[G.R. Nos. 135068-72. September 20, 2001.] PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v.

MAXIMO RAMOS Y SAN DIEGO alias IMO," Accused-Appellant. DECISION

BELLOSILLO, J.:

DEATH for each death. This was the verdict of the trial court on the killer of Eleodoro 1 Araranggol and Severino Araranggol. He was also sentenced to pay the heirs of his victims P50,000.00 as civil indemnity in each case. He is now before us on automatic review.
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Maximo Ramos y San Diego alias Imo was initially charged with two (2) counts of murder 2 qualified by treachery and evident premeditation for the killing of Eleodoro Araranggol and Severino Araranggol, and three (3) counts of attempted murder 3 for the wounding of Marcelino Perez, Augusto Perez and Paulino Perez. But the Regional Trial Court of Cabanatuan City, Br. 27, acquitted him of three (3) counts of attempted murder 4 for the failure of the prosecution to establish his guilt beyond reasonable doubt; hence, this automatic review pertains only to Crim. Cases Nos. 7370-AF and 7371AF for murder. The Perez clan of Barangay Sta. Arcadia, Cabanatuan City, was planning a family reunion on 9 February 1997. It was to be held in an open space about twelve (12) meters in circumference surrounded by eight (8) houses belonging to Ben Perez, Nene Maranan, Viring Perez, Baby Maranan, Ome Maranan, Inong Perez, Fernan Perez and Larry Perez. On 8 February 1997 people were already gathered at the site of the festivities doing different chores like slaughtering the animals, preparing and cooking food over make-shift stoves, and putting up damaras or sheds made of coconut fronds tied to bamboo posts. A rectangular table and three (3) benches were set up about one and one-half (1 1/2) meters long in front of the house of Baby Maranan where a drinking spree was already underway as early as 5:00 oclock in the afternoon. Among those drinking were father and son Eleodoro and Severino Araranggol, Marcelino Perez, Balat Fernando, Jose Maranan and Augusto Perez. At around 7:30 that evening the lights suddenly went off. Six (6) improvised lamps made from empty peanut butter jars about six (6) inches tall with cloth wicks and fueled by kerosene lighted the place in addition to the illumination from the make-shift stoves nearby. Three (3) lamps were placed on top of the table where the men were drinking. At half past 8:00 oclock that evening the preparations and the merrymaking were disrupted by a sudden burst of gunfire supposedly coming from an armalite rifle. Eleodoro and Severino were hit.

Also wounded were Marcelino Perez, Augusto Perez and Paulino Perez who suffered minor injuries. Eleodoro and Severino were rushed to the hospital but the latter was declared dead on arrival while Eleodoro died the following day.
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According to Marcelino Perez, the gunman suddenly appeared near the house of Baby Maranan one and a half (1-1/2) meters away from Severino and three (3) meters from him and Eleodoro. The assassin was sporting a shoulder-length hair, a full beard and an earring on his left ear. The gunman aimed his rifle first at Severino hitting him instantly. He next aimed his shots at Eleodoro who suffered several mortal wounds. After the initial burst of gunfire, the rest of the party scampered away for safety except for Marcelino who remained where he was while Severino and Eleodoro were sprayed with bullets. He focused his gaze at the gunman as he was shooting the rest of his relatives. In fact, it was only after the last shot was fired and the gunman had already left that Marcelino thought of lying face down on the ground. 5 In court, Marcelino Perez pointed to accused-appellant Maximo Ramos as the assailant. On 8 February 1997 between 6:00 oclock and 7:00 oclock in the evening, Luis Perez, another prosecution witness, arrived at Bgy. Sta. Arcadia, Cabanatuan City, bringing along with him animals to be butchered for the family reunion. He noticed upon his arrival that there were at least fifty (50) persons already working on their assigned tasks. At around 8:00 oclock that evening Marcelino Perez, Eleodoro Araranggol, Severino Araranggol, Balat Fernando, Jose Maranan and Augusto Perez started drinking in front of the houses of Baby Maranan and Ome Maranan. Half an hour later, while standing by the door of Baby Maranans house, Luis Perez heard a sudden burst of gunfire coming from the side of Baby Maranans house. Severino was hit, then followed by Eleodoro. Luis identified Ramos i n the courtroom as the gunman. 6 In his defense, Maximo Ramos denied participation in the crime. He averred that at the time Eleodoro and Severino were shot, he (Maximo) was in Tagpos, Soledad, Sta. Rosa, Nueva Ecija resting inside the warehouse of his employer Epitacio Rivera and his co-worker Bonifacio Villanueva. Maximo further testified that early in the morning of 9 February 1997 two (2) policemen went to his house looking for him and Bonifacio Villanueva. After identifying themselves as police officers, they invited him and Villanueva to their headquarters for questioning. They voluntarily went with the police officers when they brought them to the PNP Headquarters in Cabanatuan City, then to the PNP Crime Laboratory for a paraffin test. Thereafter, they were brought back to the PNP Headquarters and placed in a police "line-up" where Maximo was pointed to by Marcelino Perez as the gunman. Before the lineup, Maximo noticed that a certain Perez, a policeman from Talavera, Nueva Ecija, and brother of Marcelino Perez, was making gestures pointing him to Marcelino. He denied having handled an armalite rifle. The paraffin test conducted on him and Villanueva yielded negative results. This version of Villanueva was corroborated by Ramos. On rebuttal, the defense presented Alberto Espino who claimed to be the Pangulo of the Civilian Armed Forces Geographical Unit (CAFGU) in their barangay, and that Ramos was an active CAFGU member from 1988 to 1989, and was in fact issued a Garand rifle, not an Armalite.

In convicting Ramos of two (2) counts of murder the court a quo was convinced that based on the testimonies of Marcelino Perez and Luis Perez the identity of the accused as the gunman was adequately established. We do not see it the way the trial court did. The trial court gave undue credence to the testimonies of the "eyewitnesses" despite their improbabilities and inconsistencies which render them too unreliable for the conviction of Accused-Appellant.
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In common parlance, "positive" means certain, definite 7 or absolute. 8 It means direct, express, opposed to circumstantial. 9 It is one which is expressed clearly, certainly, or peremptorily with no doubt, reservation or unclarity. 10 On the other hand, "identification" means proof of identity; the proving that a person, subject or article before the court is the very same that he or it is alleged, charged or reputed to be; as where a witness recognizes the prisoner at bar as the same person whom he saw committing the crime. 11 Thus, for there to be a positive identification, the perpetrator must be clearly, unhesitatingly, absolutely, expressly, certainly, and without any reservation or doubt identified to as the assailant. The so-called identification made by Marcelino and Luis was marked with unexplained uncertainties and inconsistencies. For sure, it was never explained how Marcelino arrived at the conclusion that the gunman was Ramos. In his direct examination, Marcelino described the assailant as sporting long hair, and a full beard with an earring on his left ear. 12 In his cross-examination, he even admitted that he saw the assailant for the first time only during the incident. 13 It is, therefore, quite perplexing how Marcelino readily came to the conclusion that the gunman was accused-appellant Ramos. This Court may accept as true that Marcelino saw the assailant with long hair, full beard and an earring on his left ear, as this pertains to general appearance which can be easily noted at a glance. What bewilders this Court, however, is the failure of Marcelino to make a connection between the assailant and Accused-Appellant. Quite relevantly, when Marcelino was invited to the police headquarters at around 1:30 in the afternoon of 9 February 1997, he stated in his affidavit that T Nakita mo ba kung sino ang bumaril sa inyo? S Nakita ko po. T Sino kung gayon ang bumaril sa inyo?

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S Hindi ko po siya kakilala pero kung makikita ko po siyang muli ay makikilala ko po. T Ilarawan mo nga ang itsura ng taong sinasabi mo.

S Balbaro po siya, medyo mahaba ang buhok, mataas sa akin na matipuno ang pangangatawan. 14 What fuels the confusion, however, is the police report also dated 9 February 1997 vis-a-vis the affidavit of Marcelino which narrated thus That, we conducted investigation regarding the shooting incident at Sta. Arcadia, Cabanatuan City committed on or about 8:30 in the evening, February 8, 1997 which resulted in the death of Severino Araranggol and his father Eleodoro Araranggol and wounding of Marcelino Perez, Augusto Perez and Paulino Perez; That, on or about 9:30 A.M. of February 9, 1997, Mr. Marcelino Perez informed us that he identified the gunman as alias Imo and his companion Bonifacio Villanueva both helpers at the farm of Epitacio Rivera situated at Bgy. Tagpos, Sta. Rosa, Nueva Ecija; That, the undersigned together with Mr. Marcelino Perez proceeded to Bgy. Tagpos, Sta. Rosa and invited Imo who turned out to be Maximo Ramos y San Diego native of Homestead I, Talavera, Nueva Ecija; and Bonifacio Villanueva a resident of Sta. Arcadia, Cabanatuan City . . . . (Emphasis supplied). 15 The conflict between the statements of Marcelino and those of the police officers is glaring and obvious. Never did Marcelino mention in his affidavit or in court that he went to the warehouse of Epitacio Rivera in the morning of 9 February 1997 in the company of the police officers to identify and apprehend Ramos. On the contrary, Marcelino manifested in his affidavit executed on 9 February 1997 at 1:30 in the afternoon that he could not yet identify the person of the assailant. Yet, the police officers claimed that Marcelino already knew the identity of the assailant when they went to his place early in the morning of 9 February 1997. In fact, he even accompanied them to apprehend accusedappellant Ramos. The inconsistency between the statements of Marcelino and those of the police officers is very material and relevant to the instant case. The failure of the prosecution to explain and clarify this obvious discrepancy leads us to conclude that neither of the statements given by Marcelino nor those of the policemen was credible. Consequently, this renders dubious the identification by Marcelino of accusedappellant as the gunman. Also, it is difficult for this Court to take the word of Marcelino that he clearly saw the face of Ramos. According to Marcelino, when accused-appellant suddenly appeared the latter immediately fired the initial two (2) shots, followed by successive shots. We find it understandable for the assailant to have raced against time because he was already near his targets and to hesitate would not only derail his plan but also cost him his life. Thus, because of the time element involved, identification could not have been as easy and clear as manifested by Marcelino. Prior to the shooting, Marcelino could not have had a good look at the attacker as to fix his eyes on his features. With a considerable portion of the attackers face concealed by a full beard, Marcelinos ability and opportunity to recognize him was diminished.

We also hesitate to lend credence to the testimony of Marcelino that he saw accused-appellant prior to the shooting and that while the latter was firing they were facing each other, and it was only after accused-appellant left that he lay down on the ground.
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Marcelino was seated beside the second target of the assassination. In the natural course of events and as a normal human reaction, Marcelino would have run away or sought cover at the very start of the attack as the other members of the group did, and not be so bold enough as to face his attacker. Besides, Luis Perez, another prosecution witness, narrated that Marcelino remained behind after the Araranggols were hit because he was pinned down by the body of Eleodoro. 16 Inasmuch as Marcelino was pinned down, he could not have a clear view of the assailant. The actual burst of gunfire was estimated by Marcelino to have lasted for about ten (10) seconds only. Positive identification of the gunman could not have been achieved in such a fleeting moment, more so that the body of the "eyewitness" was held down by that of the victim. We find it very unlikely for Marcelino to stay where he allegedly was and not caution his drinking buddies of the impending danger if he indeed saw accused-appellant prior to the shooting. Besides, according to Luis, there were at least fifty (50) persons present in the area. Yet, when the policemen arrived, nobody came forward to identify the assailant. Nobody volunteered any information as regards the identity of the attacker. It cannot be repeated often enough that for evidence to be believed, it must not only proceed from the mouth of a credible witness but must itself be credible. The evidence must be what the common experience and observation of mankind would approve of as probable under the circumstances. 17 In order to give some semblance of credence to the testimony of Marcelino, the prosecution divined a motive on the part of Ramos. According to Marcelino, Ramos had priorly attempted on the life of his victims and that, in fact, a case for attempted murder had already been filed against him. 18 Unfortunately, this was successfully rebutted by the defense. It appears that the defendant referred to was not accused-appellant in the instant case. Motive is unnecessary to impute a crime on the accused if the evidence on identification is convincing. But where the proof concerning the identification of the accused is unclear, as in this case, then proof of motive is of paramount necessity. 19 While generally the motive of the accused is immaterial and does not have to be proved, proof of the same becomes relevant and essential when the identity of the assailant is in question. 20 In the instant case, not only was the identification of the accusedappellant unconvincing, the prosecution miserably failed to ascribe motive to him. Prosecution witness Luis Perez testified that at the time of the incident there were at least fifty (50) persons milling around the area. Interestingly, even Luis declined to give any information to the police regarding the identity of the gunman. He did not even execute an affidavit identifying accusedappellant as the attacker. Thus, in the police blotter the gunman was described as unknown. It was only in court that Luis implicated accused-appellant as the assailant. The delay by Luis in identifying accused-appellant as the gunman was never sufficiently explained. When asked why he demurred to

give information to the police officers, his feeble excuse was that he was prevailed upon by his nephews not to interfere in the case. Supposedly, his nephews, particularly Marcelino, had assured him that they would pursue the case. Since Marcelino had already testified before the court, we are therefore at a loss why Luis suddenly felt the urge and the necessity to volunteer his "eyewitness" account. His excuse that he was merely performing his civic duty as a responsible citizen is lame. The testimony of the rebuttal witness for the prosecution carries no weight at all. According to Espino, Accused-appellant was an active member of the CAFGU in 1988 to 1989, and was in fact issued a Garand rifle. To our mind, this declaration is of no help in the identification of accusedappellant as the assailant. That indeed accused-appellant was an active CAFGU member in 1988 to 1989 bears little or no significance at all considering that the incident subject of the instant case happened eight (8) years hence and at a time when accused-appellant was no longer connected with the CAFGU. Also worth mentioning is the fact that the weapon used in the shooting was an armalite rifle and not a Garand rifle. Accused-appellants defense is basically alibi. He maintains that at the time of the incident, he was resting in the warehouse of his employer Epitacio Rivera in Tagpos, Soledad, Sta. Rosa, Nueva Ecija. As a rule, alibis should be regarded with suspicion and received with caution, not only because they are inherently weak and unreliable, but also because they can be easily fabricated. But equally fundamental is the axiom that evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the defense. A conviction in a criminal case must rest on nothing less than proof beyond reasonable doubt. The prosecution cannot use the weakness of the defense to enhance its cause. And, where the prosecutions evidence is weak or just equally tenuous, alibis need not be inquired into. 21 Parenthetically, we cannot understand why the lower court convicted accused-appellant of murder, yet, based on the same set of facts, acquitted him of three (3) counts of attempted murder. Its oneliner explanation that the "prosecution failed to establish the guilt of the accused beyond reasonable doubt" 22 is utterly unacceptable.
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Normally, findings of the trial court as to the credibility of witnesses are accorded great weight, even finality, on appeal, unless the trial court has failed to appreciate certain facts and circumstances which, if taken into account, would materially affect the result of the case. 23 From the foregoing, it is clear that the court below overlooked material and relevant facts that could affect the outcome of the case. The constitutional presumption of innocence requires this Court to take "a more than casual consideration" of every circumstance or doubt favoring the innocence of the accused as courts have the imperative duty to "put prosecution evidence under severe testing." 24 In all criminal cases, all doubts should be resolved in favor of the accused on the principle that it is better to free a guilty man than to unjustly keep in prison one whose guilt has not been proved by the required quantum of evidence. 25 It is only when the conscience is satisfied that the crime has been committed by the person on trial that the judgment must be for conviction. For only when there is

proof beyond any shadow of doubt that those responsible should be made answerable. 26 WHEREFORE, for failure of the prosecution to prove the guilt of accused-appellant Maximo Ramos y San Diego alias "Imo" beyond reasonable doubt, the Decision of the Regional Trial Court of Cabanatuan City, Br. 27, dated 26 June 1998, convicting accused-appellant Maximo Ramos of two (2) counts of murder and sentencing him to suffer the penalty of death on each count, and ordering him to pay the heirs of his victims P50,000.00 each as indemnity, is REVERSED and SET ASIDE. Accusedappellant is ACQUITTED and ordered immediately released from custody unless held for some other lawful cause. The Director of Prisons is DIRECTED to implement this Decision forthwith and to inform this Court within five (5) days from receipt hereof of the date accused-appellant was actually released from confinement. Costs de oficio. SO ORDERED. Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr. and Sandoval-Gutierrez, JJ., concur.
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G.R. No. 116122 September 6, 1996 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARNOLD CASTILLO Y MANGUIAT, accused-appellant.

BELLOSILLO, J.: Salvador Delmo, a former mayor of Calamba, Laguna, was found dead with three gunshot wounds in the morning of 20 May 1990 on a dusty road in Barangay Baadero. For his death ARNOLD CASTILLO Y MAGNULAT, AURELIO CASTILLO and BENITO VIAS were charged with murder attended with treachery, evident premeditation and abuse of superior strength before the Regional Trial Court of Calamba. On 30 June 1994 Arnold Castillo y Manguiat was declared by the trial court guilty as charged, sentenced toreclusion perpetua, and ordered "to indemnify the heirs of Salvador Delmo the amount of P200,175.00 as actual damages, P500,000.00 for the death of Salvador Delmo and moral damages, and to pay the costs." Aurelio Castillo and Benito Vias were acquitted. 1 The evidence shows that Aurelio Castillo had a house and lot situated in Baadero, Calamba, Laguna, which he mortgaged with the Rural Bank of Calamba. After he became delinquent in the payment of his loan the bank foreclosed the mortgage and subsequently sold the property to Mayor Salvador Delmo. On 3 May 1993 the sheriff, the bank lawyer and bank officials, and the security guards hired by Mayor Delmo proceeded to Baadero to implement the writ of possession issued by the trial court. Aurelio pleaded with the bank lawyer not to implement the writ yet because he would elevate the case to the Court of Appeals. The bank lawyer however replied that he could not do anything anymore because the court order was already final and executory. Aurelio retorted, Magkakamatayan tayo dito; and hirap ninyong pakiusapan. Thereafter, he entered his house. A few seconds later, the bank lawyer heard a resounding blow against the wall of the house, followed by a loud outcry from Aurelio. After a while, a nephew of Aurelio came out. He informed the bank lawyer that hey could proceed with the removal of the personal properties inside the house. The sheriff and his men then did as they were told. There was no resistance from anybody. After the sheriff turned over the possession of the bank lawyer the latter delivered it to Mayor Delmo. On 20 May 1993, at around six o'clock in the morning, Juan Bongga, a helper of Mayor Delmo, went to thekalamansi-an of his father-in-law in Baadero to gather kalamansi. A few minutes later Maria Cristina Delmo, wife of Salvador Delmo Jr. and daughter-in-law of Mayor Delmo, arrived and sought permission also to gatherkalamansi. It was at about seven o'clock that same morning when Juan Bongga saw Mayor Delmo and Aurelio Castillo arguing in the middle of the road. Juan was about twenty meters away. With Aurelio were his Arnold and brother-in-law Benito Vias. While Major Delmo and Aurelio were arguing, Arnold went suddenly behind the mayor and fired a shot at the back of his head causing him to fall to the ground with face downward. Arnold fired a

second shot at the back of Delmo's body, and a third shot at the lower portion of his buttocks. Juan then ran towards the house of Salvador Delmo Jr. and informed him of the incident. He did not however name the perpetrator/s of the crime. After hearing the shots, Maria Cristina headed towards the direction where the shots came from. She was astounded when she saw her father-in-law lying on the road some forty to forty-five meters away. She readily recognized him. He was wearing a white T-shirt and a pair of checkered shorts, the same attire he was wearing when she talked to him before proceeding to the kalamansi-an. She also saw Arnold pointing a short firearm at her father-in-law with Aurelio and Benito standing nearby. Upon seeing the victim she ran towards home. Her husband was in the kitchen when she arrived but was not able to say anything to him immediately because she was in state of shock. She Just went straight to their bedroom. After some two to five minutes Primo, a houseboy of Mayor Delmo, also arrived with another helper and informed Salvador Jr. of the shooting of his father. Maria Cristina rushed back to the crime scene, this time together with her husband Salvador Jr. After a few minutes policemen arrived and conducted an investigation. But Maria Cristina had yet to regain her physical and mental equipoise. The medico-legal report showed that Mayor Delmo suffered three gunshot wounds: at the back of his head, at the middle of his back, and at the back of his left thigh, and that he died of hemorrhage as a result of gunshot wounds. That same morning Arnold and Benito were invited by the investigators to the police station but were released after interrogation. Aurelio also gave his statement to the police that afternoon. On 23 May 1993 Aurelio and Arnold went to Balele, Tanauan, Batangas. They stayed in the house of a sister of Aurelio and then in the house of a brother until June or July 1993. They returned to Calamba, Laguna, and stayed in a house in Bucal under the custody of Col. Cesario Barairo. They were later turned over later turned over to the Jail Warden. According to Dr. Marcelina Delmo, widow of Mayor Delmo, she was shocked upon seeing the lifeless body of her husband and could neither eat nor sleep. She said she was also forced to close her medical clinic and to stop her practice of medicine, and that she spent P180,000.00 for funeral services, P1,635.00 for masses, P3,540.00 for mortuary services, P5,000.00 for pictures, and P15,000.00 for obituary in The Daily Bulletin. She presented documentary evidence to support her assertions. She claimed she even had other expenses in connection with the wake for her husband but could no longer produce the corresponding receipts. She also testified that Mayor Delmo was sixty-five years old at the time of his death, in good health, and engaged in the real estate business, owning and administering several apartments and a grocery store. Arnold Castillo alleges in his appeal that the trial court erred (a) when it lent credence to the testimonies of Juan Bongga and Maria Cristina notwithstanding signs of fabrication and defiance of human nature; (b) when it did not appreciate the documentary evidence for the defense, i.e., the Initial Report dated 20 May 1993 and the Joint Affidavit of Arrest dated 8 June 1993; and, (c) when it ruled that the killing was attended with treachery while discarding his claim of voluntary surrender. Appellant assails Juan Bongga's Salaysay and his testimony in court: First, Juan's statement in his Salaysay the Mayor Delmo was shot by appellant three times at the back of his head runs counter to his testimony in court that the Mayor was shot at the back of his head, at the back of his body, and at the lower portion of his buttocks;Second, Juan admitted in his Salaysay that he did not know what the accused and Mayor Delmo were arguing about but later contradicted himself by

testifying that they were arguing about the house and lot; and, Third, Juan made it appear in his Salaysay that he went to the palikong daan to ascertain what the accused and the mayor were quarreling about, and yet, failed to mention this fact at the witness stand. Appellant further disputes the credibility of Juan by calling attention to the fact that the latter did not immediately report to the police authorities or to the widow of Mayor Delmo what he had witnessed that morning of 20 May 1993 and that he executed a statement on the incident only on 8 June 1993. The general rule has always been that discrepancies between the statements of the affiant in his affidavit and those he makes on the witness stand do not necessarily discredit him because it is a matter of judicial experience that an affidavit being taken ex-parte is almost always incomplete and often inaccurate. The exceptions thereto, which impair the credibility of witnesses, are when the narration in the sworn statement substantially contradicts the testimony in court, or when the omission in the affidavit refers to a very important detail of the incident that one relating the incident as an eyewitness could not be expected to fail to mention. 2 The point of inquiry therefore is whether the contradictions and omissions are important and substantial, and we find that they refer to trivial matters. What is significant though, as properly observed by the Office of the Solicitor General, is the circumstance common to both the sworn statement and the testimony in court that Juan witnessed the shooting of the victim by appellant. The initial silence of a Juan Bongga should not be taken against him. The delay or vacillation in making a criminal accusation does not necessarily impair the credibility of witnesses if such delay is satisfactorily explained, 3 as in this case. When Juan was asked during the cross-examination why he did report the incident at once to the police authorities he answered that he was then taken aback. 4 Moreover, it is not uncommon for a witness to a crime to show some reluctance about getting involved in a criminal case, as in fact the natural tendency of most people not to get involved is of judicial notice. 5 As regards the credibility of Maria Cristina, appellant that her story she saw him pointing a gun at the body of Mayor Delmo is heard to believe considering her testimony that was forty to forty-five meters away when the shots were fired. Moreover, according to him, it is highly incredible for her to remain silent and not to disclose to her husband the details of the slaying of her father-in-law. The distance of forty to forty-five away from the scene of the crime, taken by itself, may lead the Court to entertain doubt on the accuracy of what a witness has observed. In the present case, however, Maria Cristina could not have been mistaken in the identification of the accused considering that it was broad daylight; 6 there were no other persons on the road; 7 it does not appear that her view was obstructed; 8 and, most importantly, the accused were her townmates. 9 Once a person has gained familiarity with another, identification becomes quite an easy task even from a considerable distance. The initial silence of Maria Cristina was likewise sufficiently explained. According to her, she was shocked and scared. 10 It is understandable when a witness does not immediately report the identity of the offender after a startling occurrence, more so when he is related to the victim as this makes it all the more traumatic. 11 It is equally understandable for a witness to fear for his safety especially when townmates are involved in the commission of a crime. An inculpatory statement can easily provoke retaliation. 12 The Court thus affirms the factual findings of the trial court on the credibility of the prosecution witnesses not only because it had the advantage of observing first-hand the deportment of said witnesses and therefore was in a better position to form an accurate impression and conclusion, 13 but also because a review of the records reveals that their testimonies were

categorical, straightforward and remained constant even under pressure of cross-examination. Also, they had no axe to grind against the accused. In the final analysis, the relationship of Maria Cristina and Juan to the victim although by mere affinity and employment, respectively, render their testimonies more worthy of belief as it would be unnatural for them who are interested in vindicating the crime to implicate persons other than the real culprits. 14 Accused-appellant faults the trial court for not appreciating his documentary evidence, i.e., the Initial Report 15dated 20 May 1993, and the Joint Affidavit of Arrest 16 dated 8 June 1993. He claimed that the Initial Report of the policemen clearly states that Mayor Delmo was killed in a manner different from the versions of Juan and Maria Cristina, while the Joint Affidavit of Arrest distinctly shows that as of 8 June 1993 the suspects were still unidentified, which directly contradicted the Salaysay dated 28 May 1993 of Maria Cristina identifying the accused as the assailants of Mayor Delmo. The reliance on the Initial Report is preposterous because the report was merely based on theories and preliminary investigations conducted by the policemen. On the other hand the Joint Affidavit of Arrest states that the arrest of Juan Bongga was pursuant to the complaint of Dr. Marcelina Delmo against unidentified suspects in connection with the shooting of her husband. This affidavit, insofar as it refers to her complaint against unidentified suspects, is baseless. It is explicit in the Salaysay of Dr. Delmo dated 26 May 1993 that she suspected Aurelio Castillo, his children and relatives as the perpetrators of the murder of her husband. 17 Lastly, appellant argues that assuming that his guilt has been established beyond reasonable doubt, the prosecution failed to prove treachery. Aside from the statement of Juan that he saw appellant go behind Mayor Delmo and shoot him at the back of his head, there is no other evidence to establish treachery. As regards voluntary surrender, his Col. Barairo should mitigate his liability. We do not agree. For treachery to be considered as a qualifying circumstance, two conditions must be satisfied: (a) the employment of means, method or manner of execution to ensure the safety of the malefactor from defensive or retaliatory acts on the part of the victim; and, (b) the means method or manner of execution was deliberately adopted by the offender. 18 The trial court in this case correctly appreciated treachery when it found that
. . . Arnold Castillo without any warning suddenly went at the back of (behind) Salvador Delmo while the latter was facing Aurelio Castillo, then fired a shot at the back of the head of Salvador Delmo. Arnold Castillo employed a means in the execution of the felony that directly and specially insured its execution. Undoubtedly , there was no risk to Arnold Castillo from the defense that Salvador Delmo might make because the latter was then apparently unaware of what Arnold Castillo will ( sic) do. 19

Voluntary surrender may be appreciated as a mitigating circumstance when the following elements concur: (a) The offender has not been actually arrested; (b) The offender surrenders himself to a person in authority; and, (c) The surrender is voluntary. 20 The third element is lacking in the instant case because appellant's surrender was merely forced by circumstances, as explained by the trial court
. . . It must be noted that Arnold Castillo and his father sought Col. Barairo because they feared for their safety after they allegedly learned that unidentified men were looking for them. Consequently, even assuming that Arnold Castillo surrendered to Col. Barairo, such surrender was not spontaneous and cannot be considered as a mitigating circumstance. 21

We conclude that the trial court did not err in finding accused-appellant guilty beyond reasonable doubt of the murder of Mayor Salvador Delmo. A word on the lump sum of P500,000.00 as indemnify for death and for moral damages. The trial court should have specified how much of the award referred to the death indemnity and how much for moral damages. However, under the circumstances, it is safe to say that at least P50,000.00 of the amount granted should be for death indemnity, conformably prevailing jurisprudence, and the balance of P450,000.00 for moral damages. WHEREFORE, the judgment appealed from finding accused-appellant ARNOLD CASTILLO Y MANGUIAT guilty of murder and imposing upon him the penalty of reclusion perpetua, as well as ordering him to pay the heirs of Salvador Delmo P200,175.00 for actual damages P500,000.00 as indemnity for death and for moral damages, and to pay the costs is AFFIRMED, except that of the P500,000.00, P50,000.00 shall be for death indemnity and P450,000.00 for moral damages. SO ORDERED.

G.R. No. 163217

April 18, 2006

CELESTINO MARTURILLAS, Petitioner vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION PANGANIBAN, CJ: Well-rooted is the principle that factual findings of trial courts, especially when affirmed by the appellate court, are generally binding on the Supreme Court. In convicting the accused in the present case, the Court not merely relied on this doctrine, but also meticulously reviewed the evidence on record. It has come to the inevitable conclusion that petitioner is indeed guilty beyond reasonable doubt of the crime charged. The Case Before us is a Petition for Review1 under Rule 45 of the Rules of Court, seeking to set aside the November 28, 2003 Decision2 and the March 10, 2004 Resolution3 of the Court of Appeals (CA) in CA-GR CR No. 25401. The CA affirmed, with modifications as to the award of damages, the Decision4 of Branch 10 of the Regional Trial Court (RTC) of Davao City. The RTC had found Celestino Marturillas guilty of homicide in Criminal Case No. 42091-98. The assailed CA Decision disposed as follows: "WHEREFORE, subject to the modification thus indicated, the judgment appealed from must be, as it hereby is, AFFIRMED. With the costs of this instance to be assessed against the accusedappellant."5 The challenged CA Resolution denied petitioners Motion for Reconsideration.6 Petitioner was charged with homicide in an Information7 dated November 5, 1998, worded as follows: "[T]hat on or about November 4 1998, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, armed with a gun, and with intent to kill, wilfully, unlawfully and feloniously shot one Artemio Pantinople, thereby inflicting fatal wound upon the latter which caused his death."8 The Facts Version of the Prosecution The Office of the Solicitor General (OSG) summarized the Peoples version of the facts: "4. The prosecution presented Lito Santos, Ernita Pantinople, PO2 Mariano Operario, Alicia Pantinople and Dr. Danilo Ledesma as its witnesses from whose testimonies, the following facts were established. "Lito Santos, a forty-three-year old farmer and resident of Barangay Gatungan, Bunawan District, Davao City, testified that about 6:00 oclock in the afternoon of November 4, 1998, he saw his

neighbor and kumpare Artemio Pantinople arrive on board a jeepney from Bunawan, Davao City. Artemio was carrying a truck battery, some corn bran and rice. They talked for a while concerning their livelihood afterwhich, Artemio proceeded to connect the battery to the fluorescent lamps in his store. Artemios store was located about five (5) meters away from Litos house. "After installing the battery to the fluorescent lamps, Artemio sat for a while on a bench located in front of his store. Then, Cecilia Santos, Litos wife, called him and Artemio for supper. Artemio obliged. Lito, opting to eat later, served Artemio and Cecilia the food. After eating, Artemio returned to the bench and sat on it again together with his tree (3) children, namely: Janice, Saysay and Pitpit. "Lito was eating supper in their kitchen when he heard a gunshot. From a distance of about ten (10) meters, he also noticed smoke and fire coming from the muzzle of a big gun. Moments later, he saw Artemio clasping his chest and staggering backwards to the direction of his (Litos) kitchen. Artemio shouted to him, Tabangi ko Pre, gipusil ko ni kapitan, meaning Help me, Pre, I was shot by the captain. However, Lito did not approach Artemio right after the shooting incident because Cecilia warned him that he might also be shot. "Lito did not see the person who shot Artemio because his attention was then focused on Artemio. "Shortly, Lito saw Ernita Pantinople, the wife of Artemio, coming from her house towards the direction where Artemio was sprawled on the ground. Ernita was hysterical, jumping and shouting, Kapitan, bakit mo binaril and aking asawa. She also repeatedly cried for help. "Lito then went out of their house and approached Artemio who was lying dead near a banana trunk more than five (5) meters from his house. Some of their neighbors, namely: Antenero, Loloy Libre and Lapis answered Ernitas call for help and approached them. "When the shooting incident happened about 7:30 in the evening of November 4, 1998, Litos house was illumined by a lamp. Their kitchen has no walls. It is an open-type kitchen giving him an unobstructed view of Artemio who was about five (5) meters away from where he was positioned at that time. Although there was a gemilina tree growing in the space in between his house and the store of Artemio, the same did not block his view of Artemio. Likewise, the coconut trees and young banana plants growing at the scene of the crime did not affect his view. "At the same instance, Ernita was also in their kitchen preparing milk for her baby. Her baby was then lying on the floor of their kitchen. When she was about to put the bottle into the babys mouth, she suddenly heard the sound of a gunburst followed by a shout, Help me Pre, I was shot by the captain. She immediately pushed open the window of their kitchen and saw appellant wearing a black jacket and camouflage pants running towards the direction of the back portion of Litos house. From there, appellant crossed the street and disappeared. "Ernita saw appellant carrying with him a long firearm which looked like an M-14 rifle. Ernita also sensed that appellant had some companions with him because she heard the crackling sound of the dried leaves around the place. Ernita had a clear view of appellant at that time because their place was well-illumined by the full moon that night and by the two (2) fluorescent lamps in their store which were switched on at the time of the incident. "Ernita immediately went out of their house and ran towards Artemio. Artemio tried to speak to her but he could not do so because his mouth was full of blood. Upon seeing the pitiful sight of her husband, Ernita shouted several times, Kapitan, ngano nimo gipatay and akong bana. She also repeatedly called her neighbors for help but only Lito Santos, Eufemio Antenero, Norman Libre and

some residents of Poblacion Gatungan responded to her calls and approached them. She noted that no member of the CFO and CAFGU came to help them. Also, no barangay tanod came to offer them to help. "While waiting for the police, Ernita did not allow Artemios body to be touched by anybody. After more than two (2) hours, the police arrived, together with a photographer by the name of Fe Mendez of Bunawan District, Davao City who took pictures of the crime scene. "PO2 Mariano Operario, Investigation Officer of the Investigation Section of the Bunawan Police Station, Philippine National Police, Davao City, testified that about 9:05 in the evening of November 4, 1998, he received a report of an alleged shooting incident at Barangay Gatungan, Bunawan District in Davao City. Together with SPO1 Rodel C. Estrellan and a member of the mobile police patrol on board their mobile car, PO2 Operario proceeded immediately to the crime scene. They reached the crime scene about 10:00 oclock in the evening of the same date. They found the lifeless body of Artemio sprawled on the ground. Ernita and Lito then approached PO2 Operario and informed him that appellant was the one responsible for the shooting. "PO2 Operario stayed at the crime scene for about one (1) hour and waited for the funeral vehicle to pick up the body of Artemio. When the funeral hearse arrived, PO2 Operario told the crew to load Artemios body into the vehicle. Thereafter, he then boarded again their mobile car together with Lito Santos. "Armed with the information that appellant was the one responsible for the shooting of Artemio, PO2 Operario proceeded to the house of appellant and informed him that he was a suspect in the killing of Artemio. He then invited appellant to go with him to the police station and also to bring along with him his M-14 rifle. Appellant did not say anything. He just got his M-14 rifle and went with the police to the police station where he was detained the whole night of November 4, 1998. Appellant did not also give any statement to anybody about the incident. The following day, appellant was transferred by the police to Tibungco Police Station where he was detained. "Alicia Pantinople, the 44-year old sister of Artemio, testified that on the night of November 4, 1998, she was at home watching television. She heard a gunshot but did not mind it because she was already used to hearing the sound of guns fired indiscriminately in their place. "After a few minutes, Junjun, a child and resident of Sitio Centro, Barangay Gatungan, Bunawan District, Davao City came knocking at their door. Junjun informed them that: Yoyo, Uncle Titing was shot, referring to Artemio. "Upon hearing the report, Alicia looked for some money thinking that it might be needed for Artemios hospitalization because she expected Artemio to be still alive. Artemios two (2) children, namely: Jonel and Genesis who were staying with her hurriedly left. She then ran to the place where her brother was shot and found Artemios dead body on the ground surrounded by his four (4) children. "At the Bunawan Police Station, Alicia was informed by the police that appellant was at Tibungco Police Station. She sent her male cousin to proceed to Tibungco Police Station to find out if appellant was indeed in the said place. However, her cousin immediately returned and informed her that appellant was not in Tibungco Police Station. She then went around the Bunawan Police Station and noticed a locked door. When she peeped through the hole of the said door, she saw appellant reclining on a bench about two and a half (2 ) meters away from the door. Appellants left leg was on top of the bench while his right leg was on the ground. Appellant was wearing a brown shirt, black

jacket and a pair of camouflage pants. He was also wearing brown shoes but he had no socks on his feet. "At the police station, Alicia confronted appellant: Nong Listing I know that you can recognize my voice. It is me. Why did you kill my brother? What has he done wrong to you? "Appellant did not answer her. Nevertheless, she was sure that appellant was awake because he was tapping the floor with his right foot. "Dr. Danilo Ledesma, a medico-legal officer of the Davao City Health Department, conducted an autopsy on Artemios cadaver about 9:30 in the morning of November 5, 1998 at the Rivera Funeral Homes located at Licanan, Lasang. His findings are summarized in his Necropsy Report No. 76: POSTMORTEM FINDINGS Pallor, marked generalized. Body in rigor mortis. Wound, gunshot, ENTRANCE, 0.9 x 0.8 cm. Ovaloid located at the anterior chestwall, rightside, 1.0 cm; from the anterior median line, at the level of the third (3rd) intercoastal space and 131.0 cms. above the right heel, directed backwards, upwards, medially crossing the midline from the right to left, involving the soft tissues, perforating the body of the sternum, into the pericardial cavity, perforating the heart into the left thoracic cavity, perforating the heart into the left thoracic cavity, perforating the upper lobe of the left lung, forming an irregular EXIT, 1.5 x 1.1 cms. at the posterior chest wall left side, 13.0 cms. from the posterior median line and 139.0 cms. above the left heel. Hemopericadium, 300 ml. Hemothorax, left, 1,000 ml. Stomach, filled with partially digested food particles. Other visceral organs, pale. CAUSE OF DEATH: Gunshot wound of the chest. Signed by: DANILO P. LEDESMA Medico-Legal Officer IV "During the trial, Dr. Ledesma explained that Artemio died of a gunshot wound, 0.9 x 0.8 centimeters in size located about one (1) inch away from the centerline of Artemios Adams apple down to his navel and about 1:00 oclock from his right nipple. "The trajectory of the bullet passing through Artemios body indicates that his assailant was in a lower position than Artemio when the gun was fired. Dr. Ledesma also found the wound of Artemio negative of powder burns indicating that the assailant was at a distance of more than twenty-four (24) inches when he fired his gun at Artemio. He did not also find any bullet slug inside the body of Artemio indicating that the bullet went through Artemios body. Artemios heart and lungs were

lacerated and his stomach contained partially digested food particles indicating that he had just eaten his meal when he was shot. "In the certificate of death of Artemio, Dr. Ledesma indicated that the cause of his death was a gunshot wound on the chest. "5. After the defense presented its evidence, the case was submitted for decision."9 Version of the Defense On the other hand, petitioner presented the following statement of facts: "9. This is a criminal case for Homicide originally lodged before the Regional Trial Court, Branch 10 of Davao City against herein Petitioner Celestino Marturillas, former Barangay Captain of Gatungan, Bunawan District[,] Davao City and docketed as Criminal Case No. 42,091-98. The criminal charge against Petitioner was the result of a shooting incident in Barangay Gatungan, Bunawan District, Davao City which resulted in the slaying of Artemio Pantinople while the latter was on his way home in the evening of November 4, 1998. "10. On that same evening at around 8:30 p.m. herein Petitioner former Barangay Captain Celestino Marturillas was roused from his sleep at his house in Barangay Gatungan, Bunawan District, Davao City by his wife since Kagawads Jimmy Balugo and Norman Libre (Barangay Kagawads of Gatungan, Bunawan District, Davao City) wanted to see him. Dazed after just having risen from bed, Petitioner was rubbing his eyes when he met the two Kagawads inside his house. He was informed that a resident of his barangay, Artemio Pantinople, had just been shot. Petitioner at once ordered his Kagawads to assemble the members of the SCAA (Special Civilian Armed [Auxiliary]) so that they could be escorted to the crime scene some 250 meters away. As soon as the SCAAs were contacted, they (Petitioner, Kagawads Libre and Balugo including Wiliam Gabas, Eddie Loyahan and Junior Marturillas - the last three being SCAA members) then proceeded to the crime scene to determine what assistance they could render. "11. While approaching the store owned by the Pantinoples and not very far from where the deceased lay sprawled, Petitioner was met by Ernita Pantinople (wife of the deceased-Artemio Pantinople) who was very mad and belligerent. She immediately accused Petitioner of having shot her husband instead of Lito Santos who was his enemy. Petitioner was taken aback by the instant accusation against him. He explained that he just came from his house where he was roused by his Kagawads from his sleep. Not being able to talk sense with Ernita Pantinople, Petitioner and his companions backed off to avoid a heated confrontation. Petitioner instead decided to go back to his house along with his companions. "12. Upon reaching his house, Petitioner instructed Kagawad Jimmy Balugo to contact the Bunawan Police Station and inform them what transpired. Not knowing the radio frequency of the local police, Kagawad Balugo instead radioed officials of nearby Barangay San Isidro requesting them to contact the Bunawan PNP for police assistance since someone was shot in their locality. "13. Moments later, PO2 Mariano Operario and another police officer arrived at the house of Petitioner and when confronted by the latter, he was informed by PO2 Operario that he was the principal suspect in the slaying of Artemio Pantinople. Upon their invitation, Petitioner immediately went with the said police officers for questioning at the Bunawan Police Station. He also took with him his government-issued M-14 Rifle and one magazine of live M-14 ammunition which Petitioner turned over for safe keeping with the Bunawan PNP. The police blotter showed that Petitioner

surrendered his M-14 rifle with live ammunition to SPO1 Estrellan and PO3 Sendrijas of the Bunawan PNP at around 10:45 p.m. of November 4, 1998. "14. When the shooting incident was first recorded in the Daily Record of Events of the Bunawan PNP it was indicated therein that deceased may have been shot by unidentified armed men viz: Entry No. Date Time Incident/Events 2289 110498 2105H SHOOTING INCIDENTOne Dominador Lopez 43 years old, married, farmer and a resident of Puro[k] 5, Barangay Gatungan, Davao City appeared at this Precinct and reported that shortly before this writing, one ARTEMIO PANTINOPLE, former barangay kagawad of Barangay Gatungan was allegedly shot to death by an unidentified armed men at the aforementioned Barangay. x x x. "15. The extract from the police blotter prepared by SPO2 Dario B. Undo dated November 9, 1998 already had a little modification indicating therein that deceased was shot by an unidentified armed man and the following entry was made. 2105H: Shooting Incident: One Dominador Lopez, 43 years old, married, farmer and a resident of Purok 5, Barangay Gatungan Bunawan District, Davao City appeared at this Police Precinct and reported that prior to these writing, one Artemio Pantinople, former Barangay Kagawad of Barangay Gatungan was allegedly shot to death by unidentified armed man at the aforementioned barangay. x x x. "16. On November 5, 1998 at around 7:15 a.m. PO2 Mariano Operario indorsed with the Bunawan PNP an empty shell fired from a carbine rifle which was recovered by the said police officer from the crime scene in the night of the incident. Owing to his pre-occupation in organizing and preparing the affidavits of the Complainant and her witnesses the previous evening, he was only able to indorse the same the following morning. At the same time, P/Chief Insp. Julito M. Diray, Station Commander of the Bunawan PNP made a written request addressed to the District Commander of the PNP Crime Laboratory requesting that a paraffin test be conducted on Petitioner and that a ballistics examination be made on the M-14 rifle which he surrendered to Bunawan PNP. "17. At around 9:30 a.m. of November 5, 1998, Dr. Danilo P. Ledesma, M.D., Medico-Legal Officer for Davao City conducted an autopsy on the cadaver of deceased and made the following PostMortem Findings contained in Necropsy Report No. 76 dated November 6, 1998, viz: Pallor, marked, generalized Body in rigor mortis Wound, gunshot, ENTRANCE, 0.9-0.8 cm. ovaloid located at the anterior chest wall, right side, .0 cm. from the anterior median line, at the level of the third (3rd) intercostal space and 131.0 cms. above the right neck, directed backwards, upwards, medially, crossing the midline from the right to left, involving the soft tissues, perforating the body of the sternum into the pericardial cavity, perforating the heart into the left thoracic cavity, perforating the upper lobe of the left lung forming an irregular EXIT, 1.5x1.1 cms. at the posterior chest wall, left side, 13.0 cms. from the posterior median line and 139.0 cms. above the left neck. Hemopericadium, 300 ml.

