is always rape.63 In the present case, appellant was charged with two counts of statutory rape. The first element was proved by the testimony of the victim herself, while the second element was established by appellants admission and the presentation of private complainants Certificate of Live Birth64 showing that she was born on 9 May 1985. When the crimes were committed in September 1995 and in January 1997, private complainant was not yet 12 years old. For one to be convicted of qualified rape, at least one of the attendant circumstances mentioned in Article 33565must be alleged in the information and duly proved during the trial.66 In the instant case, since the attendant circumstances of the victims minority and her relationship with the offender have been properly alleged in the informations and established during trial, the trial courts imposition of the penalty of death on appellant is justified. With the effectivity,67 however, of Republic Act No. 9346 entitled, "An Act Prohibiting the Imposition of Death Penalty in the Philippines," the imposition of the supreme penalty of death has been prohibited. Pursuant to Section 2 thereof, the penalty to be meted on appellant shall be reclusion perpetua. Said section reads: SECTION 2. In lieu of the death penalty, the following shall be imposed: (a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties of the Revised Penal Code; or (b) the penalty of life imprisonment, when the law violated does not make use of the nomenclature of the penalties of the Revised Penal Code. Notwithstanding the reduction of the penalty imposed on appellant, he is not eligible for parole following Section 3 of said law which provides: SECTION 3. Persons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended. As regards the award of damages, the same must be modified. The P50,000.00 awarded by the trial court as civil indemnity was correctly increased by the Court of Appeals to P75,000.00 which is the amount awarded if the crime is qualified by circumstances which warrant the imposition of the death penalty.68 With respect to the award of moral damages, the P50,000.00 awarded by the Court of Appeals should be increased to P75,000.00 without need of pleading or proof of basis thereof.69 In addition, the amount of P25,000.00 awarded by the Court of Appeals as exemplary damages was proper due to the presence of the qualifying circumstances of minority and relationship.70 WHEREFORE, all the foregoing considered, the decision of the Court of Appeals dated 16 November 2005 finding appellant Alfredo Pangilinan y Trinidad guilty beyond reasonable doubt of two counts of qualified rape is AFFIRMED with the MODIFICATION that each penalty of death imposed on appellant is reduced to reclusion perpetua without eligibility for parole pursuant to Republic Act No. 9346. He is also ordered to pay private complainant AAA, for each count of rape, the amount of P75,000.00 as civil indemnity, P75,000.00 as moral damages and P25,000.00 as exemplary damages. Costs against appellant.

SO ORDERED. MINITA V. CHICO-NAZARIO Associate Justice WE CONCUR: REYNATO S. PUNO Chief Justice

LEONARDO A. QUISUMBING Associate Justice ANGELINA SANDOVAL-GUTIERREZ Associate Justice MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

CONSUELO YNARES-SANTIAGO Asscociate Justice ANTONIO T. CARPIO Asscociate Justice RENATO C. CORONA Asscociate Justice On leave ROMEO J. CALLEJO, SR. Asscociate Justice DANTE O. TINGA Asscociate Justice PRESBITERO J. VELASCO, JR. Asscociate Justice

CONCHITA CARPIO MORALES Associate Justice ADOLFO S. AZCUNA Associate Justice CANCIO C. GARCIA Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice CERTIFICATION Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court. REYNATO S. PUNO Chief Justice

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. L-35700 October 15, 1973 THE PEOPLE OF THE PHILIPPINES, plaintiff and appellee, vs. JOSE GERONIMO and ROMEO GERONIMO, defendants and appellants. Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Dominador L. Quiroz and Solicitor Rosalio A. de Leon for plaintiff-appellee. Eleuterio F. Martinez as Counsel de Oficio for defendants-appellants.