Hemothorax, left 1,000 ml. Stomach filled with partially digested food particles. Other visceral organs, pale CAUSE OF DEATH: Gunshot wound of the chest. "18. After the fatal shooting of deceased, Celestino Marturillas was subjected to paraffin testing by the PNP Crime Laboratory in Davao City at 10:30 a.m. November 5, 1998. The next day, November 6, 1998, the PNP Crime Laboratory released Physical Sciences Report No. C-074-98 regarding the paraffin test results which found Petitioner NEGATIVE for gunpowder nitrates based on the following findings of the PNP Crime Laboratory: FINDINGS: Qualitative examination conducted on the above-mentioned specimen gave NEGATIVE result to the test for the presence of gunpowder nitrates. x x x CONCLUSION: Both hands of Celestino Marturillas do not contain gunpowder nitrates[.] "19. After preparing all the affidavits of Ernita Pantinople and her witnesses PO2 Mariano R. Operario Jr., the police officer as[s]igned to investigate the shooting of the deceased, prepared and transmitted, on November 5, 1998, a Complaint to the City Prosecution Office recommending that Petitioner be indicted for Murder, attaching therewith the Sworn Affidavits of Ernita O. Pantinople (Complainant), Lito D. Santos (witness) and the Sworn Joint Affidavit of SPO1 Rodel Estrellan and PO2 Mariano R. Operario Jr. of the PNP. "20. The following is the Affidavit-Complaint of Ernita Pantinople as well as the supporting affidavits of her witnesses all of which are quoted in full hereunder: Ernita Pantinoples Affidavit-Complaint dated November 5, 1998: That last November 4, 1998 at about 7:30 in the evening, I was attending and caring my baby boy at that time to let him sleep and that moment I heard first one gun shot burst after then somebody shouting seeking for help in Visayan words tabangi ko Pre gipusil ko ni Kapitan I estimated a distance to more or less ten (10) meters away from my house; That I immediately peep at the windows, wherein I very saw a person of Brgy. Capt. Celestino Marturillas of Brgy. Gatungan, Bunawan District, Davao City, wearing black jacket and camouflage pants carrying his M-14 rifle running to the direction to the left side portion of the house of Lito Santos who was my neighbor respectively; That I hurriedly go down from my house and proceeded to the victims body, wherein when I came nearer I got surprised for the victim was my beloved husband; That I was always shouting in visayan words kapitan nganong imo mang gipatay and akong bana;

That I let my husband body still at that placed until the police officers will arrived and investigate the incident; That I know personally Brgy. Capt. Celestino Marturillas for he is my nearby neighbor at that placed; That I am executing this affidavit to apprise the authorities concern of the truthfulness of the foregoing and my desire to file necessary charges against Celestino Marturillas. Witness-Affidavit of Lito Santos dated November 5, 1998 reads: I, LITO D. SANTOS, 43 yrs. old, married, farmer, a resident of Purok 5, Brgy. Gatungan, Bunawan District, Davao City after having been duly sworn to in accordance with law do hereby depose and say: That last November 4, 1998 at about 7:30 in the evening I was taking my dinner at the kitchen of my house and after finished eating I stood up then got a glass of water and at that time I heard one gun shot burst estimated to more or less ten (10) meters from my possession then followed somebody shouting seeking for help in Visayan words tabangi ko pre gipusil ko ni Kapitan; That I really saw the victim moving backward to more or less five (5) meters away from where he was shot then and there the victim slumped at the grassy area; That I immediately go out from my house and proceeded to the victims body, wherein, when I came nearer I found and identified the victim one Artemio Pantinople who was my nearby neighbor sprawled on his own blood at the grassy area; That no other person named by the victim other than Brgy. Capt. Celestino Marturillas of Brgy. Gatungan, Bunawan District, Davao City; That I am executing this affidavit to apprised the authorities concern of the true facts and circumstances that surrounds the incident. "21. Based on the Affidavits executed by Ernita Pantinople and Lito Santos, then 2nd Asst. City Prosecutor Raul B. Bendigo issued a Resolution on November 5, 1998 finding sufficient evidence to indict Appellant for the crime of Homicide and not Murder as alleged in Private Complainants Affidavit Complaint. The Information states: Above-mentioned Accused, armed with a gun, and with intent to kill, willfully, unlawfully and feloniously shot one Artemio Pantinople, thereby inflicting fatal wound upon the latter which caused his death. CONTRARY TO LAW. xxxxxxxxx "23. The theory of the Defense was anchored on the testimony of the following individuals: 23.1 Jimmy Balugo, was one of the Barangay Kagawads who went to the house of Petitioner after receiving a radio message from Brgy. Kagawad Glenda Lascua that a shooting incident took place in their barangay. He also testified that together with Kagawad Norberto Libre, he proceeded to the house of Petitioner to inform him of the shooting incident involving a certain Artemio Titing

Pantinople. After informing Petitioner about what happened, the latter instructed him and Norberto Libre to gather the SCAAs and to accompany them to the crime scene. He also narrated to the court that Petitioner and their group were not able to render any assistance at the crime scene since the widow and the relatives of deceased were already belligerent. As a result of which, the group of Petitioner including himself, went back to the formers house where he asked Petitioner if it would be alright to contact the police and request for assistance. He claimed that he was able to contact the Bunawan PNP with the help of the Barangay Police of Barangay San Isidro. 23.2) Norberto Libre testified that in the evening of November 4, 1998, he heard a gunburst which resembled a firecracker and after a few minutes Barangay Kagawad Jimmy Balugo went to his house and informed him that their neighbor Titing Pantinople was shot. Kagawad Balugo requested him to accompany the former to go to the house of then Barangay Captain Celestino Marturillas; that he and Kagawad Balugo proceeded to the house of Petitioner and shouted to awaken the latter; that Barangay Captain Marturillas went out rubbing his eyes awakened from his sleep and was informed of the killing of Artemio Pantinople; that Petitioner immediately instructed them to fetch the SCAA and thereafter their group went to the crime scene. 23.3) Ronito Bedero testified that he was in his house on the night Artemio Pantinop[l]e was shot. The material point raised by this witness in his testimony was the fact that he saw an unidentified armed man flee from the crime scene who later joined two other armed men near a nangka tree not far from where deceased was shot. All three later fled on foot towards the direction of the Purok Center in Barangay Gatungan. This witness noticed that one of the three men was armed with a rifle but could not make out their identities since the area where the three men converged was a very dark place. After the three men disappeared, he saw from the opposite direction Petitioner, Barangay Kagawad Jimmy Balugo and three (3) SCAA members going to the scene of the crime but they did not reach the crime scene. A little later, he saw the group of Petitioner return to where they came from. 23.4) Police C/Insp. Noemi Austero, Forensic Chemist of the PNP Crime Laboratory, testified that she conducted a paraffin test on both hands of Petitioner on November 5, 1999 at around 10:30 a.m. She also testified that Petitioner tested NEGATIVE for gunpowder nitrates indicating that he never fired a weapon at any time between 7:30 p.m. of November 4, 1999 until the next day, November 5, 1999. She also testified that as a matter of procedure at the PNP Crime Laboratory, they do not conduct paraffin testing on a crime suspect seventy two (72) hours after an alleged shooting incident. She also testified that based on her experience she is not aware of any chemical that could extract gunpowder nitrates from the hands of a person who had just fired his weapon. 23.5) Dominador Lapiz testified that he lived on the land of the victim, Artemio Pantinople for ten (10) years. He was one of the first persons who went to the crime scene where he personally saw the body of deceased lying at a very dark portion some distance from the victims house and that those with him at that time even had to light the place with a lamp so that they could clearly see the deceased. He also testified that there were many coconut and other trees and bananas in the crime scene. He also testified that the house of Lito Santos was only about four (4) meters from the crime scene, while the house of victim-Artemio Pantinople was about FIFTY (50) meters away. He testified that there was no lighted fluorescent at the store of deceased at the time of the shooting. He was also the one who informed Kagawad Glenda Lascuna about the shooting of Artemio Pantinople. His testimony also revealed that when the responding policemen arrived, Lito Santos immediately approached the policemen, volunteered himself as a witness and even declared that he would testify that it was Petitioner who shot Artemio Pantinople. On cross-examination, this witness declared that the crime scene was very dark and one cannot see the body of the victim without light. On cross-examination, this witness also testified that Lito

Santos approached the service vehicle of the responding policemen and volunteered to be a witness that Petitioner was the assailant of the victim, Artemio Pantinople. This witness further testified that immediately after he went to the crime scene, the widow of the victim and the children were merely shouting and crying and it was only after the policemen arrived that the widow uttered in a loud voice, Kapitan nganong gipatay mo and akong bana? 23.6) Celestino Marturillas, former Barangay Captain of Barangay Gatungan, Bunawan District, Davao City testified that he learned of Pantinoples killing two hours later through information personally relayed to him by Kagawads Jimmy Balugo and Norberto Libre. He intimated to the Court that he did try to extend some assistance to the family of the deceased but was prevented from so doing since the wife of deceased herself and her relatives were already hostile with him when he was about to approach the crime scene. He also testified that he voluntarily went with the police officers who arrested him at his residence on the same evening after the victim was shot. He also turned over to police custody the M-14 rifle issued to him and voluntarily submitted himself to paraffin testing a few hours after he was taken in for questioning by the Bunawan PNP. Petitioner, during the trial consistently maintained that he is innocent of the charge against him."10 Ruling of the Court of Appeals The CA affirmed the findings of the RTC that the guilt of petitioner had been established beyond reasonable doubt. According to the appellate court, he was positively identified as the one running away from the crime scene immediately after the gunshot. This fact, together with the declaration of the victim himself that he had been shot by the captain, clearly established the latters complicity in the crime. No ill motive could be ascribed by the CA to the prosecution witnesses. Thus, their positive, credible and unequivocal testimonies were accepted as sufficient to establish the guilt of petitioner beyond reasonable doubt. On the other hand, the CA also rejected his defenses of denial and alibi. It held that they were necessarily suspect, especially when established by friends or relatives, and should thus be subjected to the strictest scrutiny. At any rate, his alibi and denial cannot prevail over the positive testimonies of the prosecution witnesses found to be more credible. The appellate court upheld petitioners conviction, as well as the award of damages. In addition, it awarded actual damages representing unearned income. Hence, this Petition.11 The Issues In his Memorandum, petitioner submits the following issues for the Courts consideration: "I The Court of Appeals committed a reversible error when it gave credence to the claim of the solicitor general that the prosecutions witnesses positively identified petitioner as the alleged triggerman "II

The Court of Appeals was in serious error when it affirmed the trial courts blunder in literally passing the blame on petitioner for the lapses in the investigation conducted by the police thereby shifting on him the burden of proving his innocence "III The Court of Appeals committed a serious and palpable error when it failed to consider that the deceased was cut off by death before he could convey a complete or sensible communication to whoever heard such declaration assuming there was any "IV Petit[i]oners alibi assumed significance considering that evidence and testimonies of the prosecutions witnesses arrayed against petitioner failed to prove that he was responsible for the commission of the crime."12 In sum, petitioner raises two main issues: 1) whether the prosecutions evidence is credible; and 2) whether it is sufficient to convict him of homicide. Under the first main issue, he questions the positive identification made by the prosecution witnesses; the alleged inconsistencies between their Affidavits and court testimonies; and the plausibility of the allegation that the victim had uttered, "Tabangi ko pre, gipusil ko ni kapitan" ("Help me pre, I was shot by the captain"), which was considered by the two lower courts either as his dying declaration or as part of res gestae. Under the second main issue, petitioner contends that the burden of proof was erroneously shifted to him; that there should have been no finding of guilt because of the negative results of the paraffin test; and that the prosecution miserably failed to establish the type of gun used in the commission of the crime. The Courts Ruling The Petition is unmeritorious. First Main Issue: Credibility of the Prosecution Evidence According to petitioner, the charge of homicide should be dismissed, because the inherent weakness of the prosecutions case against him was revealed by the evidence presented. He submits that any doubt as to who really perpetrated the crime should be resolved in his favor. We do not agree. This Court has judiciously reviewed the findings and records of this case and finds no reversible error in the CAs ruling affirming petitioners conviction for homicide. Basic is the rule that this Court accords great weight and a high degree of respect to factual findings of the trial court, especially when affirmed by the CA, as in the present case.13 Here, the RTC was unequivocally upheld by the CA, which was clothed with the power to review whether the trial courts conclusions were in accord with the facts and the relevant laws.14 Indeed, the findings of the trial court are not to be disturbed on appeal, unless it has overlooked or misinterpreted some facts or circumstances of weight and substance.15 Although there are recognized exceptions16 to the conclusiveness of the findings of fact of the trial and the appellate courts, petitioner has not convinced this Court of the existence of any.

Having laid that basic premise, the Court disposes seriatim the arguments proffered by petitioner under the first main issue. Positive Identification Petitioner contends that it was inconceivable for Prosecution Witness Ernita Pantinople -- the victims wife -- to have identified him as the assassin. According to him, her house was "a good fifty (50) meters away from the crime scene,"17 which was "enveloped in pitch darkness."18 Because of the alleged improbability, he insists that her testimony materially contradicted her Affidavit. The Affidavit supposedly proved that she had not recognized her husband from where she was standing during the shooting. If she had failed to identify the victim, petitioner asks, "how was it possible for her to conclude that it was [p]etitioner whom she claims she saw fleeing from the scene?"19 All these doubts raised by petitioner are sufficiently addressed by the clear, direct and convincing testimony of the witness. She positively identified him as the one "running away" immediately after the sound of a gunshot. Certain that she had seen him, she even described what he was wearing, the firearm he was carrying, and the direction towards which he was running. She also clarified that she had heard the statement, "Help me pre, I was shot by the captain," uttered after the shooting incident. Accepting her testimony, the CA ruled thus: "Ernitas testimony that she saw [petitioner] at the crime scene is credible because the spot where Artemio was shot was only 30 meters away from her house. Undoubtedly, Ernita is familiar with [petitioner], who is her neighbor, and a long-time barangay captain of Barangay Gatungan, Bunawan District, Davao City when the incident took place. Ernita was also able to see his face while he was running away from the crime scene. The identification of a person can be established through familiarity with ones physical features. Once a person has gained familiarity with one another, identification becomes quite an easy task even from a considerable distance. Judicial notice can also be taken of the fact that people in rural communities generally know each other both by face and name, and can be expected to know each others distinct and particular features and characteristics."20 This holding confirms the findings of fact of the RTC. Settled is the rule that on questions of the credibility of witnesses and the veracity of their testimonies, findings of the trial court are given the highest degree of respect.21It was the trial court that had the opportunity to observe the manner in which the witnesses had testified; as well as their furtive glances, calmness, sighs, and scant or full realization of their oaths.22 It had the better opportunity to observe them firsthand; and to note their demeanor, conduct and attitude under grueling examination.23 Petitioner doubts whether Ernita could have accurately identified him at the scene of the crime, considering that it was dark at that time; that there were trees obstructing her view; and that her house was fifty (50) meters away from where the crime was committed. These assertions are easily belied by the findings of the courts below, as borne by the records. Ernita testified on the crime scene conditions that had enabled her to make a positive identification of petitioner. Her testimony was even corroborated by other prosecution witnesses, who bolstered the truth and veracity of those declarations. Consequently, the CA ruled as follows: "x x x Ernitas recognition of the assailant was made possible by the lighted two fluorescent lamps in their store and by the full moon. x x x. In corroboration, Lito testified that the place where the shooting occurred was bright.

"The trees and plants growing in between Ernitas house and the place where Artemio was shot to death did not impede her view of the assailant. To be sure, the prosecution presented photographs of the scene of the crime and its immediate vicinities. These photographs gave a clear picture of the place where Artemio was shot. Admittedly, there are some trees and plants growing in between the place where the house of Ernita was located and the spot where Artemio was shot. Notably, however, there is only one gemilina tree, some coconut trees and young banana plants growing in the place where Artemio was shot. The trees and banana plants have slender trunks which could not have posed an obstacle to Ernitas view of the crime scene from the kitchen window of her house especially so that she was in an elevated position."24 This Court has consistently held that -- given the proper conditions -- the illumination produced by a kerosene lamp, a flashlight, a wick lamp, moonlight, or starlight is considered sufficient to allow the identification of persons.25 In this case, the full moon and the light coming from two fluorescent lamps of a nearby store were sufficient to illumine the place where petitioner was; and to enable the eyewitness to identify him as the person who was present at the crime scene. Settled is the rule that when conditions of visibility are favorable and the witnesses do not appear to be biased, their assertion as to the identity of the malefactor should normally be accepted.26 But even where the circumstances were less favorable, the familiarity of Ernita with the face of petitioner considerably reduced any error in her identification of him.27 Since the circumstances in this case were reasonably sufficient for the identification of persons, this fact of her familiarity with him erases any doubt that she could have erred in identifying him. Those related to the victim of a crime have a natural tendency to remember the faces of those involved in it. These relatives, more than anybody else, would be concerned with seeking justice for the victim and bringing the malefactor before the law.28 Neither was there any indication that Ernita was impelled by ill motives in positively identifying petitioner. The CA was correct in observing that it would be "unnatural for a relative who is interested in vindicating the crime to accuse somebody else other than the real culprit. For her to do so is to let the guilty go free."29 Where there is nothing to indicate that witnesses were actuated by improper motives on the witness stand, their positive declarations made under solemn oath deserve full faith and credence.30 Inconsistency Between Affidavit and Testimony Petitioner contends that the testimony of Ernita materially contradicted her Affidavit. According to him, she said in her testimony that she had immediately recognized her husband as the victim of the shooting; but in her Affidavit she stated that it was only when she had approached the body that she came to know that he was the victim. We find no inconsistency. Although Ernita stated in her testimony that she had recognized the victim as her husband through his voice, it cannot necessarily be inferred that she did not see him. Although she recognized him as the victim, she was still hoping that it was not really he. Thus, the statement in her Affidavit that she was surprised to see that her husband was the victim of the shooting. To be sure, ex parte affidavits are usually incomplete, as these are frequently prepared by administering officers and cast in their language and understanding of what affiants have said.31 Almost always, the latter would simply sign the documents after being read to them. Basic is the rule that, taken ex parte, affidavits are considered incomplete and often inaccurate. They are products sometimes of partial suggestions and at other times of want of suggestions and inquiries,

without the aid of which witnesses may be unable to recall the connected circumstances necessary for accurate recollection.32 Nevertheless, the alleged inconsistency is inconsequential to the ascertainment of the presence of petitioner at the crime scene. Ruled the CA: "x x x. They referred only to that point wherein Ernita x x x ascertained the identity of Artemio as the victim. They did not relate to Ernitas identification of [petitioner] as the person running away from the crime scene immediately after she heard a gunshot."33 Statements Uttered Contemporaneous with the Crime Ernita positively testified that immediately after the shooting, she had heard her husband say, "Help me pre, I was shot by the captain." This statement was corroborated by another witness, Lito Santos, who testified on the events immediately preceding and subsequent to the shooting. It should be clear that Santos never testified that petitioner was the one who had actually shot the victim. Still, the testimony of this witness is valuable, because it validates the statements made by Ernita. He confirms that after hearing the gunshot, he saw the victim and heard the latter cry out those same words. Petitioner insinuates that it was incredible for Santos to have seen the victim, but not the assailant. The CA dismissed this argument thus: "x x x. The natural reaction of a person who hears a loud or startling command is to turn towards the speaker. Moreover, witnessing a crime is an unusual experience that elicits different reactions from witnesses, for which no clear-cut standard of behavior can be prescribed. Litos reaction is not unnatural. He was more concerned about Artemios condition than the need to ascertain the identity of Artemios assailant."34 It was to be expected that, after seeing the victim stagger and hearing the cry for help, Santos would shift his attention to the person who had uttered the plea quoted earlier. A shift in his focus of attention would sufficiently explain why Santos was not able to see the assailant. Petitioner then accuses this witness of harboring "a deep-seated grudge,"35 which would explain why the latter allegedly fabricated a serious accusation. This contention obviously has no basis. No serious accusation against petitioner was ever made by Santos. What the latter did was merely to recount what he heard the victim utter immediately after the shooting. Santos never pointed to petitioner as the perpetrator of the crime. The statements of the former corroborated those of Ernita and therefore simply added credence to the prosecutions version of the facts. If it were true that he had an ulterior motive, it would have been very easy for him to say that he had seen petitioner shoot the victim. The two witnesses unequivocally declared and corroborated each other on the fact that the plea, "Help me pre, I was shot by the captain," had been uttered by the victim. Nevertheless, petitioner contends that it was highly probable that the deceased died instantly and was consequently unable to shout for help. We do not discount this possibility, which petitioner himself admits to be a probability. In the face of the positive declaration of two witnesses that the words were actually uttered, we need not concern ourselves with speculations, probabilities or possibilities. Said the CA:

"x x x. Thus, as between the positive and categorical declarations of the prosecution witnesses and the mere opinion of the medical doctor, the former must necessarily prevail. "Moreover, it must be stressed that the post-mortem examination of the cadaver of Artemio was conducted by Dr. Ledesma only about 9:30 in the morning of November 5, 1998 or the day following the fatal shooting of Artemio. Evidently, several hours had elapsed prior to the examination. Thus, Dr. Ledesma could not have determined Artemios physical condition a few seconds after the man was shot."36 Dying Declaration Having established that the victim indeed uttered those words, the question to be resolved is whether they can be considered as part of the dying declaration of the victim. Rule 130, Section 37 of the Rules of Court, provides: "The declaration of a dying person, made under the consciousness of impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death." Generally, witnesses can testify only to those facts derived from their own perception. A recognized exception, though, is a report in open court of a dying persons declaration made under the consciousness of an impending death that is the subject of inquiry in the case.37 Statements identifying the assailant, if uttered by a victim on the verge of death, are entitled to the highest degree of credence and respect.38 Persons aware of an impending death have been known to be genuinely truthful in their words and extremely scrupulous in their accusations.39 The dying declaration is given credence, on the premise that no one who knows of ones impending death will make a careless and false accusation.40 Hence, not infrequently, pronouncements of guilt have been allowed to rest solely on the dying declaration of the deceased victim.41 To be admissible, a dying declaration must 1) refer to the cause and circumstances surrounding the declarants death; 2) be made under the consciousness of an impending death; 3) be made freely and voluntarily without coercion or suggestions of improper influence; 4) be offered in a criminal case, in which the death of the declarant is the subject of inquiry; and 5) have been made by a declarant competent to testify as a witness, had that person been called upon to testify.42 The statement of the deceased certainly concerned the cause and circumstances surrounding his death. He pointed to the person who had shot him. As established by the prosecution, petitioner was the only person referred to as kapitan in their place.43 It was also established that the declarant, at the time he had given the dying declaration, was under a consciousness of his impending death. True, he made no express statement showing that he was conscious of his impending death. The law, however, does not require the declarant to state explicitly a perception of the inevitability of death.44 The perception may be established from surrounding circumstances, such as the nature of the declarants injury and conduct that would justify a conclusion that there was a consciousness of impending death.45 Even if the declarant did not make an explicit statement of that realization, the degree and seriousness of the words and the fact that death occurred shortly afterwards may be considered as sufficient evidence that the declaration was made by the victim with full consciousness of being in a dying condition.46

Also, the statement was made freely and voluntarily, without coercion or suggestion, and was offered as evidence in a criminal case for homicide. In this case, the declarant was the victim who, at the time he uttered the dying declaration, was competent as a witness. As found by the CA, the dying declaration of the victim was complete, as it was "a full expression of all that he intended to say as conveying his meaning. It [was] complete and [was] not merely fragmentary."47 Testified to by his wife and neighbor, his dying declaration was not only admissible in evidence as an exception to the hearsay rule, but was also a weighty and telling piece of evidence. Res Gestae The fact that the victims statement constituted a dying declaration does not preclude it from being admitted as part of the res gestae, if the elements of both are present.48 Section 42 of Rule 130 of the Rules of Court provides: "Part of the res gestae. -- Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae." Res gestae refers to statements made by the participants or the victims of, or the spectators to, a crime immediately before, during, or after its commission.49 These statements are a spontaneous reaction or utterance inspired by the excitement of the occasion, without any opportunity for the declarant to fabricate a false statement.50 An important consideration is whether there intervened, between the occurrence and the statement, any circumstance calculated to divert the mind and thus restore the mental balance of the declarant; and afford an opportunity for deliberation.51 A declaration is deemed part of the res gestae and admissible in evidence as an exception to the hearsay rule, when the following requisites concur: 1) the principal act, the res gestae, is a startling occurrence; 2) the statements were made before the declarant had time to contrive or devise; and 3) the statements concerned the occurrence in question and its immediately attending circumstances.52 All these requisites are present in this case. The principal act, the shooting, was a startling occurrence. Immediately after, while he was still under the exciting influence of the startling occurrence, the victim made the declaration without any prior opportunity to contrive a story implicating petitioner. Also, the declaration concerned the one who shot the victim. Thus, the latters statement was correctly appreciated as part of the res gestae. Aside from the victims statement, which is part of the res gestae, that of Ernita -- "Kapitan, ngano nimo gipatay ang akong bana?" ("Captain, why did you shoot my husband?") -- may be considered to be in the same category. Her statement was about the same startling occurrence; it was uttered spontaneously, right after the shooting, while she had no opportunity to concoct a story against petitioner; and it related to the circumstances of the shooting. Second Main Issue: Sufficiency of Evidence Having established the evidence for the prosecution, we now address the argument of petitioner that the appellate court had effectively shifted the burden of proof to him. He asserts that the prosecution

should never rely on the weakness of the defense, but on the strength of its evidence, implying that there was no sufficient evidence to convict him. We disagree. The totality of the evidence presented by the prosecution is sufficient to sustain the conviction of petitioner. The dying declaration made by the victim immediately prior to his death constitutes evidence of the highest order as to the cause of his death and of the identity of the assailant.53 This damning evidence, coupled with the proven facts presented by the prosecution, leads to the logical conclusion that petitioner is guilty of the crime charged. The following circumstances proven by the prosecution produce a conviction beyond reasonable doubt: First. Santos testified that he had heard a gunshot; and seen smoke coming from the muzzle of a gun, as well as the victim staggering backwards while shouting, "Help me pre, I was shot by the captain." This statement was duly established, and the testimony of Santos confirmed the events that had occurred. It should be understandable that "pre" referred to Santos, considering that he and the victim were conversing just before the shooting took place. It was also established that the two called each other "pre," because Santos was the godfather of the victims child.54 Second. Ernita testified that she had heard a gunshot and her husbands utterance, "Help me pre, I was shot by the captain," then saw petitioner in a black jacket and camouflage pants running away from the crime scene while carrying a firearm. Third. Ernitas statement, "Captain, why did you shoot my husband?" was established as part of the res gestae. Fourth. The version of the events given by petitioner is simply implausible. As the incumbent barangay captain, it should have been his responsibility to go immediately to the crime scene and investigate the shooting. Instead, he avers that when he went to the situs of the crime, the wife of the victim was already shouting and accusing him of being the assailant, so he just left. This reaction was very unlikely of an innocent barangay captain, who would simply want to investigate a crime. Often have we ruled that the first impulse of innocent persons when accused of wrongdoing is to express their innocence at the first opportune time.55 Fifth. The prosecution was able to establish motive on the part of petitioner. The victims wife positively testified that prior to the shooting, her husband was trying to close a real estate transaction which petitioner tried to block. This showed petitioners antagonism towards the victim.56 These pieces of evidence indubitably lead to the conclusion that it was petitioner who shot and killed the victim. This Court has consistently held that, where an eyewitness saw the accused with a gun seconds after the gunshot and the victims fall, the reasonable conclusion is that the accused had killed the victim.57 Further establishing petitioners guilt was the definitive statement of the victim that he had been shot by the barangay captain. Clearly, petitioners guilt was established beyond reasonable doubt. To be sure, conviction in a criminal case does not require a degree of proof that, excluding the possibility of error, produces absolute certainty.58 Only moral certainty is required or that degree of proof that produces conviction in an unprejudiced mind.59

That some pieces of the above-mentioned evidence are circumstantial does not diminish the fact that they are of a nature that would lead the mind intuitively, or by a conscious process of reasoning, toward the conviction of petitioner.60 Circumstantial, vis--vis direct, evidence is not necessarily weaker.61 Moreover, the circumstantial evidence described above satisfies the requirements of the Rules of Court, which we quote: "SEC. 4. Circumstantial evidence, when sufficient. -- Circumstantial evidence is sufficient for conviction if: (a) There is more than one circumstance; (b) The facts from which the inferences are derived are proven; and (c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt."62 Paraffin Test Petitioner takes issue with the negative results of the paraffin test done on him. While they were negative, that fact alone did not ipso facto prove that he was innocent. Time and time again, this Court has held that a negative paraffin test result is not a conclusive proof that a person has not fired a gun.63 In other words, it is possible to fire a gun and yet be negative for nitrates, as when culprits wear gloves, wash their hands afterwards, or are bathed in perspiration.64 Besides, the prosecution was able to establish the events during the shooting, including the presence of petitioner at the scene of the crime. Hence, all other matters, such as the negative paraffin test result, are of lesser probative value. Corpus Delicti Petitioner then argues that the prosecution miserably failed to establish the type of gun used in the shooting. Suffice it to say that this contention hardly dents the latters case. As correctly found by the appellate court, the prosecution was able to give sufficient proof of the corpus delicti -- the fact that a crime had actually been committed. Ruled this Court in another case: "[Corpus delicti] is the fact of the commission of the crime that may be proved by the testimony of eyewitnesses. In its legal sense, corpus delicti does not necessarily refer to the body of the person murdered, to the firearms in the crime of homicide with the use of unlicensed firearms, to the ransom money in the crime of kidnapping for ransom, or x x x to the seized contraband cigarettes."65 To undermine the case of the prosecution against him, petitioner depends heavily on its failure to present the gun used in the shooting and on the negative paraffin test result. These pieces of evidence alone, according to him, should exculpate him from the crime. His reliance on them is definitely misplaced, however. In a similar case, this Court has ruled as follows: "Petitioner likewise harps on the prosecutions failure to present the records from the Firearms and Explosives Department of the Philippine National Police at Camp Crame of the .45 caliber Remington pistol owned by petitioner for comparison with the specimen found at the crime scene with the hope that it would exculpate him from the trouble he is in. Unfortunately for petitioner, we have previously held that the choice of what evidence to present, or who should testify as a witness is within the discretionary power of the prosecutor and definitely not of the courts to dictate.

"Anent the failure of the investigators to conduct a paraffin test on petitioner, this Court has time and again held that such failure is not fatal to the case of the prosecution as scientific experts agree that the paraffin test is extremely unreliable and it is not conclusive as to an accuseds complicity in the crime committed."66 Finally, as regards petitioners alibi, we need not belabor the point. It was easily, and correctly, dismissed by the CA thus: "[Petitioners] alibi is utterly untenable. For alibi to prosper, it must be shown that it was physically impossible for the accused to have been at the scene of the crime at the time of its commission. Here, the locus criminis was only several meters away from [petitioners] home. In any event, this defense cannot be given credence in the face of the credible and positive identification made by Ernita."67 Third Issue: Damages An appeal in a criminal proceeding throws the whole case open for review. It then becomes the duty of this Court to correct any error in the appealed judgment, whether or not included in the assignment of error.68 The CA upheld the RTC in the latters award of damages, with the modification that unearned income be added.
1avv phil.net

We uphold the award of P50,000 indemnity ex delicto69 to the heirs of the victim. When death occurs as a result of a crime, the heirs of the deceased are entitled to this amount as indemnity for the death, without need of any evidence or proof of damages.70 As to actual damages, we note that the prosecution was able to establish sufficiently only P22,200 for funeral and burial costs. The rest of the expenses, although presented, were not duly receipted. We cannot simply accept them as credible evidence. This Court has already ruled, though, that when actual damages proven by receipts during the trial amount to less than P25,000, the award of P25,000 for temperate damages is justified, in lieu of the actual damages of a lesser amount.71 In effect, the award granted by the lower court is upheld. As to the award of moral damages, the P500,000 given by the RTC and upheld by the CA should be reduced to P50,000, consistent with prevailing jurisprudence.72 We also affirm the award of loss of earning capacity73 in the amount of P312,000; attorneys fees of P20,000; and payment of the costs. WHEREFORE, the Petition is DENIED and the assailed Decision and Resolution are AFFIRMED, subject to the modification in the award of damages set forth here. Costs against petitioner. SO ORDERED.

G.R. No. 178196

August 6, 2008

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RUDY BUDUHAN y BULLAN and ROBERT BUDUHAN y BULLAN, defendants-appellants. DECISION CHICO-NAZARIO, J.: Before Us is a review of the Decision1 of the Court of Appeals dated 29 December 2006 in CA-G.R. CR-HC No. 01940, which affirmed with modifications the Decision2 dated 24 July 2003 of the Regional Trial Court (RTC) of Maddela, Quirino, Branch 38, in Criminal Case No. 38-18, finding accused-appellants Robert Buduhan y Bullan and Rudy Buduhan y Bullan guilty of the special complex crime of robbery with homicide with respect to the deceased Larry Erese, and of the crime of homicide with respect to the deceased Romualde Almeron. The Court of Appeals ordered the payment of moral damages to the heirs of said victims, in addition to the award already given by the trial court. On 26 August 1998, an Information3 was filed against Robert Buduhan, Rudy Buduhan, Boy Guinhicna, Boyet Ginyang and 3 John Does before the RTC of Maddela, Quirino, for the crime of Robbery with Homicide and Frustrated Homicide. Docketed as Criminal Case No. 38-18, the accusatory portion of the information provides: That on or about 10:40 oclock in the evening of July 24, 1998 in Poblacion Norte, Municipality of Maddela, Province of Quirino, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, four of them are armed and after first conspiring, confederating and mutually helping one another and with force and violence did then and there willfully, unlawfully and feloniously rob ROMUALDE ALMERON of his wallet and wrist watch and LARRY ERESE of his wrist watch to the damage and prejudice of the said ROMUALDE ALMERON and LARRY ERESE; That on the occasion of the Robbery, the said accused, armed with firearms of different caliber and after first conspiring, confederating and mutually helping one another did then and there willfully, unlawfully and feloniously, shoot and fire upon ROMUALDE ALMERON, LARRY

ERESE and ORLANDO PASCUA resulting to their instanteneous (sic) death and the injuries to the persons of FERNANDO PERA and GILBERT CORTEZ. On 20 October 1998, the accused filed a Motion to Quash4 the above information, alleging that the court did not legally acquire jurisdiction over their persons. The accused contended they were neither caught in flagrante delicto, nor did the police have personal knowledge of the commission of the offense at the time when their warrantless arrests were effected.5 In an Order dated 25 August 1999, the RTC denied the above motion on the ground that the assertion of lack of personal knowledge on the part of the arresting officers regarding the commission of the crime is a matter of defense, which should be properly taken up during the trial.6 When arraigned on 12 January 2000, the accused Rudy Buduhan, Robert Buduhan and Boyet Ginyang, with the assistance of their counsel de oficio, entered their pleas of "Not Guilty" to the crime charged.7With respect to accused Boy Guinhicna, counsel for the accused informed the trial court of his death and thus moved for the dismissal of the charges against him.8 On the same date, the pre-trial conference was terminated and both parties agreed on the following stipulation of facts, namely: 1. That the incident transpired at about 10:40 in the evening of July 24, 1998; 2. That the incident happened at Poblacion Norte, Maddela, Quirino; 3. That no firearm has been confiscated from any of the accused.9 Upon the submission of accused Boy Guinhicnas Certificate of Death,10 the RTC dismissed the case against him on 14 February 2000.11 Thereafter, trial of the case ensued. The prosecution presented the following witnesses: (1) Cherry Rose Salazar, an employee of the establishment where the crime was committed12; (2) Senior Police Officer 1 (SPO1) Leo Saquing, a police officer at the Maddela Police Station who investigated the crime committed13; (3) Dr. Fernando T. Melegrito, the medical examiner who conducted the autopsies on the bodies of the victims14; (4) Myrna Almeron, the widow of the victim Romualde

Almeron15; and (5) Laurentino Erese, Sr., the father of the victim Larry Erese.16 The defense, on the other hand, presented: (1) appellant Robert Buduhan17; (2) accused Boyet Ginyang18; (3) Police Inspector Ma. Leonora ChuaCamarao, a Forensic Chemist of the Philippine National Police (PNP) Crime Laboratory at Camp Crame, Quezon City19; (4) appellant Rudy Buduhan20; and (5) Reynaldo Gumiho, an eyewitness who was allegedly present at the scene of the crime shortly before the incident in question occurred.21 The Peoples version of the incident as narrated by its principal witness, Cherry Rose Salazar (Cherry Rose), is as follows: On 24 July 1998, Cherry Rose was working as a guest relations officer at the RML Canteen, a beerhouse and a videoke bar in Maddela, Quirino.22 At about 9:00 to 10:00 p.m., there were only two groups of men inside the beerhouse.23 The group that went there first was that of the appellants,24 which was composed of Robert Buduhan, who was wearing a white T-shirt marked Giordano,25 Rudy Buduhan, who was wearing a red Tshirt,26 a man wearing a blue T-shirt,27 and another man wearing a blue T-shirt with a black jacket.28 The second group was composed of Larry Erese and his companions Gilbert Cortez (alias Abe) and Fernando Pera (alias Nanding). At 10:40 p.m., while Cherry Rose was entertaining the group of Larry Erese, Robert approached them and poked a gun at Larry.29 Immediately, the man wearing a blue T-shirt likewise approached Cherry Roses Manager Romualde Almeron (alias Eddie), who was seated at the counter.30 The man in blue poked a gun at Romualde and announced a hold-up.31 Larry then handed over his wristwatch to Robert. Instantaneously, all four men from Roberts group fired their guns at Larry and Romualde, which caused them to fall down.32 Abe and Nanding ran out of the RML Canteen when the shooting occurred, and Cherry Rose hid below the table.33 SPO1 Leo T. Saquing34 testified that on 24 July 1998, at 11:00 p.m., he and SPO4 Alex M. Gumayagay were detailed as duty investigators at the Maddela Police Station when Eddie Ancheta, a fireman, reported to them a shooting incident at the RML Canteen in Barangay Poblacion Norte, Maddela, Quirino. SPO1 Saquing and SPO4 Gumayagay then proceeded to the said place. About 50 meters from the scene of the crime, they encountered four male individuals who were running away therefrom.35 The policemen immediately halted the men and asked them where they came from. When they could not respond properly and gave different answers, the policemen apprehended

them and brought them to the Maddela Police Station for questioning and identification.36 Afterwards, the policemen went back to the RML Canteen to conduct an investigation therein.37 Later that night, the witnesses38 of the shooting incident went to the police station and they positively pointed to the four persons, later identified as Robert Buduhan, Rudy Buduhan, Boy Guinhicna and Boyet Ginyang, as the assailants in the said incident.39 Dr. Fernando Melegrito,40 the Chief of Hospital at the Maddela Hospital, testified that he conducted the autopsies on the bodies of the victims Romualde Almeron, Larry Erese and Orlando Pascua.41 With respect to Romualde, Dr. Melegrito found that the former sustained a gunshot wound 1/2 x 1/2 centimeter in diameter, one inch above the right nipple, perforating the fourth rib of the right chest, penetrating the superior aspect of the right lung, the aorta of the heart, the midportion of the left lung and exited through the back, two inches below the lower portion of the left scapular region.42 These findings were also contained in Romualde Almerons Autopsy Report.43 From the nature of the wound, Dr. Melegrito concluded that the victim was near and was in front of the assailant when he was fatally shot. As regards Larry Erese, Dr. Melegrito testified that said victim sustained a gunshot wound 1/2 x 1/2 centimeter in diameter in the sternal region of the chest, between the third left and right rib, perforating the arch of the aorta of the heart and penetrating the subcutaneous tissue of the left lower back at the level of the seventh rib, where a slug (bullet)44 was extracted.45 These findings were likewise contained in Larry Ereses Autopsy Report.46 Concerning the victim Orlando Pascua, Dr. Melegrito testified that the gunshot wound that the former sustained resulted into a massive disruption of the lung.47 As presented in Pascuas Autopsy Report,48the gunshot wound was 1 x 1 inch in diameter, perforating the midportion of the fourth rib of the left chest, macerating the three-fourth (3/4) portion of the left lung, and penetrating the subcutaneous tissues of the left back at the level of the third and fourth ribs, then the fourth and fifth ribs where pellets were extracted therein. Myrna Almeron49 testified that as a result of the untimely death of her husband Romualde Almeron, which fact was evidenced by a Death Certificate,50 she incurred expenses for funeral services in the amount ofP38,000.00 and expenses during her husbands wake in the amount of P25,000.00. She also claimed that during the night of the shooting incident, Romualde brought with him the amount of P50,000.00 in his wallet, but the same was no longer recovered. Among these figures, however, Myrna Almeron was only able to

present a receipt for the expenses for funeral services 51 and only in the amount of P26,000.00. Laurentino Erese testified that during the wake of his deceased son, whose death was evidenced by a Death Certificate,52 he incurred funeral expenses for Larry in the amount of P18,000.00.53 From the wake to the first death anniversary, the total expenses were claimed to be more or less P100,000.00.54However, only the receipt for the above funeral services55 was offered. The prosecution did not present the other surviving victims in the shooting incident, namely Gilbert Cortez and Fernando Pera. The latter were fearful of reprisals from unknown individuals. No evidence was likewise adduced on their behalf. Also, the other employees who worked as guest relations officers in the RML Canteen and who likewise witnessed the incident were said to have absconded already.56 For the defense, appellant Robert Buduhan57 testified that on the evening of 24 July 1998, he was at their boarding house in Poblacion, Maddela, Quirino, together with Rudy Buduhan, Boyet Ginyang, and Boy Guinhicna. The group drank one bottle of San Miguel Gin, and then went to sleep. Unknown to him and Guinhicna, Rudy and Ginyang still went out to continue their drinking sessions. While he was sleeping, Ginyang arrived and woke him up. Ginyang told him that they had to go to the beerhouse where he (Ginyang) and Rudy had been to because something might have happened to Rudy, as there was a fight there. Robert, Ginyang and Guinhicna then proceeded to look for Rudy. On their way there, at the junction of the National Highway, they encountered some policemen who asked them where they were headed. When Robert said that they were looking for Rudy, the policemen told them to board the police vehicle and the group was given a ride. As it turned out, Roberts group was taken to the Municipal Jail of Maddela where they were detained. The policemen went out to look for Rudy and they likewise put him in jail. The following day, the policemen confiscated the shirts worn by the group. They were also taken to Santiago City where paraffin tests were conducted. On the evening of 26 July 1998, the policemen went to the jail with three ladies who were asked to identify Roberts group. The ladies, however, did not recognize Robert and his companions. Boyet Ginyang58 testified that on 24 July 1998, at 10:00 p.m., he and Rudy went to a beerhouse in Maddela, Quirino. After ordering some drinks and chatting, they suddenly heard gunshots from the outside. Looking towards the direction of the sound, he saw somebody fall to the ground and at that point,

he and Rudy ran to get away from the place. While running towards their boarding house, Rudy was stopped by an unknown armed person in a white T-shirt. When Ginyang reached the boarding house, he roused appellant Robert and Guinhicna from their sleep and asked them to go with him and search for Rudy. Upon reaching the junction at the National Highway, they were halted by a man who asked where they were heading. After hearing their story, the man said they should wait for a vehicle that would help them look for Rudy. When the vehicle arrived, he and the others were brought to the municipal jail. Thereafter, Rudy was likewise picked up by the police and detained with the group. On the morning of 25 July 1998, three ladies were brought to the municipal jail to identify his group, but the former did not recognize them. On the morning of 26 July 1998, Ginyang and his three companions were brought to Santiago City where they were made to undergo paraffin testing. Afterwards, the group was brought back to the municipal jail in Maddela, Quirino. Ginyang also testified that the policemen took the shirts they wore on the night of 24 July 1998, but he could not remember when they did. Police Inspector Maria Leonora Chua-Camarao59 testified that she was the one who conducted the examination proper of the paraffin casts taken from Robert Buduhan, Rudy Buduhan, Boyet Ginyang and Boy Guinhicna. She likewise brought before the trial court the original Letter Request60 of the Maddela Police Station for the conduct of paraffin casting; the Letter of Request61 addressed to the Officer-in-Charge the PNP Crime Laboratory in Region 2 for the conduct of paraffin examination; and the paraffin casts of subjects Rudy, Ginyang, Guinhicna and Robert.62 Police Inspector ChuaCamarao explained that the purpose of conducting a paraffin test was to determine the presence of gunpowder residue in the hands of a person through extraction using paraffin wax. The process involves two stages: first, the paraffin casting, in which the hands of the subject are covered with paraffin wax to extract gunpowder residue; and second, the paraffin examination per se, which refers to the actual chemical examination to determine whether or not gunpowder residue has indeed been extracted. For the second stage, the method used is the diphenyl amine test, wherein the diphenyl amine agent is poured on the paraffin casts of the subjects hands. In this test, a positive result occurs when blue specks are produced in the paraffin casts, which then indicates the presence of gunpowder residue. When no such reaction takes place, the result is negative. The findings and conclusion on the paraffin test that Police Inspector ChuaCamarao conducted were contained in Physical Science Report No. C-25-

9863 which yielded a negative result for all the four accused. Nonetheless, the forensic chemist pointed out that the paraffin test is merely a corroborative evidence, neither proving nor disproving that a person did indeed fire a gun. The positive or negative results of the test can be influenced by certain factors, such as the wearing of gloves by the subject, perspiration of the hands, wind direction, wind velocity, humidity, climate conditions, the length of the barrel of the firearm or the open or closed trigger guard of the firearm.64 Appellant Rudy Buduhan testified that at past 10:00 p.m. of 24 July 1998, he and Ginyang went to a beerhouse. Shortly after ordering their drinks, they heard gunshots, and a person seated near the door fell. They then ran towards the road.65 While running, an armed man wearing a white T-shirt held him, while Ginyang was able to get away.66 After a while, the police arrived and they took him to the Maddela police station where he was jailed along with Robert, Ginyang and Guinhicna.67 The rest of his testimony merely corroborated the testimonies of Robert and Ginyang. Reynaldo Gumiho (Reynaldo)68 testified that on the evening of 24 July 1998, he was in Poblacion, Maddela, Quirino, for a business transaction involving the sale of a 6x6 truck with a certain alias Boy. At about 8:00 p.m., Reynaldo and Boy proceeded to a beerhouse in Maddela. After settling with their drinks, Reynaldo heard a group of five men near their table who were conversing and he recognized from the accent of their voices that they were from Lagawe (Ifugao). One of the men then told him that they should leave after finishing their drinks because the former were looking for someone who killed their relative. Reynaldo disclosed that he recognized one of the persons whom he usually saw in Lagawe, and that the group was composed of relatively tall people who were mostly wearing jackets. Not long after, Reynaldo and Boy left the beerhouse so as not to get involved in any trouble. Two days after he left Maddela, Reynaldo learned of the shooting incident in the beerhouse. In a Decision dated 24 July 2003, the trial court found appellants guilty of the charges, the dispositive portion of which reads: WHEREFORE, premises considered, the court renders judgment as follows: 1) Finding accused Robert and Rudy, both surnamed Buduhan, GUILTY beyond reasonable doubt of the special complex crime of Robbery with Homicide (Par. 1 Article 294 of the Revised Penal Code) with respect to the deceased Larry Erese and sentences each of them to suffer the penalty of reclusion perpetua;

2) As to the victim Romualde Almeron, the court also finds them GUILTY beyond reasonable doubt of Homicide (Article 249 of the Revised Penal Code) and sentences each of them to the indeterminate penalty of 12 years of Prision Mayor as minimum to 20 years of Reclusion Temporal as maximum; However, they shall be entitled to a deduction of their preventive imprisonment from the term of their sentences in accordance with Article 29 of the Revised Penal Code, as amended by R.A. No. 6127. 3) To pay jointly the heirs of Larry Erese the amount of P50,000.00 as civil indemnity, P25,000 as exemplary damages, P18,000 as actual expenses and P5,000 as temperate damages; and the heirs of Mr. Almeron: P50,000 as civil indemnity, P25,000 as exemplary damages, P38,000.00 as actual expenses and P5,000.00 as temperate damages. With costs against them. However, with respect to accused Boyet Ginyang, the court ACQUITS him of the offense charged since the prosecution had failed to overcome, with the required quantum of evidence, the constitutional presumption of innocence. Consequently, the Chief of the BJMP, Cabarroguis, Quirino, is hereby ordered to immediately release him from confinement unless being held for some other lawful cause; and to make a report hereon within three (3) days from receipt hereof.69 On 1 August 2003, the appellants filed a Notice of Appeal70 raising questions of law and facts. On 7 June 2004, the Court initially resolved to accept the appeal, docketed as G.R. No. 159843,71 and required the appellants to file their Brief.72 However, on 5 October 2005, we resolved to transfer the case to the Court of Appeals in view of our ruling in People v. Mateo.73 The case was then docketed as CA-G.R. CR-HC No. 01940. On 29 December 2006, the Court of Appeals rendered its decision, the dispositive portion of which reads: WHEREFORE, premises considered, the July 24, 2003 Decision of the Regional Trial Court of Maddela, Quirino, Branch 38, in Civil Case No.

39-18, is hereby MODIFIED only in that, in addition to the award already given by the trial court, in consonance with current jurisprudence, the heirs of ERESE are also entitled to moral damages of P50,000 and in addition to the award already given by the trial court, the heirs of ALMERON are also entitled to moral damages of P50,000.00. Pursuant to Section 13(c), Rule 124 of the 2000 Rules of Criminal Procedure as amended by A.M. No. 00-5-03-SC dated September 28, 2004, which became effective on October 15, 2004, this judgment of the Court of Appeals may be appealed to the Supreme Court by notice of appeal filed with the Clerk of Court of the Court of Appeals.74 From the Court of Appeals, the case was then elevated to this Court for automatic review. In a Resolution75 dated 5 September 2007, we required the parties to file their respective supplemental briefs, if they so desired, within 30 days from notice. In a Manifestation76 filed on 30 October 2007, the People informed the Court that it will no longer file a supplemental brief, as the arguments raised by appellants had already been discussed in the brief77 filed before the Court of Appeals. Appellants, on the other hand, filed their supplemental brief on 28 November 2007. As a final plea for their innocence, appellants ask this Court to consider the following assignment of errors: I. IN GIVING COMPLETE CREDENCE TO THE TESTIMONY OF THE PRINCIPAL WITNESS OF THE PROSECUTION DESPITE THE PRESENCE OF FACTS TAINTING THE CREDIBILITY OF THE WITNESS. II. IN DISREGARDING THE DEFENSE OF THE APPELLANTS, WHICH WAS CORROBORATED BY THE FINDINGS OF THE FORENSIC CHEMIST. III.

IN FAILING TO MAKE A DIRECT RULING ON THE MOTION OF THE ACCUSED TO QUASH THE INFORMATION ON THE GROUND THAT THE ARREST OF THE ACCUSED WITHOUT A WARRANT OF ARREST IS ILLEGAL AS THERE WAS NO PERSONAL KNOWLEDGE OF THE ARRESTING OFFICERS REGARDING THE COMMISSION OF THE CRIME. To state differently, appellants argue that their guilt was not proven beyond reasonable doubt in view of the trial courts error in the appreciation of the evidence for and against them. They fault the trial courts over-reliance on the testimony of the prosecutions main witness and its failure to consider the glaring inconsistencies in Cherry Roses previous accounts of the shooting incident. The appeal lacks merit. Appellants insist that Cherry Rose is not a credible witness in view of the conflicting answers she gave in her sworn statement before the police,78 in the preliminary investigation of the case and in her testimony in open court. They contend that the trial court failed to scrutinize the entirety of the statements made by Cherry Rose vis--vis the shooting incident. Appellants called attention to the fact that during the preliminary investigation of the case, Cherry Rose stated that a man wearing a white Giordano T-shirt shot Larry after Larry handed his wristwatch.79Thereafter, when Cherry Rose was asked whom she saw wearing a white Giordano T-shirt, she pointed to Boy Guinhicna.80 With respect to appellant Robert Buduhan, Cherry Rose identified him as the one who shot Orlando Pascua.81 In the testimony of Cherry Rose in open court, however, she identified appellant Robert as the man who was wearing a white Giordano T-shirt and who shot Larry Erese.82 Also, in Cherry Roses sworn statement before the police, she narrated that the group of the appellants, consisting of five persons, was already inside the RML Canteen before the shooting incident occured.83However, in her direct examination, Cherry Rose stated that appellant Robert had only three other companions.84 Finally, in the preliminary investigation, appellants pointed out that Cherry Rose unhesitatingly admitted that Larry Erese was her intimate boyfriend and that was why she embraced him after the latter was shot.85

In her cross-examination, however, Cherry Rose stated that Larry was only a customer and not her boyfriend.86 When questioned about her prior statement about this fact given during the preliminary investigation, Cherry Rose changed her answer and said that Larry was indeed her boyfriend.87 Taking all these circumstances into account, appellants argue that, judging from the conflicting statements of Cherry Rose, the identification of the accused is highly doubtful. We are not persuaded. As between statements made during the preliminary investigation of the case and the testimony of a witness in open court, the latter deserves more credence. Preliminary investigations are commonly fairly summary or truncated in nature, being designed simply for the determination, not of guilt beyond reasonable doubt, but of probable cause prior to the filing of an information in court. It is the statements of a witness in open court which deserve careful consideration.88 In any event, Section 13, Rule 132 of the Revised Rules on Evidence, on the matter of inconsistent statements by a witness, is revealing: Section 13. How witness impeached by evidence of inconsistent statements. Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing they must be shown to the witness before any question is put to him concerning them. The rule that requires a sufficient foundation to be first laid before introducing evidence of inconsistent statements of a witness is founded upon common sense and is essential to protect the character of a witness. His memory is refreshed by the necessary inquiries, which enable him to explain the statements referred to and to show that they were made by mistake, or that there was no discrepancy between them and his testimony.89 In the present case, the statements made by Cherry Rose during the preliminary investigation with respect to the identities of the accused were not related to her during the trial. Indeed, it is only during the appeal of this case that appellants pointed out the supposed inconsistencies in Cherry Roses

identification of the appellants in order to destroy her credibility as a witness. No opportunity was ever afforded her to provide an explanation. Without such explanation, whether plausible or not, we are left with no basis to evaluate and assess her credibility, on the rationale that it is only when no reasonable explanation is given by a witness in reconciling her conflicting declarations that she should be deemed impeached.90 In this regard, what the defense brought to Cherry Roses attention during the trial were her contradictory statements about her romantic relationship with Larry Erese. As a result of this confrontation, Cherry Rose changed her answer. We rule, however, that this inconsistency relates only to an insignificant aspect of the case and does not involve a material fact in dispute. Inasmuch as the above-stated mandatory procedural requirements were not complied with, the credibility of Cherry Rose as a witness stands unimpeached. As found by the trial court, the testimony of Cherry Rose was straightforward throughout. The appellants were not able to adduce any reason or motive for her to bear false witness against them. As a matter of fact, Cherry Rose testified during cross-examination that she did not personally know appellant Robert, and that she had first seen him only during the night when the shooting incident took place.91 As the trial judge who penned the assailed decision did not hear the testimonies of the witnesses for the prosecution,92 the rule granting finality to the factual findings of trial courts does not find applicability to the instant case.93 After a careful review of the entire records of this case, the Court finds no reason to disagree with the factual findings of the trial court that all the elements of the crime of Robbery with Homicide were present and proved in this case. Robbery with Homicide is penalized under Article 294, paragraph 1 of the Revised Penal Code,94 which provides: Art. 294. Robbery with violence against or intimidation of personsPenalties. Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer: 1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been

committed, or when the robbery shall have been accompanied by rape or intentional mutilation or arson. To warrant conviction for the crime of robbery with homicide, one that is primarily classified as a crime against property and not against persons, the prosecution has to firmly establish the following elements: (1) the taking of personal property with the use of violence or intimidation against the person; (2) the property thus taken belongs to another; (3) the taking is characterized by intent to gain or animus lucrandi; and (4) on the occasion of the robbery or by reason thereof, the crime of homicide, which is therein used in a generic sense, is committed.95 In Robbery with Homicide, so long as the intention of the felon is to rob, the killing may occur before, during or after the robbery. It is immaterial that death would supervene by mere accident, or that the victim of homicide is other than the victim of robbery, or that two or more persons are killed. Once a homicide is committed by reason or on the occasion of the robbery, the felony committed is the special complex crime of Robbery with Homicide.96 The original design must have been robbery; and the homicide, even if it precedes or is subsequent to the robbery, must have a direct relation to, or must be perpetrated with a view to consummate, the robbery. The taking of the property should not be merely an afterthought, which arose subsequently to the killing.97 With respect to the elements of the crime, the following excerpts from the direct testimony of Cherry Rose clearly illustrates the same, viz: PROVINCIAL PROSECUTOR FERDINAND D. ORIAS Q: At that night of July 24, 1998 at around 10:40 in the evening, what were you doing at RML Canteen? A: I was entertaining a costumer sir. (nakatable)

xxxx Q: A: Who was that person who requested you to entertain him? Larry Erese sir.

Q: Do you recall if this Larry Erese have a companions (sic) that time? A: Q: A: Yes, sir. Name them? Abe at Nanding sir.

Q: That night while you were entertaining them, this three (3) what transpired next? A: Q: A: Q: A: An Ifugao approached us sir and he poke a gun at Larry Erese sir. And what did Larry Erese do when a gun was poke at him? He gave his wrist watch sir. To whom did Larry Erese gave his wrist watch? To the Ifugao who poke a gun at him sir.

xxxx Q: Will you please go around and see if he is inside the courtroom and point at him? A: The witness is pointing to a man [seated] at the back bench of the court and when asked about his name he answered Robert Buduhan. xxxx Q: A: What was the attire of Robert Buduhan at that time? White T-shirt sir.

Q: Can you name or can you recall any particular description of that T-shirt worn by Robert Buduhan at that time? xxxx A: It was marked with Giordano sir.

xxxx Q: When Robert Buduhan approached Larry Erese and Larry Erese gave his wrist watch, do you recall if Robert Buduhan have a companions (sic) at that time? A: Q: A: There was sir. How many of them? Four (4) sir.

xxxx Q: Where are these companions of Robert Buduhan at the time Robert Buduhan poke a gun at Larry Erese? A: The other one was there to my Manager [Romualde] Eddie Almeron sir. Q: What was the attire of this person who approached Eddie Almeron, your Manager? A: He was in blue sir.

xxxx Q: A: He wore blue T-shirt? Yes, sir.

xxxx Q: What about the other two (2) companions of Robert Buduhan where are they? A: Q: A: Q: They were inside sir. The first of the two (2) what is the attire? Color red sir. What about the last one?

A:

He was in blue T-shirt and with black jacket sir.

xxxx Q: The person in red T-shirt whom you claim the companion of Robert Buduhan, can you identify him? A: Yes, sir.

xxxx Q: Stand and point at him?

A: Witness pointed one of the accused sitting infront and when asked about his name he answered Rudy Buduhan. xxxx Q: You mention about a person wearing blue T-shirt who approached your Manager Eddie Almeron. What did he do first before he approached your Manager if [any]? A: Q: A: He poke a gun at our Manager sir. What did he tell to you (sic) Manager if any while poking a gun? Holdup sir.

Q: Are they simultaneous in approaching Larry Erese and Eddie Almeron, this person in blue T-shirt and the accused Robert Buduhan? A: No, sir. Robert Buduhan approached first.

Q: And then the person in blue T-shirt likewise approached Eddie Almeron? A: Yes, sir.

xxxx Q: What transpired first before Larry Erese gave his wrist watch. The announcement of holdup or the giving of his wrist watch?

A:

The announcement of the holdup comes first sir.

Q: When Larry Erese gave his watch to Robert Buduhan with Robert Buduhan poking a gun at Larry Erese, what transpired next? A: Q: A: They fired sir. Who fired? All of them sir.

xxxx Q: You mentioned a while ago that Robert Buduhan poke a gun at Larry Erese? A: Q: A: Yes, sir. Do you know the caliber of the gun? It looks like a 38 but it is long sir.

Q: You likewise mention that the person in blue T-shirt poke a gun at Eddie Almeron? A: Q: A: Q: A: Yes, sir. What about the person in red? It looks like an armalite sir. What about the person in blue T-shirt with black jacket? Armalite sir.

Q: When Rudy Buduhan fired his gun was there any person who was hit? A: Q: A: There was sir. Name that person? Larry Erese sir.

Q: When the person in blue T-shirt who was poking a gun at Eddie Almeron fired his gun was there any person who was hit? A: Q: A: There was sir. Who was that person who was hit? Eddie Almeron sir.

xxxx Q: How far is Robert Buduhan from Larry Erese when Robert Buduhan fired his gun? A: He was arms like sir.

Q: You mention also about a person in blue T-shirt fired a gun at Eddie Almeron. How far was he from Eddie Almeron when he fired his gun? A: The witness pointed to a place in the courtroom.

xxxx COURT About 2 to 3 meters? PROVINCIAL PROSECUTOR FERDINAND D. ORIAS Yes, 2 to 3 meters. xxxx Q: A: Q: A: Q: Do you know what happened to Larry Erese? Yes, sir. Where is he now? He was dead already sir. What about Eddie Almeron. Do you know what happened to him?

A:

He was also dead sir.98

Quite obvious from the foregoing testimony is that the act of appellant Robert and his companion in blue T-shirt of poking their guns towards Larry and Romualde, respectively, and the announcement of a hold-up were what caused Larry to give his watch to Robert. At this point, there already occurred the taking of personal property that belonged to another person, which was committed with violence or intimidation against persons. Likewise, the intent to gain may already be presumed in this case. Animus lucrandi or intent to gain is an internal act, which can be established through the overt acts of the offender.99 The unlawful act of the taking of Larrys watch at gunpoint after the declaration of a hold-up already speaks well enough for itself. No other intent may be gleaned from the acts of the appellants group at that moment other than to divest Larry of his personal property. The appellants acted in conspiracy in perpetrating the crimes charged. As found by the trial court, conspiracy was proved by the concurrence of the following facts: that the four men were together when they entered the RML canteen; that they occupied the same table; that they were all armed during that time; that while the robbery was in progress, neither Rudy nor the one in blue T-shirt with black jacket prevented the robbery or the killing of the victims; that all four fired their firearms when the robbery was going on and that they fled all together and were seen running by the police before they were intercepted just a few meters from the scene of 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. The same degree of proof necessary to prove the crime is required to support a finding of criminal conspiracy. Direct proof, however, is not essential to show conspiracy.100Proof of concerted action before, during and after the crime, which demonstrates their unity of design and objective is sufficient.101 As the fatal shooting of both Larry Erese and Romualde Almeron happened on the occasion of the robbery and was subsequent thereto, both of the appellants must be held liable for the crime of Robbery with Homicide on two counts. The defense of appellants of alibi is at best weak when faced with the positive identification of the appellants by the prosecutions principal witness. It is elemental that for alibi to prosper, the requirements of time and place must be strictly met. This means that the accused must not only prove his presence at

another place at the time of the commission of the offense but he must also demonstrate that it would be physically impossible for him to be at the scene of the crime at that time.102 In the present case, there was absolutely no claim of any fact that would show that it was well nigh impossible for appellants to be present at the locus criminis. In fact, they all testified that they were going towards the vicinity of the area of the shooting incident when the police apprehended them. The testimonies of Robert Buduhan and Boyet Ginyang were also markedly inconsistent on the material date as to when the witnesses in the shooting incident identified them. Robert Buduhan testified that the three lady witnesses came to identify them at the municipal jail on the evening of 26 July 1998.103However, in the direct examination of Boyet Ginyang, he testified that said witnesses arrived on the morning of 25 July 1998.104 This fact only tends to lend suspicion to their already weak alibi. Appellants likewise cannot rely on the negative findings of Police Inspector Chua-Camarao on the paraffin tests conducted in order to exculpate themselves. The said witness herself promptly stated that paraffin test results are merely corroborative of the major evidence offered by any party, and they are not conclusive with respect to the issue of whether or not the subjects did indeed fire a gun. As previously mentioned, the positive and negative results of the paraffin test can also be influenced by certain factors affecting the conditions surrounding the use of the firearm, namely: the wearing of gloves by the subject, perspiration of the hands, wind direction, wind velocity, humidity, climate conditions, the length of the barrel of the firearm or the open or closed trigger guard of the firearm. Lastly, the persistent claim of appellants of the illegality of their warrantless arrest, due to the lack of personal knowledge on the part of the arresting officers, deserves scant consideration. As aptly stated inPeople v. Salazar,105 granting arguendo that appellants were illegally arrested, such arrest did not invest these eyewitness accounts with constitutional infirmity as "fruits of the poisonous tree." Considering that their conviction could be secured on the strength of the testimonial evidence given in open court, which are not inadmissible in evidence, the court finds no reason to further belabor the matter. A determination of the appropriate imposable penalties is now in order. The prescribed penalty for Robbery with Homicide under Article 294 of the Revised Penal Code, as amended, is reclusion perpetua to death. In

accordance with Article 63 of the Revised Penal Code, when the law prescribes a penalty composed of two indivisible penalties, and there are neither mitigating nor aggravating circumstances, the lesser penalty shall be applied. The RTC and the Court of Appeals thus correctly imposed the penalty of reclusion perpetua. As regards the charge for the death of Orlando Pascua and the injuries sustained by Fernando Pera and Gilbert Cortez, the trial court aptly held that the prosecution failed to substantiate the same. No witnesses were presented to testify as to the circumstances leading to the said incidents, and neither were they proved to be caused by the criminal actions of the appellants. The two courts below committed a mistake, however, in convicting the appellants separately of the crime of Homicide for the death of Romualde Almeron. It bears stressing that in the special complex crime of Robbery with Homicide, so long as the intention of the felon is to rob, the killing may occur before, during or after the robbery. It is immaterial that death would supervene by mere accident, or that the victim of homicide is other than the victim of robbery, or that two or more persons are killed. Once a homicide is committed by reason or on the occasion of the robbery, the felony committed is the special complex crime of Robbery with Homicide.106 As to the award of damages, we hold that the heirs of Larry Erese and Romualde Almeron are each entitled to the amount of P50,000.00 as civil indemnity ex delicto. This award for civil indemnity is mandatory and is granted to the heirs of the victim without need of proof other than the commission of the crime. 107 We agree with the Court of Appeals grant of moral damages in this case even in the absence of proof for the entitlement to the same. As borne out by human nature and experience, a violent death invariably and necessarily brings about emotional pain and anguish on the part of the victims family. It is inherently human to suffer sorrow, torment, pain and anger when a loved one becomes the victim of a violent or brutal killing.108 The heirs of Erese and Almeron are thus entitled to moral damages in the amount ofP50,000.00 each. On the award of actual damages, we hold that the heirs of Larry Erese are entitled to the award of temperate damages for P25,000.00, in lieu of the lower amount of P18,000 that was substantiated by a receipt. In People v.

Villanueva,109 we have laid down the rule that when actual damages proven by receipts during the trial amount to less than P25,000.00, the award of temperate damages forP25,000.00 is justified in lieu of actual damages of a lesser amount. Conversely, if the amount of actual damages proven exceeds P25,000.00, then temperate damages may no longer be awarded. Actual damages based on the receipts presented during trial should instead be granted. However, with respect to the award of the amount of P38,000.00 to the heirs of Romualde Almeron, the same is incorrect since the receipt presented therefor covers only the amount of P26,000.00. The award of actual damages should be reduced accordingly. The grant of temperate damages to the heirs of Almeron is thus deleted. The award of exemplary damages is likewise deleted, as the presence of any aggravating circumstance was neither alleged nor proved in this case.110 WHEREFORE, premises considered, the decision dated 29 December 2006 of the Court of Appeals in CA-G.R. CR-HC No. 01940 is hereby MODIFIED as follows: 1. For the death of Larry Erese, appellants Robert Buduhan y Bullan and Rudy Buduhan y Bullan are found GUILTY beyond reasonable doubt of Robbery with Homicide and sentenced each to suffer the penalty of reclusion perpetua. 2. For the death of Romualde Almeron, appellants Robert Buduhan y Bullan and Rudy Buduhan y Bullan are found GUILTY beyond reasonable doubt of Robbery with Homicide and sentenced each to suffer the penalty of reclusion perpetua. 3. Appellants shall be entitled to a deduction of their preventive imprisonment from the term of their sentences in accordance with Article 29 of the Revised Penal Code, as amended by Republic Act No. 6127. 4. Appellants are ordered to indemnify jointly and severally the heirs of Larry Erese as follows: (a)P50,000.00 as civil indemnity; (b) P50,000.00 as moral damages; and (c) P25,000.00 as temperate damages. 5. Appellants are ordered to indemnify jointly and severally the heirs of Romualde Almeron as follows: (a) P50,000.00 as civil indemnity;

(b) P50,000.00 as moral damages; and (c) P26,000.00 as actual damages. 6. For reasons herein stated, appellants are ACQUITTED of the separate crime of Homicide for the death of Romualde Almeron. No costs. SO ORDERED.

G.R. No. 140759

January 24, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JACINTO NARVAEZ, FERNANDO CUTON, and EFREN NARVAEZ, accused-appellants. CARPIO, J.: The Case Before this Court is the appeal filed by the appellants Jacinto Narvaez, Fernando Cuton and Efren Narvaez assailing the Decision1 dated March 12, 1999 in Criminal Case No. 2576-93 of the Regional Trial Court of Imus, Cavite, Branch 22, finding them guilty of the crime of murder and sentencing them to suffer the penalty ofreclusion perpetua. The Charge An Information2 was filed by Asst. Provincial Prosecutor Jose M. Velasco, Jr. on February 23, 1993 charging appellants with the crime of murder, committed as follows: "That on or about 9:00 o'clock in the evening of June 24, 1992, at Barangay Langcaan, in the Municipality of Dasmarias, Province of Cavite, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with intent to kill, with treachery, evident premeditation and taking advantage of nighttime, while being armed with firearms, did, there and then, willfully, unlawfully and feloniously, attack and fire at Wilfredo Mantillas hitting the latter on different parts of the body and inflicting upon him mortal injuries which directly caused his death to the damage and prejudice of the legal heirs of said Wilfredo Mantillas." Arraignment and Plea Upon arraignment, appellants, assisted by counsel, all pleaded not guilty to the crime charged. Thereafter, trial ensued. The Trial The prosecution presented witnesses Arnel Mendoza ("Mendoza" for brevity), Constancio Pejero, SPO1 Isagani Simera, SPO3 Apolinar Reyes, Elenita Mantillas, and Virgilio Pejero. The defense presented Antonio Delima, Fernando Cuton, Jacinto Narvaez, and Aida Magsipoc. Version of the Prosecution The version of the prosecution as summarized in the Solicitor General's Brief3 is as follows: "Prior to the fatal night of June 24, 1992, appellant Fernando Cuton and the victim Wilfredo Mantillas had a fist fight. In the course thereof, Virgilio Pejoro heard Cuton utter the words "Hindi kita titigilan". At around 9:00 p.m. of June 24, 1992, Arnel Mendoza, on his way home to Sitio Bodega, Barangay Langkaan, Dasmarias, Cavite, coming from Silang, Cavite, dropped by the shanty of Domingo Anarna, located at Sitio Humalia, Barangay Langkaan, in order to see

and convince the victim Mantillas who was then staying thereat, to sleep in the house of his (Mendoza's) cousin at Sitio Bodega. Mendoza was then fearing for the safety of Mantillas, who however refused and insisted on staying behind (TSN, April 8, 1997, pp. 3-5). After staying in the said shanty for about half an hour, Mendoza left. While he was about seventy (70) meters away, he heard several gunshots (TSN, Ibid, pp. 5-7). Thus, Mendoza looked back and saw five (5) men. He was able to identify appellants Jacinto Narvaez, Fernando Cuton and Efren Narvaez, and their co-accused Justiniano Pillena, but was unable to identify the other malefactor who was then holding a flashlight (TSN, Id., pp. 78). Mendoza was able to recognize the said malefactor[s] because of the fact that the aforementioned individuals likewise reside in the same barangay and had been known to him since his childhood days, plus the light provided by a small improvised kerosene lamp known as "perok-perok" as well as by the flashlight (TSN, Id., pp. 10-12) Besides, Mendoza distinctly heard the familiar voice of appellant Fernando Cuton who shouted "Mokong lumabas ka diyan!" (referring to the victim Mantillas). Thereafter, several gunshots followed (TSN, Id., pp. 14-15). Afraid that he might be seen and harmed by the above-mentioned malefactors, Mendoza moved farther, approximately one hundred fifty meters away from the shanty. After the said assailants had left, some three (3) minutes from their arrival, he went back to the shanty and saw the bloodied body of Mantillas at the door of the hut, sprawled on the ground (TSN, Id., pp. 16-17). Mendoza immediately left and went to the house of his cousin Constancio Pejero and related what he witnessed to the latter. But because it was very late and there were no vehicles available to bring them to the Barangay Captain of Barangay Langkaan or to any barangay official to whom they could report the incident, they decided to wait until the following morning (TSN, April 8, 1997, pp. 17-18; TSN, July 8, 1997, pp. 27-28). On June 25, 1992, SPO1 Isagani Simera, the police investigator on duty at the PNP Dasmarias, Cavite Police Station, received a report from Barangay Captain Lorenzo Laudato of Barangay Langkaan regarding the incident. When said investigator arrived at the reported scene of the crime, he saw the dead body of Mantillas already being carried by several persons outside the shanty. However, he was able to recover fifteen (15) empty shells of carbine (Exhs. "H" to "H-14", inclusive) 5 to 7 meters away from the hut (TSN, July 8, 1997, pp. 4-10). Based on the death certificate (Exh. "D") presented by the victim's mother, Mantillas died of multiple gunshot wounds." Version of the Defense The version of the defense, culled from the testimonies of appellants and their witnesses, is summarized by the trial court in its decision, to wit: "The defense, on the other hand, presented Antonio Delima who testified on the alleged whereabouts of the accused on the date and time when Mantillas was killed. Said witness

swore that when he arrived in his house at around 9:00 o'clock in the evening of June 24, 1992, accused Jacinto Narvaez and Efren Narvaez were there to see him. Jacinto was there to ask for his assistance in seeking a job at Hydro Company, Cavite. It appears that Delima had been able to recommend more or less five persons already to work in said company as masons, plumbers and carpenters. Efren Narvaez, who was hired by Delima to work on his corn plantation, was also there to collect his wage. Jacinto testified that at around 10:00 o'clock in the evening, he and Efren Narvaez left Delima's house. He then went home and slept. When on the witness stand, accused Fernando Cuton testified that at around 8:00 o'clock in the evening of June 24, 1992 he was in the yard of a neighbor named Victor Reyes. He was there to relax his tired body and to chat with Reyes. At around 9:30 in the evening, he left and went home to sleep. On October 30, 1997, an Order was issued by the Court denying the petition for bail filed by the accused. After the prosecution manifested that it was adopting the evidence it presented during the hearing on the petition for bail as its evidence in chief, the defense recalled Jacinto Narvaez to the witness stand. Jacinto Narvaez testified that prosecution witness Arnel Mendoza had falsely testified against him because of a personal rift between them. He averred that Arnel Mendoza is the president of Samahan ng "Agaw Saka" in Sitio Bodega. Before Mendoza became the president, he was a member of said association himself but separated after two (2) months for according to him it was not his practice to grab lands which the Samahan Ng "Agaw Saka" did. According to Jacinto, Mendoza initially asked him to give two (2) hectares out of the five (5) hectares of the land of Emerito Ramos which he was tilling. Though he agreed the first time, he already refused when Mendoza asked him to give up two (2) more hectares. This according to accused Jacinto Narvaez infuriated Mendoza. On cross-examination, Jacinto said that this took place more or less ten (10) years ago. He likewise admitted that when he gave up two (2) hectares to Mendoza, this was without the knowledge and consent of the owner Emerito Ramos. When asked whether he filed a complaint against Mendoza, accused answered in the negative. To rebut the testimony of accused Jacinto Narvaez, the prosecution recalled Arnel Mendoza to take the witness stand. Mendoza denied that he is the president of Samahan ng "Agaw Saka". He is, however, a member of the Buklod Ng Magbubukid Sa Lupang Ramos, Inc., a corporation whose Articles of Incorporation and By-Laws were duly registered with the Securities and Exchange Commission (Exhibit "I"). He is also trustee and incorporator of said corporation (Exhibit "1-2"). He also denied that he was given by accused Jacinto Narvaez a portion of the land tenanted by the latter. He knew though that accused Jacinto Narvaez sold his right as a tenant to a portion of the land he was tilling to another person. He is also in the Hacienda Ng Lupaing Ramos. The defense also presented Aida R. Magsipoc, Forensic Chemist from the National Bureau of Investigation. She testified that on June 27, 1992, accused Jacinto Narvaez and Fernando Cuton were subjected [to] paraffin examination as per request of Senior Inspector Leonardo Notario, OCI, PNP Dasmarias Police Station, Dasmarias, Cavite. According to her and as indicated in her Chemistry Report No. C-92-435 (Exhibit "1"), the diphenylamine-paraffin test for nitrates conducted on the dorsal aspects of the left and right hands from the wrist joint to the fingertips of accused Jacinto Narvaez gave negative results (Exhibit "1-d"). Likewise, the paraffin test for nitrates conducted on the dorsal aspects of the left and right hands from the wrist joint to the fingertips of accused Fernando Cuton gave negative results (Exhibit "2-d") as shown in her Chemistry Report No. C-92-436 (Exhibit "2"). When asked to interpret the results of the examination in layman's terms, Forensic Chemist Magsipoc categorically stated that the accused could not have fired a firearm (tsn, March 16, 1998, p. 26). Though

the examination was conducted on June 27, 1992 at 11:25 in the morning while the shooting incident took place on June 24, 1992 at 9:00 o'clock in the evening, Magsipoc said that traces of nitrate would stay or remain on the skin of a living subject who has fired a firearm for 72 hours or 3 days (ibid, pp. 34-35). According to her, acids, like vinegar, would only lessen but not wash off nitrates. Washing ones hands with boiling water could be resorted to wash off nitrates. The water must be steaming hot in order to open the pores of the skin thus removing the nitrates. In the case of accused Jacinto Narvaez and Fernando Cuton, Magsipoc believes that they have not resorted to this process; because if they did, it would have been detected." The Trial Court's Ruling The trial court accorded full faith and credence to the testimony of prosecution witness Mendoza and disregarded appellants' defense of alibi. It held that the inconsistencies between Mendoza's testimony in court and his sworn statement to the police strengthened rather than weakened his credibility. On the other hand, the trial court found the defense of alibi weak being unreliable and susceptible to fabrication. It further ruled that the fact that the warrants of arrest were returned unserved, since appellants could not be found in their given address, is indicative of flight and bolsters the finding of guilt against appellants. Lastly, the trial court disregarded the paraffin test for nitrates conducted on appellants Jacinto Narvaez and Fernando Cuton saying that the same is not conclusive proof that one has not fired a gun. The trial court pronounced judgment thus: "WHEREFORE, in view of the foregoing premises, judgment is hereby rendered finding accused Jacinto Narvaez, Fernando Cuton and Efren Narvaez guilty of the crime of murder, the killing of Wilfredo Mantillas qualified by treachery. As the crime was committed on June 24, 1992 when the death penalty was not yet in effect, the said accused are hereby sentenced to suffer the penalty of reclusion perpetua because of the presence of the aggravating circumstance of nocturnity. The said accused are likewise ordered to pay the heirs of Wilfredo Mantillas the following amounts: 1) P50,000.00 as indemnity for the death of Wilfredo Mantillas; 2) P50,000.00 as moral damages; 3) P30,000.00 as exemplary damages; 4) P 7,000.00 expenses during the wake of Wilfredo Mantillas; and 5) P40,000.00 funeral expenses. xxx SO ORDERED."4 Hence, the instant appeal. The Issues xxx xxx

Appellants now come to this Court seeking reversal of the conviction and assigning the following errors: "I DID THE TRIAL COURT ERRED (SIC) WHEN IT GAVE DUE CREDENCE ON THE ASSERTION OF THE INCREDIBLE AND LIAR WITNESS ARNEL MENDOZA? II DID THE TRIAL COURT ERRED (SIC) BY CONCLUDING THAT THERE IS FLIGHT WHEN THE ACCUSED WERE NOT APPREHENDED BY WARRANT OFFICER (POLICEMAN) DESPITE ISSUANCE OF WARRANTS OF ARREST AGAINST THEM? III DID THE TRIAL COURT ERRED (SIC) WHEN IT DID NOT CONSIDER THE FORENSIC REPORT OF NBI CHEMIST AIDA MAGSINOC THAT YIELDED NEGATIVE RESULT." The Court's Ruling We find the appeal meritorious. In convicting the appellants, the trial court relied exclusively on the testimony of Arnel Mendoza, the principal witness presented by the prosecution as an eyewitness to the crime. The time-honored rule is that when the issue is one of credibility of witnesses, appellate courts will not disturb the findings of the trial court unless it has plainly overlooked certain facts of substance.5 This Court accords, as a general rule, conclusiveness to a lower court's findings of fact unless it is shown, inter alia, that: (1) the conclusion is a finding grounded on speculations, surmises or conjectures; (2) the inference is manifestly mistaken, absurd or impossible; (3) there is a grave abuse of discretion in the appreciation of facts; (4) the judgment is based on a misapprehension of facts; and (5) the findings of fact are conflicting.6 This case falls within the exception as the trial court misappreciated vital facts and made manifestly mistaken and absurd inferences on important matters. In the first assignment of error, the appellants contend that the trial court erred in giving weight and credence to the inconsistent testimonies of prosecution witness Mendoza. The appellants argue that contrary to the finding of the trial court, the inconsistencies in the testimony of Mendoza do not strengthen but rather cast grave doubt on his credibility. The appellants point out that there are circumstances that lead to the conclusion that it was impossible for witness Mendoza to have positively identified them as the perpetrators of the crime. First, prosecution witness Mendoza had already walked a distance of about 70 meters from the shanty where the victim was staying when Mendoza first heard the burst of gunfire. When Mendoza looked back, there was still gunfire. He then laid flat on the ground to observe what was happening. While lying down, he saw and recognized the appellants in the yard outside the shanty.7 This can be gleaned from the following testimony of Mendoza:

"Q. After 30 minutes, you left the shanty of Domingo Anarna. And while you were walking on your way home, do you recall of any unusual incident? A. From the time I talked with Wilfredo Mantillas, and I was not very far from the shanty, I already heard gunshots. Q. A. Q. A. Q. When you heard the burst of gunshots, from where is that? When I look back, there was firing. What did you do after you heard the burst of gunshots? I lay on the ground and observe what's happening. What happened while you were lying on the ground?