ESGUERRA, J.: This appeal was originally taken by the defendants-appellants to the Court of Appeals, but as the penalty imposed by the trial court 1 is reclusion perpetua, the Court of Appeals by its resolution 2 of June 20, 1972, elevated the case to this Court for decision. . The amended information for Murder filed against the three (3) accused, Enrico Geronimo, Romeo Geronimo and Jose Geronimo, included two other persons, namely, Isidro Geronimo and Eleodoro Carlos, but these two accused have not been apprehended. Enrico Geronimo pleaded guilty to the charge but Romeo Geronimo and Jose Geronimo went to trial upon their plea of not guilty. Romeo Geronimo and Jose Geronimo are brothers while Enrico Geronimo is their uncle for being a first cousin of their father. The deceased, Fermin Magbanua, is a first cousin of Romeo and Jose and also a nephew of Enrico. On April 6, 1966, at about 122:30 p.m. in Sitio Ilaya Ilaya, Poblacion Norte, Sigma, Capiz, accusedappellants Enrico Geronimo, Romeo Geronimo and Jose Geronimo, and the deceased, Fermin Magbanua, arrived from the market place of Sigma, Capiz, already drunk and stopped at the store of one Fesertas Bacalangco to buy ten liters of tuba. After drinking, Fermin Magbanua and the accused started to go home, but after having gone several meters away from the store of Fesertas Bacalangco, Fermin Magbanua was hit on the face by a sling shot wielded by one Eleodoro Carlos. Fermin fell to the ground and Romeo Geronimo ran to where he had fallen and held him, while Jose Geronimo went around and hit Fermin on the head with a stone, rendering him unconscious. While Fermin was held unconscious by Romeo, Enrico Geronimo took Fermin's bolo from his waist and hacked the latter on the right ankle joint and Jose also boloed his left ankle joint, almost severing it. Fermin Magbanua died as a result of his wounds. Enrico Geronimo, Romeo Geronimo and Jose Geronimo were charged before the Court of First Instance of Capiz with murder committed allegedly as follows:

That on or about the 6th day of April, 1966, in the Municipality of Sigma, Province of Capiz, Philippines, and within the jurisdiction of this Honorable Court, the said accused in company with Isidro Geronimo and Eleodoro Carlos, who are still at large, all armed with boloes, sling-shot and stones, conspiring, confederating and helping each other, with superior strength and with evident premeditation and treachery, did then and there wilfully, unlawfully and feloniously attack, assault, stone and stab one Fermin Magbanua with the said weapons, thereby inflicting upon the latter the following wounds as reported in the medical certificate. 3 to Wit:

1. Incised wound at the right ankle joint, posterior aspect about 3-1/2 inches long; 2. Incised wound 4.5 inches long just below and almost around the left ankle joint completely severing the tendon of achilles; 3. Multiple small (about one cm. long each) wounds in the hand region, upper lip and distal end of the left forearm; 4. Multiple small laceration with hematoma on the scalp; 5. Hemorrhage, massive secondary to the above lesions. which caused his death; that due to the death of said Fermin Magbanua and the consequent loss of his earning capacity (the deceased having no permanent physical disability at the time of his death), his heirs have suffered damages in the amount of P6,000.00 in consonance with the provisions of Article 3306 of the New Civil Code. Contrary to law. (pp. 51-52, rec.) Before his death Magbanua executed an ante-mortem declaration naming the accused as his assailants, and which reads as follows: Question Who is your name? Answer Fermin Magbanua. Q What happened to you? A I was boloed by Enrico Geronimo, Jose Geronimo and Romeo Geronimo. Q What was the cause? A Because we have grudges before. Q What do you feel of your wounds? A I might die of my wounds because I am feeling bad. Q Will you sign to the truthfulness of your statement? A I will just thumb marked it.

(Mkd.) FERMIN MAGBANUA WITNESSES TO THUMBMARK: 1. (Sgd.) RAMON S. ISIDERIO 2. (Sgd.) AMANDO PONSARAN (pp. 164-166, rec.) Upon arraignment Enrico Geronimo, assisted by Counsel, pleaded guilty to the charge 4 but in so doing he manifested that he alone inflicted the injuries of the deceased. He was accordingly sentenced to serve an indeterminate penalty of six (6) years of prision correccional, as minimum, to twelve (12) years of prision mayor, as maximum; to indemnify the heirs of the victim in the sum of twelve thousand pesos (P12,000.00) without subsidiary imprisonment in case of insolvency, to the accessories of the law, and to pay the costs. He was credited with one-half (1/2) of his preventive imprisonment. The case for the prosecution rests mainly on the testimony of Bonifacio Bacalangco and Teresita Delfin and on the ante-mortem declaration of the deceased. The respective testimonies of Bonifacio Bacalangco and Teresita Delfin are substantially as follows: Bonifacio Bacalangco: On April 6, 1966, while he was looking out of the window of the second floor of the house of Manuel Bacalangco, he saw the accused, Enrico Geronimo, Jose Geronimo, Romeo Geronimo, Isidro Geronimo, Eleodoro Carlos, and the victim, Fermin Magbanua, coming out of a store four meters away from the house of Manuel; that all of a sudden Isidro Geronimo and Eleodoro Carlos hit Fermin successively by their sling-shots between his eyes and forehead; that Romeo at once embraced Fermin, and Jose, with a stone in his hand, approached Fermin and hit him twice on the right side of his head rendering the latter unconscious; that Enrico approached Fermin, drew the latter's bolo from his waist and hacked Fermin on his right ankle joint; that Jose followed in hacking Fermin this time on the latter's left ankle joint which was almost severed; that after all this had happened, with Romeo still embracing Fermin, a peace officer arrived and brought the victim to the hospital. Teresita Delfin: She corroborated Bonifacio Bacalangco's version with the only difference that according to Teresita, Enrico hacked Fermin on the left ankle joint while Jose did it on the right ankle joint. The defense gave a different version of the incident. Enrico who pleaded guilty maintains that it was he alone and nobody else who was responsible for the wounds inflicted on the deceased as described in the medical certificate Exhibit "A". On the other hand, Romeo and Jose categorically denied direct and active participation in the infliction of the injuries and branded as utterly untrue the prosecution witnesses' testimony that they helped facilitate the hacking by immobilizing the victim. Their versions are as follows: Enrico Geronimo: At about 11:30 a.m. of April 6, 1966, while he was on his way home, he saw Fermin Magbanua inside the store of Felix de Juan drinking tuba; that upon seeing him, Fermin called him and offered a drink; that after drinking the tuba, Fermin told him to pick up a quarrel with one Pedro Bacalangco; that when he refused, Fermin got mad and hit him with his fist; that after being hit by Fermin, he got hold of a stone and threw it at Fermin who was then running away; that he hit Fermin on the head and the latter fell face downward; that it was at that moment when he hacked Fermin on the right and left ankle joints; that he also hit Fermin on the left arm; that Romeo