A. From the place where I was lying, I saw Jacinto Narvaez, Fernando Cuton, Efren Narvaez and Justiniano Pillena while one of their companions were flashlighting them."8 At the second burst of gunfire, witness Mendoza hid himself by moving farther, more than double the distance, to about 150 meters away.9 Mendoza also described the shanty as remotely situated and the nearest hut was 150 meters away. Mendoza testified that: "Q: A: Q: A: Q: A: It is obvious that no nipa hut near to the hut of Domingo Anarna? There is a shanty nearby, sir. Who owns that shanty? The shanty of Constancio Pejoro. How far is his shanty of Constancio Pejoro from the hut of Domingo Anarna? Almost 150 meters."10 (Emphasis supplied).

The shanty where the victim was killed was practically an isolated place. A person at the nearest hut could not recognize another standing at the yard of the shanty where the killing took place. Prosecution witness SPO1 Simera testified as follows: "Q: A: When you went to the crime scene, did you try to look into the vicinity of the scene? Yes, sir.

Q: And did you notice any nearest hut, if any, to the hut where the cadaver of Mr. Mantillas was found? A: There was a hut but it is very far, sir.

Q: In your estimate from that nipa hut which according to you is very far, it is very impossible for a person to recognize a person stationed near the hut of Mr. Mantillas? A: Q: A: 'Lalo na kung gabi mahirap makilala.' You probably saw one very far nipa hut? Yes, sir."11 (Emphasis supplied).

It is highly doubtful if a person can recognize the faces of the assailants 70 meters away at around 9:00 p.m. without sufficient illumination directly hitting the faces of the assailants. It was held that the distance of 4012 to 5013 meters from the scene of the crime, taken by itself, may lead the court to entertain doubt on the accuracy of what a witness had observed. Here, such doubt is magnified by the fact that the distance is about 70 to 150 meters with the surroundings quite dark. Prosecution witness SPO1 Simera confirmed that at 70 meters and even 150 meters, it would be difficult to recognize a person at nighttime. Simera testified that: "Q: In your experience as investigator at a distance of 70 meters away from an alleged human being during nighttime, can you identify a person? A: Q: A: It is hard to recognize a person even there was moonlight. Much more if that alleged human being was 150 meters away? Yes, sir. It is far."14

Mendoza himself admitted categorically that at a distance of 150 meters, he could no longer see or distinguish a person. Mendoza testified that: "Q: And as a matter of fact, that distance of 150 meters away where you lay flat, you can hardly see the hut of Domingo Anarna because it was very dark? A: I can still see, sir (aninag pa).

Q: But the person at that far, you cannot distinguish anymore from the place where you lay flat? A: Yes, sir because of the dark you cannot see."15 (Emphasis supplied).

There is even greater difficulty in recognizing what lies ahead when the witness is lying flat on the ground, aided only by the light coming from a flashlight some 70 meters away. Mendoza's testimony in court that he laid flat on the ground at a distance of 70 meters from the shanty contradicts his sworn statement to the police that he laid flat on the ground at a distance of 150 meters. Mendoza's statement to the police states: "T: Matapos mong lumayo, ano ang sumunod na ginawa mo?

S: Lumayo po ako pero dumapa sa may distansiyang Isangdaan at Limampung metros, at doon ay nakiramdam. Nang makita kong nag-alisan na sila sa kubong iyon ay saka ako lumapit at nakita kong nakabuwal sa tabi ng pinto si Wilfredo Mantillas kaya agad akong

umalis ulit at nagpunta sa kubo ni Constancio Pejoro at sinabi sa kanya ang nakita kong pangyayari"16 What is undisputed from Mendoza's testimony and sworn statement is that he was lying flat on the ground when he saw and recognized the assailants. In this position, his view of the shanty was obstructed by the sloping contour of the land. On cross-examination, Mendoza stated that: "Q: And likewise, you will admit that because you said you are very familiar with the said place. The area or the direction you walked into is a slopy (sic) area descending little by little? A: Q: A: xxx Q: From that trunk of the mango tree, the land is descending a little? To clarify, from the mango tree up to the trunk of the mango tree going East? A: Yes, sir, it is descending a little. From the hut going to the road is a plain road. Actually, it was not very plain, it was slopy? Yes, but not so slopy.

COURT: This Court would like to be clarified. The trunk of mango tree from the hut, how far is that, from where the incident happened A: More or less 150 meters, sir.

Q: And also, I supposed that you are very familiar with the place because the portion of the land from where the mango tree used to be erected before which was descending, when you lay flat on the said trunk, you could hardly see the hut of Domingo Anarna? A: I could hardly see at the place I lay down flat."17 (Emphasis supplied).

Moreover, while lying flat on the ground, Mendoza's view of the shanty was also obstructed by the bamboo fence around the shanty, the mango trees along the path taken by Mendoza, as well as the fully-grown sugar cane which surrounded the shanty. The shanty was not elevated, and its flooring was level with the ground. Prosecution witness SPO1 Isagani Simera who inspected the crime scene the morning after the killing revealed these facts. Simera testified on direct examination as follows: "Q: Do you recall whether there was a visible fence in the premises where the nipa hut was erected? A: xxx There is a bamboo fence, sir.

Q: A:

Is this nipa hut with elevated flooring? No, sir, It is level."18

Simera further testified on cross-examination that: "Q: You testified here that you saw a road which in your sketch was on the eastern portion of the hut. Did you notice mango trees? A: Q: A: Q: A: Yes, sir. There are mango trees there? Yes, sir. There are several mango trees lining that eastern portion of the road already? Yes, sir.

Q: And I suppose you are very familiar as police investigator of the nature of locations. You will admit that the portion of land where there are these mango trees exactly on the eastern portion of the road at slope area? A: The road is plain but the mango trees is sloping down.

Q: Whenever a person is situated on that sloped portion of the area it would be very difficult for that person who is "nakadapa" to see a person there in the nipa hut? A: If he is in a higher level it could be seen but if he is down in a sloping position he could not see. Q: A: xxx Q: A: Q: A: You said that the nipa hut was surrounded by bamboo fence? Yes, sir. Is that bamboo fence all throughout? Not really surrounded, sir. It has "patlang". "Dahil nasira na siguro." Specially if it is nighttime when there was no moonlight? Yes, sir.

Q: I suppose you also noticed the plants which actually surrounded the nipa hut where the victim was actually killed? A: I cannot remember. It seems there was.

Q: A: Q: A:

At the time you went there, there are sugar cane still planted thereon? Yes, sir. And the sugar cane plants surrounded the nipa hut? Yes, sir. The place where it is situated.

Q: You will admit at the time that sugar cane plants were even more than human size in height? A: I was not able to give importance or attention to that but the sugar cane were fully grown, sir. Q: A: And you will notice that the sugar cane plants spread as far as the edge of the road? Not all parts, sir."19 (Emphasis supplied).

SPO1 Simera's testimony contradicts Mendoza's claim on the witness stand that there were no fullygrown sugar cane plants that obstructed his view. Mendoza testified that: "Q: A: The place is an open field with plants planted thereon? Yes, sir but there were no plants at the time.

Q: You will agree with me that even the hut of Domingo Anarna was surrounded by plants like guyabano and kakawate trees? A: There were three (3) kakawate trees at the back and also plants but in front, there were no plants. Q: Are you not aware that banana plants were planted from the vicinity of the crime, almost surrounding the nipa hut? A: The banana plants were planted from the boundary.

Q: As a matter of fact, these plants can easily defer your vision from the place of 150 meters away from the hut of Domingo Anarna? A: From the hut going to the road, nothing will obstruct my vision from the hut."20 (Emphasis supplied). Moreover, Mendoza recognized the assailants only when they were already inside the bamboo fence of the shanty. Naturally, the bamboo fence stood between Mendoza and the assailants, thereby obstructing, partially or totally, his view of them. Mendoza testified that: "Q: When you were able to recognize these person or accused because of such flashlight, where were these accused? Were they staying at the yard or outside the yard? A: When I recognized them, they were exactly inside the yard, near the fence."21

Second, the trial court erred in finding that the light coming from the "perok-perok" aided prosecution witness Mendoza in identifying the assailants. It is clear from the direct22 and cross-examination23 of Mendoza that the illumination outside the shanty and around the yard area came solely from the flashlight. The trial court made a finding that the light that aided Mendoza to identify the appellants came from the "perok-perok" inside the shanty, as well as from the flashlight held by the unidentified companion of the assailants. Such finding is erroneous since it is obvious from the account of Mendoza that it was only the flashlight, and not the "perok-perok", that illuminated the darkness outside the shanty. Witness Mendoza testified on direct examination as follows: "Q: You stated that this shanty is located or you were in the shanty about June 24, 1992. Do you recall if there were lights outside? According to you, you saw these persons Jacinto Narvaez, Justiniano Pillena, Fernando Cuton and Efren Narvaez? A: Outside, there was no light but inside the shanty there is perok-perok which is very small. Q: How were you able to recognize this Efren Narvaez, Jacinto Narvaez, Fernando Cuton and Justiniano Pillena? A: Because they were lighted by the flashlight which is being carried by one of their companions."24(Emphasis supplied). On cross-examination, witness Mendoza further testified: "Q: A: Q: A: Q: A: It was very bare, the light at the time? Only the light from the perok-perok inside the hut and the flashlight. And that light of perok-perok cannot even shed light outside the hut? No, sir. That overall vicinity was very dark, you will admit that? Yes, sir, the surroundings are dark.

Q. As a matter of fact, you can hardly identify persons at the distance of 150 meters away because of the dark? A. It is really very difficult to recognize person from that distance.

Q. At the distance of 70 meters, because of darkness, in an open field, you have likewise difficulties to recognize a person? A. It is really very difficult to recognize."25 (Emphasis supplied).

Clearly, there was no other source of light outside of the shanty except for the one coming from the flashlight. Except for this light, Mendoza admitted that the surroundings of the shanty were "dark". Although it has been held in a line of cases that illumination produced by a flashlight is sufficient to permit identification of a person,26 the flashlight in such cases is held by the witness and not by the accused.27 This difference is significant because in the cases where it is the witness carrying the

flashlight, he is able to point the light at the assailants and focus the light on their faces, thus identifying them. In the present case, where the flashlight was held by a companion of the assailants, the stream of light from the flashlight was most probably focused not on the faces of the assailants but either on the ground to light the way of the assailants, or on the shanty, or alternately on both. On cross-examination, Mendoza stated that at a distance of 70 meters he saw the person carrying the flashlight28enter the shanty, with all the assailants walking in front of him.29 Mendoza testified as follows: "Q: You claimed that the person who was holding the flashlight and he is going to what direction? A: Q: A: Q: A: Going inside the shanty because he was outside. Was he outside the shanty? Yes, sir. In relation to the four (4) accused, where are they? They were in front of the one carrying the flashlight."30

The illumination coming from the flashlight came from behind the assailants and was most probably pointed towards the ground to light the way of the assailants. The most that Mendoza could have seen in the surrounding darkness at a distance of 70 meters would be the silhouettes of the assailants. Visibility is a vital factor in the determination of whether or not an eyewitness could identify the perpetrators of a crime.31 Third, the distance of 70 meters, and then 150 meters, is admittedly too far for a person to ascertain, in dark surroundings, what another person may be carrying in his hands. This is evident from the testimony of Mendoza on cross-examination: "Q: It is even very difficult to recognize at a distance of 70 and 150 meters away, as you mentioned from where you were, to determine whether a person is carrying a gun or whatever he carries? A: Yes, sir, I cannot determine."32 (Emphasis supplied).

Mendoza's admission that he could not see what the assailants were carrying contradicts his sworn statement to the police that from a distance of 150 meters he saw the four assailants each carrying a "carbine". A "carbine" is defined as a "short light rifle".33 However, as generally understood in this country, a "carbine" refers to the U.S. carbine M1 .30 caliber rifle.34 It is highly improbable that a person could identify a carbine at a distance of 150 or even 70 meters at 9:00 p.m. in dark surroundings with only a flashlight illuminating the pathway of the persons carrying the carbines. Even Mendoza admitted this, conceding categorically that he "cannot determine" what a person might be carrying at those distances. The statements of Mendoza on the carbines allegedly carried by the assailants are quite conflicting. On direct examination, Mendoza failed to mention that he saw the assailants carrying the carbines. On cross-examination, he testified as follows:

"Q: At a distance of 70 meters away, because of darkness, you can hardly distinguish any firearm or anything being carried by a person at that distance. A: Q: A: It can hardly be seen. More so, if this is 150 meters away? Yes, sir if it is dark."35 (Emphasis supplied).

On the other hand, the sworn statement of Mendoza given to the police the day after the killing stated he saw the assailants carrying carbines. Mendoza's statement to the police is as follows: "T: Noong ikaw ay dumapa at nakiramdam, gaanong katagal ang inilagi nina Jacinto Narvaez sa may kubong iyon? S: Humigit kumulang po sa tatlong minutos.

T: Habang ikaw ay nakadapa, nakita mo ba ang ginawa nina Jacinto Narvaez doon sa may kubo? S: Nakita ko po lamang na sila ay pumasok sa kubo at pagkatapos ay lumabas din agad. Lahat sila ay may hawak na mahabang baril. T: S: Anong baril ang nakita mong dala nila? Mga karbin."36

The weapons used in the killing of the victim were carbine rifles. The police recovered the day after the killing fifteen empty carbine shells at the scene of the crime.37 However, Mendoza, an alleged eyewitness to the shooting who claimed to have recognized the faces of the assailants, inexplicably failed to mention in his testimony in court that the assailants carried carbines. Moreover, Mendoza admitted in his testimony that from where he was lying flat on the ground, he could not determine if the assailants were carrying anything in their hands because of the distance and the darkness. If the distance and darkness prevented Mendoza from seeing what the assailants carried, then the same distance and darkness also prevented Mendoza from recognizing the faces of the assailants. Mendoza's testimony in court is incredible as well as inconsistent on a very material matter with his sworn statement to the police. The general rule has always been that discrepancies between the statements of the witness in his affidavit and those he makes on the witness stand do not necessarily discredit him38 because it is a matter of judicial experience that an affidavit taken ex parte is almost always incomplete and often inaccurate39. The exceptions thereto, which impair the credibility of the witness, are: (1) when the narration in the sworn statement substantially contradicts the testimony in court, or (2) when the omission in the affidavit refers to a very important detail of the incident that one relating the incident as an eyewitness cannot be expected to fail to mention.40 The point of inquiry is whether the contradictions are important and substantial, and in this case we find the contradictions touching on important and substantial matters. Fourth, even if witness Mendoza and the appellants reside in the same barrio, which should make identification an easy task,41 the fact remains that what Mendoza could have seen, from a distance of 70 or 150 meters in dark surroundings, were mere shadows and silhouettes. The claim that witness

Mendoza was able to identify one of the assailants because he heard him shout42 is likewise incredible considering his distance from the crime scene and considering that based on natural human experience, a person's voice range changes when he is shouting. It is highly unlikely that Mendoza was able to associate the voice he heard to be that of appellant Fernando Cuton. In sum, Mendoza's identification of the appellants as the assailants of the victim Wilfredo Mantillas is improbable due to the factual situation described by Mendoza himself. This improbability is buttressed by the testimony of prosecution witness SPO1 Simera who described the barriers that obstructed the view of Mendoza. Moreover, Mendoza's testimony in court contradicts on vital facts his sworn statement to the police. We entertain grave and serious doubts on the credibility of Mendoza's testimony. As to the second assignment of error, the prosecution relies heavily on the fact that the warrants of arrest issued against appellants were returned unserved, with the notation "subject persons cannot be found in their given address"43. The trial court considered this as flight and indicative of the guilt of the appellants. The prosecution, however, failed to rebut the testimony of Jacinto Narvaez that they did not leave their place of residence anytime before January 30, 1997.44 Jacinto Narvaez testified on cross-examination that: "Q: Do you remember of any instance where any police officers went to your place looking for you in order to serve his warrant of arrest? A: Q: A: Q: A: Yes, sir. In September, 1993? Yes, sir. But they did not arrest you, is that what you mean? I was arrested, sir.

Q: I want to inform you Mr. Witness that the date of your arrest is January, 1997. Now, my question is whether police officer (sic) went to your place sometime in September, 1993 in order to serve this warrant of arrest to you? ATTY. PELEO: Witness already answered, your honor. COURT: That police officer went there but they were not arrested. A: Q: A: I was not arrested in September 1993, sir. Do you recall the police officer who went in your place during that time? Pol, sir."45

There is a disparity among these circumstances: (1) that the warrants of arrest were returned unserved since the appellants could not be found in their given address; (2) that appellants did not leave their place of residence anytime prior to their arrest in January 1997; and (3) that a policeman went to appellants' place in September 1993 without arresting any of them, which the evidence for the prosecution cannot and did not reconcile. The mere fact that the warrants of arrest were returned

unserved does not automatically mean that appellants went into hiding. Neither can the presumption of regularity in the performance of official duties by the police officers be considered in this case. The presumption of innocence is not a mere procedural tool of the law; it is not overcome by the presumption of regularity.46 Lastly, as to the third assignment of error, appellants argue that the trial court erred in not giving weight to the testimony of NBI forensic chemist Aida Magsipoc who testified on the negative results of the paraffin tests. While a negative result on a paraffin test is not conclusive proof that an accused did not fire a gun, such fact if considered with the other circumstances of the case, may be taken as an indication of his innocence.47 The prosecution's evidence must stand or fall on its own merit, and cannot draw strength from the weakness of the evidence of the defense.48 The prosecution has the obligation of proving beyond reasonable doubt the identity of the malefactors and their participation in the commission of the crime charged.49 A judgment of conviction may be rendered only when the conscience is satisfied that the crime was indeed committed by the persons on trial. The mind cannot rest easy if a case is resolved against the accused based on evidence replete with glaring inconsistencies, missing links and loose ends that refuse to tie up.50 For only when there is proof beyond reasonable doubt can we be morally certain that only those responsible are held answerable.51 When the prosecution fails to present such proof, the charge must be dismissed. The participation of appellants in the killing of the victim Wilfredo Mantillas not having been proven beyond reasonable doubt, we hold that the appellants should be absolved. WHEREFORE, the Decision dated March 12, 1999 of the Regional Trial Court of Imus, Cavite, Branch 22, in Criminal Case No. 2576-93 finding appellants Jacinto Narvaez, Fernando Cuton and Efren Narvaez guilty of the crime of murder, is hereby REVERSED and SET ASIDE. Appellants are ACQUITTED of the crime charged on the ground of reasonable doubt. They are ordered IMMEDIATELY RELEASED from confinement unless held for any other lawful cause. No costs. SO ORDERED.

G.R. No. 72975 March 31, 1989

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUANITO JUTIE, accused-appellant.

The Solicitor General for plaintiff-appellee.

Citizens Legal Assistance Office for accused-appellant.

MEDIALDEA, J.:

For the killing of Elpidio Nepuscua on December 13, 1982, Pedro Aboy y Paris and Juanito Jutie were charged with the crime of murder in Criminal Case No. 2753 of the Regional Trial Court, Branch 38, at Lingayen, Pangasinan, under an information which reads as follows:

That on or about the 13th day of December, 1982, in the afternoon, at Barangay Longos Municipality of Calasiao, Province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above- named accused, Pedro Aboy y Paris, together with Juanito Jutie who is still at large, conspiring, confederating, and mutually helping one another, armed with a gun (caliber .30), with intent to kill, and with evident premeditation, and treachery, did then and there wilfully, unlawfully and feloniously attack, assault and shoot Elpidio Nepuscua y Joves, thereby inflicting upon him several gunshot wounds which caused his death.

Contrary to Article 248 of the Revised Penal Code. (p. 28, Records)

Aboy was arrested on the day following the incident and was arraigned and tried separately since Jutie was at large. On August 15, 1983, the trial court rendered its decision convicting Aboy of the offense charged and sentencing him to suffer the penalty of reclusion perpetua. Aboy did not appeal.

Jutie, on the other hand, was arrested only on October 16, 1983. Upon being arraigned, he entered the plea of not guilty to the offense charged. After trial on the merits, the trial court, on September 24, 1985, rendered its decision convicting Jutie, the dispositive portion of which reads:

ACCORDINGLY, in view of all the foregoing considerations, the Court finds and holds accused, JUANITO JUTIE, guilty beyond reasonable doubt of the crime of MURDER defined and penalized under the provisions of Article 248 of the Revised Penal Code, and conformable thereto, hereby sentences said accused to suffer the penalty of RECLUSION PERPETUA and to pay the costs of the proceedings.

The Court further orders the accused to indemnify jointly and severally with his co-accused Pedro Aboy the heirs of the deceased Elpidio Nepuscua, the sum of TWELVE THOUSAND (P l2,000.00) PESOS, as moral damages, plus TWO THOUSAND (P 2,000.00) PESOS as actual damages, without subsidiary imprisonment in case of insolvency.

SO ORDERED. (Decision, pp. 82-83, Rollo)

Not satisfied with the decision, Jutie appealed and assigned the following errors:

1. THE TRIAL COURT ERRED IN CONVICTING APPELANT JUANITO JUTIE DESPITE THE INSUFFICIENCY OF EVIDENCE AGAINST HIM.

2. THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE CONTRADICTING TESTIMONY OF PROSECUTION WITNESS ROBERTO JOVES.

3. THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONY OF DR. JUAN T. ZABALA THAT THE WOUNDS WERE PRODUCED BY TWO (2) WEAPONS. (P. 112, Rollo)

The evidence on record shows that at about four o'clock in the afternoon of December 13, 1982, Roberto Joves, a 14-year old boy, and his younger brother, Romel, went to a field in Longos Calasiao, Pangasinan, to gather "dangla" leaves for their sick sister. On their way home, they met Elpidio Nepuscua who was then running and followed by Pedro Aboy and Juanita Jutie. Aboy later caught up with Nepuscua and pointed his gun at the latter. Nepuscua in turn raised both his hands and cried. Nepuscua also moved backwards and stopped upon reaching a small dike (pilapil), after which he knelt on the ground. Thereupon, Aboy shot Nepuscua, with his .30 caliber carbine. After ahoy shot Nepuscua, Jutie also fired at the latter with a 10-inch long firearm. Frightened by the incident, Roberto and Romel ran home and reported the matter to their mother.

The incident was later reported to the police authorities at Calasiao. The police investigators who went to the scene of the incident found the deceased, Nepuscua, covered with rice hay. They also found thereat three (3) empty shells of a.30 caliber carbine.

The cadaver of Nepuscua was autopsied by Dr. Juan Zabala, Municipal Health Officer of Calasiao, Pangasinan. His testimony on his findings was summarized by the trial court, to wit:

A gunshot wound with entrance harrowing frontal bone located on the right temple making exit wound at the forehead (Exhs. D-1 and D-2), gunshot wound with entrance on the chin grazing the frontal facial bone making exit wound infront of the left ear (Exhs. D-3 & D-4), trajectory of bullet, backward and upward laterally; gunshot wound with entrance located sub-scapular which is on back (right) grazing the muscle of right arm making an exit wound on the right arm medial side (Exhs. D-5 & D-6), trajectory of bullet forward downward and since arm is movable, it is not possible to determine whether laterally or medially; gunshot wound with entrance penetrating the abdomen with exit on the right side bringing out part of the small intestines (Exhs. D-7 & D-8), trajectory of the bullet is from left side of the victim more or less horizontal making exit wound on the right side of the body, gun-shot wound with entrance on the left forearm making exit on the front forearm which appears incised wound due to splatter of the bone (Exhs. D-9 & D-10), trajectory of bullet, backward forward in medially anatomical position; gunshot wound with entrance located on back of left ring finger with exit in front palm surface of left ring finger (Exhs. D-11 & D-12); gun-shot wound located in the lateral side of left leg with an exit wound just below the knee cap of leg (Exhs. D-13 & D- 14), trajectory of bullet, upward medially; that wounds marked as Exhibit "D-1" and "D-3" are fatal wounds because gunshot wound marked Exhibit D-1 caused damage on the head which is a sensitive organ of the body and wound Exhibit "D-3" is likewise fatal, because it is near to the brain; that the seven (7) gunshot wounds found on the body of the victim based on their sizes were inflicted and caused by two (2) kinds of firearms and that wounds Exhibit D-1 and D-3 were caused by one firearm while the other five (5) wounds were caused by one firearm while the other five (5) wounds were caused by another kind of firearm; that the cause of death of the victim was cardiorespiratory arrest due to brain damage due to gunshot wounds resulting in the stopping of the heart to

function due to destruction of the motor center which is the brain; that wounds designated as Exhibits "D-1 and D-3, were inflicted frontally while wounds marked Exhibits D-7, D-9" and D-13 were inflicted from the left side. Wound Exhibit D-5 was inflicted from the back while Exhibit D- 11 could not be determined from what side due to the movements of the arm when raised up, lowered down or stretched forward; that no slug was found in the body of the victim and that the police were not able to find any firearm in the place of the incident; that the gunshot wounds caused by smaller caliber gun, the relative position of the assailant to the victim is that the victim was lower than the assailant, but with respect to the fatal gunshot wounds, the relative position of the assailant and the victim, is that they are at the same level; that gunshot wound marked Exhibit D-9 does not actually an incised wound because there is an entrance wound and it appears to be incised because of the bones splinters cutting some muscles. (pp. 2-3, Decision)

Accused Juanito Jutie, upon the other hand, denied participation in the commission of the crime, According to him, he was by the window of their house resting when he saw Pedro Aboy holding a gun and chasing somebody; that be went down from their house and ran after Aboy; that at a distance of fifteen meters, he saw Aboy pointing his gun at the victim whom he did not recognize at once because of the victim's hat; that Jutie wanted to help the victim but he was prevented by Aboy who warned him not to report the incident to anybody otherwise he would kill him; that out of fear, he immediately went to his aunt's house in Barangay Nancamaliran Urdaneta, Pangasinan; that he stayed there until he learned that Aboy was already sentenced and sent to the National Penitentiary in Muntinlupa; that he did not think of surrendering to the police authorities because he has not committed any crime; that be is not related to Aboy; and that he came to know Aboy only as a buyer of scrap iron.

Anent his first and second assigned errors, appellant submits that the trial court should have not relied on the testimony of the prosecution witness Roberto Joves in view of the glaring contradictions found in his sworn statement before the police authorities and the Municipal Judge as against his testimony in open court. He claims that at the witness stand, Joves stated that appellant was equipped with a short firearm and fired at the victim whereas his sworn statement made no mention of this fact. Appellant concludes that Joves' failure to report such a vital information to the police makes his testimony in court a mere fabrication. (pp. 121-126, Rollo)

With regard to his third assigned error, appellant asserts that Dr. Zabala's testimony that two firearms were used is doubtful considering that the same is not supported by proof and it was not shown that the doctor is a ballistics expert. He points out that the firearm that was allegedly used was not presented in evidence; that no slug was found in the body of the victim and that the distance between the alleged assailant and the victim was not established. (pp. 121-126, Rollo)

The appeal is devoid of merit.

The alleged variance in Joves' sworn statement and his testimony in open court was satisfactorily explained by the witness himself during the cross- examination. He testified:

Atty. Teodoro Regino, counsel for the accused.

Q And the shooting by Pedro Aboy was followed by the shooting by the accused Juanita Jutie, is that what you mean?

Yes, Sir.

This is the first time that you revealed this incident is it not?

Yes, Sir.

Q You did not tell that incident to the police authorities in the evening of December 13 when you were investigated?

Fiscal Milo:

May I make of record that question was not asked by the police.

Court: Answer

Witness:

They did not ask me, Sir.

Atty. Regino:

Q You did not also tell the alleged shooting of Juanita Jutie, to the PC Investigator and Linayen when you gave your supplemental statement?

They did not also ask me, Sir.

Q not?

In fact you kept it to yourself what you saw. Jutie did to the allegedly did to Nepuscua, [sic], is it

Fiscal Milo:

Calling for an opinion, Your Honor.

Court: Answer

Witness: I did not tell to anybody, Sir.

Atty. Regino: May I invite the attention of the Honorable Court to the medical autopsy report.

Atty. Regino: I think that would be all, your Honor.

Court: Did not the PC or the police tell you to tell everything what you know in the shooting'.? They did not ask you that?

A No Sir. (pp. 44-46, TSN, March 6, 1984)

It is to be recalled that during the investigation of this case before the police authorities and before the Municipal Judge for preliminary investigation, only Pedro Aboy was arrested since appellant Jutie remained at large. Thus, it may be inferred that the investigation was only limited to the participation of Aboy as there was hardly any question asked as to the appellant's role in the commission of the crime. Joves could not be expected to offer information to the authorities if he was not being asked. Besides, he was only 14 years old when he witnessed the violent death of his grandfather. The resultant shock and nervousness could have led to his inability to recount everything he had seen to the police authorities and the Municipal Judge. We have held that such memory lapse due to a traumatic experience of being a witness to the killing of the victim is understandable and does not impair the intrinsic credibility of the witness (see People vs. Santos, L-60055, April 28, 1983, 121 SCRA 833). Moreover, affidavits are usually deficient. Being taken ex-parte, an affidavit is almost always incomplete and often inaccurate, sometimes from partial suggestions, and sometimes from want of suggestions and inquiries, without the aid of which the witness may be unable to recall the connected collateral circumstances necessary for the correction of the first suggestion of his memory and for his accurate recollection of all that belongs to the subject (Moore on Facts, 1094-1095, cited in People vs. Alcantara, L-26867, June 30, 1970, 33 SCRA 812; People vs. Pacala, L-26647, August 15, 1974, 58 SCRA 370; People vs. Gonzales, September 11, 1980, 99 SCRA 697; People vs. Andaya, G.R. No. 63862, July 31, 1987, 52 SCRA 570). Prosecution witness Joves positively identified the appellant as one of the perpetrators of the crime (pp. 12, 38-39, TSN, March 6,1984). The records do not disclose any ill-motive on his part to falsely accuse appellant of an atrocious crime. The absence of evidence as to an improper motive actuating the principal witness for the prosecution strongly tends to sustain the conclusion that no such improper motive existed, and that, his testimony is worthy of full faith and credit (People vs. Sawah, L15333, June 29,1962, 5 SCRA 385). On the other hand, appellant's reason for his disappearance for several months is unconvincing. It was duly established during the trial that, contrary to the claim of appellant, Aboy is his uncle as well as his constant companion and that the latter stayed at appellant's house for days whenever he comes to buy scrap iron from them. It is improbable, then, that appellant did not know of Aboy's arrest and detention considering his close relationship with him and the fact that he also hid in a relative's house which is situated in a place not too distant as to foreclose any news regarding the incident. We have ruled, time and again, that flight is inconsistent with innocence.

Appellant further assails the veracity of the testimony of Dr. Juan T. Zabala that the wounds were produced by two weapons considering that the doctor's testimony was not supported by proof and that he is not a ballistics expert. This argument is untenable. Dr. Zabala's expertise as a medico-legal can not be gainsaid. Having examined the body of the victim, he was more than competent to testify on the nature of wounds, location and the means used to cause the injuries. It is significant to note, too, that Dr. Zabala's testimony is in accord not only with the physical evidence which showed that the entrance of the gunshot wounds in the victim's body were of different sizes but also with the positive testimony

of Joves that he saw appellant shoot the victim with a short firearm. Even the defense witness, Dr. Benigno Parayno admitted that it was possible to conclude that two different kinds of guns were used as there were two kinds of gun-shot wounds (p. 178, TSN, February 6, 1985). Thus, the trial court was correct in giving weight to Dr. Zabala's testimony.

We find that the totality of the circumstances obtaining in this case justifies a finding of conspiracy. We deem it sufficient to quote from the decision of the trial court:

. . . (T)here was conspiracy on the part of Pedro Aboy and Juanito Jutie to snuff the life of Elpidio Nepuscua and this is evidently established by the fact that both accused were seen by Roberto Joves chasing the victim before the shooting happened; that both were seen to be armed with guns, Pedro Aboy with a long firearm (carbine caliber .30) while Juanita Jutie with a short one; both shot the victim not only once but several times as eloquently shown by the several gunshot wounds of different sizes inflicted upon the body of the deceased implying that there was more than one gun used in the shooting of the deceased. If indeed Pedro Aboy alone shot the victim, it is rather extraordinary and unnatural that the gun-shot wounds suffered by the deceased are of different sizes. Evidence to be believed must be credible by itself and in conformity to reason, knowledge and common sense. Likewise, the accused having admitted to be in the scene crime at the time of the killing, the latter have a lot of explanation to do in convincing the court that he never participated to what happened to the victim. Naturally, the bald denial of the accused of the accusation imputed against him will not be sufficient to refute and destroy the overwhelming evidence adduced by the prosecution proving and pointing that he also shot the deceased. (p. 322, Records)

Likewise, We agree with the trial court that treachery was present in this case. The victim was unarmed and had raised his hands crying and pleading for his life when he was shot by Aboy and the appellant. Obviously, the stand taken by the victim posed no risk to the assailants. We have previously held that treachery is present where the victim was shot while his hands were raised pleading for his life (People vs. Lebumfacil, L-32910, March 28, 1980; 96 SCRA 573; People vs. Lasatin, L-5874, February 11, 1953; 92 Phil. 668).

The crime committed is murder qualified by treachery and the same is penalized by reclusion temporal in its maximum period to death under Article 248 of the Revised Penal Code. Since there is no aggravating or mitigating circumstance, the aforesaid penalty should be imposed in its medium period. The court a quo correctly imposed the penalty of reclusion perpetua. The actual damages in the amount of P 2,000.00 is increased to P 30,000.00 (see People vs. Daniel, L-66551, April 25, 1985; 136 SCRA 92). Such modification will no longer be imposed on his co-conspirator Aboy whose conviction under a

separate trial had long become final and executory. In pursuing this appeal, appellant assumed the risk of having the judgment under review affirmed, reversed or modified only insofar as his culpability is concerned. Thus, he should pay an indemnity of P 30,000.00 but with the right to demand contribution from his co-accused in the sum of P 1,000.00 (see People vs. Lumantas, L-28355, July 17,1969; 28 SCRA 764).

ACCORDINGLY, the judgment of the lower court is modified in that appellant is sentenced to suffer the penalty of reclusion perpetua and to indemnify the heirs of the deceased the amount of P 30,000.00 but with the right to demand contribution from his co-accused Pedro Aboy in the sum of P 1,000.00.

Costs against the accused-appellant.

SO ORDERED.

G.R. No. 113517 January 19, 1995 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PAT. FLORESTAN NITCHA y DULAY, defendant-appellant.

MELO, J.: Before the Court is the appeal interposed by accused-appellant from the decision rendered on September 22, 1994 by the Honorable Pedro C. Cacho, Presiding Judge of Branch 52 of the Regional Trial Court of the First Judicial Region, stationed in Tayug, Pangasinan, which pronounced accused-appellant's culpability of the murder of May Villa Rica Sibayan. In addition to the principal penalty of reclusion perpetua, accused-appellant was required to pay to the heirs of the victim P50,000.00 as indemnity, P25,000.00 as moral damages, P20,000.00 in the form of exemplary damages, and P43,000.00 for actual expenses (p. 494, Record; p. 132, Rollo). The factual background of the imputed felony, as formulated by the Office of the Solicitor General, is supported by the record, and is accordingly adopted, thusly: On October 1990, at around 7 o'clock in the evening, Jojo Belmonte went out of his house located at Purok IV, Barangay Alac, San Quintin, Pangasinan to buy some cigarettes in a nearby store. (p. 6, TSN, December 10, 1991) Before Jojo Belmonte could buy the cigarettes, Doro Nitcha arrived, uttered the words "You are one of them" ("Maysa ca met") in the vernacular, then started mauling him. (p. 7, TSN, December 10, 1991) Unable to endure the pain, Jojo fought back. (Ibid) A few minutes had gone into the fight when May Villarica (a.k.a. Lydia) Joselito, Agustin and Marcelina (Nenet), all surnamed Sibayan, arrived. (p. 8, TSN, December 10, 1991; p. 6, TSN, September 9, 1992) May and Joselito tried to pacify the two protagonists, however, their efforts proved futile as Doro Nitcha refused to be pacified. (Ibid.) The fighting stopped upon the arrival of Doro's sister Victoria Corpuz (Baby) who, upon seeing the commotion, dragged Doro away from the fight and brought him home. (p. 7, TSN, march 30, 1993; pp. 6-7, TSN, March 1, 1993) Likewise, Marcelina (Nenet), Agustin, May and Joselito proceeded towards their house located in front of the store where the incident occurred. (p. 8, TSN, March 1, 1993) Not long thereafter and while the Sibayans were still on their way, appellant Florestan Nitcha, brother of Doro, arrived at the sari-sari store brandishing a gun and shouting in Tagalog, "Walanghiya kayo, putangina ninyo, papatayin ko kayong lahat!" (p. 7, TSN, February 2, 1993) After uttering those words, appellant fired his gun in the direction of the Sibayans, the bullet hitting May at the back of her head and existing through the middle of her forehead. (p. 11, TSN, December 10, 1991; p. 8, TSN, September 9, 1992; p. 7, TSN, February 2, 1993; p. 8, TSN, March 1, 1993; pp. 6-7, TSN March 8, 1993) Appellant then aimed his gun at Joselito but missed. (p. 12, TSN, December 10, 1991)

May was brought to the Eastern Pangasinan District Hospital in Tayug, Pangasinan where she was given first aid treatment. (p. 10, TSN, February 2, 1993) Upon the advice of a doctor, the victim was brought to a hospital in Dagupan City. (Ibid.) May, however, expired on the way thereto. (Ibid.) Shortly after the shooting incident, appellant went back to his mother's house before proceeding to the police station of San Quintin, Pangasinan where he surrendered himself together with his service firearm. (p. 4, TSN, April 29, 1993; p. 4, TSN, June 14, 1993; p. 7, TSN, June 14, 1993) (pp. 2-4, Brief for the Plaintiff-Appellee) Premised on the foregoing backdrop, an indictment for murder was filed against herein accusedappellant (p. 18,Rollo) who, after trial, was found guilty beyond reasonable doubt on account of the positive identification made by the People's witnesses, the defense of accused-appellant anchored on denial being found unavailing. Jose Belmonte, Agustin Sibayan, and Joselito Sibayan collectively pointed an accusing finger at accused-appellant whom they witnessed firing his .38 caliber firearm towards the direction of May Villa Rica Sibayan who was then negotiating an earthen dike about three to four meters from the position of accused-appellant. In parrying the inculpatory thrusts of the prosecution, accusedappellant ventured to develop the theory that it was not he but one of the companions of Jojo Belmonte who pulled and fired the gun. According to accused-appellant, the bullet missed the head of his brother who was then astride Jojo Belmonte while the latter and accused-appellant's brother was engaged in a scuffle, and that unfortunately, the bullet hit the head of May Villa Rica Sibayan. The court a quo was understandably far from convinced by accused-appellant's thesis by reason of the categorical statements of the People's witnesses (pp. 130-132, Rollo). The prospect of spending practically the rest of his life behind bars as a form of retribution naturally became the source of mental concern for accused-appellant who continues to maintain in the appeal at bench that he is not in any way responsible for the death of the victim. To buttress the plea for reversal of the assailed discourse, accused-appellant's counsel enumerated twelve (12) errors supposedly overlooked by the magistrate below (pp. 87-88. Rollo) which all revolve on the principal query of whether accused-appellant's profession of innocence is tenable. With reference to the first, fifth, eight, and penultimate points of discussion aired by accusedappellant, efforts were exerted to denigrate the credibility of the prosecution witnesses first by questioning the integrity of Jojo Belmonte through capitalizing on Belmonte's inability to convey the number of seconds in a minute, thereby suggesting that Belmonte's testimony can not be accepted as an accurate recollection of the crime (p. 90, Rollo). The basic faux pas from the witness can hardly diminish his veracity of the entire narration of how the felony was perpetrated for the simple, nay, obvious reason that an omission of this character is insignificant to merit rejection of the whole testimony, unflawed as it has remained. Besides, it is difficult to subscribe to the theory put forward by accused-appellant anent the imaginary companion of Jose Belmonte who allegedly pulled and fired the gun in the light of the statements of three witnesses of the People who declared in no uncertain terms that it was accused-appellant who fired the gun. Jose Belmonte testified, thus: PROSECUTOR BINCE:

Q What happened when Forestan Nitcha arrived, if any? A He said "Asan ba sila? (Where are they?) Q Is that the only statement he uttered? A There was, Sir. Q Please tell this court the complete statement he stated? A "Where are they? Come out, I'll kill you!" xxx xxx xxx Q What was the appearance of Florestan Nitcha when he uttered that statement? A He was standing, sir. Q What else? A He shot Lydia Sibayan. Q What did he use in shooting Lydia Sibayan? A A short firearm, sir. Q How far was Lydia to Florestan when Florestan shot Lydia Sibayan? A More or less, four (4) meters, sir. Q Where was Lydia Sibayan facing when he was shot by Florestan Nitcha? A Her back was facing Florestan Nitcha, sir. Q You claimed that the four 94) persons, namely: Lydia, Boy, Agustin, and Nenet were in the process of going home. Will you please tell us how the four (4) went home? A They were following one after the other, sir. xxx xxx xxx Q And the 4th? A Lydia Sibayan, sir.

Q Will you please explain to this Court why they were following each other when they went home? A Because it is an earth dike (tambao), sir. Q How far were you to Florestan when you saw him fired his gun to Lydia Sibayan? A More or less, three (3) meters, sir. Q How many times did Florestan Nitcha shoot Lydia Sibayan? A Two (2) times, sir. Q The first firing, what happened to Lydia Sibayan? A She was hit and fell down, sir. Q How about the second firing, what happened to that second firing? A The second shot hit the wall (pader). Q What kind of wall was that? A Cement, sir. The wallings of the house of Agustin Sibayan, sir. Q You claimed that Lydia was hit by the first gun fire. What part of his body was hit, if you know? A The head, sir. Q What portion of her head? A Here, sir. (Witness pointing and touching the back portion of his head.)" (tsn, pp. 10-13, Dec. 10, 1991) (Emphasis Supplied) (pp. 54-56, Rollo.) Corroborating Jose Belmonte's open-court statements was Agustin Sibayan who narrated in part: PROSECUTOR BINCE: xxx xxx xxx Q What happened, next, if any, when you heard the accused Pat. Nitcha shouting "Putangina nila, nasaan sila"? A It is because my son was the last one my daughter-in-law requested my son to go ahead and she was left behind that it is why when Nitcha fired his gun she was the one who was hit, sir.

Q May Villarica Sibayan was the one who was hit? A Yes, sir. xxx xxx xxx Q Do you know the position of your daughter-in-law in relation to Nitcha when the latter shot your daughter-in-law? A Her back was turned against Florestan Nitcha, sir. Q How far is your daughter-in-law to Nitcha when she was shot by Nitcha? A More or less three (3) meters, sir. Q How about you how far were you to Nitcha when you saw him shooting with the use of 38 caliber your daughter-in-law? A Around 20 meters, sir. Q From your place, please point to a particular place wherein you can estimate to be a 20 meters which is your distance to that place of Nitcha? A (Witness is pointing from the witness stand up to the bamboo tree guard outside the courtroom which is 10 to 15 meters more or less) xxx xxx xxx Q What happened to your daughter-in-law when she was hit by that firings of pistol by Pat. Nitcha? A She fell down on the canal, sir. xxx xxx xxx Q What did Nitcha do after that first shot and you, your wife went to the rescue of your daughter-in-law? A He fired his gun once more, sir. Q To what direction did he aim the second shot? A. Towards us with my son, sir. Q Were you or your son hit by the second rang of fire? A. With God's grace, no, sir.

Q Did you ultimately learn later on where is that slug of the second shot found its target? A. It hit the wall of my house which is cemented, sir. xx xxx xxx Q How clear is the sky then at that time particularly the moon and the stars so that you can fully identify that it was Nitcha who shot your daughter-in-law May Villarica Sibayan? A. Because of the brightness of the moon that is why we can identify a person, sir. (tsn., pp. 6-10, Sept. 9, 1992) (emphasis supplied) (pp. 56-57, Rollo.) Joselito Sibayan also affirmed the proposition that it was accused-appellant who caused the untimely demise of his wife: PROSECUTOR BINCE: xxx xxx xxx Q When Florestan Nitcha arrived, what happened, if any? A. He told us in Tagalog "walanghiya kayo, putangina ninyo, papatayin ko kayong lahat" (God damn you vulva of your mother, I will kill all of you). Q After that, what happened next? A. He shot my wife, sir. Q Where was your wife facing in relation to Florestan Nitcha when she was shot by the latter? A. The back of my wife was facing Florestan Nitcha, sir. Q How about you, where were you facing at that time when you saw Florestan Nitcha shot your wife? A. I was facing my wife and Florestan Nitcha, sir. Q How about your father Agustin, Jojo and Leo where were they in relation to you and your wife and Florestan Nitcha? A. They went home in the house, sir. Q Where were they when Florestan Nitcha shot your wife?

A. They were there they were watching, sir. Q What were they watching? A. That shooting incident wherein Florestan Nitcha shot my wife, sir. Q What did the accused Florestan Nitcha used in shooting your wife, if you know? A. A .38 caliber, sir. (tsn, p. 7, Feb. 2, 1993) (Emphasis supplied) (p. 58, Rollo) While it may be conceded that the last two witnesses for the prosecution are relatives of the victim, still, this factor alone will not destroy their credibility inasmuch as there is absolutely nothing in our laws that disqualifies a person from testifying in a criminal case in which the said person's relative is involved if the former was really at the scene of the crime and was a witness to the execution of the criminal act (People vs. De La Cruz, 207 SCRA 632 [1992], more so, as in the case at bench, where accused-appellant himself acknowledged that he and the Sibayans had good relations: Q You claimed that you were born at Brgy. Alac, San Quintin, Pangasinan. Is that right? WITNESS A Yes, sir. Q And since the time of your birth up to the time you graduated from high school, you stayed there? A Yes, sir. Q Of course, being a resident of Brgy. Alac, particularly Purok "4" of San Quintin, Pangasinan, you know your neighbor Joselito Sibayan. Am I correct? A Yes, sir. Q You also know Agustin Sibayan? A Yes, sir. Q And the rest of the family of Sibayans? A Maybe, sir. Q Of course, because you know them, naturally they also know you. Is it not? A Yes, sir.

PROSECUTOR BINCE Q And being a neighbor of the Sibayans' at Purok "4," Brgy. Alac, San Quintin, Pangasinan, you have a good relation to (sic) them since the age of reason up to the time during all those occasions wherein you visited Brgy. Alac, San Quintin, Pangasinan? WITNESS A Precisely, sir. (pp. 20-21, tsn, may 19, 1993; pp. 12-13, Brief for Plaintiff-Appellee) Absent any indication of a sinister scheme to prevaricate, the affirmative statements uttered by the People's witnesses showing accused-appellant's culpability must be respected inasmuch as positive declarations subordinate disclaimers emanating from the defense (People vs. Espinoza, 228 SCRA 143 [1993]). Verily, proof of motive is not indispensable where the culprit has been positively identified (People vs. Salveron, 228 SCRA 92 [1993]). What militates heavily against accused-appellant's pretense is the concocted tale to the effect that an unnamed assailant fired the gun but the bullet missed the brother of accused-appellant as he was sitting on top of the fallen Jose Belmonte tsn, March 23, 1993, p. 22), and that instead, the bullet penetrated the back of the head of the victim in a straight trajectory while the latter was walking on the earthen dike. Indeed, it is absurd to suppose that a bullet fired by an assailant from a standing position directed downwards against the so-called intended victim, such as accused-appellants brother on the ground, would, against the law or gravity, change course from its groundward trajectory and instead, suddenly ascend after missing the intended victim, and hit the back of the head of the victim who was at an elevated position. Accused-appellant argues next that procedural infirmities attended the trial below such as (a) the hearsay character of the testimony of the People's third witness which was heard in the absence of accused-appellant and his counsel; (b) the denial of due process on account of the perceived bias of the trial judge; (c) the illegality of accused-appellant's arrest and detention; and (d) the absence of preliminary investigation. However, as correctly observed by the Office of the Solicitor General, the record of the case indubitably shows that accused-appellant's counsel opted not to cross examine Agustin Sibayan (p. 323, Record) which deliberate omission obviously negates the so-called hearsay nature of said witness' testimony. Similarly wanting in substance is accused-appellant's claim relative to the alleged bias of the trial judge considering that mere apprehension that a magistrate is partial is inefficacious to sustain a charge of breaching the tenet of "cold neutrality" normally expected of a judge. And even on the assumption that accused-appellant's arrest was illegal for want of preliminary investigation, such a hypothesis was nonetheless negated by accused-appellant's act of posting a bail bond thereafter, apart from the fact that he entered a plea of not guilty which is tantamount to foregoing the right to question the assumed irregularity (People vs. Hubilo, 220 SCRA 389 [1993]). Too, accused-appellant's submission that there is absence of physical evidence showing that he fired a gun simply because the paraffin test yielded negative is unacceptable, for as held by this Court in People vs. Manalo (219 SCRA 656 [1993]): . . . even if he were subjected to a paraffin test and the same yields a negative finding, it cannot be definitely concluded that he had not fired a gun as it is possible for one to fire a gun and yet be negative for the presence of nitrates as when the hands are washed before the test (People vs. Talingdan, 191 SCRA 333 [1990];

People v. Roallos, 113 SCRA 584 [1982]). The Court has even recognized the great possibility that there will be no paraffin traces on the hand if, as in the instant case, the bullet was fired from a .45 Caliber pistol (People vs. Rebullar, 188 SCRA 838 [1990]). The subsistence of a bail bond is also no legal obstacle to accused-appellant's immediate incarceration after promulgation of a decision involving a felony punishable by reclusion perpetua following the principle enunciated in People vs. Fortes (223 SCRA 619 [1993]) this: It is clear from Section 13, Article III of the 1987 Constitution and Section 3, Rule 114 of the Revised Rules of a s amended, that: . . . before conviction bail is either a matter of right or of discretion. It is a matter of right when the offense charged is punishable by any penalty lower than reclusion perpetua. To that extent the right is absolute. xxx xxx xxx Upon the other hand, if the offense charged is punishable by reclusion perpetua bail becomes a matter of discretion. It shall be denied if the evidence of guilt is strong. The court's discretion id limited to determining whether or not evidence of guilt is strong. But once it is determined that the evidence of guilt is not strong, bail also becomes a matter of right. . . . The clear implication therefore, is that if an accused who is charged with a crime punishable byreclusion perpetua is convicted by the trial court and sentenced to suffer such a penalty, bail is neither a matter of right on the part of the accused nor of discretion on the part of the court. In such a situation, the court would not have only determined that the evidence of guilt is strong which would have been sufficient to deny bail even before conviction it would have likewise ruled that the accused's guilt has been proven beyond reasonable doubt. Bail must not then be granted to the accused during the pendency of his appeal from the judgment of conviction. Construing Section 3, Rule 114 of the 1985 Rules on Criminal Procedure, as amended, this Court, in the en bancResolution of 15 October 1991 in People vs. Ricardo Cortez, ruled that: Pursuant to the aforecited provision, an accused who is charged with a capital offense or an offense punishable by reclusion perpetua, shall no longer be entitled to bail as a matter of right even if he appeals the case to this Court since his conviction clearly imports that the evidence of his guilt of the offense charged is strong. We are, however, not convicted that the qualifying circumstance of treachery was attendant in the killing. It must be recalled that Doro Nitcha, the brother of accused-appellant, was in a fight with one Jojo Belmonte and was forcibly dragged away from the fight and brought home by his sister, Victoria Corpus. Upon seeing his injured brother, accused-appellant became enraged and immediately dashed off to the scene of the fight. Per testimony of Joselito Sibayan, the husband of the victim, only 4 to 5 minutes had elapsed from the time Doro was dragged away to the time that accusedappellant arrived at the scene of the fight (pp. 6-7, t.s.n., February 2, 1993). Thus, at such a short interval, accused-appellant did not have sufficient time consciously adopt the mode of attack. To

establish treachery, the evidence must show that the accused made some preparation to kill the victim in such a manner as to insure the execution of the crime or to make it impossible or hard for the person attacked to defend himself. A killing done at the spur of the moment is not treacherous. However, we do not agree with the trial court that the crime committed was murder. The qualifying circumstance of treachery can not logically be appreciated because the accused did not make any preparation to kill the deceased in such a manner as to insure the commission of the crime or to make it impossible or hard for the person attacked to defend himself or retaliate. This circumstance can only be applied, according to the tenor of article 13, sub-section 16 of the Revised Penal Code, when the culprit employs means, methods or forms of execution which tend directly and specially to insure the commission of the crime and at the same time to eliminate or diminish the risk to his own person from a defense which the other party might offer. In United States vs. Namit, 38 Phil. 926, it was held that the circumstance that an attack was sudden and unexpected to the person assaulted did not constitute the element of alevosia necessary to raise a homicide to murder, where it did not appear that the aggressor had consciously adopted a mode of attack intended to facilitate the preparation of the homicide without risk to himself. In the present case, the circumstances negative the hypothesis that the defendant reflected on the means, method and form of killing the offended party. There was absolutely nothing personal between the accused and Basas. He was, so he thought, erroneously, protecting the property which he was detailed to watch by killing the stranger. His purpose was to kill, the decision was sudden, and the position of the stranger was accidental and did not matter. In fact, in the nature of things, to give the other man an opportunity to defend himself or to return the attack would have been a contradiction. (People vs. Tumaob, 83 Phil. 738; 742 [1949]); The herein appellant has, no doubt, liquidated Maximo Cabuenos. However, we do not believe that the killing was accomplished with treachery. It does not appear that the shooting was premeditated not that the accused had consciously chosen that method of attack directly and specially to facilitate the perpetration of the homicide without risk to himself. His decision to shoot Cabuenos seemed to be sudden, in view of the latter's fight, and the position of both the victim and the killer was entirely accidental. Therefore treachery may not be imputed to him. (People vs. Abalos, 84 Phil. 771; 773 [1949]); Article 248 of the Revised Penal Code provides that murder is committed by any person who kills another treacherously. Under Art. 14 916) of the same Code, there is treachery "when the offender commits any of the crimes against person, employing means, methods, or forms in the execution thereof which tend directly and specially to ensure its execution, without risk to himself arising from the defense which the offended party might make." It was while Nestor was retreating from Ernesto when Oscar stabbed Nestor at his back. An aggression from behind, however, does not necessarily make the act treacherous. There is no showing that the aggressors "consciously" adopted a mode of attack to directly and specially ensure the execution of the act without any risk to themselves. In fact, the stabbing was preceded by challenges to fight on Nestor by Ernesto. The first was when the two had a heated argument, and the second was less than ten minutes later, when Ernesto came back with a "batuta", which must have placed the deceased on guard; in any case, the latter cannot be said to have been totally unaware of possible danger.

(People vs. Balderama, 226 SCRA 537; 550-551 [1993]) The crime committed by accused-appellant is, therefore, homicide and not murder. The penalty for homicide, under Article 249 of the Revised Penal Code, is reclusion temporal. There being no aggravating nor mitigating circumstances, the penalty imposable is reclusion temporal in its medium period; and applying the Indeterminate Sentence Law, the penalty that should be imposed upon accused-appellant is an indeterminate sentence within the range of prision mayor, as minimum, and reclusion temporal medium, as maximum. WHEREFORE, the decision appealed from is hereby MODIFIED, and accused-appellant is hereby found guilty of HOMICIDE and sentenced to an indeterminate penalty of eight (8) 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. In all other respects, he appealed decision is hereby AFFIRMED. SO ORDERED.

G.R. Nos. 105199-200 March 28, 1994 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JESUS DEUNIDA Y ENRIQUEZ, accused-appellant. The Solicitor General for plaintiff-appellee. Dumlao, Farolan, Ignacio & Associates Law Office for accused-appellant.

DAVIDE, JR., J.: Following his arrest six months after the fatal shooting of Felipe Ramos, Jr. in the evening of 31 December 1990, accused Jesus Deunida was charged before the Regional Trial Court of Manila with murder and illegal possession of firearms under P.D. No. 1866 in two separate informations, dated 26 June 1991, which were docketed as Criminal Case Nos. 91-95987 and 91-95988, respectively, 1 and consolidated with and raffled to Branch 49 of the said court. However, after a reinvestigation which the court ordered upon motion 2 of the accused and for lack of the requisite prior preliminary investigation, the prosecution, in a Manifestation filed on 18 September 1991, 3 moved for the withdrawal of the information for murder and the amendment of the information for illegal possession of firearms on the ground stated in the resolution of the investigating prosecutor 4 that the filing of two separate informations was erroneous since what the accused had committed is only one offense, viz., the violation of the second paragraph of Section 1 of P.D. No. 1866 or "Qualified Illegal Possession of Firearm." The amended information 5 attached to the manifestation bears the docket number for the case for murder, viz., Criminal Case No. 9195987. However, the body thereof is for violation of P.D. No. 1866, which is the offense charged in Criminal Case No. 91-95988, and reads as follows: The undersigned accuses JESUS DEUNIDA Y ENRIQUEZ of violation of Presidential Decree No. 1866, committed as follows: That on or about December 31, 1990, in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully and knowingly have in his possession and under his custody and control the following, to wit: one (1) caliber .38 revolver (Paltik) marked Smith and Wesson, without first having secured the necessary license or permit therefor from the corresponding authorities, which described firearm was used by the accused in the commission of the crime of homicide. Although the original records transmitted to this Court by the trial court do not show that the latter formally acted on the manifestation, the challenged decision states that the withdrawal and amendment were both granted. 6From the certificate of arraignment, 7 it likewise appears that the accused was arraigned in Criminal Case No. 91-95987, evidently on the amended information for illegal possession of firearms. 8 During the testimony of Dr. Marcial Cenido, the first witness for the prosecution, the trial court discerned, 9 and the defense counsel confirmed, 10 that the theory of the accused was self-defense.

The parties then stipulated that: (1) the amount of actual damages (funeral expenses) incurred by the private complainant was P50,000.00; 11 (2) the gun used in the fatal shooting was the "paltik" .38 caliber revolver ("Exhibit "P") turned over by the accused to P/Cpl. Meneleo Renon after the shooting, and the copper slug (Exhibit "E") was the one recovered from the body of the victim; 12 and (3) at the time the gun was fired, the accused has no license or permit to possess the gun and the recovered live bullets (Exhibit "P-1") as certified to by the Firearms and Explosives Unit of the Philippine National Police (PNP). 13 The parties then agreed to have the "reverse trial" method to expedite the disposition of the case and the prosecution marked and submitted its evidence consisting of the post-mortem findings of Dr. Cenido, the human sketch prepared by him, the certificate of death, the recovered slug, sworn statements of Marlon Comia, Joel Baltazar, Cpl. Meneleo Renon, advance information on the case, progress report, certification of the Firearms and Explosives Unit, booking sheet and arrest report, the paltik revolver, and the bullets. 14 The defense then presented as its witnesses the accused himself and his two friends, Aurelio Sta. Cruz and Agustin Arigore. The prosecution presented as rebuttal witnesses Mrs. Belen Fortes, an eyewitness to the shooting, and P/Cpl. Meneleo Renon, an off-duty traffic policeman who had placed the accused under arrest shortly after the shooting. These witnesses are neighbors of the accused. Thereafter, the defense recalled the accused as a surrebuttal witness. The inculpatory evidence adduced by the prosecution is faithfully summarized by the appellee as follows: On December 31, 1990, New Year's Eve, at about 10:30 o'clock in the evening, Belen Fortes of 2347-A Amatista St., San Andres Bukid, Manila, went to the store of her neighbor, accused Jesus Deunida, at 2323 Amatista St., San Andres Bukid, Manila (TSN, Nov. 13, 1991, p. 8), to buy some things in preparation for the midnight celebration to welcome the New Year. As she approached the store, she saw ahead of her Felipe Ramos, Jr. who was about two feet away to her left (TSN, Feb. 4, 1992, p. 8) also approaching the store. Ramos was about two feet away from the store and he addressed appellant Deunida who was inside the store, "Hinahanap mo raw ako?" (Ibid., pp. 2 and 4). Despite the screen covering the front of the store, Fortes could clearly see the face of appellant inside the store because the screen had an opening of about 10 by 12 inches and the street light overhead illuminated the store (Ibid., pp. 1-13). Fortes heard appellant reply but could not make out the words after which she saw appellant aim a gun at Ramos, the muzzle of the gun jutting through the opening in the screen (Ibid., pp. 4-5, 13-14). When Ramos saw the gun aimed at him, he turned around and was about to run away when the gun fired hitting Ramos at the back and causing him to be thrown to the other side of the street (Ibid., p. 5). Appellant came out of his store, approached Ramos and again aimed the gun at him. But neighbor pleaded with appellant not to shoot again, shouting "Mang Jess, huwag, si Ato yan" (Ibid., pp. 5-6). Appellant relented and Ramos stood up to look for help. Fortes ran home to tell her husband what happened and then returned to the scene and helped the other neighbors bring Ramos to the Philippine General Hospital where he would expire later (page 5 of the Amended Decision, as annexed in the Appellant's Brief).

The autopsy conducted by Dr. Marcial Cenido on January 1, 1991 revealed that Ramos suffered a gunshot entry wound in the back, specifically at the left posterior thorax below the level of the armpit with a copper slug found inside the body. According to Dr. Cenido, the entry wound and slug are consistent with a handgun as the firearm used in killing the victim (TSN, Nov. 5, 1991, pp. 10-11) and in the absence of powder burns that the muzzle of the gun was about 24 inches from the body when it fired. The trajectory of the bullet is forward or from back to front, very slightly downward and slightly towards the left lateral line penetrating the posterior thorax and left side of the liver. He concludes from the foregoing findings that the assailant was at the back of the victim, that the position of the assailant was possibly standing and the victim could have been seated. He also explained that the abrasions in the right forearm could have been due to a fall (TSN, Nov. 5, 1991, pp. 24, 17). Appellant was placed under arrest by Cpl. Meneleo Renon who was at home watching television when the incident happened. He was called to the scene right after the shooting by his daughter and niece who called him; telling him "Papa, papa, si Mang Jess binaril si Ato" (TSN, Jan. 28, 1992, pp. 49-50). Renon immediately went to the crime scene. He saw appellant holding a gun and about to leave and he called appellant. Appellant handed to him the gun and said "Pasensiya na kayo nabaril ko si Ato" (Ibid., pp. 51-52, 54, 56). Renon opened the gun and discovered one (1) empty shell and four (4) live bullets (Ibid., p. 53). Renon told appellant that he was under arrest and made him sit in front of his house to wait for the policemen from homicide section (Ibid., p. 54). While waiting for the policemen, appellant asked Renon if he could go inside his house to drink water. Since appellant was his neighbor, Renon allowed him to enter his house to drink (Ibid.). When the policemen from the homicide section arrived, Renon called appellant but discovered that the latter had escaped to the roof top by using a long ladder (Ibid., p. 55). Renon and the homicide operatives tried to locate the appellant at a place called Texas Anakbayan where the appellant was known to have many friends but they failed to find him (Ibid.).
Appellant was finally arrested on June 12, 1991 in Sta. Maria, Bulacan. 15

On the other hand, the accused denied both the possession of the fatal gun and the responsibility for shooting the victim, and offered a different version of the incident which he summed up in his brief, citing the testimonies of Aurelio Sta. Cruz and Agustin Arigore: [A]t about 11:00 o'clock in the evening of December 31, 1990, both of them [Sta. Cruz and Arigore] went to the house of the Accused-Appellant to invite him to join the celebration of their [barkada] in the house of Chairman Alfredo Tan. While he was outside the store and at the gate with his two (2) friends, the victim arrived, approached him, saying "Mang Jess, babarilin mo raw ako," then poked a gun at

him. It was parried by the Accused-Appellant, but when it was poked again, the latter tried to get it by grappling with the victim. It was at the [sic] point when AccusedAppellant was twisting the victim's arm with the gun, and the latter almost on his knees, that the gun fired. The victim disengaged himself by running to the other side of the street. He was pursued by Accused-Appellant, poked the gun at him but he was prevented by his friend.
When Cpl. Meneleo (Pandong) Renon arrived, the Accused-Appellant handed him the gun saying "Pandong, baril ito ni Ato, naagaw ko" to which the policeman responded, "Sige Jess, ako na ang bahala dito." With his two (2 ) friends, they proceeded to the drinking party, stayed there overnight. When in the morning he was informed that Ato died and that he was being hunted by the victim's relatives, he went to his in-laws in Bulacan, stayed there until arrest. 16

This version is of course not absolutely consistent with the accused's earlier stand that he acted in self-defense, which resulted in an agreement for the holding of a "reverse trial" method. This prompted the trial court to remark that by the evidence he offered in court, the accused:
evolved an alternative defense, to wit, (a) that at the time the gun, Exhibit "P", was fired, the first right finger of the deceased was on the trigger and that the accused was merely holding the handle of the gun and implied that it was not the Accused who shot the deceased; and (b) assuming, gratia arguendo, that it was the Accused who shot the deceased, while they were wrestling for the possession of the gun, he did so only in self-defense. 17

In its Decision 18 promulgated on 3 April 1992, the trial court found the accused guilty beyond reasonable doubt of the crime of "qualified violation of Section 1 of Presidential Decree No. 1866" and sentenced him to suffer the penalty of reclusion perpetua and to pay the heirs of the deceased the amount of P50,000.00 by way of actual damages and P5,000.00 by way of indemnity. It further ordered the confiscation in favor of the government of the gun and the four live bullets and one empty cartridge and directed the branch clerk of court to cause the delivery thereof to the Firearms and Explosives Unit of the PNP for disposition in accordance with law upon the finality of the decision. On 10 April 1992, the trial court amended its decision, 19 a copy of which was received by the accused's counsel on 14 April 1992. The trial court rejected the accused's claim of self-defense in view of the "cogent facts and circumstances spread in the records, not to mention the testimony of the [a]ccused himself, belying and discrediting his claim." It gave more credence to the prosecution witnesses' accounts of the incident and the medical findings and opinion of Dr. Cenido, held that the accused's flight after the incident as an indication of guilt, and considered his statement to Cpl. Renon admitting the shooting as part of the res gestae. It also disregarded for lack of substantial basis the accused's allegations of bias and ill-motive against witnesses Mrs. Belen Fortes and Cpl. Renon, ruling instead that the accused's self-serving claim that the victim was a "protege" or "bata" of Renon was belied by the latter's leniency and lack of vindictiveness towards the accused after the shooting, such as allowing the accused to go inside his house to drink water without being handcuffed, enabling him to escape. The Court stated that Renon satisfactorily explained why he made his sworn statement only on 22 June 1991; moreover, he had promptly reported the incident to the Homicide Section, turned over the gun, the four live bullets and the empty cartridge, and informed the police of the accused's escape. The Court explained that Fortes did not report the incident to the police and give a sworn statement because she helped bring the victim to the hospital and thereafter the accused's relatives

brokered for an amicable settlement of the case which would render her sworn statement useless. It also said that the accused's allegations that the relatives of the victim threatened to kidnap her daughter and that Fortes went on television to denounce him were unsubstantiated and pure hearsay since the same were only relayed to him by his wife who did not testify. 20 On 21 April 1992, the accused filed his notice of appeal. 21 In his Appellant's Brief, 22 the accused prays that we reverse the amended decision of the trial court and acquit him because the trial court erred: (1) in finding the testimonies of Fortes and Renon credible and free from ill-motive or vindictiveness, fabrication, and collusion; (2) in relying on the said testimonies as basis for his conviction; (3) in finding that the victim, Felipe Ramos, Jr., was not the aggressor; (4) in convicting him on the basis of contradicting testimonies, assumptions, and conclusions; (5) in considering his "alleged flight" as evidence of his guilt; (5) in "misappreciating and ignoring" his evidence of self-defense; and (7) in not applying the "equipoise rule" in his favor. 23 In further amplification thereof, he asserts that the testimonies of Fortes and Renon are inconsistent and improbable; that Dr. Cenido was not a qualified forensic expert to testify on the distance at which the victim was shot based on the absence of gunpowder burns at the victim's wound, which absence can be explained; that Dr. Cenido's findings also support his claim that the victim was shot from the back while seated; that his evidence amply proves self-defense; and that his flight was due to the threats to his life and his family and cannot be taken as evidence of guilt. 24 At the outset, it must be stressed that, contrary to the prosecution's legal position in withdrawing the information for murder, the offense defined in the second paragraph of Section 1 of P.D. No. 1866 does not absorb the crime of homicide or murder under the Revised Penal Code and, therefore, does not bar the simultaneous or subsequent prosecution of the latter crime. The 1982 decision in Lazaro vs. People 25 involving a violation of P.D. No. 9, which the investigating prosecutor invokes to justify the withdrawal, is no longer controlling in view of our decisions in People vs. Tacan, 26 People vs. Tiozon, 27 and People vs. Caling. 28 In Tac-an, we ruled that the accused who had been charged with illegal possession of a firearm and ammunition under the second paragraph of Section 1 of P.D. No. 1866 was not placed in double jeopardy when he was also charged in another case with murder because the former offense is a different offense punished by a special law while the latter offense is defined and penalized under the Revised Penal Code. We reiterated that the constitutional right against double jeopardy protects one against a second or later prosecution for the same offense and that when the subsequent information charges another and different offense, although arising from the same act or set of acts, there is no double jeopardy. In Tiozon, we explicitly stated that the killing of a person with the use of an unlicensed firearm may give rise to two separate prosecutions: one for the violation of Section 1 of P.D. No. 1866 and another for murder or homicide under Article 248 or Article 249 of the Revised Penal Code. And in Caling, we also ruled that the use of an unlicensed firearm in the commission of homicide or murder gives rise to two distinct crimes, viz., unlawful possession of firearms, which may be either simple or aggravated as defined and punished respectively by the first and second paragraphs of Section 1 P.D. 1866; and homicide or murder, committed with the use of an unlicensed firearm. The killing is obviously distinct from the act of possession and is separately defined and punished under the Revised Penal Code. Therefore, in the instant case, the information for murder was erroneously withdrawn. Let us now draw our attention to the merits of the appeal. After a careful review and consideration of the records, the evidence, and the arguments of the parties, we find the appeal to be without merit.

In the first place, having pleaded self-defense, the accused necessarily admitted having shot and killed the victim with an unlicensed firearm (Exhibit "P"). It was then incumbent upon him, to avoid criminal liability, to prove that justifying circumstance to the satisfaction of the court. To do so, he must rely on the strength of his evidence and not on the weakness of that of the prosecution, for even if that were weak it could not be disbelieved after he had admitted the killing. 29 Being an affirmative allegation, its elements, namely (a) unlawful aggression on the part of the victim, (b) reasonable necessity of the means employed to repel the aggression, and (c) lack of sufficient provocation on the part of the accused, must be proved with certainty by sufficient and convincing evidence which excludes any vestige of criminal aggression on the part of the person invoking it. 30 The accused failed to discharge the burden which was shifted to him by his plea of self-defense. He was not able to show unlawful aggression on the part of the victim. On the other hand, the prosecution, through the testimony of Belen Fortes, successfully proved that it was the accused who assaulted the victim with a gun and shot the latter at his back, 31 which facts she elaborated in detail on cross-examination. 32 Cpl. Renon, to whom the accused surrendered the gun and the live bullets after the incident, testified that the accused told him that he shot Felipe Renon. 33 The allegation that the testimonies of Belen Fortes and Cpl. Renon are not credible does not convince us. The trial court gave them full faith and credit thus:
More, the Court belabored to monitor and keenly observe the conduct and demeanor of Belen Fortes and Cpl. Meneleo Renon when they testified before the Court, and the Court is fully convinced, without equivocation that they testified before the Court spontaneously, in a candid and straightforward manner, their testimonies bereft of telltale signs and the affectations and artificialities of perjured or rehearsed witnesses. 34

The rule in the appellate process is that the trial court's determination on the issue of the credibility of witnesses must be given great weight and respect, unless it has plainly overlooked certain facts of substance and value that, if considered, might affect the result of the case. The rationale for this is that the trial court is in a much better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial. It can thus easily detect whether a witness is telling the truth or not. 35 In the instant case, we find no cogent reason to depart from this rule. The alleged ill-motive or vindictiveness on the part of prosecution witnesses Fortes and Renon were not proved. They are thus presumed not to have been actuated by any improper motive. 36 Since unlawful aggression on the part of the victim was absent, the second requisite for selfdefense, which presupposes the presence of the first, cannot logically exist. The accused further failed to prove the third requisite of self-defense. On the contrary, his own evidence discloses that minutes before the shooting incident, the accused's daughter reminded the victim of the two empty beer bottles which he borrowed from the accused's store, but the victim, who appeared drunk as shown by his bloodshot eyes and "broken voice", arrogantly told her that no one had yet shouted at him. Because of the victim's attitude, the accused told him to return the empty bottles. The victim came back with the bottles which he dropped on top of the table in the store shouting at the same time, "Eto na ang bote. Wala na akong utang sa inyo na bote," which "irritated" the accused. 37 When the victim left, the accused even remarked, "Pag hindi mo hahabaan ang pasensiya mo dito kay Ato, mababaril mo." 38 Finally, his own version of how the shooting took place further befuddled his belated claim that the victim himself pressed the trigger of the gun, thereby suggesting that the latter accidentally fired the

gun and killed himself. This is belied by the physical evidence showing that the victim was shot from behind at a distance since there were no contusions or gunpowder burns on the skin at the point of entry of the bullet. The demonstration made by the accused in court 39 further showed that it was physically impossible for the victim to have shot himself, if indeed he was positioned in the manner demonstrated. The following findings and observations of the trial court are well taken: The vacillating and chamelonic stance of the Accused bespoke of the unreliability of his testimony. It must be borne in mind that when he testified before the Court, and as borne by his Necropsy Report,Exhibit "B", Dr. Marcial Cenido averred that the trajectory of the bullet which hit the back of the deceased was obliquely forward, slightly downward and very slightly towards the lateral, grazing the left lateral side of the 8th thoracic vertebra of the deceased. If the muzzle of the gun was directed to the left side of the body of the deceased when it fired, the deceased could not have been hit or that if he was hit by the bullet from the gun, the trajectory should have been directed towards well the left side of the body of the deceased, and not obliquely forward, slightly downward only and very slightly towards the lateral side. On the other hand, if, as claimed by the Accused, his left palm held the right palm of the deceased and pressed it against the back of the deceased, the muzzle of the gun could not have been directed towards the back of the deceased, but towards the left side of the deceased. More, the deceased would have to move his right hand outward from his back and from the waist and bended his hand from his wrist towards his back which it would have been extremely difficult if not impossible for the deceased to do so considering that the right arm of the Accused was holding the right arm of the deceased between the elbow and the wrist.
The scenario evolved by the Accused could not have happened for another reason. According to Marcial Cenido, infra, he found no contusion collar or gunpowder burns on the skin of the point of entry of the bullet on the body of the deceased which meant that the deceased must have twenty-four (24) inches away from the muzzle of the gun thus belied the claim of the Accused that the gun which was pressed against the back of the deceased when the latter was shot and, on the other hand, corroborated the testimony of Belen Fortes that the Accused shot the deceased at a distance of about two (2) feet from the store. 40

The accused's contention that Dr. Cenido's testimony should not be considered "as he is not a forensic expert on the matter" is untenable for before Dr. Cenido gave his testimony, the accused's counsel admitted in open court "the competency of the of witness as an expert witness." 41 Also, when the questioned testimony was given, the defense did not make any objection thereto. Finally, the accused's flight after the incident removes any remaining shred of doubt on his guilt. His flight is fully established and his allegation of threats to his life and to his family, rightly brushed aside by the trial court as unsubstantiated, dubious, and hearsay, is simply a fabricated tale to cover up the naked fact of his flight. Undeniably, his flight evidenced guilt. 42 Consequently, there is no room for the accused's plea for the application of the "equipoise rule," invoking "Cruz[should be Corpuz] vs. People." 43 As Mr. Justice Isagani A. Cruz emphasized in the said case, the equipoise rule is applicable only where the evidence of the parties is evenly balanced; there is no such equipoise if the evidence of the prosecution is overwhelming and has not been overcome by the evidence of the defense.

The gravamen of the offense under the second paragraph of Section 1 of P.D. No. 1866 is the possession of a firearm without a license and the use of such unlicensed firearm in the commission of homicide or murder, which were alleged in the amended information in this case. The evidence established beyond reasonable doubt that the accused who had in his custody and possession the firearm (Exhibit "P") had no license or permit to possess it and that he used it in shooting to death Felipe Ramos, Jr. The trial court thus correctly convicted the accused and imposed the penalty of reclusion perpetua only, instead of the prescribed death penalty under the second paragraph of Section 1 of P.D. No. 1866. At the time the offense was committed, the death penalty could not be imposed pursuant to Section 19 (1), Article III of the 1987 Constitution. However, the awards for actual damages in the amounts of P50,000.00, representing funeral expenses, although stipulated by the parties, and P50,000.00 as moral damages, which the parties left to the discretion of the trial court, are improper and should be deleted for, although death had taken place, the offense charged is illegal possession of firearm and the killing merely aggravated it. No private interest is therefore involved. The civil liability arising from death may be the subject of a separate civil action or impliedly instituted with the criminal action for murder or homicide. WHEREFORE, judgment is hereby rendered AFFIRMING, with the above modification consisting of the deletion of the awards for actual and moral damages, the challenged amended Decision of the Regional Trial Court of Manila, Branch 45 dated 10 April 1992, in Criminal Case No. 91-95987. Costs against accused Jesus Deunida y Enriquez. SO ORDERED.

G.R. No. 182555

September 7, 2010

LENIDO LUMANOG and AUGUSTO SANTOS, Petitioners, vs. PEOPLE OF THE PHILIPPINES, Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 185123 CESAR FORTUNA, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 187745 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. SPO2 CESAR FORTUNA y ABUDO, RAMESES DE JESUS y CALMA, LENIDO LUMANOG y LUISTRO, JOEL DE JESUS y VALDEZ and AUGUSTO SANTOS y GALANG, Accused, RAMESES DE JESUS y CALMA and JOEL DE JESUS y VALDEZ, Accused-Appellants. DECISION VILLARAMA, JR., J.: For review is the Decision1 dated April 1, 2008 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 00667 which affirmed with modification the Joint Decision2 dated July 30, 1999 of the Regional Trial Court of Quezon City, Branch 103 in Criminal Case Nos. Q-96-66679, Q-96-66680, Q-96-66682, Q96-66683 and Q-96-66684. The consolidated cases arose in connection with the killing of former Chief of the Metropolitan Command Intelligence and Security Group of the Philippine Constabulary, now the Philippine National Police (PNP), Colonel Rolando N. Abadilla ("Abadilla"), who was ambushed in broad daylight while driving his car along Katipunan Avenue, Quezon City. The Facts On June 13, 1996, at around 8:00 oclock in the morning, Abadilla left his house at Soliven I, Loyola Grand Villas, Loyola Heights, Quezon City and drove his car, a black Honda Accord with Plate No. RNA-777. Soon after he left, his wife Susan Abadilla received a phone call from him and they briefly talked. Just a few minutes after their conversation, she received another phone call from Abadillas tailor who was asking about her husband because, according to him, he heard a radio broadcast report that Abadilla met an accident.3 Meanwhile, at about 8:40 a.m., Senior Police Officer (SPO) 2 Arthur Ortiz, the desk officer on duty at Station 8 of the Central Police District Command (CPDC) located at P. Tuazon Blvd., Project 4, Quezon City, answered a telephone call from a male person who reported a shooting incident along Katipunan Avenue. Station Commander Police Chief Inspector (Insp.) Edward Villena, together with

his investigators SPO2 Wahab Magundacan, Police Officer (PO) 2 Gerardo Daganta and PO1 Ronald Francisco immediately boarded a PNP marked vehicle and headed towards Katipunan Avenue.4 Upon reaching the area at 8:45 a.m., they saw several onlookers around and near a black Honda Accord with Plate No. RNA-777 on a stop position in the middle lane of Katipunan Avenue facing south going to Libis. They found the victims bloodied and bullet-riddled body partly slumped onto the pavement at the cars left door, which was open. The front windshield and sliding glass windows on the left and right side were shattered; a hole was seen on the glass window of the left rear door, apparently pierced by a bullet. Glass splinters were scattered inside the car and on the pavement at both sides of the car. On orders of Chief Insp. Villena, PO2 Daganta and PO1 Francisco assisted by a certain Cesar Espiritu, immediately brought the victim to the Quirino Memorial Hospital in Project 4, Quezon City. SPO2 Magundacan was instructed to stay behind to cordon the area for the start of the investigation while Chief Insp. Villena went to their station to get his camera.5 After ten (10) minutes, Chief Insp. Villena returned and took pictures of the crime scene, and also of the victim at the hospital.6 SPO2 Magundacan was able to pick up several spent shells and two (2) slugs, apparently fired from .45 and 9 mm. pistols.7 A sketch was prepared by PO2 Daganta who also interviewed some of the witnesses present at the crime scene.8 The spot report and list of recovered items (including a Philippine Military Academy gold ring on which was engraved the name "Rolando N. Abadilla") were later prepared by SPO2 Magundacan at the police station.9 On the same day, witnesses Cesar F. Espiritu (who was driving his car ahead of the victim), Aurora Urbano (Metro Aide), Ani C. Icot (house gardener of the Abadilla family, Freddie Alejo (security guard posted at Eliscon Electrical Supply store located at 211 Katipunan Avenue) and Minella Alarcon (college professor at Ateneo de Manila University) gave their respective statements before the Criminal Investigation Division of the Central Police District Command (CID-CPDC), PNPNational Capital Region (NCR) at Camp Karingal, Sikatuna Village, Quezon City, while the statement of Merlito Herbas (security guard posted at the Blue Ridge Realty Corporation located at No. 219 Katipunan Avenue, Quezon City) was taken at Station No. 8, CPDC at P. Tuazon Blvd., Proj. 4, Quezon City.10 Based on their accounts, the black Honda Accord with Plate Number RNA-777 was caught in traffic while traversing Katipunan Avenue going to Santolan at past 8:00 oclock on the morning of June 13, 1996. While on a stop position, four (4) men armed with handguns surrounded the said car and fired several successive shots at the man inside it. One (1) of the men who were positioned at the left side of the car opened its door and took something inside. He grabbed the victim by the neck and dropped his body down towards the pavement at the left door. When there were already several people who had come out to see what was happening, one of the suspects shouted, "Walang gagalawDapa!" Minella Alarcon, who was then with her son-in-law on board her white KIA Pride, was following the victims car (at other side or diagonal line) at the time of the incident. After the shooting, two (2) of the armed men who fired at the victims car approached their car and pounded at it saying "BabaBaba!" Terrified, she and her son-in-law got off and crawled towards the side of the street. The assailants then boarded the KIA Pride and went away to the direction of an alley along Katipunan Avenue. Her car was later recovered, as it was found abandoned along Aguinaldo Street near the corner of J.P. Rizal Street, Project 4, Quezon City, still with bloodstains on the car door.11 The victim was pronounced dead on arrival at the hospital. The victims identity was confirmed by Susan Abadilla who had rushed to the hospital. Chief Insp. Villena escorted her in bringing the victims body to the PNP Crime Laboratory in Camp Crame for the autopsy requested by the CPDC, PNP-NCR, Camp Karingal.12 From the testimony and medico-legal report of Dr. Jesusa N. Vergara,

it was disclosed that the victim died of hemorrhage as a result of multiple gunshot wounds, mostly in the head and chest, and also sustained abrasions, contusions, lacerated skin, hematoma and incised wounds or cuts in the skin caused by glass splinters.13 Records indicate that immediately after the incident, elements of the CPDC, PNP-NCR at Camp Karingal were already coordinating with investigators of Station 8-CPDC who had turned over to said office the evidence gathered and referred the witnesses present at the crime scene.14 As a result of follow-up operations, Joel de Jesus, alias "Tabong," was apprehended on June 19, 1996 at his house at Dahlia St., Fairview, Quezon City. He executed his Sinumpaang Salaysay dated June 20, 1996 and Karagdagang Sinumpaang Salaysay dated June 21, 1996.15 In his first statement, Joel de Jesus narrated that on June 13, 1996 at 6:30 in the morning after parking his tricycle at the corner of Regalado and Camaro Streets, Fairview, he was fetched by Lorenzo "Larry" delos Santos who was his neighbor at Ruby St. Larry was accompanied by his nephew Ogie, and a certain "Tisoy" who drove the owner-type jeep. Larry told him they were going to kill a big-time personality ("may titirahin na malaking tao"), whose name was Abadilla, and that they were going to ambush the latter at Katipunan Avenue. The ambush would be carried out by Joel, Larry, Tisoy, Ram (de Jesus), Cesar who was a policeman, and four (4) others. That same morning, they proceeded to Katipunan Avenue on board Larrys owner-type jeep without a plate and a Mitsubishi L-300 van. They carried .45 and 9 mm. pistols; Joel used a .38 caliber revolver. According to Joel, he only acted as lookout; Lorenzo, Ram and Cesar were the ones who fired shots, while Tisoy focused on a security guard at a store. After the shooting, they separated ways: the owner-type jeep he was riding in headed towards Santolan; Cesars group split so that three (3) of them rode the L-300 van and the three (3) others boarded a car stolen from a woman driver. Upon reaching Commonwealth Avenue and Tandang Sora, they stopped at Glori Supermarket where all the firearms used were returned to the group, including the revolver earlier given to Joel. It was already dusk when Lorenzo dropped him off at the tricycle parking area at Camaro St.16 Joel further stated that the ambush-slay of Abadilla was planned by the group three (3) days before, when they met at the house of Ram de Jesus also in Fairview near his house. Although he did not know the identity of the person who masterminded the ambush-slay of Abadilla, he described the mastermind as the one (1) who opened Abadillas car and pulled Abadilla from the inside of the car, and he was also the one (1) who drove the L-300 van. Lorenzo told him he should not worry because Lorenzo would take care that he would be compensated for his participation. When they reached Katipunan Avenue, they alighted from their respective vehicles to wait for Abadilla. The L300 van where the mastermind and Cesar rode was just behind Abadillas car. There was no more order given to fire because when traffic stopped the vehicles on the road, those in the L-300 van just got down, positioned themselves and fired upon Abadilla. The mastermind not only fired at Abadilla from outside the latters car, he even made sure Abadilla was dead, as half of his body went inside the car, firing again at Abadilla before finally dropping him to the ground. Joel added that he just remained silent after the incident, for which he did not earn anything and was threatened by one (1) of those who were in the L-300 van whose name he did not know.17 In his second statement, Joel pointed to his cohorts in a police line-up inside the CID-CPDC, PNPNCR, Camp Karingal, Quezon City where he positively identified Rameses de Jesus ("Ram"), Cesar Fortuna, Lenido Lumanog and PO2 Romeo Costibolo as among those who participated in the ambush-slaying of Abadilla on June 13, 1996.18 The afore-named suspects identified by Joel were apprehended during further follow-up operations conducted on June 20, 1996 by "Task Force Rolly" subsequently formed by the PNP after the lead initially provided by him. As mentioned in the Joint Affidavit executed by Police Senior Inspector (P/Sr. Insp.) Ronello N. Navarro, Police Inspector (P/Insp.) Ferdinand A. Marticio, SPO4 Wilfredo G.