embraced him to pacify him while Jose tried to help Fermin by bringing the latter to the hospital; that he at once reported the incident to the municipal building and surrendered to the authorities. Romeo Geronimo: He stated that on said occasion Fermin offered Enrico a drink inside the tuba store; that after drinking the glassful of tuba, he heard Fermin induce Enrico to fight Pedro Bacalangco; that when Enrico refused, Fermin boxed the former; that Enrico got hold of a piece of stone and threw it at Fermin who ran away but was hit on the head and fell face downward; that Enrico unsheathed Fermin's bolo and hacked Fermin on the right and left ankle joints; that Enrico also hacked Fermin on the left and right arms; that he carried Fermin in his arms and brought him to the hospital; that he has nothing to do directly or indirectly with the killing of Fermin; and that he has never been to school. Jose Geronimo: He corroborated the testimony of Romeo and maintained that it was he who pacified and stopped Enrico from further inflicting injuries on Fermin. Consolacion Banjao and Enrico de la Cruz: Their testimonies corroborated those of Romeo and Jose. The Court of First Instance of Capiz after hearing convicted the accused and sentenced them as follows: Wherefore, this Court finds the accused Romeo Geronimo and Jose Geronimo guilty beyond reasonable doubt of the crime of murder and this Court hereby sentences each of said accused, Jose Geronimo and Romeo Geronimo, to the penalty of RECLUSION PERPETUA and to indemnify the heirs of Fermin Magbanua in the sum of P12,000.00 pursuant to the ruling of our Honorable Supreme Court in the recent case of People vs. Pantoja, without subsidiary imprisonment in case of insolvency and to pay the cost. The weapon used in the commission of the offense is ordered confiscated. Said Jose Geronimo and Romeo Geronimo are credited with One-half (1/2) of their preventive imprisonment. Hence, this appeal by Romeo Geronimo and Jose Geronimo who claim that the lower court erred: (1) In convicting both appellants by holding that they conspired with Enrico Geronimo in killing the deceased; (2) In convicting both appellants upon testimonies which are unbelievable and unworthy of credence; (3) In convicting appellant Romeo Geronimo inspite of the evidence of the prosecution showing that he did not participate in the fight; (4) In convicting both appellants of murder and not of homicide; and (5) In not crediting both appellants with the mitigating circumstance of "lack of intent to commit so grave a wrong as that committed" and as to appellant Romeo Geronimo, with the alternative mitigating circumstance of "lack of instruction" I. DISCUSSION

The issue raised by the first assignment of error is whether or not the trial court erred in holding that Jose and Romeo Geronimo conspired with Enrico Geronimo in killing the deceased. Both accused maintain that the element of conspiracy was never proven and nowhere in the evidence of the prosecution is it shown that there was an agreement relating to the commission of the offense; that the aggression was instantaneous and all of a sudden, which circumstance precludes the idea of a preconceived design to attack the deceased; that prosecution witness Bonifacio Bacalangco even exculpated Romeo Geronimo when he testified as follows: Q. You said that you know the cause of the death of Fermin Magbanua. Do you know who boloed him?. A. Jose and Enrico, sir. Q. Are these the only persons you mentioned, Enrico and Jose Geronimo, who boloed Fermin Magbanua? Atty. Martinez: Objection, very leading Your Honor. Court: Witness may answer. A. These are the only persons, sir. (t.s.n. hearing of March 13, l968). This shows, he argues, the utter absence of conspiracy on the part of appellants Romeo and Jose as the evidence clearly shows that Romeo did not participate in the killing of Fermin Magbanua. Upon the other hand, the prosecution claims that Romeo and Jose conspired with their uncle Enrico to kill the victim; that their acts were concerted and cooperative; that Romeo's act of holding Fermin immobilized the latter, thus allowing Jose to hit Fermin's head with a stone, rendering him unconscious; that these acts of Romeo and Jose enabled Enrico to hack with ease the prostrate Fermin; and that conspiracy is sufficiently established by circumstances evincing unity of purpose. It has been laid down as a rule that when the defendants by their acts aimed at the same object, one performing one part and another performing another part so as to complete it, with a view to the attainment of the same object, and their acts, though apparently independent were in fact concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments, the court will be justified in concluding that said defendants were engaged in a conspiracy (People vs. Cabrera, 43 Phil. 64, 66; People vs. Carbonell, 48 Phil. 868). When conspiracy has been proven, all conspirators are liable as co-principals for the wrongful act and its consequences (U. S. vs. Bundal, 3 Phil. 89; People vs. Villamora, 47 O.G. 6180). We do not agree with the Solicitor General that there was conspiracy among the accused. It should be noted that all the accused and the victim were drinking together in a tuba store on the day of the incident. No other evidence was presented by the prosecution to show conspiracy which according to the settled rule, must be proved as clearly and as convincingly as the commission of the crime itself. It must be real and not presumptive. 5 In the absence of clear proof that the killing was in fact envisaged by them, and there being no satisfactory showing that the killing was done in furtherance of the conspiracy, they cannot be held responsible therefor (People vs. Basisten, 47 Phil. 493; People vs. Cerdenia, 51 Phil. 393; People vs. Carillo, 85 Phil. 611; People vs. Daligdig, 89 Phil. 598). 6