Galvan and SPO1 Allan dela Cruz dated June 21, 1996, as early as June 15, 1996, or two (2) days after the ambush-slay of Abadilla, their investigation already established the identities of a number of suspects through photo files and forensic sketches of suspects provided by eyewitnesses.19 Said arresting officers were also able to seize certain firearms and other pieces of evidence, to wit: 4. That after SPO2 cesar Fortuna revealed the whereabouts of the slain victims stolen cal .45 pistol, we conducted a follow up in a gunsmith located at Sampaloc, Manila on 21 June 1996, from where we held for investigation, one DANTE MONTEVIRGEN y VILLANUEVA, 37 years old, married, self-employed/gunsmith, native of Pula, Oriental Mindoro and with given address at 1412 Riverside Street, Commonwealth Avenue, Bgy. Holy Spirit, Quezon City. 5. That upon confrontation said subject person surrendered two (2) cal .45 pistols whom suspect Cesar Fortuna allegedly brought to him for repair/tampering of serial numbers, to wit: (a) 1- COLT MARK IV cal .45 pistol Govt Model SN-66B5574; and (b) 1-COLT MARK IV cal .45 pistol Series 70 SN-647048. 6. On the same day, 21 June 1996, after SPO2 Cesar Fortuna expressed willingness to surrender the motorcycle allegedly used in casing and surveillance upon the deceased victim, we took said motorcycle at Gate 2 of Camp Crame along Santolan Road (Col Bony Serrano Avenue), Quezon City, to wit: 1- Unit, KAWASAKI motorcycle without license plate, chassis No. C-5121696, Motor No. 658 122951 7. That the aforenamed subject person together with the property/articles recovered were turned over to the Police Headquarters for investigation and appropriate action; x x x20 With respect to Lorenzo delos Santos, he also executed a statement dated June 21, 1996 admitting his participation in the ambush-slay of Abadilla on June 13, 1996, and pointing to Rameses de Jesus as the mastermind and also named the following suspects: "POGS" whose real name was Lenido Lumanog, Joel de Jesus alias "Tabong," Cesar Fortuna and four (4) others whom he did not know. He said that he was just brought along by Rameses de Jesus and was further threatened that if he would not go with them, they would kill his family. He claimed that he merely acted as a lookout. As similarly recounted by Joel, Lorenzo stated that the group used an L-300 van, a car and a jeep in going to Katipunan Avenue in the morning of June 13, 1996. Joel had a .45 cal pistol, Cesar a .38 revolver, Lenido a 9 mm., a certain Manuel dela Rosa who did not get out of the vehicle, carried a .38 cal revolver, and Lorenzo, also a .38 cal revolver. Rameses, Joel, Cesar and Lenido were the ones who shot Abadilla. After the shooting, the group left him behind and he just walked on the street before taking a taxi ride to the Bureau of Customs. Lorenzo maintained that he was not given any money. He was just picked up from his house at Ruby St., Fairview Subdivision by Rameses, Lenido, Cesar and Joel. He was made to board Rameses car with a warning that if he did not join the group, they would throw a hand grenade at his family.21

In his Karagdagang Salaysay dated June 21, 1996, security guard Freddie Alejo positively identified Joel and Lorenzo during a police line-up. Alejo confirmed these two (2) as the persons he saw from his guard post walking to and fro before the shooting incident. They were also the ones who shouted that no one (1) should interfere at the time the four (4) armed men were firing shots at Abadilla.22 SPO2 Cesar Fortuna y Abudo, Rameses de Jesus y Calma, Lorenzo delos Santos y Dela Cruz, Lenido Lumanog y Luistro, Joel de Jesus y Valdez and Arturo Napolitano y Caburnay were charged in Criminal Case No. Q-96-66679 with theft of the alleged gun owned by the late Abadilla (Colt Mark IV cal .45 pistol SN-66BS574), a gold-plated Omega wristwatch and a wallet containing an undetermined amount of cash plus calling cards and other important papers, all of which were supposedly stolen by them after killing Abadilla.23 On the other hand, Lorenzo delos Santos y Dela Cruz, SPO2 Cesar Fortuna y Abudo and Rameses de Jesus y Calma were respectively charged with illegal possession of firearms (Presidential Decree No. 1866) in Criminal Case Nos. Q-96-66680, Q-96-66682 and Q-96-66683.24 All the seven (7) named accused in Criminal Case No. Q-96-66684 were indicted for Murder under the following Information: That on or about the 13th day of June, 1996 in Quezon City, Philippines, the above-named accused, conspiring together, confederating with several other persons whose true names, identities, whereabouts have not as yet been ascertained and mutually helping with one another, did then and there, wilfully, unlawfully and feloniously with intent to kill, with evident premeditation, treachery, in consideration of a price, reward or promise, and taking advantage of superior strength, attack and employ personal violence upon the person of COL. ROLANDO ABADILLA y NOLASCO by then and there shooting the latter with the use of different kinds of firearms, hitting him on the different parts of his body, thereby causing the instant and immediate cause of his death, to the damage and prejudice of the heirs of the said COL. ROLANDO ABADILLA y NOLASCO. Contrary to law.25 When arraigned, all the accused pleaded not guilty to the murder charge. In view of the dismissal of the criminal cases for illegal possession of firearms (P.D. No. 1866) and theft (Criminal Case Nos. Q-96-66679, Q-96-66680, Q-96-66682 and Q-96-66683),26 our discussion of the proceedings before the trial court will be confined to the case for murder against Fortuna, Lumanog, Joel de Jesus, Rameses de Jesus and Santos. Evidence for the Prosecution The prosecution presented the testimonies of police officers who conducted the investigation and follow-up operations up to the actual apprehension of suspects in the killing of Abadilla: SPO2 Wahab Magundacan, PO2 Gerardo Daganta, Maj. Edward Villena, P/Insp. Rogelio Castillo, SPO2 Jose Garcia, Jr., SPO3 Romeo De Guzman, SPO2 Pio Tarala, Atty. Florimond Rous, P/Sr. Insp. Jose B. Macanas and P/Insp. Ferdinand Marticio. The testimonies of P/Insp. Castillo, SPO2 Garcia, SPO2 Tarala, Atty. Rous and P/Sr. Insp. Macanas were given in court in the light of serious allegations of torture, forced confessions and violations of constitutional rights raised by the accused, which were widely reported in the media and brought before the Commission of Human Rights (CHR) and eventually to Amnesty International-USA.

P/Insp. Castillo, testifying on cross-examination, admitted that accused Joel de Jesus was apprehended by members of his squad led by Lt. Rodolfo on June 19, 1996, but said suspect was not presented to him until noontime of the next day, June 20, 1996. He did not ask his men if Joel had been subjected to investigation and if he was, whether he was assisted by counsel. He explained that there were still then follow-up operations in which they needed Joel. As for the press conference wherein Joel was presented together with then Secretary Barbers and General Recaredo Sarmiento, he learned about it only later.27 The witness declared that the constitutional mandate and requirements under Republic Act (R.A.) No. 7438 had been complied with because he secured the services of a counsel during the interrogation of then suspect Joel de Jesus when his sworn statement was taken on June 20, 1996. He had informed the said suspect of his right to counsel in the presence of CID personnel and when he brought him to the office of Atty. Confesor R. Sansano of the Integrated Bar of the Philippines (IBP) located at the second floor of the Hall of Justice, Quezon City Hall. Asked why it occurred to him to bring the suspect to the IBP, the witness replied that he believed IBP was a private, not a government, institution. He also asked Joel -- who was allowed to make a telephone call, although he was not aware if Joel made any such call -- whether he had his own lawyer. He recalled asking Joel if he was willing to go with them to the City Hall, because he had asked to secure the services of counsel. There had been instances when the IBP lawyers assisted some suspects brought by the CPDC. The CPDC provided the typewriter and papers to be used and in this case, Atty. Sansano accommodated them in using the facilities of the IBP Chapter office. Joel executed his statement, with SPO2 Jose L. Garcia, Jr. propounding the questions. They started taking his statement at 1:10 p.m. of June 20, 1996 at Room 235, IBP Office, Quezon City Hall of Justice in the presence of Atty. Sansano and a number of people inside said office.28 He was apprised for the first time about a suspect (Joel) who was just apprehended when he called their office upon arriving home on the night of June 19, 1996. The information was given to him by the desk sergeant and thereupon he gave instruction to contact the witness and include that suspect in a line-up. He then informed their Chief regarding this development. When he asked for the whereabouts of this suspect, he was given the reply that the suspect was still with their squad conducting follow-up operations.29 P/Insp. Castillo recounted that he reported to the office at 8:00 oclock in the morning of June 20, 1996 and Joel was actually presented to him by Lt. Rodolfo at 10:00 oclock that same morning, in the presence of CID men. He told Joel he was being implicated in the case, to which Joel replied "Sir, lookout lang naman ako, sir." This initial questioning of Joel took place at the investigation room of the CID, where there were other private complainants talking to investigators, and there were a number of policemen around who were not in uniform. He advised Joel that he was free to use the telephone, and although Joel had no relatives present at that time, he warned Joel that his case was serious and he must seek the services of counsel. He first thought of the legal assistance provided by the City Attorney, then that by the Public Attorneys Office (PAO), and lastly by the IBP. Between 12:30 and 1:00 p.m., he and his men, together with Joel in a separate vehicle, left the CID to go to the Quezon City Hall. They scouted for a lawyer and inquired from the IBP chapter office. They found Atty. Florimond Rous and the lady counsel at a hearing in a courtroom. Atty. Rous advised them to wait for Atty. Sansano, who apparently was the head of the IBP chapter office. He was moving in and out of the office while the statement of Joel was being taken in the presence of Atty. Sansano. Before that, Atty. Sansano talked to Joel alone, after which they were called in again for the taking of the statement at 2:00 p.m. They left City Hall at past 4:00 or 5:00 that afternoon.30 SPO2 Garcia, Jr. testified that he was a member of the CID-CPDC at Camp Karingal. On June 20, 1996 when he reported for duty, he was assigned by P/Insp. Castillo to take down the statement of Joel de Jesus. While still inside the office of P/Insp. Castillo, he asked Joel if his statement was voluntary and what kind of statement he was going to give. Joel answered that his statement was voluntary and he wanted to be included as state witness in the Abadilla case. Together with Joel, SPO2 Tarala and SPO1 Edilberto Nicanor, he took lunch at the back of their office before

proceeding to the Quezon City Hall at around 12:00 oclock noon, with P/Insp. Castillo who said that Joels statement would be taken infront of a counsel. At the Hall of Justice lobby, P/Insp. Castillo instructed them to guard Joel as he would look for a counsel. After more or less 25 to 30 minutes, P/Insp. Castillo came back and they proceeded to the second floor of the office of the IBP chapter. They were met by a lady secretary, and afterwards he saw P/Insp. Castillo talking to a lawyer whom he came to know as Atty. Rous. It seemed Atty. Rous could not decide on what P/Insp. Castillo told him and said he (Atty. Rous) would first ask the permission of Atty. Sansano. They waited for Atty. Sansano, who arrived in about twenty (20) to twenty-five (25) minutes. Atty. Sansano and P/Insp. Castillo talked for about five (5) minutes and thereafter, Atty. Sansano requested them to leave, because he would talk personally to Joel. Atty. Sansano and Joel talked inside the room for five (5) to ten (10) minutes. Thereafter, he, P/Insp. Castillo, SPO2 Tarala and SPO1 Edilberto Nicanor went inside the room and that was the time Atty. Sansano announced that Joel was ready for the taking of his statement.31 SPO2 Garcia, Jr. further testified that he took down the statement of Joel using a typewriter in the office of Atty. Sansano. He brought said typewriter near the table of Atty. Sansano and a chair to sit on beside Joel. Joel was seated infront of the desk where Atty. Sansano was sitting. After completing the taking down of the statement, he gave it to Joel and asked the latter to read it. Joel read the typewritten statement and when he finished reading, he gave the same to Atty. Sansano. Atty. Sansano read all the contents of the document and asked Joel if he understood it, to which he answered "Yes, sir." Atty. Sansano then asked Joel if he was willing to sign the statement, to which the latter again replied in the affirmative. Joel signed the statement in his presence and also that of Atty. Sansano, who likewise signed it in his presence. SPO2 Garcia, Jr. also identified his own signature and that of SPO1 Nicanor who signed the statement in his presence. From the office of Atty. Sansano, they proceeded to the fourth floor in the office of Prosecutor Ramon Gerona before whom Joel subscribed his statement. After reading the statement, Fiscal Gerona explained to Joel in Tagalog the consequences of the statement he executed. Joel was calm and said he was only a lookout in the crime. Earlier, before propounding questions to Joel at the office of Atty. Sansano, the latter addressed Joel in Tagalog: "Joel naiintindihan mo na ang mga itinatanong sa iyo ng mga pulis? Ito ba sarili mo o boluntaryo ba tong statement mo na ito hindi ka ba nila tinakot, sinaktan o anupaman?" While Joel was answering his questions, Atty. Sansano halted him from typing the answer given by Joel to ask the latter if he could understand the question propounded to him. The witness was also asked to identify Joel de Jesus inside the courtroom.32 On cross-examination, SPO2 Garcia, Jr. affirmed that before the taking down of the statement, he had explained to Joel the consequences of his being a state witness, in accordance with the instruction of P/Insp. Castillo. He specifically explained to Joel: "Itong statement na ito ay puwedeng gamitin laban o panig sa yo sa alinmang hukuman dito sa Pilipinas. Ikaw ba ay nakahandang tumestigo sa mga sasabihin ng tao dito sa statement mo na ito na magiging laban sa kanila." Joel told him, "Yes, sir." P/Insp. Castillo had told him that Joel was to turn state witness before the latter was brought to the IBP Office. When P/Insp. Castillo had returned to the lobby of the Hall of Justice, he told them that the only person present who would act as Joels counsel would be located at the IBP Office, and Joel would be brought there. It was his first time to meet Atty. Sansano. As to whether Joel was also assisted by Atty. Rous when he was investigated on June 21, 1996, the witness said he did not know.33 Regarding the portion of the statement dated June 20, 1996 wherein he asked Joel about a pending case against him, which Joel identified as a rape case, he denied having knowledge of any such pending case before the taking of the statement. He also did not ask Joel if he already had a counsel, or if Joel already knew Atty. Sansano. Another lawyer, Atty. Rous, was actually present when he was taking Joels statement at the office of Atty. Sansano, who was also present throughout the time he was taking down the statement of Joel. He did not hear Joel mention the name of another lawyer to Atty. Sansano, specifically that of Atty. David as suggested by defense counsel.34

SPO2 Tarala testified that as a member of the PNP Station in Kamuning, Quezon City, assigned at the CID, he came to investigate accused Lorenzo delos Santos on June 21, 1996. On that day, after lunch, he was instructed by P/Insp. Castillo to proceed to the Public Assistance and Reaction Against Crime (PARAC), Dallas Bldg. in Tomas Morato Avenue, because one (1) of the suspects in the Abadilla slaying was apprehended by the PARAC follow-up team and was supposed to give his statement. So he went there together with SPO1 Primo Borito and PO3 Ramil Hatchero. Upon arriving at said office, he met P/Sr. Insp. Macanas, who called a person he introduced as Lorenzo delos Santos. Before taking down the statement of Lorenzo, he advised the latter of his rights under the law, warning that any statement he would make could be used against him in any court of law, so that he had the right not to answer any question which to his mind would incriminate him. Lorenzo responded by saying that he wanted to give a statement and to be a state witness. When Lorenzo asked if he could use a telephone at the information table, he said yes. Lorenzo then called his office because he was a customs broker, and also called up a relative who was a certain Col. Sala (Col. Milagros Sala), a Quezon City police official. He told Lorenzo that he should have a lawyer of his choice during the taking down of his statement. He prodded Lorenzo to call the lawyer, whom Lorenzo knew to be always at the City Hall. They then proceeded to the Quezon City Hall to look for that lawyer at the Office of the City Attorney. However, Lorenzo was not able to find said lawyer; he asked somebody (a woman) who referred them to the Hall of Justice. After failing to find the person Lorenzo was looking for to be his counsel, an old man, a vendor suggested to them to go upstairs at the IBP Office. The lady secretary of the IBP chapter office introduced them to Atty. Florimond Rous, who then asked him and his companions to step out of the room so Atty. Rous could talk to Lorenzo. Atty. Rous and Lorenzo talked for ten (10) to fifteen (15) minutes, after which they were called again to enter the office. His two (2) companions were left outside and he was told by Atty. Rous that he had already apprised Lorenzo of his rights, but Lorenzo still wanted to give a statement.35 Upon the instruction of Atty. Rous, he took down the statement of Lorenzo, the three (3) of them in one (1) corner of the room while over at the receiving area there were the secretary and a lady lawyer. The statement of Lorenzo was in Tagalog, typewritten in question-and-answer form. Each time after he had asked a question, Atty. Rous would in turn ask Lorenzo if he wanted to answer it, and Lorenzo would answer yes. He was at the typewriter, and the two (2) (Atty. Rous and Lorenzo) were infront of him, seated across each other. The taking of the statement started at about 3:10 in the afternoon and was finished in more than one (1) hour. He asked Lorenzo to read first his statement, and then Atty. Rous read it also. Next, they went up to the office of Fiscal Refuerzo, but was referred by the secretary to the inquest fiscal on duty, Fiscal Ben dela Cruz. At his office, Fiscal dela Cruz asked Lorenzo to stand infront of him and asked if the statement was voluntarily given by him, if what was contained therein was true, and if he was ready to swear before him. Lorenzo answered yes, and the subscribing of his statement before Fiscal dela Cruz was also witnessed by Atty. Rous.36 Lorenzo had earlier told him and his companions at the PARAC office that his participation in the ambush-slay of Abadilla was that of a lookout, and that he was only forced to join the group because of the threat to his family.37 SPO2 Tarala admitted that the first time he went to the IBP Office at the Hall of Justice was on June 20, 1996 when SPO2 Garcia, Jr. took the statement of Joel de Jesus. Since only SPO2 Garcia, Jr. and Joel stayed inside the room, he and his companion just walked around.38 Atty. Rous testified that he was one (1) of the free legal aid counsels of the Free Legal Aid Committee of the IBP-Quezon City Chapter. One (1) of their primary duties was to assist indigents in their cases, and aside from this, they were also tasked to assist the various suspects during custodial investigations in the various investigations of different agencies, such as the CIS and PNP. He recalled handling at least ten (10) to fifteen (15) of such custodial investigations. On June 21, 1996, he assisted a person by the name of Lorenzo delos Santos accompanied by a police investigator (whose name he could no longer remember) from the Central Police District, who told him that the said suspect was willing to make a confession and asked if he could assist him during

his custodial investigation. He identified Lorenzo inside the courtroom.39 The police investigator had informed him of the charge against Lorenzo, which was the killing of Abadilla.40 Before the start of the investigation of Lorenzo, Atty. Rous related that he asked the policeman to leave him and Lorenzo. When the investigators were gone, he asked Lorenzo to remove his shirt so he could see if there were any tell-tale marks of any harm or specific mark upon him. Having satisfied himself that there were no such mark on the suspects body, Atty. Rous began interviewing him. He asked Lorenzo if he was willing to execute a confession, and Lorenzo answered he was willing to do so. He then asked Lorenzo if he was willing to have him as his counsel. Evidently, Lorenzo wanted him to be his counsel during the custodial investigation for the taking of his statement. Convinced that Lorenzo was giving his statement without any pressure or force, they started the investigation proper. The police investigator who accompanied Lorenzo to their office was the one (1) who had propounded questions in Tagalog and typed the answers given by Lorenzo also in Tagalog. He was just within hearing distance and was present during the entire time of the taking of Lorenzos statement. Afterwards, he let Lorenzo read the typewritten statement, and he asked Lorenzo if those were the questions given to him and the answers he had given, to which he replied in the affirmative. He further asked Lorenzo if he was willing to sign the statement without pressure, and Lorenzo said he was willing to sign the same. He asked Lorenzo to sign his statement before the office of Prosecutor Ben dela Cruz. Prosecutor dela Cruz first read the statement and then asked Lorenzo if he was willing to sign the same, and he answered in the affirmative. Lorenzo signed the statement in their presence; he and Prosecutor dela Cruz also signed it.41 Atty. Rous further testified on cross-examination, that after the police investigator and Lorenzo had left, a few minutes later, some other investigators arrived at their office, bringing along Joel de Jesus. This Joel de Jesus had given a statement the previous day, June 20, 1996, and he was told that Joel would be giving this time a supplemental statement. The investigators apprised Joel of his constitutional rights before the taking down of his statement. He was not sure if Lorenzo and the police investigator had actually left already, and he could not remember exactly what transpired at this point. The defense counsel noted the absence of the word "competent" to qualify the word "counsel" in the preliminary portion of Lorenzos statement. Atty. Rous described the answers given by Lorenzo as spontaneous, and he did not recall any hesitancy on the part of the latter. He maintained that he found no contusions or abrasions on Lorenzos body.42 P/Sr. Insp. Macanas testified that he was then assigned at the PARAC as its operations officer. They were closely coordinating with and sharing evidence for case build-up operations with the CPDC in the investigation of the killing of Abadilla. On June 19, 1996, at around 3:00 oclock in the afternoon, they were directed to proceed to the CPDC headquarters in view of an information that a certain suspect alias "Tabong" was already located while repairing his tricycle somewhere in Fairview, during which he was identified by an eyewitness, security guard Alejo who went there with CPDC operatives. At the time this radio message was received, they were within the vicinity of Fairview, and the CPDC gave the signal for them to accost said suspect. He was present when "Tabong," who was later identified as Joel de Jesus, was arrested by the joint elements of the CPDC and PARAC. Joel was turned over to the CID-CPDC at about past 4:00 p.m. Subsequently, their superior, P/Sr. Supt. Bartolome Baluyot, informed them of revelations given by Joel, for which they were called in again for joint follow-up operations. They brought Joel to Fairview along Ruby St. where Joels supposed companions, namely: one alias "Ram," Lorenzo delos Santos, Ogie and one (1) alias "Cesar," could be found. Joel first pointed to the house of Ram (Rameses de Jesus), but they did not find him there; instead they found a man named Cesar Fortuna, whom Joel pointed to infront of said house. They immediately apprehended Fortuna and identified themselves. He informed Fortuna that he was being implicated by Joel in the killing of Col. Abadilla. Fortuna introduced himself as a policeman assigned with the Traffic Management Command (TMC). As a standard procedure, they informed Fortuna of his constitutional rights and then brought him to the CPDC for investigation. At the time, Fortuna had a gun (caliber .38) tucked in his waist, which they confiscated.43

P/Sr. Insp. Macanas further testified that in the course of their follow-up operations, with information being provided by Joel, they were also able to arrest another suspect alias "Larry," whom they met at a dark alley. Upon being pointed to by Joel, they apprehended Larry who was later identified as Lorenzo delos Santos, frisked him and found in his possession a cal .38 Smith and Wesson, for which he could not present any license or document. They brought Lorenzo to the CID-CPDC. He identified both Lorenzo and Fortuna inside the courtroom.44 On cross-examination, the witness admitted they had no warrant of arrest when they went to Fairview to locate the suspects, as it was a "hot person" case ordered by their superior and requiring the immediate arrest of suspects identified by witnesses like, in this case, Joel. Joel had admitted to the CID-CPDC investigators his participation in the Abadilla killing. After accosting Joel at Camaro St., whom they identified through a photograph, and before taking him to the CID-CPDC, he informed Joel that he was identified as one (1) of the suspects in the killing of Col. Abadilla; that he had a right to remain silent; that anything he will say could be used against him; he had the right to counsel of his own choice, and if he could not afford one, the government would provide him. As to Lorenzo, he was arrested past midnight of June 20, 1996; they had brought Joel along while moving to locate Lorenzo.45 He was just at the back of those operatives who actually arrested Lorenzo.46 The principal witness for the prosecution was Freddie Alejo, who testified that as a security guard employed by Provider Security Agency, he was then assigned at 211 Katipunan Avenue, Blue Ridge, Quezon City. On June 13, 1996, he reported for duty at 7:00 oclock in the morning. By 7:30 a.m., he noticed two (2) men walking back and forth infront of his post. He was shown by the prosecutor some photographs taken of the parking area he was then guarding, his guard post beside the building and the street infront of said building (Exhibits "G", "H", "I" and "J"47). Alejo recounted that there was a man riding in a black car who was shot by four (4) persons infront of the building he was guarding. The car was in the middle lane of the road, and the cars specific location was found in one (1) of the photographs (Exhibit "H-4"48). One (1) of the two (2) persons he earlier saw walking back and forth in front of him pointed a gun at him (the position of said man was marked as Exhibit "H-5"49). That man was holding a short gun and he told Alejo to come down ("Baba!"), but he did not budge. He then saw one (1) of the assailants (No. 1 in Exhibit "H"50), the one (1) standing on the left side of the car (left front door), grab the victim by the neck, get the clutch bag of the victim inside the car, pull said victim out of the car, and drop him on the road. He then heard another shot coming from said attacker (No. 1). Another man (No. 5 in Exhibit "H"51) shouted: "Dapawalang makikialam!" and the rest of the four (4) men (marked as Nos. 2, 3 and 4 in Exhibit "H"52) faced him (witness Alejo). Next, the companion of No. 5, who was earlier walking back and forth infront of him (marked as No. 6 in Exhibit "H"53), pointed a gun at him. This time, he did come down, lowering his body and bowing his head inside the guardhouse. The witness identified the suspects inside the courtroom as the persons he saw and marked as No. 5 (Joel de Jesus) the first one who pointed a gun at him shouting "Baba ka!"; No. 1 who grabbed the victim, got his clutch bag and pulled him out of the car (Lenido Lumanog); No. 2 (Rameses de Jesus); No. 6 the second person who pointed a gun at him (Lorenzo delos Santos); No. 4 (Augusto Santos) and No. 3 who was positioned at the right front door of the victims car (Cesar Fortuna). Nos. 1 and 3 (Lumanog and Fortuna) were the ones who shot the victim with short firearms, while No. 2 (Rameses) was just standing and facing the victim with a gun in his hand, and No. 4 (Augusto) was also just standing facing the driver and holding a short gun. It was probably less than a minute when the gunfire stopped, and he stood up at his guard post. The assailants were no longer in sight and he saw the cars window shattered. He identified the victims black car as shown in photographs (Exhibits "A-1" to "A-4"54).55 Alejo further testified that he was one (1) of those asked by the policemen who arrived regarding the incident. He was told to go to Station 8, which was just near the place. At Station 8, another security guard of an adjacent building was also being investigated. Thereafter, the police officers brought him to Camp Karingal, along with the other security guard.56

On cross-examination, Alejo described his guard post as elevated; and two (2) arms length on the left and right side, there was an alley just beside the guard post which was at the corner.57 The victims car was infront of the building he was guarding, at a slightly slanted direction from it ("Lihis po ng konti"). His view was toward the direction of the front door of the car (rear end). From where he was at the time, the car was at a distance of more or less ten (10) meters. The first time one (1) of the suspects pointed a gun at him, he was not scared. He saw four (4) men standing around the victims car, two (2) on the left side, and two (2) on the right side. He saw only two (2) of them (the ones at the front left and right sides of the car) shooting at the car; they were carrying short firearms. One (1) of these two (2) got the clutch bag (at the left front side of the car), grabbed the victim by the neck and shot him once before dropping him down the road. Even if he could not see the gun when that assailant pulled the victim from the car, he knew that the victim was shot again, because he saw a gun smoke just beside the left side of the car where the victim was dropped. The second man who pointed a gun at him shouted "Dapa!" and thereupon his companions (the ones at the right rear side, left rear side, and front right side) faced him for less than a minute. Because at that precise moment the gun was not yet poked at him, he was able to recognize their faces. When finally the gun was pointed at him, he became nervous and bowed down his head inside the guard house. The color of the clutch bag taken from the victim was black. He could see the inside of the car from his guard post because the cars glass window was not tinted and, besides, his position was elevated or higher than the height of the car.58 He confirmed the contents of his Sinumpaang Salaysay (Exhibit "L") before policeman Edilberto Nicanor on June 13, 1996 taken at the CID-PNP, Camp Karingal at 1:55 p.m. or barely four (4) hours after the shooting incident.59 Alejo further testified on cross-examination that on June 19, 1996 at around 2:00 oclock in the afternoon, he was fetched by four (4) policemen at his agency in Monumento and they told him they were going to Fairview. Before this, in the afternoon of June 18, 1996, they showed him a picture of a man wearing eyeglasses, but he told them he would not point a man in photographs, but would like to see the man in person. That was the second time he saw Joel de Jesus since the shooting incident on June 13, 1996. He executed a supplemental statement on June 21, 1996 when he identified said suspect in a police line-up.60 On September 26, 1996, the trial court conducted an ocular inspection of the place where the shooting incident took place, in the presence of the prosecutors, defense counsel, Alejo and Maj. Villena. Alejo was asked to demonstrate his exact location, the relative positions of the assailants and the victims car, and the entire incident he had witnessed in the morning of June 13, 1996. The Presiding Judge who took the same position of Alejo in the guardhouse made the following observations: COURT: From this position, the Presiding Judge can see the car very clearly even if the car would be moved back by another segment of the cement or even if it is forwarded by another segment also, as segment can accommodate one car of the likes of Honda Accord and the Court observes that from the guard post the faces of the persons beside the car are very clear. xxx COURT: The Court observed that from where the witness Alejo was he can still see the whole car as it has been moved back per the directive of Major Villena. xxx

COURT: The Court adds that from the position of the witness, Freddie Alejo, the Court can still see faces behind the car which can accommodate another car. xxx COURT: The front right window has been rolled down and also the back right window of the car have been rolled down with the left front door opened, the Court can observed the two (2) front seats particularly the upper portion, meaning the head rest and the back rest, half of the back rest, all the head rest can be seen. xxx INTERPRETER: (measuring the distance from the guardhouse to the black car). The measurement from the foot of the guardpost up to the right front door of the black car is fifteen (15) meters. xxx INTERPRETER: (Measuring the distance between the bodega to the black car) The measurement from the front portion of the bodega (papaya) to the side of the black car is 11.8 meters. xxx INTERPRETER: The measurementthe distance from where suspect No. 6 was standing to the guard house when measured is 7.34 meters, your Honor. xxx INTERPRETER: The distance from where suspect No. 5 was standing up to the guard house is 5.17 meters. xxx COURT:

After the demonstration while witness Alejo was demonstrating how [suspect No. 2] got the clutch bag and how [suspect No. 2] grabbed the neck of the driver of the black car, the Judge was at the guard post and saw for himself that [Alejo] clearly saw the taking of the clutch bag even if the untinted windows were closed and the pulling of the driver of the black car.61 P/Insp. Castillo, on re-direct examination testified that Atty. Sansano actively assisted Joel de Jesus during the time the latters Sinumpaang Salaysay was being taken by SPO2 Garcia, Jr. There were questions propounded to Joel which Atty. Sansano had told Joel not to answer, and advice was given by said counsel. They left Quezon City Hall at about 5:00 oclock in the afternoon and returned to the CPDC headquarters. He maintained that all the accused were brought before the City Prosecutor for inquest proceedings prior to the filing of the information in court.62 Susan Samonte-Abadilla testified that their family incurred expenses for the burial of her husband, repair of the Honda Accord and loss of the .45 cal gold cup pistol and Omega watch during the shooting of her husband. She further testified that she was very shocked and saddened by the tragic death of her husband. Because she led a practically sheltered life, it was difficult for her, as it was the older children who were now taking care of their businesses, which were attended to by her husband when he was still alive. Three (3) of her eight (8) children were still studying (Ana, 14; Nico, 13; and BJ, 10), and one had just graduated last March 1997.63 Merlito Herbas, in his Karagdagang Salaysay dated June 21, 1996, identified Joel de Jesus in a police line-up at the CID-CPDC, Camp Karingal, as one (1) of those men who shot the victim on June 13, 1996.64 However, not having been presented by the prosecution as witness, he testified for the defense declaring that none of those whom he saw during the shooting incident was present inside the courtroom. He produced a list of amounts he had received from Mayor Abadilla, totaling P30,000.00 in support of his claim that Mayor Abadilla did not fulfill his promise to give him exactly the same salary he was receiving as security guard (P6,000.00 monthly only instead of the P8,000.00 he used to receive as monthly pay), although he admitted having stayed for free inside the Abadilla compound from July 11, 1996 up to November 26, 1996. He was later told that he would no longer be presented as witness because the testimony of Alejo would be sufficient.65 Defense Evidence All the accused raised the defense of alibi, highlighted the negative findings of ballistic and fingerprint examinations, and further alleged torture in the hands of police officers and denial of constitutional rights during custodial investigation. P/Insp. Reynaldo D. de Guzman, firearms examiner and Chief of the Firearms Division of the PNP Crime Laboratory, testified that he conducted an examination of the slug recovered from the body of Col. Abadilla, as per request of the CPDC for cross-matching with a bullet also recovered from the body of another shooting victim, Suseso de Dios, i.e., whether or not they were fired from one (1) and the same firearm.66 The result of their microscopic examination was that the aforesaid bullets were fired from the same firearm.67 Dr. Jesse Rey Cruel, medico-legal officer of the CHR, testified that he examined accused Cesar Fortuna, Rameses de Jesus, Lenido Lumanog on June 25, 1996 and Lorenzo delos Santos on July 3, 1996. His findings showed that their bodies bore the following injuries: "(1) Fortuna - abrasions on forearm, elbow and knee; contusions on chest area; and incised wounds on the waist and legs68; (2) Rameses - contusions on chest, abdomen, knee and thigh areas69; (3) Lumanog - contusions on abdomen and lumbar region, and a horizontal lacerated wound on the forehead70; and (4) Lorenzo abrasions on the arms, contusions in thigh and knee, petechia marks (minute hemorrhages) between chest/abdomen and the penis, discoloration on right arm, and new scars on left arm, right

foot and second toe."71 All said wounds required not more than nine (9) days of medical attendance. The defense also presented pictures taken at the time of the examination.72 On cross-examination, Dr. Cruel opined that it was possible the injuries could have been self-inflicted and pointed out that the injury on the forehead of Lumanog was not complained of.73 Remedios Dedicatoria, a fingerprint examiner at the PNP Crime Laboratory testified on the results stated in a Dactyloscopy Report No. F-086-96 comparison of the latent prints lifted from the Honda Accord with Plate No. RNA-777, Kia Pride PTZ-401 and Mitsubishi Lancer car with the standard fingerprints of the accused. The only match was found in the specimen fingerprint of Rameses de Jesus with respect to the fragmentary prints lifted from the Mitsubishi Lancer car. None of the fingerprints of the accused is identical with the latent prints lifted from the Honda Accord and Kia Pride.74 On cross-examination, the witness stated that if a person had touched the car and rubbed it, there would be no fingerprint that could be lifted therefrom. She also admitted that no latent print was taken from inside the Honda Accord nor was there any fingerprint taken of the late Rolando Abadilla (only two [2] fingerprints were taken from his car). When asked if a person opened the car holding only the back portion of the handle, the witness answered that there would likewise be no fingerprint on the outside of the car.75 Joel de Jesus testified that on June 19, 1996, at around 3:00 oclock in the afternoon, he was at their street corner fixing his tricycle and was with Arturo Napolitano and Felicisimo Herrera. A van stopped and six (6) armed men alighted from it, among whom he recognized Antonio Rodolfo, Pio Tarala and Dario Aasco (whom he came to know when they charged him with rape on January 17, 1994, from which charge he was acquitted on June 19, 1996). He even greeted said cops, but they forced him into the van, and handcuffed and blindfolded the three (3) of them. They were brought to a certain house where they were boxed, kicked and slammed on the wall. When his blindfold was removed, the police officers were forcing him to admit that he killed Abadilla. Capt. Rodolfo was also there and he later identified the rest of those who picked him up as Romulo Sales, Lt. Castillo, Bartolome Baluyot, Major Reyes and Catalua. After he denied having anything to do with the killing, PO2 Tarala tried to suffocate him with a plastic bag. He could not breathe and lost consciousness. Recounting his ordeal in tears, the witness said that for one (1) hour his captors repeatedly inserted a plastic bag and boxed him. A younger looking man then slapped him saying that they had ambushed his father. While detained, he was only given water to drink and not allowed to contact his relatives. He was asked to sign by Lt. Castillo a seven (7)-page document, torturing him if he refused to do so. There were already other signatures on the edge and every page of said document (Sinumpaang Salaysay dated June 20, 1996). He denied the contents of this statement but admitted that he was brought to the IBP Office, Quezon City Hall. After signing, he heard Lt. Castillo call somebody saying, "Parating na kami dyan." He was then made to board a vehicle and was taken to the Quezon City Hall where a man wearing barong tagalog was waiting, asking if he was Joel de Jesus. When Lt. Castillo answered in the affirmative, the man just signed the document. He denied having met Atty. Confesor Sansano, nor was he told of his right to the assistance of counsel; he even told them the name of his lawyer at that time, but they just said, "Mas marunong ka pa sa amin."76 Testifying on cross-examination, Joel insisted that on June 13, 1996, he went home at around 10:00 oclock in the evening. He started plying his route at 6:00 oclock in the morning; he was hired (inarkila) by a passenger who asked him to bring her to an albularyo in Roosevelt Avenue, Novaliches. He admitted this was the first time he mentioned this, as it was not mentioned in his Affidavits77 which were prepared by the police. Atty. Lupino Lazaro assisted him in filing charges against the police officers and Atty. Hector Corpuz before the Department of Justice (DOJ). He admitted that he did not say anything about the illegality of his arrest and the torture he suffered prior to his arraignment.78 On re-direct examination, he denied having executed the Karagdagang Salaysay dated June 21, 1996 before the IBP lawyer, because at this time he was still detained in a safehouse where he remained until June 25, 1996. He was just forced to sign said document; after