In People vs. Portugueza 7 We ruled that: Although the defendants are relatives and had acted with some degree of simultaneity in attacking their victim, nevertheless, this fact alone does not prove conspiracy (People vs. Caayao, 48 O. G. 637). II The issue raised by the second assigned error is whether or not both appellants were convicted upon testimonies which they brand as unbelievable and unworthy of credence. Appellants claim that the testimonies of the alleged eyewitnesses who saw the happening should not have been accepted as true since their testimonies tend to show that they were influenced by other persons into signing their affidavits the contents of which they merely related during the hearing. The testimony of witness Bonifacio Bacalangco on cross examination is as follows: Q. When did you know that you are going to testify in this case? A. They sent me a notice. Q. Who sent you the notice? A. The Chief of Police of Sigma. Q. Who asked you to make this affidavit? A. They are the ones, sir. Q. Who? A. They are the ones sir, Chief of Police and the Mayor. Q. Why, was the Mayor there present when this incident took place? A. No, sir. Q. How many times that the Mayor asked you when you signed this affidavit? Fiscal Delfin: No basis Your Honor. Atty. Martinez: I am on cross examination Your Honor. He said that the Chief of Police and the Mayor asked him so I have to widen on my cross examination. Court: Witness may answer. A. Once, sir. Atty. Martinez: Where did the Mayor ask you to sign this affidavit?

A. I was sent through somebody in this Office. Q. Where were you when that somebody met you for the purpose of asking you to go to the Office of the Mayor? A. I was at home. Q. Was the affidavit already finished when you were asked by the Mayor to sign it? A. Not yet, sir. Q. What took place when you arrived at the Office of the Mayor? A. They were making the affidavit. Q. Who were the companions of the Mayor when they were making the affidavit? A. The Chief of Police, sir. Q. No more? A. No more. Q. So, after the affidavit was finished they asked you to sign this, do I get you right? A. Yes, sir. (t.s.n., March 13, 1968) The testimony of another prosecution witness Teresita Delfin, is as follows:. Q. My question to you is this, when you saw that affidavit for the first time, it was already finished and it came from Jose Ordanoso, do I get you right? That is only answerable with yes or no. A. When the complaint was made, we were called and we were investigated and that was the time when the said affidavit was made. Q. Therefore, when you saw that affidavit for the first time, it was already typewritten by Jose Ordanoso, do I get you right? A. Yes, sir. (t.s.n., March 20, 1968) Appellants maintain that it can be seen from the above quoted testimonies of the prosecution witnesses that their testifying was not voluntary and that their affidavits were already prepared before they, were asked questions about the case. It should be noted that the dying declaration of the deceased points to Romeo and Jose, together with Enrico, as his assailants who had grudges against him. The statement of the deceased was

taken at the municipal building while he was in a serious condition. A man at the threshold of death would not accuse his first cousins, who supposedly even helped him, as his would-be killers if the accusation does not sit with the truth. The medical certificate attesting to the injuries suffered by the victim supports prosecution's theory. Wound No. 4 more specially substantiates the reported participation of appellant Jose. Prosecution witnesses Bonifacio Bacalangco and Teresita Delfin narrated in detail the participation of Romeo and Jose and these witnesses have no proven motive to testify falsely in court. Where the issue is one of credibility of witnesses, the appellate court will generally not disturb the findings of the trial court, considering that the latter is in a better position to decide the question for having heard the witnesses themselves and observed their deportment and manner of testifying during the trial, unless it has plainly overlooked certain facts substance and value that, if considered, might affect the result of the case. 8 In People vs. Tatlonghari, 9 this Court said: The issue in the case being hinged on the credibility witnesses, the ruling of the court below must be sustained. For, in the absence of proof that there has been misappreciation of evidence and there is no such proof in this case the conclusion of the trial judge, who had the opportunity of observing the demeanor and conduct of the witnesses while testifying, deserves the respect of the reviewing tribunal. The second assigned error is, therefore, without merit, no sufficient reason having been adduced why the trial court's findings and conclusion on the credibility of the witnesses for the prosecution should be discarded. Besides, the prosecution witnesses have no reason to impute so grave a wrong to the accused, if really they did not commit it. III The issue raised by the third assigned error is whether or not the trial court erred in convicting appellant Romeo Geronimo inspite of his alleged non-participation in the agression against the deceased. The defense argues that according to the testimony of prosecution witness Bonifacio Bacalangco, Romeo Geronimo had no part in the fight; that it was Romeo who even brought the victim to the hospital, and that the testimony of the other prosecution witness, Policeman Jose Ordanoso, also shows that he merely prevented the deceased from falling by holding the latter. Although the Solicitor General does not argue on the third assigned error, the contention of the defense cannot be sustained. Actual participation in a fight or combat is not the only gauge to one's criminal responsibility. Appellant Romeo's holding or embracing of the victim, Fermin Magbanua, when appellant Jose Geronimo hit the latter with a stone on the head; the hacking of the deceased on the right posterior ankle joint by Romeo's uncle, Enrico Geronimo, and the hacking also of Fermin's left posterior ankle joint by Jose Geronimo while Romeo was holding or embracing the victim, indicate that Romeo was very much involved in the fight. As earlier shown, the details of the commission of the offense do not satisfactorily support the finding of conspiracy, let alone the uncontradicted fact that all the accused and the victim met only casually. Whatever responsibility was incurred by Romeo Geronimo must be predicated on his act of holding the victim. While this act was undoubtedly one of help and cooperation, it is not indispensable for the commission of the offense as the hacking could have been committed just the same without his holding the victim. Romeo's cooperation not being essential to the commission of the crime but merely to facilitate the same, he thereby cooperated in the commission thereof and hence his liability is that of an accomplice (Article 18, Revised Penal Code) ... In People vs. Tatlonghari, 10 this Court held:

... " although ..., participation on the part of an accomplice in the criminal design of the principal is not essential to the same extent as such participation is necessary on the part of one charged as co-principal, nevertheless, it is evident that, as against an accomplice, a court will sometimes draw the inference of guilty participation in the criminal design from acts of concert in the consummation of the criminal act and from the form and manner in which assistance is rendered, where it would not draw the same inference for the purpose of holding the same accused in the character of principal. This is because, in case of doubt, the courts naturally lean to the milder form of responsibility. IV The issue raised by the fourth assigned error is whether the crime committed is murder or homicide. Appellants contend that if at all they are liable, they should not be convicted of murder because no circumstance was proven to qualify the offense as such. What actually took place, according to them was an instantaneous and sudden outburst of temper that led to the killing. On the other hand, the Solicitor General maintains that the killing was characterized by treachery since the deceased was already helpless, in fact unconscious, when he was boloed by Enrico and Jose Geronimo, and that Romeo's act of holding the victim contributed to the latter's helpless condition. The appellants' contention is without merit. The record and the medical certificate 11 show that the serious wounds inflicted upon the deceased were all at the back part of the body, indicating that the assailants were behind the deceased when they hacked the latter. Prosecution witnesses Bonifacio Bacalangco and Teresita Delfin, both declared that after the deceased was held or embraced by Romeo, Jose with a stone on hand hit the deceased on the head, followed by Enrico's hacking on the right posterior ankle joint. In the situation pictured by these witnesses, there can hardly be any doubt as to the helpless condition of the victim when he received the injuries which caused his death. Treachery attended the killing where the nature and location of the wounds indicate that the victim was attacked from behind. 12 For murder results from the presence of qualificative circumstances based upon the manner in which the crime was committed and not upon the state of mind of the accused. 13 In People vs. Labis 14 this Court held:
His defense of justified killing unsustainable, appellant Labis must suffer the consequences for his unlawful act. The killing of the decedent was qualified by treachery. It has been clearly established that Clarito Fabria was being held firmly by appellant Cabiles, thereby preventing the former from moving or making any defense when Labis struck him from behind with a bolo. There was hardly, if any, risk at all for Labis; the deceased was defenseless. Appellant Labis is liable for murder . 15