signing it, he heard Lt. Castillo say to one (1) Fiscal Soler, "Fiscal, salamat." Thereafter, he and the other accused were presented in a press conference as suspects in the Abadilla slaying inside Camp Crame. During this time, he pointed to Lorenzo delos Santos and Augusto Santos, because they were his enemies at their place. He only pointed to them out of fear that he might be salvaged by the police and because of the torture. He really did not know Abadilla nor was he at any time within the vicinity of Katipunan Avenue on June 13, 1996. He knew Rameses de Jesus, being his longtime neighbor, and also Lumanog who ran for councilor in their place. All he knows was that his co-accused were picked up from their place, and he saw them only during the press conference. He affirmed the contents of the Sinumpaang Salaysay he executed before Police Major (Pol. Maj.) Escote with the assistance of Atty. Lazaro.79 Joel admitted that he was the one (1) who pointed out Cesar Fortuna and Rameses de Jesus to the PARAC investigators. He confirmed that he was known as "Tabong" in their locality. He also filed a complaint before the CHR against the same police officers.80 Cesar Fortuna testified that he was a member of the PNP assigned at Cagayan de Oro City. He came to Manila on June 7, 1996, as he was ordered by his superior, Col. Roberto Sacramento, to attend to the documents required for reassignment of some of their companions (as evidenced by a used Super Ferry ticket and an unused return ticket for June 20, 1996). On June 11, 1996, he went to the PNP Directorate for Personnel at the office of Insp. Oscar Alcala. However, on the night of June 19, 1996, he was arrested by PARAC operatives while he was at the house of an acquaintance, Rameses de Jesus, in Ruby St., Fairview. He had brought for repair a Ford Maverick Model 69 registered in the name of Col. Sacramento. At 11:00 oclock in the evening, his mechanic road-tested the car, but since he was left alone, he decided to go to the house of Rameses which was near the shop. Several armed policemen arrived and entered the house of Rameses. Not finding Rameses there, they asked him instead to go along with them. He was made to board an owner-type jeep and immediately blindfolded. After one (1) hour, they arrived at a place which he was told was the office of PARAC. Somebody approached him and he felt a lighters flame touch his chin. He then identified himself as a policeman, but was only told: "Walang pulis pulis dito." They kept on asking him where Rameses could be found. Still blindfolded, he led them to Palmera Subdivision where he knew Rameses had another house. Upon reaching Palmera, his blindfold was removed, but he was unable to locate the house until they went home at 5:00 p.m. In the morning of June 20, 1996, the policemen told him that he was just confusing them (nililito), but he explained that he had been to that house only once. The driver of the Honda Civic was already angry at him and inserted a .45 cal pistol in his mouth. They went back to the PARAC office, and he was interrogated about the Abadilla killing. He was informed that he was being implicated as somebody had pointed at him. When he still denied having any knowledge about the ambush-slay, he was repeatedly suffocated with a plastic bag placed on his head while he was handcuffed and blindfolded. After one (1) hour and due to hardship he suffered, he just told them he would admit whatever it was they wanted him to admit. He said that he acted as a look-out. They had him copy a prepared sketch and when his blindfold was finally removed, someone introduced himself as Col. Bartolome Baluyot who told him he just had to obey and he would not be hurt. Maj. George Reyes arrived, looked at the sketch and said it was not the place where Col. Abadilla was ambushed. He was blamed for that fiasco even as he said it was they who prepared the sketch. After an hour, they returned to Palmera Subdivision, Novaliches and this was already between 2:00 and 3:00 p.m. After rounding the area, he found the house, but Rameses was not there. He was made to sit the whole night in the kitchen.81 Fortuna continued to narrate that on June 21, 1996, he was made to lie down on a bench covered with a GI sheet and was asked where the firearm of Col. Abadilla was. When he answered that he really did not know about it, they electrocuted him and poured cold water on his body. He told them that if they needed a gun, he had a gun in Sampaloc, a .45 cal licensed firearm. Thereupon, they asked him to go to that place where Dante Montevirgen was the gunsmith. Only the policemen alighted from the vehicle and talked to Montevirgen. He saw that Montevirgen gave them two (2)

firearms, after which they went back to the PARAC office. On his licensed firearm, he just brought this for repair on May 10, 1996, saying "ayaw mag-automatic," while the other gun belonged to Capt. Regis, and these were covered by receipts. Next, they asked him about the Rolex watch of Col. Abadilla. When he denied having any knowledge about it, he was again electrocuted. He had filed a complaint before the CHR for the injuries inflicted on him and the violation of his rights. Aside from this case and the charge of illegal possession of firearms, he was also charged with an administrative case and a criminal complaint for carnapping (of the KIA Pride). The carnapping complaint was dismissed by Assistant Prosecutor Amolin on September 23, 1996. The Decision issued by P/Sr. Supt. Rodolfo N. Caisip of the PNP Headquarters Traffic Management Group also dismissed Administrative Case No. 96-09-03. He insisted that on the morning of June 13, 1996, he was at Camp Crame following up the reassignment papers of his colleagues, showing the letterorder issued by Col. Sacramento. He saw PO3 Ramon Manzano at the Office of the Directorate for Personnel at about 9:00 oclock in the morning. He left said office as soon as he got the folder, signed their logbook, gave it to SPO4 Mercado of the Office of PNP Personnel Highway Patrol. Then he went home to eat before proceeding to the Metro Traffic Force, Central District at the office of Col. Juanito de Guzman at Roces St., Quezon City, at around 2:00 oclock in the afternoon, for the renewal of the license of Col. Sacramentos driver.82 He also filed with the CHR an administrative complaint against those police officers who had illegally arrested, detained and tortured him. Fortuna further testified that PARAC operatives seized his Kawasaki motorcycle which he had left inside Camp Crame because it had no fender. However, the certificate of registration was lost since it had been in custody of the police; the Land Transportation Office (LTO) registration paper was locked inside, and he forgot what its plate number was. He admitted that he was able to use said motorcycle in June 1996 even with the missing fender. He left the motorcycle at Gate 2, Camp Crame before leaving for Cagayan de Oro City; as to his car, he left it at Pier 2. He admitted that he was the same person charged with kidnapping and serious illegal detention with ransom in Criminal Case No. 96-312, which was filed on July 15, 1996 in Mabalacat, Pampanga against him, Lumanog and Rameses by a certain Dr. Jesusa dela Cruz. Said case was transferred to the Quezon City RTC in the same sala of the presiding judge in this case. The filing of this case destroyed his reputation as a police officer and affected his children, who stopped going to school. He admitted though that he had once been dishonorably discharged from the service as a result of an extortion case filed against him. He had appealed his case and he was reinstated on August 20, 1983. A memorandum dated June 25, 1996 was issued by Col. Sacramento to attest to his moral character and loyalty to the service.83 He admitted that he never raised the issue of the legality of his arrest or the torture he suffered while in detention, during his arraignment. When confronted with his sworn statement submitted to the CHR, he admitted that he did not mention therein the pouring of cold water on his body, that he was asked to make a sketch of Katipunan Avenue, that a .45 cal pistol was inserted into his mouth and that there was no firearm confiscated from him at the time of his arrest. When he was apprehended on the night of June 19, 1996 at the house of Rameses at Ruby St., he was halfnaked standing outside at the balcony. He saw someones hand, but not the whole body of that person to whom he was shown that night, and he just heard from the policemen he had been positively identified.84 Fortunas claim that he was at Camp Crame following up papers in the morning of June 13, 1996 was corroborated by Oscar Alcala (Chief Clerk of the Recruitment and Selection Division) and SPO2 Ramon Manzano (Office of the Directorate for Personnel and Recruitment). However, Alcala could not present the particular logbook containing the record of the documents and transaction with Fortuna, as it could not be located, as it got lost after the office renovation in the early part of 1997. A xerox copy of the logbook entry was presented in court (Exhibit "70").85However, said witness admitted he was not the custodian of the said logbook, and he did not have personal knowledge of the date and time of the entries in Exhibit "70"; it was also SPO2 Manzano who xeroxed the said logbook entry.86 Manzano confirmed that he personally saw Fortuna in the morning of June 13, 1996, between 9:00 and 9:30, when Fortuna retrieved the papers he earlier submitted in May 1996.87

On further cross-examination, Fortuna admitted that he never told his lawyer (Atty. Ramonito M. Delfin) when they brought his complaint before the CHR that he had documents to prove he was at Camp Crame in the morning of June 13, 1996. He explained that the matter did not enter his mind because he had no food and no sleep for several days: "At the time my salaysay was taken from me, everything was still fresh and there were so many things that I wanted to say but I was not able to say because masama pa ang aking pakiramdam." Neither did he mention it to Fiscal Refuerzo who interviewed him after the press conference, as they did not ask him about it.88He had brought up such matter with his lawyer in another case not before the sala of the presiding judge in this case.89 Lorenzo delos Santos testified that on June 13, 1996, he left his house at Fairview and boarded a bus bound for Quiapo. Upon reaching Quiapo, he heard mass in Quiapo Church until around 8:30 a.m. He arrived in their office at Binondo on June 13, 1996 at 9:30 a.m. He remembered going to the office of the Felipe Santos Brokerage in the same building to check on the date of arrival of a certain shipment. Thereafter, he went back to his office and stayed there until 2:30 p.m. He left his place of work about 4:30 in the afternoon and went to a client who invited him to drink at the house of his brother somewhere in Quezon City. On June 19, 1996, at around 11:00 olock in the evening, several persons suddenly barged into his house while he and his wife were sleeping. Sgt. Bela introduced himself, and he was slapped and handcuffed and the house was searched. They took his .38 cal revolver which was licensed. He was blindfolded, made to board a car and taken to a safehouse where he was tied and tortured (suffocation with plastic bag and electrocution). He was told that he was pointed to by Joel, but he explained to them that Joel was his opponent in a court case (for grave threats, physical injuries and trespassing).90 He also answered their questions regarding his co-accused. He told them that he used to see Rameses when he brings his children to school and came to know Lumanog when he ran as city councilor, while he did not know Fortuna. After the interrogation, he was again subjected to torture and he felt weak; this lasted up to June 21, 1996. On June 21, 1996, he was brought to a field (bukid) where he was forced to sign a paper. He was then brought to the Quezon City Hall of Justice at the second floor and instructed that he should just walk along. There were two (2) women inside aside from policemen, and he was elbowed by a policeman to sign a document. He signed it out of fear, and the document was handed by the policemen to a man who entered the room, whom he later came to know as Atty. Florimond Rous. He was brought to another floor at the Fiscals Office while he was still limping. Somebody there asked why he was in that condition, but one (1) of his police companions elbowed him so he just said it was nothing. A man who was probably the Fiscal signed the document, and they left at around 5:00 in the afternoon.91 Lorenzo admitted he had an owner-type jeep, which was registered in his own name, but said jeep had been mortgaged to Danilo Lintag since May 27, 1996.92 Lorenzo presented as witness Edith Lingan, an employee of Felipe M. Santos, who corroborated his alibi.93 Augusto Santos testified that on June 13, 1996 at around 7:00 oclock in the morning, he accompanied his brother-in-law Jonas Ayhon whose wife, his sister, gave birth on June 11, 1996 at the Jose Fabella Hospital at Sta. Cruz, Manila. He stayed there until 2:00 oclock in the afternoon. On June 26, 1996, five (5) men suddenly barged into their house. He was hit in the neck with a .45 cal. pistol, blindfolded and brought outside where he was beaten. They had no warrant of arrest but were forcing him to admit that Joel de Jesus gave him big money and that he knew what it was. He told them that he did not know anything, and that Joel was his enemy, as his Tito Lorenzo had a quarrel with Joel in which he helped his Tito. He confirmed the contents of the Sinumpaang Salaysay dated July 3, 1996 which he executed at Camp Crame, and also presented a copy of the birth certificate of the baby delivered by his sister at Fabella Hospital.94 Jonas Padel Ayhon corroborated the foregoing testimony of his brother-in-law, Augusto "Ogie" Santos, whose half-sister was his wife.95

Rameses de Jesus testified that on June 12, 1996 at 7:00 oclock in the evening, he and Lumanog left for Mabalacat, Pampanga on board the latters brand new Mitsubishi Lancer, together with Romeo Costibollo, Manny dela Rosa and Boni Mandaro. They arrived in Mabalacat at about 10:00 oclock in the evening and after resting they started digging infront of the church, inside the compound of the Tiglao family, Lumanogs in-laws. They dug until 4:00 oclock in the morning of June 13, 1996. Thereafter, they slept and woke up at around 10:00 oclock in the morning. They helped in the preparations for the celebration of the wedding anniversary of the Tiglaos. After eating lunch, they drank liquor. They returned to Manila only on June 14, 1996 at 7:00 p.m.. On June 19, 1996, they went back to Pampanga and returned to Manila on June 20, 1996. At around 10:00 p.m., they proceeded to Fairview, Quezon City to visit the sick child of Romeo Costibollo who was then confined at Fairview Polymedic Hospital. After Costibollo and Lumanog alighted from their car and while he was parking infront of the hospital, several armed men came. Two (2) men approached him from behind and asked him if Costibollo and Lumanog were his companions. When he replied yes, he was pushed inside the car; Costibollo and Lumanog were handcuffed. Without any warrant, they were apprehended, blindfolded and taken to a place where he was tortured. They were forcing him to admit that he and his companions killed "Kabise" who was the ex-governor of Ilocos Norte. Despite his denials they continued to torture him by electrocution and suffocation with a plastic bag. A policeman arrived with Fortuna, who was asked how much Ram gave them, to which Fortuna replied "P10,000.00." He got mad at Fortuna and cursed him for telling such a lie. After two (2) days, he was brought to Camp Karingal still blindfolded. He was again tortured for two (2) days, the policemen forcing him to admit he participated in the killing of Col. Abadilla. When he could no longer bear the torture, he finally admitted to Insp. Castillo that he took part in the Abadilla ambushslay. When the one (1) interviewing him asked how he did it, he just said that Fortuna came to his house with an owner-type jeep and two (2) other persons, and that they rode to Dau, Pampanga and headed to Tarlac, on their way to Ilocos to kill Abadilla. Insp. Castillo got angry, saying that he was just fooling them and he was again hit.96 Rameses continued to narrate that after two (2) or three (3) days stay at Camp Karingal, he and the other accused were presented at a press conference. During the inquest conducted by Fiscal Refuerzo, he saw Freddie Alejo for the first time, and also his co-accused Lumanog, Fortuna, Lorenzo, Joel and Augusto. As far as he knew, they had brought the matter of the torture they suffered in the hands of policemen to the DOJ.97 On cross-examination, Rameses was shown a medical certificate issued by Dr. Servillano B. Ritualo III at the PNP General Hospital, Camp Crame, but he said he could no longer remember the date he was examined by said doctor. He confirmed that Fortuna was renting a room in his house together with his mistress "Baby." When confronted with his Sinumpaang Salaysay dated June 26, 1996 he executed before the CHR, he admitted that there was no mention therein of their treasure-hunting trip to Pampanga on June 12 to 15, 1996. He said he was never asked about it. He likewise admitted that he was included in the kidnapping charge filed in Mabalacat, but asserted that it was trumpedup ("Ipinatong po sa akin yan ni Col. Baluyot").98 The Trial Courts Verdict On August 11, 1999, the trial court promulgated a Joint Decision dated July 30, 1999, the dispositive portion of which reads: ACCORDINGLY, judgment is hereby rendered as follows: xxx V. In Criminal Case No. Q-96-66684, for Murder,:

1. Accused Arturo Napolitano y Caburnay is hereby ACQUITTED; 2. Accused SPO2 Cesar Fortuna y Abudo, Rameses de Jesus y Calma, Leonardo Lumanog y Luistro (a.k.a. Leonido or Lenido), Joel de Jesus y Valdez, and Augusto Santos y Galang are hereby found GUILTY beyond reasonable doubt as co-principals of the crime of MURDER as defined and penalized in the Revised Penal Code for the death of ex-Col. Rolando Abadilla y Nolasco with the aggravating circumstances of treachery (absorbing abuse of superior strength) and evident premeditation and they are hereby sentenced to suffer the penalty of DEATH; 3. Accused Lorenzo delos Santos y dela Cruz is hereby ACQUITTED. On the civil aspect, accused SPO2 Cesar Fortuna y Abudo, Rameses de Jesus y Calma, Leonardo Lumanog y Luistron (a.k.a. Leonido or Lenido), Joel de Jesus y Valdez and Augusto Santos y Galang are hereby ordered jointly and solidarily to pay the heirs of the deceased ex-Col. Rolando Abadilla y Nolasco the following: 1. As actual damages, the sum of P294,058.86; 2. As indemnity damages, the sum of P50,000.00; 3. As moral damages, the sum of P500,000.00; 4. As exemplary damages, the sum of P500,000.00. The firearm, one (1) Smith & Wesson .38 caliber revolver with Serial No. 980974, subject of Case No. Q-96-66680 is hereby ordered returned to Lorenzo delos Santos y dela Cruz. The firearm, one (1) Amscor .38 caliber revolver with Serial No. 21907, subject of Case No. Q-9666683 is hereby ordered forwarded to the PNP Firearms and Explosives Division, Camp Crame, Quezon City for safekeeping in accordance with law and as said firearm belongs and is licensed to accused Leonardo Lumanog y Luistro (a.k.a. Leonido or Lenido) who has been sentenced in Case No. Q-96-66684 for Murder, until further orders from this court. Costs against the accused. Let the entire records of these cases be transmitted forthwith to the Honorable Supreme Court for automatic review, in accordance with law and the Rules of Court. SO ORDERED.99 The trial court was firmly convinced that the prosecution succeeded in establishing the identities of accused Joel, Rameses, Lumanog, Fortuna and Augusto as the perpetrators in the fatal shooting of Abadilla in the morning of June 13, 1996. It found that both security guards Alejo and Herbas confirmed the presence of Joel de Jesus in the crime scene. However, with respect to the positive identification of all the five (5) accused, namely, Joel de Jesus, Rameses de Jesus, Cesar Fortuna, Lenido Lumanog and Augusto Santos, the trial court gave more credence to the testimony of Alejo than the declaration on the witness stand of Herbas who had backtracked on his earlier statement dated June 21, 1996 wherein he pointed to Joel as one (1) of those participants in the shooting incident.

In doubting the credibility of Herbas, the trial court stressed that Herbas was obviously disgruntled at the Abadilla familys failure to give him the promised salary, and circumstances showed that his need for job and money colored his perception and attitude in testifying for the defense. Moreover, despite the impression he had given to the police and the Abadilla family that he could identify the four (4) persons who surrounded Col. Abadillas car, Herbas could not have really been able to recognize the faces of the ambushers for three (3) reasons: (1) he was on the ground when he turned his head (lumingon) towards where the gunshots were being fired and quite a lot of vehicles in traffic stopped at the time; (2) the whole incident, as far as Herbas observed, happened in seconds only; and (3) Herbas was three (3) Meralco posts away from the ambush site. All these factors combined, according to the trial court, could not have given Herbas enough time and opportunity to clearly see those who ambushed Abadilla, and hence he was really a poor and inadequate witness either for the prosecution or the defense.100 Compared to Herbas, the trial court found the eyewitness testimony of Alejo more credible due to his elevated position at his guard post and the fact that the ambush had taken place before his very eyes, so near that one (1) of the conspirators had to order him to lie flat (which obviously he could not do because of the narrow space inside his guard house), and which appeared to be the reason why a second order came for him to get down from the guard house, to which he nervously complied. From his vantage point, Alejo sufficiently and in a detailed manner recognized the relative positions and participations of the ambushers, each of whom he had identified as Rameses, Fortuna, Lumanog, Augusto and Joel, both in the police line-up and again inside the courtroom during the trial.101 The trial court also found that the statements of Joel, in which he admitted his participation in the crime assisted by Atty. Sansano and in the presence of the IBP personnel and police investigators, were not flawed by intimidation or violence when obtained and sworn to before the fiscal. The common defense of alibi put up by all the accused was rejected by the trial court, holding that (1) the alleged treasure-hunting trip made by Lumanog and Rameses was incredible and unpersuasive, as it was contrary to ordinary human experience; (2) Fortunas claim was weak, the logbook entry on his supposed transaction in the Office of the Directorate for Personnel and Recruitment at Camp Crame was a mere photocopy, and also, as in the case of Rameses, he never mentioned such digging activity in Pampanga in the sworn complaint he had filed before the CHR; (3) Augustos alibi was supported only by his brother-in-law, and it was simply not usual for menfolk, instead of women, in our family culture, to fetch a woman who had just given birth at the hospital, aside from the observation that Augusto could have gone straight to Fabella Hospital in Sta. Cruz, Manila instead of going first to Buendia, Makati before 7:00 a.m. to fetch his brother-in-law. With respect to Lumanog, the trial court pointed out that his silence and failure to testify in court, despite the evidence implicating him in the murder of Abadilla, justified an inference that he was not innocent.102 On August 25, 1999, Lumanog filed a motion for reconsideration.103 On September 2, 1999, Joel filed a motion for new trial based on newly discovered evidence to present two witnesses, Merevic S. Torrefranca and Rosemarie P. Caguioa, who offered to testify on the whereabouts of Joel on the day of the incident.104 Lumanog likewise filed a motion for new trial for the presentation of a new witness, who was allegedly on board a taxi immediately behind Abadillas car, and who clearly saw that those who perpetrated the gruesome crime were not the accused.105 In his Supplement to the Motion for Reconsideration, Lumanog assailed the inconsistencies in the declarations of Alejo, and the nonpresentation of eyewitnesses Minella Alarcon and Metro Aide Aurora Urbano. In addition, Lumanog pointed to well-publicized statements of the Alex Boncayao Brigade (ABB), which claimed responsibility for the killing of Abadilla, but the investigation got sidetracked by another angle -- that a political rival of Abadilla paid money for a contract assassination. He contended that the police opted for the path of least resistance by rounding up the usual suspects, indeed another glaring example of our law enforcers strategy of instituting trumped-up charges against innocent people just to comply with their superiors directive to accelerate solving an ambush-slay case.106 In additional

pleadings filed by his new counsel, Lumanog reiterated the ABBs assassination theory in the light of more recent press statements issued by said group describing the accused as mere fall guys of the police to project an image of efficiency.107 On January 25, 2000, the trial court issued an Order ruling on the pending motions: WHEREFORE, premises considered, the court resolves: 1. to DENY the Motion for Reconsideration by accused Lenido Lumanog; 2. to DENY the Motion for New Trial by accused Joel de Jesus; 3. to consider the Motion for New Trial by accused Lenido Lumanog as abandoned and/or withdrawn; 4. to DENY the Supplement to the Motion for Reconsideration by accused Lenido Lumanog as well as his addendum thereto and his Manifestation and Motion dated December 15, 1999 to allow him to introduce additional evidence in support of his Supplement to the Motion for Reconsideration; 5. to DENY the Manifestation and Submission dated December 14, 1999 by accused Lenido Lumanog; 6. and to ORDER the immediate transmittal of the records of these cases to the Honorable Supreme Court for automatic review pursuant to law, the Rules of Court and the Joint Decision of this court dated July 30, 1999. SO ORDERED.108 On January 19, 2000, Fr. Roberto P. Reyes, parish priest of the Parish of the Holy Sacrifice, University of the Philippines at Diliman, Quezon City, assisted by Atty. Neri J. Colmenares, filed an "Urgent Independent Motion for Leave of Court to Present Vital Evidence." Fr. Reyes claimed that an ABB personality came to him confessing that the ABB was responsible for the killing of Abadilla and gave him an object (Omega gold wristwatch) taken from said victim, which can be presented as evidence in this case to prove the innocence of the accused who were erroneously convicted by the trial court and save them from the penalty of death.109 After due hearing, the trial court denied the said motion of Fr. Reyes, holding that the latters proposed testimony could not be considered an exception to the hearsay rule, considering that: (1) it cannot be said that the person who allegedly approached Fr. Reyes was unable to testify, as said person was simply unwilling to face in a court of law the legal consequences of whatever admissions he made to Fr. Reyes; (2) the alleged admission was made long after trial had ended and long after the court had promulgated its decision, at which time the public and persons interested in the outcome of the case knew already what were the courts findings and conclusions of fact; and (3) going by the advertised image of the ABB as an ideologically motivated group that would shoot to death public officers and private individuals perceived by its ranking cadres as corrupt, the court found it hard to believe that ABB gunman would in full view of idealist comrades and everybody else, would open Abadillas car and steal that watch, and remain unscathed for his unproletarian act by his peers in the organization.110 The trial court, however, ordered that the Omega wristwatch allegedly belonging to the late Col. Abadilla, the copy of the motion for leave to present vital

evidence and the transcript of the proceedings on January 26, 2000 be attached to the records of the case as part of the offer of proof of the defense. Two (2) more pleadings were filed by Lumanogs counsel just before the records of Criminal Case No. Q-96-66684 were transmitted to this Court for automatic review, namely, a Final Submission to This Court dated February 8, 2000, together with an attached copy of the letter of Lt. Gen Jose M. Calimlim of the Armed Forces of the Philippines (AFP) Intelligence Service regarding an unsuccessful operation of the ABB to kill Col. Abadilla, and Final Manifestation to This Court dated February 9, 2000.111 Lumanog challenged before this Court the validity of the Orders dated January 25, 26, and 28, 2000 allegedly issued with grave abuse of discretion on the part of the trial judge who thereby denied the accused the opportunity to introduce evidence on the alleged role of the ABB in the ambush-slay of Col. Abadilla. On September 7, 2001, we denied his petition for certiorari in G.R. No. 142065,112 as we thus held: A perusal of the pieces of evidence, except the Omega wristwatch, which are sought to be presented by the petitioners in a new trial are not newly discovered evidence because they were either available and could have been presented by the defense during the trial of the case with the exercise of due diligence, such as the alleged newspaper reports and AFP/PNP intelligence materials on Col. Abadilla. The wristwatch allegedly belonging to the late Col. Abadilla is immaterial to the case of murder while the testimony of F. Roberto Reyes on the turn over of the said wristwatch by an alleged member of the ABB who purportedly knows certain facts about the killing of Col. Abadilla would be hearsay without the testimony in court of the said alleged member of the ABB. The document which granted amnesty to Wilfredo Batongbakal is irrelevant to the killing of Col. Abadilla inasmuch as Batongbakal does not appear privy to the actual commission of the crime of murder in the case at bar. If at all, those pieces of additional evidence will at most be merely corroborative to the defense of alibi and denial of herein petitioners. Petitioners alternative prayer that this Court "itself conduct hearings and receive evidence on the ABB angle" is not well taken for the reason that the Supreme Court is not a trier of facts.113 Accused-petitioners motion for reconsideration of the above decision was denied with finality on November 20, 2001.114 On September 17, 2002, this Court likewise denied for lack of merit the motion for new trial and related relief dated April 26, 2002 filed by counsel for said accusedpetitioner.115 Pursuant to our decision in People v. Mateo,116 this case was transferred to the Court of Appeals for intermediate review on January 18, 2005.117 Ruling of the CA On April 1, 2008, the CA rendered the assailed decision, thus: WHEREFORE, in the light of the foregoing, the impugned decision is AFFIRMED with the MODIFICATION that the accused-appellants are sentenced each to suffer reclusion perpetua without the benefit of parole. In all other respects, the lower courts decision is AFFIRMED. Costs against appellants.

SO ORDERED.118 The CA upheld the conviction of the accused-appellants based on the credible eyewitness testimony of Alejo, who vividly recounted before the trial court their respective positions and participation in the fatal shooting of Abadilla, having been able to witness closely how they committed the crime. On the sufficiency of prosecution evidence to establish appellants guilt beyond reasonable doubt and the scant weight of their defense of alibi, as well as the allegations of torture and intimidation in the hands of the police investigator and negative results of ballistic and fingerprint tests, the CA ruled as follows: Despite a lengthy and exhaustive cross-examination by the defense counsel, eyewitness Alejo stuck to the essentials of his story, including the identification of the persons who killed Col. Abadilla. He was only ten (10) meters away from the locus crimini. Standing on an elevated guardhouse, he had a close and unobstructed view of the whole incident. He was in a vantage position to clearly recognize Col. Abadillas assailants, more so because the crime happened in clear and broad daylight. Even standing alone, Alejos positive and unequivocal declaration is sufficient to support a conviction for murder against appellants. Indeed, the testimony of a single witness, when positive and credible, is sufficient to support a conviction even for murder. For there is no law requiring that the testimony of a simple [sic] witness should be corroborated for it to be accorded full faith and credit. The credible testimony of a lone witness(es) assumes more weight when there is no showing that he was actuated by improper motive to testify falsely against the accused, as in the case of Freddie Alejo. xxx appellants failed to prove that it was physically impossible for them to be at the locus delicti or within its immediate vicinity at the time the crime was committed. In the case of Joel de Jesus, he maintains that he was driving his tricycle on a special chartered trip for a passenger going to Roosevelt, Novalichez, Quezon City. But, it was not impossible for him to have also gone to Katipunan Avenue, which is also part of Quezon City; not to mention the fact that with his tricycle, he could have easily moved from one place to another. The testimonies of Rameses de Jesus and Leonido Lumanog that they were treasure hunting in Mabalacat, Pampanga on the day in question, lack credence as they are unsupported by the testimonies of independent witnesses. At any rate, Rameses de Jesus admitted that they were using the new car of Leonido Lumanog. Hence, it was not physically impossible for them to travel to Quezon City via the North Expressway at the time the crime took place. Augusto claims that he was at the Fabella Hospital in Sta. Cruz, Manila, and his alibi was corroborated by his brother-in-law, Jonas Padel Ayhon, who is not an impartial witness. Where nothing supports the alibi except the testimony of a relative, it deserves scant consideration. xxx Finally, Cesar Fortuna claims that he was in Camp Crame on the day the murder took place. But it was not impossible for him to have gone to Katipunan Road, Blue Ridge, which is relatively near Camp Crame when the shooting happened around 8:40 in the morning. After the shooting, he could have easily and quickly transferred to Camp Crame between 9:00 and 9:30 in the morning of the same day.

In any event, appellants alibis were belied by the positive identification made by prosecution eyewitness Freddie Alejo. xxx Further, appellants allegations that the police authorities maltreated them, and forcibly extracted their extra-judicial confessions do not exculpate them from criminal liability. For one, their conviction was not based on their extra-judicial confessions, but on their positive identification of Freddie Alejo as the authors of the crime. Such positive identification is totally independent of their extra-judicial confessions. For another, the Constitutional guarantees contained in the Bill of Rights cannot be used as a shield whereby a person guilty of a crime may escape punishment. Thus, the Supreme Court in Draculan vs. Donato, held: "x x x. Pangalawa, ang mga karapatan ng mga mamamayan na natatala sa Saligang Batas (sa Bill of Rights) ay hindi mga paraan upang ang isang tunay na may pagkakasala na labag sa batas, ay makaligtas sa nararapat na pagdurusa. Ang tunay na layunin ng mga tadhanang iyon ng Saligang Batas ay walang iba kundi tiyakin na sinumang nililitis ay magkaroon ng sapat na pagkakataon at paraan na maipagtanggol ang sarili, bukod sa pagbabawal ng pagtanggap ng katibayan (evidence) laban sa kanya na bunga ng pagpipilit, dahas at iba pang paraang labag sa kanyang kalooban." To repeat, assuming that appellants allegations of torture were true, the same do not exculpate them from liability for the crime which the People had adequately established by independent evidence, neither was their claim that the results of the ballistics test purportedly showing that the bullets and bullet shells found in the crime scene did not match with any of the firearms supposedly in their possession. But these ballistic results are inconclusive and can never prevail over appellants positive identification by eyewitness Freddie Alejo as the persons who perpetrated the ambush-slay of Col. Abadilla. Besides, there is no showing that the firearms supposedly found in appellants possession long after the incident were the same ones they used in the ambush-slay.119 In its Resolution120 dated October 28, 2008, the CA denied the motions for reconsideration respectively filed by Fortuna and Joel de Jesus.121 Rameses de Jesus and Joel de Jesus filed notices of appeal122 (G.R. No. 187745), while Fortuna (G.R. No. 185123), and Lumanog and Augusto Santos (G.R. No. 182555) filed their respective petitions for review. On August 6, 2009, G.R. No. 187745 was ordered consolidated with the already consolidated petitions in G.R. Nos. 182555 and 185123.123 In view of the judgment of the CA imposing the penalty of reclusion perpetua, said petitions for review are treated as appeals, in accordance with A.M. No. 00-5-03-SC (Amendments to the Revised Rules of Criminal Procedure to Govern Death Penalty Cases)124 which provides under Rule 124 (c): (c) In cases where the Court of Appeals imposes reclusion perpetua, life imprisonment or a lesser penalty, it shall render and enter judgment imposing such penalty. The judgment may be appealed to the Supreme Court by notice of appeal filed with the Court of Appeals. Appellants Arguments Lenido Lumanog and Augusto Santos set forth the following arguments in their memorandum, which basically reflect the same issues raised by appellants in the memorandum filed in G.R. No. 182555: 1. The Court of Appeals did not make a real and honest review of the appealed case. There was a failure of appellate review, rendering its decision void.

2. The affirmation of the conviction over-relies on the testimony of one alleged eyewitness, Freddie Alejo. 3. The affirmation of the conviction misappreciates the alibi evidence for the defense. 4. The affirmation of conviction gravely erred when it unduly disregarded other pieces of vital evidence. 5. The penalty imposed by the Court of Appeals is unconstitutional.125 On his part, Fortuna alleges that: I. The Honorable Court of Appeals committed serious error and gravely abused its discretion when it affirmed the conviction of the petitioner and his co-accused based solely on the incredible and contradicted eyewitness account of Security Guard (S/G) Alejo. II. The Honorable Court of Appeals seriously erred and gravely abused its discretion in not considering the defense of petitioner herein despite the weakness of the evidence of the prosecution. III. The Honorable Court seriously erred in favoring the prosecution on the ballistic test showing that the bullets and bullet shells found in the crime scene did not match with any firearms supposedly in petitioners possession; evidence which was supposed to support the theory of the prosecution. When such physical evidence did not favor the prosecutions theory the same was still taken against the petitioner. IV. The Honorable Court of Appeals seriously erred in disregarding allegations and proof of torture and maltreatment by police officers against the petitioner in affirming his conviction.126 Appellants assail the wholesale adoption, if not verbatim copying, by the CA of the factual narration, as well as the arguments for and disposition of the merits of the case from the Consolidated Brief for the Appellees, which in turn is based on the memorandum submitted by the private prosecutors to the trial court. This anomaly, according to the appellants, which was aggravated by the insufficient findings of fact and absence of actual discussion of the assignment of errors raised by each appellant before the CA, resulted in the failure of intermediate review without any independent findings and resolution of important issues of the case, thus rendering the CA decision void. Hence, appellants seek not just to overturn or reverse the CA decision but also to declare it null and void, by way of "radical relief" from this Court. On the merits, appellants principally contend that the CA gravely erred in its over-reliance on the problematic identification provided by the prosecutions lone eyewitness, security guard Alejo. The CA simply did not rule on questions concerning the credibility of said eyewitness through the "totality of circumstances" test. They also fault the CA for misappreciating their common defense of alibi, thus disregarding exculpatory documentary evidence including negative results of ballistic and fingerprint examinations, and evidence of torture which appellants had suffered in the hands of police investigators. Equally deplorable is the trial and appellate courts refusal to admit evidence coming from underground revolutionary forces, in particular the ABB which claimed responsibility for the killing of Col. Abadilla, a notorious military henchman during the martial law era. Appellants maintain that violations of constitutional rights have been held as a ground for acquittal or dismissal in certain cases. In one (1) case, the long delay in the termination of preliminary investigation was found to be violative of the accuseds constitutional rights to procedural due process and speedy

disposition of cases and was cause for the dismissal of the case by this Court as a matter of "radical relief." Finally, the appellants argue that the penalty of reclusion perpetua "without the benefit of parole" meted by the CA pursuant to Sec. 3 of R.A. No. 9346 is unconstitutional. Article III, Section 19 (1) of the 1987 Constitution provides that "any death penalty imposed shall be reduced to reclusion perpetua." There is no mention of "without the benefit of parole" or "shall not be eligible for parole" therein. Appellants contend that the questioned provisions of R.A. No. 9346 constitute encroachments or dilutions of the Presidents broad, if not near absolute, constitutional power of executive clemency, based not only on Article VII, Sec. 19, but also on constitutional tradition and jurisprudence. Although the said section does not explicitly mention "parole" as a form of executive clemency, constitutional tradition and jurisprudence indicate it to be such. In Tesoro v. Director of Prisons,127 for instance, it was held that the power to pardon given to the President by theConstitution includes the power to grant and revoke paroles. The aforesaid provision of R.A. No. 9346 also inflicts an inhuman punishment, which is prohibited by the Constitution, and also violates the equal protection clause of the Bill of Rights. Our Ruling Once again, this Court upholds the constitutional mandate protecting the rights of persons under custodial investigation. But while we strike down the extrajudicial confession extracted in violation of constitutionally enshrined rights and declare it inadmissible in evidence, appellants are not entitled to an acquittal because their conviction was not based on the evidence obtained during such custodial investigation. Even without the extrajudicial confession of appellant Joel de Jesus who was the first to have been arrested, the trial courts judgment is affirmed, as the testimonial and documentary evidence on record have established the guilt of appellants beyond reasonable doubt. CA Decision meets the constitutional standard The Constitution commands that "[n]o decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based."128 Judges are expected to make complete findings of fact in their decisions and scrutinize closely the legal aspects of the case in the light of the evidence presented. They should avoid the tendency to generalize and form conclusions without detailing the facts from which such conclusions are deduced. 129 Section 2, Rule 120 of the 1985 Rules on Criminal Procedure, as amended, likewise provides: Sec. 2. Form and contents of judgments. -- The judgment must be written in the official language, personally and directly prepared by the judge and signed by him and shall contain clearly and distinctly a statement of the facts proved or admitted by the accused and the law upon which the judgment is based. xxx xxx x x x [emphasis supplied.]