V The last issue raised by the fifth assigned error is whether both appellants should be credited with the mitigating circumstance of lack of intent to commit so grave a wrong as that committed (Art. 13, No. 3, Revised Penal Code) and, as to appellant Romeo Geronimo alone, with the alternative mitigating circumstance of lack of instruction (Art. 15, Revised Penal Code). Appellants maintain that if at all they are liable, both of them should be credited with the mitigating circumstance of lack of intent to commit so grave a wrong as that committed. It will be seen from the Medical Certificate 16 that the serious wounds of the deceased were wound No. 1 -incised wound at the right ankle joint posterior, about 3-1/2 inches long; and wound No. 2 incised wound 4.5 inches long just below and almost around the left ankle joint completely severing the tendon of achilles. All these are

at the back part of the body, which shows that the intention, according to the defense, was not to kill or else the blows should have been aimed against the vital parts of the body. The mitigating circumstance of lack of intent to commit so grave a wrong as that committed should have been appreciated by the trial court, but not for both but only for appellant Jose Geronimo who alone inflicted injury without intent to cause the death of the victim when appellant Romeo Geronimo was holding him. Regarding the alternative circumstance of lack of education, while the evidence shows that appellant Romeo is unschooled, this circumstance alone is not sufficient. Illiteracy alone will not constitute such circumstance. 17 It must be accompanied by lack of sufficient intelligence and knowledge of the full significance of one's act. As held by this Court in People vs. Sari:
Appellant was proved, beyond reasonable doubt, to have committed the crime of murder qualified by either treachery or abuse of superior strength since his victim was an unarmed, defenseless woman, whom he ruthlessly attacked with a bolo different parts of the body. Appellant claims to be entitled to benefit of the mitigating circumstance of lack of instruction. We have repeatedly held, however, that it is for the trial court rather than the appellate court to find and consider the circumstance of lack of instruction and similar circumstance in favor of the accused; for it is not illiteracy alone, but the lack of sufficient intelligence and knowledge of the full significance of one's acts, which only the trial court can appreciate, that constitute this mitigating circumstance (People v. Ripas, et al., L6246, March 26, 1956; also U.S. v. Estorio, 35 Phil. 410; People v. Joseph, 52 Phil. 206; People vs. Bangug, 52 Phil. 87; People v. Sedenio, L-6372, April 29, 1954). 18

Appellant's acts were committed with treachery which qualifies the offense as murder punishable, under Article 248 of the Revised Penal Code, with reclusion temporal in its maximum period to death. As appellant Jose Geronimo lacked the intent to commit so grave a wrong as that committed, this mitigating circumstance may be appreciated in his favor. Accordingly, the penalty should be imposed upon him in its minimum period, or reclusion temporal, maximum. Applying the indeterminate sentence law, a penalty ranging from prision mayor, maximum, to reclusion temporal, medium, shall be imposed. As regards appellant Romeo Geronimo who is liable as an accomplice, a penalty one degree lower than that prescribed for a principal should be imposed. Accordingly, an indeterminate penalty ranging from the maximum ofprision correccional, minimum, to the medium of prision mayor, as maximum should be imposed on him. WHEREFORE, the appealed decision is hereby modified by sentencing appellant Jose Geronimo to an indeterminate penalty of from ten (10) years and one (1) day of prision mayor as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum. Appellant Romeo Geronimo as accomplice is sentenced to serve from four (4) years, two (2) months and one (1) day prision correccional, as minimum, to eight (8) years and one (1) day to prision mayor, as maximum. In other respects the judgment appealed from is affirmed, with costs against appellants. SO ORDERED. Makalintal, Actg. C.J., Zaldivar, Castro, Fernando, Teehankee and Makasiar, JJ., concur. Barredo, J., concurs in the result.

Antonio, J., took no part.