We have sustained decisions of lower courts as having substantially or sufficiently complied with the constitutional injunction, notwithstanding the laconic and terse manner in which they were written; and even if "there (was left) much to be desired in terms of (their) clarity, coherence and comprehensibility," provided that they eventually set out the facts and the law on which they were based, as when they stated the legal qualifications of the offense constituted by the facts proved, the modifying circumstances, the participation of the accused, the penalty imposed and the civil liability;

or discussed the facts comprising the elements of the offense that was charged in the information, and accordingly rendered a verdict and imposed the corresponding penalty; or quoted the facts narrated in the prosecutions memorandum, but made their own findings and assessment of evidence, before finally agreeing with the prosecutions evaluation of the case.130 In the same vein, we have expressed concern over the possible denial of due process when an appellate court failed to provide the appeal the attention it rightfully deserved, thus depriving the appellant of a fair opportunity to be heard by a fair and responsible magistrate. This situation becomes more ominous in criminal cases, as in this case, where not only property rights are at stake but also the liberty if not the life of a human being.131 The parties to a litigation should be informed of how it was decided, with an explanation of the factual and legal reasons that led to the conclusions of the trial court. The losing party is entitled to know why he lost, so he may appeal to the higher court, if permitted, should he believe that the decision should be reversed. A decision that does not clearly and distinctly state the facts and the law on which it is based leaves the parties in the dark as to how it was reached and is precisely prejudicial to the losing party, who is unable to pinpoint the possible errors of the court for review by a higher tribunal.132 In Bank of the Philippine Islands v. Leobrera,133 we held that though it is not a good practice, we see nothing illegal in the act of the trial court completely copying the memorandum submitted by a party, provided that the decision clearly and distinctly states sufficient findings of fact and the law on which they are based.134 In another case where we upheld the validity of memorandum decisions, we nevertheless took occasion to remind judges that it is still desirable for an appellate judge to endeavor to make the issues clearer and use his own perceptiveness in unraveling the rollo and his own discernment in discovering the law. No less importantly, he must use his own language in laying down his judgment.135 Perusing the CA decision, we hold that it cannot be deemed constitutionally infirm, as it clearly stated the facts and law on which the ruling was based, and while it did not specifically address each and every assigned error raised by appellants, it cannot be said that the appellants were left in the dark as to how the CA reached its ruling affirming the trial courts judgment of conviction. The principal arguments raised in their Memorandum submitted before this Court actually referred to the main points of the CA rulings, such as the alleged sufficiency of prosecution evidence, their common defense of alibi, allegations of torture, probative value of ballistic and fingerprint test results, circumstances qualifying the offense and modification of penalty imposed by the trial court. What appellants essentially assail is the verbatim copying by the CA of not only the facts narrated, but also the arguments and discussion including the legal authorities, in disposing of the appeal. On such wholesale adoption of the Office of the Solicitor Generals position, as well as the trial courts insufficient findings of fact, appellants anchor their claim of failure of intermediate review by the CA. We now proceed to the other substantive issues presented by appellants. Rights of Accused During Custodial Investigation The rights of persons under custodial investigation are enshrined in Article III, Section 12 of the 1987 Constitution, which provides: Sec. 12 (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

(2) No torture, force, violence, threat, intimidation or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or section 17 hereof (right against self-incrimination) shall be inadmissible in evidence against him. (4) The law shall provide for penal and civil sanctions for violation of this section as well as compensation for the rehabilitation of victims of tortures or similar practices, and their families. [emphasis supplied.] Extrajudicial Confession of Joel de Jesus Not Valid Custodial investigation refers to the critical pre-trial stage when the investigation is no longer a general inquiry into an unsolved crime, but has begun to focus on a particular person as a suspect.136 Police officers claimed that appellants were apprehended as a result of "hot pursuit" activities on the days following the ambush-slay of Abadilla. There is no question, however, that when appellants were arrested they were already considered suspects: Joel was pinpointed by security guard Alejo who went along with the PARAC squad to Fairview on June 19, 1996, while the rest of appellants were taken by the same operatives in follow-up operations after Joel provided them with the identities of his conspirators and where they could be found. R.A. No. 7438,137 approved on May 15, 1992, has reinforced the constitutional mandate protecting the rights of persons under custodial investigation. The pertinent provisions read: SEC. 2. Rights of Persons Arrested, Detained or under Custodial Investigation; Duties of Public Officers. a. Any person arrested, detained or under custodial investigation shall at all times be assisted by counsel. b. Any public officer or employee, or anyone acting under his order or his place, who arrests, detains or investigates any person for the commission of an offense shall inform the latter, in a language known to and understood by him, of his rights to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer private with the person arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided by with a competent and independent counsel. xxxx f. As used in this Act, "custodial investigation" shall include the practice of issuing an "invitation" to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the "inviting" officer for any violation of law. [emphasis supplied.] Police officers claimed that upon arresting Joel, they informed him of his constitutional rights to remain silent, that any information he would give could be used against him, and that he had the right to a competent and independent counsel, preferably, of his own choice, and if he cannot afford the services of counsel he will be provided with one (1). However, since these rights can only be waived in writing and with the assistance of counsel, there could not have been such a valid waiver

by Joel, who was presented to Atty. Sansano at the IBP Office, Quezon City Hall only the following day and stayed overnight at the police station before he was brought to said counsel. P/Insp. Castillo admitted that the initial questioning of Joel began in the morning of June 20, 1996, the first time said suspect was presented to him at the CPDC station, even before he was brought to the IBP Office for the taking of his formal statement. Thus, the possibility of appellant Joel having been subjected to intimidation or violence in the hands of police investigators as he claims, cannot be discounted. The constitutional requirement obviously had not been observed. Settled is the rule that the moment a police officer tries to elicit admissions or confessions or even plain information from a suspect, the latter should, at that juncture, be assisted by counsel, unless he waives this right in writing and in the presence of counsel.138 The purpose of providing counsel to a person under custodial investigation is to curb the police-state practice of extracting a confession that leads appellant to make self-incriminating statements.139 Even assuming that custodial investigation started only during Joels execution of his statement before Atty. Sansano on June 20, 1996, still the said confession must be invalidated. To be acceptable, extrajudicial confessions must conform to constitutional requirements. A confession is not valid and not admissible in evidence when it is obtained in violation of any of the rights of persons under custodial investigation.140 Since Joel was provided with a lawyer secured by CPDC investigators from the IBP-Quezon City chapter, it cannot be said that his right to a counsel "preferably of his own choice" was not complied with, particularly as he never objected to Atty. Sansano when the latter was presented to him to be his counsel for the taking down of his statement. The phrase "preferably of his own choice" does not convey the message that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling the defense; otherwise the tempo of custodial investigation would be solely in the hands of the accused who can impede, nay, obstruct the progress of the interrogation by simply selecting a lawyer who, for one reason or another, is not available to protect his interest.141 Thus, while the choice of a lawyer in cases where the person under custodial interrogation cannot afford the services of counsel or where the preferred lawyer is not available is naturally lodged in the police investigators, the suspect has the final choice, as he may reject the counsel chosen for him and ask for another one. A lawyer provided by the investigators is deemed engaged by the accused when he does not raise any objection against the counsels appointment during the course of the investigation, and the accused thereafter subscribes to the veracity of the statement before the swearing officer.142 The question really is whether or not Atty. Sansano was an independent and competent counsel as to satisfy the constitutional requirement. We held that the modifier competent and independent in the 1987 Constitution is not an empty rhetoric. It stresses the need to accord the accused, under the uniquely stressful conditions of a custodial investigation, an informed judgment on the choices explained to him by a diligent and capable lawyer.143An effective and vigilant counsel necessarily and logically requires that the lawyer be present and able to advise and assist his client from the time the confessant answers the first question asked by the investigating officer until the signing of the extrajudicial confession. Moreover, the lawyer should ascertain that the confession is made voluntarily and that the person under investigation fully understands the nature and the consequence of his extrajudicial confession in relation to his constitutional rights. A contrary rule would undoubtedly be antagonistic to the constitutional rights to remain silent, to counsel and to be presumed innocent.144 Atty. Sansano, who supposedly interviewed Joel and assisted the latter while responding to questions propounded by SPO2 Garcia, Jr., did not testify on whether he had properly discharged his duties to said client. While SPO2 Garcia, Jr. testified that Atty. Sansano had asked Joel if he

understood his answers to the questions of the investigating officer and sometimes stopped Joel from answering certain questions, SPO2 Garcia, Jr. did not say if Atty. Sansano, in the first place, verified from them the date and time of Joels arrest and the circumstances thereof, or any previous information elicited from him by the investigators at the station, and if said counsel inspected Joels body for any sign or mark of physical torture. The right to counsel has been written into our Constitution in order to prevent the use of duress and other undue influence in extracting confessions from a suspect in a crime. The lawyers role cannot be reduced to being that of a mere witness to the signing of a pre-prepared confession, even if it indicated compliance with the constitutional rights of the accused. The accused is entitled to effective, vigilant and independent counsel.145 Where the prosecution failed to discharge the States burden of proving with clear and convincing evidence that the accused had enjoyed effective and vigilant counsel before he extrajudicially admitted his guilt, the extrajudicial confession cannot be given any probative value.146 With respect to the other appellants, they were likewise entitled to the rights guaranteed by the Constitution when they were brought to the police station as suspects and were, therefore under custodial investigation.147 However, they cannot simply rely on those violations of constitutional rights during custodial investigation, which are relevant only when the conviction of the accused by the trial court is based on the evidence obtained during such investigation.148 As for the matters stated in the extrajudicial confession of appellant Joel, these were not the basis for appellants conviction. It has to be stressed further that no confession or statement by appellants Fortuna, Lumanog, Augusto and Rameses was used as evidence by the prosecution at the trial. After a thorough and careful review, we hold that there exists sufficient evidence on record to sustain appellants conviction even without the extrajudicial confession of appellant Joel de Jesus. Allegations of Torture and Intimidation The Court notes with utmost concern the serious allegations of torture of appellants who were dubbed by the media as the "Abadilla 5." This was brought by appellants before the CHR which, in its Resolution dated July 26, 1996, did not make any categorical finding of physical violence inflicted on the appellants by the police authorities. The CHR, however, found prima facie evidence that respondent police officers could have violated R.A. No. 7438, particularly on visitorial rights and the right to counsel, including the law on arbitrary detention, and accordingly forwarded its resolution together with records of the case to the Secretary of Justice, Secretary of the Department of Interior and Local Government, the PNP Director General and the Ombudsman to file the appropriate criminal and/or administrative actions against the person or persons responsible for violating the human rights of the suspects as the evidence may warrant.149 As per the manifestation of appellants, the DOJ, after conducting a preliminary investigation, referred the matter to the Ombudsman in 2004. As of July 2007, the case before the Ombudsman docketed as OMB-P-C-04-1269/CPL-C-041965 was "still pending preliminary investigation.150 Right to Speedy Disposition of Cases Appellants further cite the comment made by the United Nations Human Rights Committee in its Communication No. 1466/2006 that under the circumstances, there was, insofar as the eight (8)year delay in the disposition of their appeal in the CA was concerned, a violation of Article 14, paragraph 3 (c) of the International Covenant on Civil and Political Rights (1966). It provides that in the determination of any criminal charge against him, everyone shall be entitled, as among the minimum guarantees provided therein, "to be tried without undue delay."151

Section 16, Article III of the 1987 Constitution provides that "all persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies."152 This protection extends to all citizens and covers the periods before, during and after trial, affording broader protection than Section 14(2), which guarantees merely the right to a speedy trial.153 However, just like the constitutional guarantee of "speedy trial," "speedy disposition of cases" is a flexible concept. It is consistent with delays and depends upon the circumstances. What the Constitution prohibits are unreasonable, arbitrary and oppressive delays, which render rights nugatory.154 In this case, the records of Criminal Case No. Q-96-66684 were transmitted to this Court for automatic review on February 11, 2000. On September 7, 2001, this Court rendered a decision dismissing the Petition for Certiorari (Rule 65) and for Extraordinary Legal and Equitable Relief (G.R. No. 142065). By June 2004, all appeal briefs for the present review had been filed and on July 6, 2004, appellants filed a Consolidated Motion for Early Decision. On December 13, 2004, they filed a Motion for Early Decision.155 By resolution of January 18, 2005, we transferred this case to the CA for intermediate review, conformably with our pronouncement in People v. Mateo decided on July 7, 2004. Appellants Urgent Motion for Reconsideration of Transfer to the Court of Appeals filed on February 24, 2005 was denied on March 29, 2005. A similar request filed on June 2, 2005 was likewise denied by our Resolution dated July 12, 2005.156 At the CA, appellants also moved for early resolution of their appeal after the case was submitted for decision on November 29, 2006. The case remained unresolved due to a number of factors, such as the CA internal reorganization and inhibition of some Justices to whom the case was re-raffled.157 Before the retirement of the ponente, Justice Agustin S. Dizon, the CAs Sixteenth Division finally rendered its decision on April 1, 2008. Appellants motion for reconsideration was denied by the Special Former Sixteenth Division on October 28, 2008. It must be stressed that in the determination of whether the right to speedy disposition of cases has been violated, particular regard must be taken of the facts and circumstances peculiar to each case. A mere mathematical reckoning of the time involved would not be sufficient.158 Under the circumstances, we hold that the delay of (4) four years during which the case remained pending with the CA and this Court was not unreasonable, arbitrary or oppressive. In several cases where it was manifest that due process of law or other rights guaranteed by the Constitution or statutes have been denied, this Court has not faltered to accord the so-called "radical relief" to keep accused from enduring the rigors and expense of a full-blown trial.159 In this case, however, appellants are not entitled to the same relief in the absence of clear and convincing showing that the delay in the resolution of their appeal was unreasonable or arbitrary. Credibility of Eyewitness Testimony Time and again, we have held that the testimony of a sole eyewitness is sufficient to support a conviction so long as it is clear, straightforward and worthy of credence by the trial court.160 Indeed, when it comes to credibility of witnesses, this Court accords the highest respect, even finality, to the evaluation made by the lower court of the testimonies of the witnesses presented before it. This holds true notwithstanding that it was another judge who presided at the trial and Judge Jaime N. Salazar, Jr. who penned the decision in this case heard only some witnesses for the defense. It is axiomatic that the fact alone that the judge who heard the evidence was not the one who rendered the judgment, but merely relied on the record of the case, does not render his judgment erroneous or irregular. This is so even if the judge did not have the fullest opportunity to weigh the testimonies, not having heard all the witnesses speak or observed their deportment and manner of testifying.161

Verily, a judge who was not present during the trial can rely on the transcript of stenographic notes taken during the trial as basis of his decision. Such reliance does not violate substantive and procedural due process.162 We have ruled in People v. Rayray163 that the fact that the judge who heard the evidence was not himself the one who prepared, signed and promulgated the decision constitutes no compelling reason to jettison his findings and conclusions, and does not per se render his decision void. The validity of a decision is not necessarily impaired by the fact that its ponente only took over from a colleague who had earlier presided at the trial. This circumstance alone cannot be the basis for the reversal of the trial courts decision.164 In giving full credence to the eyewitness testimony of security guard Alejo, the trial judge took into account his proximity to the spot where the shooting occurred, his elevated position from his guardhouse, his opportunity to view frontally all the perpetrators for a brief time -- enough for him to remember their faces (when the two [2] lookouts he had earlier noticed walking back and forth infront of his guard post pointed their guns at him one [1] after the other, and later when the four [4] armed men standing around the victims car momentarily looked at him as he was approached at the guardhouse by the second lookout), and his positive identification in the courtroom of appellants as the six (6) persons whom he saw acting together in the fatal shooting of Abadilla on June 13, 1996. The clear view that Alejo had at the time of the incident was verified by Judge Jose Catral Mendoza (now an Associate Justice of this Court) during the ocular inspection conducted in the presence of the prosecutors, defense counsel, court personnel, and witnesses Alejo and Maj. Villena. The trial judge also found that Alejo did not waver in his detailed account of how the assailants shot Abadilla who was inside his car, the relative positions of the gunmen and lookouts, and his opportunity to look at them in the face. Alejo immediately gave his statement before the police authorities just hours after the incident took place. Appellants make much of a few inconsistencies in his statement and testimony, with respect to the number of assailants and his reaction when he was ordered to get down in his guard post. But such inconsistencies have already been explained by Alejo during cross-examination by correcting his earlier statement in using number four (4) to refer to those persons actually standing around the car and two (2) more persons as lookouts, and that he got nervous only when the second lookout shouted at him to get down, because the latter actually poked a gun at him. It is settled that affidavits, being ex-parte, are almost always incomplete and often inaccurate, but do not really detract from the credibility of witnesses.165 The discrepancies between a sworn statement and testimony in court do not outrightly justify the acquittal of an accused,166 as testimonial evidence carries more weight than an affidavit.167 As to appellants attempt to discredit Alejo by reason of the latters acceptance of benefits from the Abadilla family, the same is puerile, considering that the trial court even verified for itself how Alejo could have witnessed the shooting incident and after he withstood intense grilling from defense lawyers. Case law has it that where there is no evidence that the principal witness for the prosecution was actuated by improper motive, the presumption is that he was not so actuated and his testimony is entitled to full faith and credit.168 The trial judge also correctly rejected appellants proposition that the eyewitness testimony of security guard Herbas should have been given due weight and that other eyewitnesses should have been presented by the prosecution, specifically Cesar Espiritu and Minella Alarcon, who allegedly had better opportunity to recognize Abadillas attackers. As correctly pointed out by the trial judge, Herbas could not have really seen at close range the perpetrators from his position at a nearby building, which is several meters away from the ambush site, as confirmed by photographs submitted by the prosecution, which Herbas failed to refute. The same thing can be said of Espiritu who admitted in his Sinumpaang Salaysay that his car was ahead of the Honda Accord driven by Abadilla, and that he had already alighted from his car some houses away from the exact spot where Abadilla was ambushed while his car was in the stop position.169

Positive Identification of Appellants Appellants assail the out-of-court identification made by Alejo who pointed to appellant Joel de Jesus and Lorenzo delos Santos in a line-up at the police station together with police officers. However, appellants claim that the police officers who joined the line-up were actually in their police uniforms at the time, as to make the identification process suggestive and hence not valid, was unsubstantiated. In People v. Teehankee, Jr.,170 we explained the procedure for out-of-court identification and the test to determine the admissibility of such identification, thus: Out-of-court identification is conducted by the police in various ways. It is done thru show-ups where the suspect alone is brought face to face with the witness for identification. It is done thru mug shots where photographs are shown to the witness to identify the suspect. It is also done thru line-ups where a witness identifies the suspect from a group of persons lined up for the purpose. . . In resolving the admissibility of and relying on out-of-court identification of suspects, courts have adopted the totality of circumstances test where they consider the following factors, viz: (1) the witness opportunity to view the criminal at the time of the crime; (2) the witness degree of attention at that time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and, (6) the suggestiveness of the identification procedure.171 [emphasis supplied.] Examining the records, we find nothing irregular in the identification made by Alejo at the police station for which he executed the Karagdagang Sinumpaang Salaysay dated June 21, 1996, during which he positively identified Joel de Jesus and Lorenzo delos Santos as those lookouts who had pointed their guns at him demanding that he buck down at his guardhouse. In any case, the trial court did not rely solely on said out-of-court identification considering that Alejo also positively identified appellants during the trial. Thus, even assuming arguendo that Alejos out-of-court identification was tainted with irregularity, his subsequent identification in court cured any flaw that may have attended it.172 We have held that the inadmissibility of a police line-up identification should not necessarily foreclose the admissibility of an independent in-court identification.173 We also found none of the danger signals enumerated by Patrick M. Wall, a well-known authority in eyewitness identification, which give warning that the identification may be erroneous even though the method used is proper. The danger signals contained in the list, which is not exhaustive, are: (1) the witness originally stated that he could not identify anyone; (2) the identifying witness knew the accused before the crime, but made no accusation against him when questioned by the police; (3) a serious discrepancy exists between the identifying witness original description and the actual description of the accused; (4) before identifying the accused at the trial, the witness erroneously identified some other person; (5) other witnesses to the crime fail to identify the accused; (6) before trial, the witness sees the accused but fails to identify him;

(7) before the commission of the crime, the witness had limited opportunity to see the accused; (8) the witness and the person identified are of different racial groups; (9) during his original observation of the perpetrator of the crime, the witness was unaware that a crime was involved; (10) a considerable time elapsed between the witness view of the criminal and his identification of the accused; (11) several persons committed the crime; and (12) the witness fails to make a positive trial identification.174 Appellants nonetheless point out the allegedly doubtful prior descriptions given by Alejo, who was able to describe the physical appearance of only two (2) suspects in his statement: Iyong tumutok sa akin ay naka-asul na t-shirt, edad 30-35, 55"-56" ang taas, katamtaman ang katawan, maikli ang buhok, kayumanggi. Ang baril niya ay tipong 45 o 9 mm na pistola. Iyong sumakal sa biktima at nang-agaw ng clutch bag nito ay 25-30 ang edad, payat, mahaba ang buhok na nakatali, maitim, may taas na 55"-56", maiksi din ang baril niya at naka-puting polo. Iyong iba ay maaring makilala ko kung makikita ko uli.175 Appellants claimed that if Alejo was referring to appellant Joel de Jesus who pointed a gun at him, his description did not jibe at all since Joel de Jesus was just 22 years old and not 30-35 years of age, and who stands 59" and not 55"-56". And if indeed it was appellant Lenido Lumanog whom Alejo saw as the gunman who had grabbed the victim by the neck after opening the cars left front door, his description again failed because far from being "maitim," Lumanog was in fact faircomplexioned. We are not persuaded. Alejo positively identified Joel de Jesus in a line-up at the police station and again inside the courtroom as the first lookout who pointed a gun at him. Though his estimate of Joels age was not precise, it was not that far from his true age, especially if we consider that being a tricycle driver who was exposed daily to sunlight, Joels looks may give a first impression that he is older than his actual age. Moreover Alejos description of Lumanog as dark-skinned was made two (2) months prior to the dates of the trial when he was again asked to identify him in court. When defense counsel posed the question of the discrepancy in Alejos description of Lumanog who was then presented as having a fair complexion and was 40 years old, the private prosecutor manifested the possible effect of Lumanogs incarceration for such length of time as to make his appearance different at the time of trial. Applying the totality-of-circumstances test, we thus reiterate that Alejos out-court-identification is reliable, for reasons that, first, he was very near the place where Abadilla was shot and thus had a good view of the gunmen, not to mention that the two (2) lookouts directly approached him and pointed their guns at them; second, no competing event took place to draw his attention from the event; third, Alejo immediately gave his descriptions of at least two (2) of the perpetrators, while affirming he could possibly identify the others if he would see them again, and the entire happening that he witnessed; and finally, there was no evidence that the police had supplied or even suggested to Alejo that appellants were the suspects, except for Joel de Jesus whom he refused to just pinpoint on the basis of a photograph shown to him by the police officers, insisting that he would like to see said suspect in person. More importantly, Alejo during the trial had positively identified appellant Joel

de Jesus independently of the previous identification made at the police station. Such in-court identification was positive, straightforward and categorical. Appellants contend that the subsequent acquittal of Lorenzo delos Santos, whom Alejo had categorically pointed to as one (1) of the two (2) men whom he saw walking to and fro infront of his guard post prior to the shooting incident, and as one (1) of the two (2) men who pointed a gun at him and ordered him to get down, totally destroyed said witness credibility and eroded the trustworthiness of each and every uncorroborated testimony he gave in court. This assertion is untenable. A verdict of acquittal is immediately final; hence, we may no longer review the acquittal of accused Lorenzo delos Santos.176 However, the acquittal of their co-accused does not necessarily benefit the appellants. We have ruled that accused-appellant may not invoke the acquittal of the other conspirators to merit the reversal of his conviction for murder.177 Ballistic and fingerprint examination results are inconclusive and not indispensable Appellants deplore the trial courts disregard of the results of the ballistic and fingerprint tests, which they claim should exonerate them from liability for the killing of Abadilla. These pieces of evidence were presented by the defense to prove that the empty shells recovered from the crime scene and deformed slug taken from the body of Abadilla were not fired from any of the firearms seized from appellants. Instead, they matched the same firearm used in the killings of Suseso de Dios and other supposed victims of ambush-slay perpetrated by suspected members of the ABB. Further, none of the fingerprints lifted from the KIA Pride, used by the gunmen as getaway vehicle, matched any of the specimens taken from the appellants. We are not persuaded. As correctly held by the CA, the negative result of ballistic examination was inconclusive, for there is no showing that the firearms supposedly found in appellants possession were the same ones used in the ambush-slay of Abadilla. The fact that ballistic examination revealed that the empty shells and slug were fired from another firearm does not disprove appellants guilt, as it was possible that different firearms were used by them in shooting Abadilla.178 Neither will the finding that the empty shells and slug matched those in another criminal case allegedly involving ABB members, such that they could have been fired from the same firearms belonging to said rebel group, exonerate the appellants who are on trial in this case and not the suspects in another case. To begin with, the prosecution never claimed that the firearms confiscated from appellants, which were the subject of separate charges for illegal possession of firearms, were the same firearms used in the ambush-slay of Abadilla. A ballistic examination is not indispensable in this case. Even if another weapon was in fact actually used in killing the victim, still, appellants Fortuna and Lumanog cannot escape criminal liability therefor, as they were positively identified by eyewitness Freddie Alejo as the ones who shot Abadilla to death.179 As this Court held in Velasco v. People180 -As regards the failure of the police to present a ballistic report on the seven spent shells recovered from the crime scene, the same does not constitute suppression of evidence. A ballistic report serves only as a guide for the courts in considering the ultimate facts of the case. It would be indispensable if there are no credible eyewitnesses to the crime inasmuch as it is corroborative in nature. The presentation of weapons or the slugs and bullets used and ballistic examination are not prerequisites for conviction. The corpus delicti and the positive identification of accused-appellant as the perpetrator of the crime are more than enough to sustain his conviction. Even without a ballistic report, the positive identification by prosecution witnesses is more than sufficient to prove accuseds guilt beyond reasonable doubt. In the instant case, since the identity of the assailant has been sufficiently established, a ballistic report on the slugs can be dispensed with in proving petitioners guilt beyond reasonable doubt. [emphasis supplied.]

The negative result of the fingerprint tests conducted by fingerprint examiner Remedios is likewise inconclusive and unreliable. Said witness admitted that no prints had been lifted from inside the KIA Pride and only two (2) fingerprints were taken from the car of Abadilla. Defense of Alibi Cannot Prevail Over Positive Identification Alibi is the weakest of all defenses, for it is easy to fabricate and difficult to disprove, and it is for this reason that it cannot prevail over the positive identification of the accused by the witnesses.181 To be valid for purposes of exoneration from a criminal charge, the defense of alibi must be such that it would have been physically impossible for the person charged with the crime to be at the locus criminis at the time of its commission, the reason being that no person can be in two places at the same time. The excuse must be so airtight that it would admit of no exception. Where there is the least possibility of accuseds presence at the crime scene, the alibi will not hold water.182 Deeply embedded in our jurisprudence is the rule that positive identification of the accused, where categorical and consistent, without any showing of ill motive on the part of the eyewitness testifying, should prevail over the alibi and denial of appellants, whose testimonies are not substantiated by clear and convincing evidence.183 However, none of the appellants presented clear and convincing excuses showing the physical impossibility of their being at the crime scene between 8:00 oclock and 9:00 oclock in the morning of June 13, 1996. Hence, the trial court and CA did not err in rejecting their common defense of alibi. As to the failure of appellant Lumanog to take the witness stand, indeed the grave charges of murder and illegal possession of firearms would have normally impelled an accused to testify in his defense, particularly when his life is at stake. As this Court observed in People v. Delmendo:184 An adverse inference may also be deduced from appellant's failure to take the witness stand. While his failure to testify cannot be considered against him, it may however help in determining his guilt. "The unexplained failure of the accused to testify, under a circumstance where the crime imputed to him is so serious that places in the balance his very life and that his testimony might at least help in advancing his defense, gives rise to an inference that he did not want to testify because he did not want to betray himself." An innocent person will at once naturally and emphatically repel an accusation of crime, as a matter of self-preservation, and as a precaution against prejudicing himself. A persons silence, therefore, particularly when it is persistent, may justify an inference that he is not innocent. Thus, we have the general principle that when an accused is silent when he should speak, in circumstances where an innocent person so situated would have spoken, on being accused of a crime, his silence and omission are admissible in evidence against him. Accordingly, it has been aptly said that silence may be assent as well as consent, and may, where a direct and specific accusation of crime is made, be regarded under some circumstances as a quasi-confession.185 Treachery and Evident Premeditation Attended the Commission of the Crime As regards the presence of treachery as a qualifying circumstance, the evidence clearly showed that the attack on the unsuspecting victim -- who was inside his car on a stop position in the middle of early morning traffic when he was suddenly fired upon by the appellants -- was deliberate, sudden and unexpected. There was simply no chance for Abadilla to survive the ambush-slay, with successive shots quickly fired at close range by two (2) armed men on both sides of his car; and much less to retaliate by using his own gun, as no less than 23 gunshot wounds on his head and

chest caused his instantaneous death. As we have consistently ruled, the essence of treachery is the sudden and unexpected attack on an unsuspecting victim by the perpetrator of the crime, depriving the victim of any chance to defend himself or to repel the aggression, thus insuring its commission without risk to the aggressor and without any provocation on the part of the victim.186 Evident premeditation was likewise properly appreciated by the trial court, notwithstanding the inadmissibility of Joel de Jesuss extrajudicial confession disclosing in detail the pre-planned ambush of Abadilla, apparently a contract killing in which the perpetrators were paid or expected to receive payment for the job. As correctly pointed out by the CA, Alejo had stressed that as early as 7:30 in the morning of June 13, 1996, he already noticed something unusual going on upon seeing the two (2) lookouts (appellants Joel de Jesus and Lorenzo delos Santos) walking to and fro along Katipunan Avenue infront of the building he was guarding. True enough, they were expecting somebody to pass that way, who was no other than Abadilla driving his Honda Accord. After the lapse of more or less one (1) hour, he already heard successive gunshots, while in his guard post, from the direction of the middle lane where Abadillas car was surrounded by four (4) men carrying short firearms. All the foregoing disclosed the execution of a pre-conceived plan to kill Abadilla. The essence of evident premeditation is that the execution of the criminal act is preceded by cool thought and reflection upon the resolution to carry out criminal intent within a span of time sufficient to arrive at a calm judgment.187 The trial court and CA were therefore correct in declaring the appellants guilty as conspirators in the ambush-slay of Abadilla, the presence of treachery and evident premeditation qualifying the killing to murder under Art. 248 of the Revised Penal Code, as amended. Proper Penalty The CA correctly modified the death penalty imposed by the trial court. At the time the crime was committed, the penalty for murder was reclusion perpetua to death. Since the penalty is composed of two (2) indivisible penalties, then for the purpose of determining the imposable penalty, Article 63 of the Revised Penal Code, as amended, must be considered. It provides in part: 1. When in the commission of the deed there is present only one aggravating circumstance, the greater penalty shall be applied. With the presence of the aggravating circumstance of treachery and there being no mitigating circumstance, the higher penalty of death should be imposed.188 In view, however, of the passage of Republic Act No. 9346 entitled, "An Act Prohibiting the Imposition of Death Penalty in the Philippines," which was signed into law on June 24, 2006, the imposition of the death penalty has been prohibited. Pursuant to Section 2 thereof, the penalty to be meted to appellants 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 appellants, they are not eligible for parole following Section 3 of said law which provides:189 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. Appellants attack on the constitutionality of the above provision on grounds of curtailment of the Presidents absolute power to grant executive clemency, imposition of an inhuman punishment and violation of equal protection clause, is utterly misplaced. As succinctly explained by this Court in People v. Gardon190 We should point out that the benefit of parole cannot be extended to Gardon even if he committed the crimes for which he is now convicted prior to the effectivity of R.A. No. 9346. Sec. 2 of the Indeterminate Sentence Law provides that the law "shall not apply to persons convicted of offenses punished with death penalty or life- imprisonment." Although the law makes no reference to persons convicted to suffer the penalty of reclusion perpetua such as Gardon, the Court has consistently held that the Indeterminate Sentence Law likewise does not apply to persons sentenced to reclusion perpetua. In People v. Enriquez, we declared: [R]eclusion perpetua is the only penalty that can be imposed against the appellants. As correctly argued by the Solicitor General, Act No. 4103, otherwise known as the Indeterminate Sentence Law, cannot be applied in the case of appellants considering the proscription in Sec. 2 thereof, viz: xxxx Indeed, in People v. Asturias, Serrano v. Court of Appeals, People v. Lampaza and People v. Tan, to name a few cases, we in effect equated the penalty of reclusion perpetua as synonymous to lifeimprisonment for purposes of the Indeterminate Sentence Law, and ruled that the latter law does not apply to persons convicted of offenses punishable with the said penalty. Consequently, we affirm the Court of Appeals in not applying the Indeterminate Sentence Law, and in imposing upon appellants the penalty of reclusion perpetua instead. Reclusion perpetua is an indivisible penalty without a minimum or maximum period. Parole, on the other hand, is extended only to those sentenced to divisible penalties as is evident from Sec. 5 of the Indeterminate Sentence Law, which provides that it is only after "any prisoner shall have served the minimum penalty imposed on him" that the Board of Indeterminate Sentence may consider whether such prisoner may be granted parole.191 Further, we cite the concurring opinion of Mr. Justice Dante Tinga in People v. Tubongbanua,192 addressing the issue herein raised by appellants, to wit: No constitutional sanctities will be offended if persons previously sentenced to death, or persons sentenced to reclusion perpetua, are denied the benefit of parole conformably to Section 3 of Rep. Act No. 9346. As to persons previously sentenced to death, it should be remembered that at the time of the commission of the crime, the penalty attached to the crime was death. To their benefit, Rep. Act No. 9346 reduced the penalty attached to the crime to reclusion perpetua. Yet such persons cannot claim the benefit of parole on the basis of the ex post facto clause of the Constitution, since an ex post facto law is one which, among others, "changes punishment, and inflicts a greater punishment than the law annexed to the crime when committed." Rep. Act No. 9346 had the effect of

"inflicting" a lighter punishment, not a greater punishment, than what the law annexed to the crime when committed.193 [emphasis supplied.] Civil Liability When death occurs due to a crime, the following damages may be awarded: (1) civil indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; and (5) temperate damages.194 Civil indemnity is mandatory and granted to the heirs of the victim without need of proof other than the commission of the crime.195 We have ruled that even if the penalty of death is not to be imposed because of the prohibition in R.A. No. 9346, the civil indemnity of P75,000.00 is proper, because it is not dependent on the actual imposition of the death penalty but on the fact that qualifying circumstances warranting the imposition of the death penalty attended the commission of the offense.196 As explained in People v. Salome,197 while R.A. No. 9346 prohibits the imposition of the death penalty, the fact remains that the penalty provided for by the law for a heinous offense is still death, and the offense is still heinous. Accordingly, the heirs of Col. Rolando N. Abadilla is entitled to civil indemnity in the amount of P75,000.00. The grant of actual damages representing burial expenses, funeral services and cost of repair of the Honda car, is likewise in order, being duly supported by receipts.198 With regard to moral and exemplary damages, we find the amounts awarded by the trial court excessive and the same are hereby reduced to P75,000.00 and P30,000.00, respectively. It must again be stressed that moral damages are emphatically not intended to enrich a plaintiff at the expense of the defendant. When awarded, moral damages must not be palpably and scandalously excessive as to indicate that it was the result of passion, prejudice or corruption on the part of the trial judge or appellate court justices.199 As to exemplary damages, the same is justified under Article 2230 of the New Civil Code when a crime is committed with an aggravating circumstance, either qualifying or generic.200 WHEREFORE, the consolidated petitions and appeal are hereby DISMISSED. The Decision dated April 1, 2008 of the Court of Appeals in CA-G.R. CR-HC No. 00667 is hereby AFFIRMED with MODIFICATIONS in that the civil indemnity for the death of Col. Rolando N. Abadilla is hereby increased to P75,000.00, and the amounts of moral and exemplary damages awarded to his heirs are reduced to P75,000.00 and P30,000.00, respectively. With costs against the accused-appellants. SO ORDERED.

G.R. No. L-36858 June 20, 1988 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MACARIO A. ULEP, accused-appellant. The Solicitor General for plaintiff-appellee. Castor Naval for accused-appellant.

GANCAYCO, J.: A man must love his wife. He must not lift a finger to hurt her. Indeed he must be her protector. When against this unwritten rule he beats her, he ceases to be a man. He becomes a beast. And the law imposes the supreme penalty when in the process he kills her. It is parricide pure and simple. This is what Macario A. Ulep, was convicted of by the Court of First Instance of Ilocos Norte, Second Judicial District. He was sentenced to suffer the penalty of reclusion perpetua, and to indemnify the heirs of the deceased in the amount of P12,000.00 and to pay the costs in a decision of March 20, 1973. The facts are undisputed. On May 21, 1970, at nine o'clock in the evening, in San Nicolas, Ilocos Norte, one Asuncion Pablo Ulep died as a result of physical injuries inflicted upon her on that very day by her husband, accused Macario Ulep. The following day, the Chief of Police of San Nicolas, Ilocos Norte received a report of the said death of Asuncion Pablo who allegedly died of a heart attack. The Chief of Police and the Rural Health Officer went to the house of the deceased and there they saw the body on a bamboo bed surrounded by relatives, friends, and the husband of the deceased, Macario. The Chief of Police suggested that an autopsy be conducted but the husband refused to allow the same. However, the daughter of the deceased by a previous marriage asked for a day or two to decide on her preference. At the behest of the daughter, the request for an autopsy was made shortly before the burial. Accordingly, the police chief and Dr. Eliseo Bonoan, a physician, caught up with the funeral Procession at the Catholic cemetery and thereupon conducted an autopsy on the deceased. The autopsy reports read as follows: POSTMORTEM EXAMINATION Name: ASUNCION PABLO ULEP Age: 42 Nationality: Filipino Address: No. 24, San Nicolas, Ilocos Norte Date: May 25, 1970

PATHOLOGICAL DIAGNOSIS SKIN: A rectangular area of about 1" x 3" bluish black in color was noted on the upper half, anterior aspect of the arm, left. SKELETAL SYSTEM: Complete fracture of the 4th, 5th, 6th and 7th ribs, left. The 4th and 5th ribs fractured along the midolavicular line, left. The 6th and 7th ribs fractured along the anterior auxillary line, left. Presence of extravascated blood and injuries of the surrounding tissues of the broken ribs areas, left. Complete fracture of the 3rd and 4th ribs at the juncture of the rib and external cartillages with concomitant injury to its sounding tissues and extravascated blood, right side. THORACIC CAVITY: Presence of about 200 cc. of a serous fluid found within the cavity. Pleura lacerated at the points of fractures. CARDIOVASCULAR SYSTEM: Heart with small amount of clotted blood. Coronary vessels congested. The big blood vessels contained small amount of clotted blood. ABDOMINAL CAVITY: Presence of about 500 cc. of serous fluid within the cavity. DIGESTIVE SYSTEM: Apparently normal CENTRAL NERVOUS SYSTEM: The meningeal vessels were congested. CAUSE OF DEATH: CARDIAC ARREST PRIMARY SHOCK.
(Exh. D, p. 16, rec.). 1

Two weeks after the burial, two (2) constabulary sergeants investigated Macario Ulep. A statement was prepared and signed by the accused and was subsequently sworn to before Fiscal Cesar Abaya of Ilocos Norte. In this statement, marked as Exhibit "A", he admitted that he caused the death of his wife by elbowing her because his wife was then drunk and was uttering indecent words. The following day, PC sergeant Damian Bautista of Camp Juan, Laoag City conducted another investigation of accused Macario Ulep. His statement was reduced to writing and then subscribed to before Fiscal Abaya. He reiterated that the cause of death of his wife, Asuncion Pablo, was his elbowing her on her breast. This statement was marked Exhibit "B". Ulep narrated that this elbowing and attack took place at their home at 5:30 in the afternoon. She vomitted and then went to bed, The accused then left for the fields and returned at around 9:00 in the evening and found his wife dead on her bed. He reported this death to their barrio captain. Despite these statements, (Exhibits "A" and "B") admitting his guilt, Ulep retracted his statement in court by narrating that more than a year before that, and while his wife went to have their palay milled, their bullcart loaded with sacks of rice turned upside down and pinned his wife on her breast. With the pain in her chest, she was treated by a country quack doctor or "arbularyo." The accused took exception to his conviction when he raised the following errors: I THE LOWER COURT ERRED IN HOLDING THAT THE CAUSE OF DEATH OF ASUNCION PABLO WAS DUE TO THE ELBOW BLOWS BY THE ACCUSEDAPPELLANT ON HER BREAST, AS ADMIRED BY HIM IN HIS AFFIDAVITS, EXHIBIT "A" AND EXHIBIT "A-1," ENGLISH TRANSLATION, WHEN SUCH ADMISSION IS BUT A MERE BELIEF ON HIS PART. II THE LOWER COURT ERRED IN NOT HOLDING THAT THE CAUSE OF DEATH OF SAID ASUNCION PABLO WAS DUE TO A LONG STANDING PROCESS OR CONDITION IN HER BODY SYSTEM, AS TESTIFIED TO BY DR. PEDRO BLANCO FOR THE DEFENSE. III THE LOWER COURT ERRED CONSEQUENTLY IN NOT ACQUITTING HIM OF THE CRIME OF PARRICIDE. Our primary concern is to determine the cause of death of Asuncion Pablo, the wife, of the accused. Was her death a result of cardiac arrest and primary shock due to fractured ribs? The appellant alleges that the gradual weakening of the heart due to a long standing illness of the body system caused the cardiac arrest which claimed the life of Asuncion Pablo. The post-mortem report on the deceased was prepared by Dr. Eliseo V. Bonoan who conducted an autopsy at the behest of a daughter of tile deceased by a previous marriage. The husband who previously denied permission to conduct an autopsy was present when the autopsy was performed shortly before the body was buried at the cemetery of San Nicolas, Ilocos Norte. In the necropsy report of Dr. Bonoan, the cause of death was manifestly due to cardiac arrest and primary shock. We agree and see no fault in this finding made in the necropsy report of Dr. Bonoan.

The defense took exception to Dr. Bonoan's testimony that the fractures in the chest could have been caused by blows or physical pressure. Could such injuries not have been inflicted by elbow blows when the victim was standing or by knee or feet blows when the victim was lying on her back or was sitting with her back against the wall? While the accused admitted that he delivered several elbow blows on the chest of his wife immediately before her death and the prosecution attributed these blows as the proximate cause of the cardiac arrest and primary shock which resulted in the wife's death, the defense assails this theory of the prosecution in the following manner:
First, there were no contusions on the chest of the victim. This indicates that the elbow blows were not of sufficient force to fracture the ribs. This is so because a fracture necessarily results in the extravasation of blood in the fractured area and it is the extravasated blood that causes the swelling or contusion. 2 Dr. Blanco attributes the absence of swelling or contusion on the chest, where the fractures were found, to the fact that the fracture conditions Were of long standing; that is, some repairs has happened and that sufficient time have elapsed for the swelling to disappear (t.s.n., p. 180). Second, even on the theory that fractures of the ribs as that found by Dr. Bonoan were present, the same could have not caused cardiac arrest and primary shock. This is so because only extravasated blood was present around the immediate area of the fractures, This means that the fractures were not depressed or that the fractured ends did not cave-in, so as to injure the heart and impede its functions to cause cardiac arrest. The claim of Dr. Bonoan that the chest is pliant and is like an accordion which can be compressed is puerile to say the least. Even so, the elbow blows of the accused could not have caused a compression of the chest wall, no matter how pliant it could be. And even on the theory that the fractures were caused by stamping the foot on a piece of wood placed on the chest, while the victim was lying on her back, still the fractures could not have injured the heart or impede its functions to cause cardiac arrest, because the fractures, were not depressed fractures or cave-in fractures. The fractures merely caused the extravasation of blood within the fractured areas. And neither would the fractures cause primary shock because they were merely complete fractures; which means a mere breakage that would not cause the stoppage of the heart, because it does not tend to compress the heart. 3

And third, although the pleura or thoracic cavity was lacerated at the points of fracture, the same could not have caused cardiac arrest or primary shock because the lacerations were limited to the pleura. The points of fracture did not cave-in or were not depressed and they did not injure or impede the heart to cause cardiac arrest. Neither did the lacerations of the pleura cause primary shock because blood did not spill into the pleura, which indicates that the hemorrhage was nil. This is so because the serous fluid in the pleura -as not reddish.
On the contrary, the evidence of the prosecution shows that the deceased died of cardiac arrest because of the weakening of the heart due to a long standing process or condition in her body system. Thus the theory of the defense is strengthened by the very evidence of the prosecution. 4

Furthermore, both sides in this case took issue to the presence of 200 cc. of serous fluid in the pleura. The appellant claims that it is not normal whereas the prosecution says that the pleura normally contains 100 to 200 cc. of serous fluid and that this is normal. Anyway both agree that there should be enough serous fluid to lubricate the tissues.

The presence of 500 cc. of serous fluid in the abdominal cavity which, according to Dr. Blanco, the physician, witness for the appellant, may be due to the chronic condition of the kidney like nephritis and edema or the hardening of the liver or a long progressively weakening of the heart. 5 Dr. Bonoan did not concur in this view when he said that the fluid was rather increased as a result of the diffusion of the medicine used in the embalming.6 We find cogent basis in the explanation given by Dr. Bonoan. Another point raised in the necropsy report pertains to the presence of clotted blood in the heart and blood vessels as well as the congestion of the meningeal vessels. The appellant bares that this is a sign of the hardening of the heart. Dr. Bonoan of the prosecution disclosed that there were no signs of circulatory weakening and that blood clots were not found adherent to the heart and such being the condition there could be no abnormality and thus he further declares that such clots are normally found in the heart of a dead person or in any part of the circulatory system. 7 There is an admission by Dr. Blanco, the appellant's witness, that he has not "attended a case of fractured ribs" 8and that he explains cardiac failure as a "failing of the heart" and his further concept is that it is "the stopping of the heart." He says that such stoppage could be due to trauma, such as a fracture of the ribs. 9 A resume of the evidence presented by the parties establishes the fact of death of Asuncion Pablo on May 21, 1970. She was legally married to Macario Ulep, the appellant herein. The death, established in two affidavits, Exhibits "A" and "B," was caused by said accused. In these affidavits, the appellant admitted that he elbowed and attacked his wife. This attack caused the complete fracture of the 4th, 5th, 6th and 7th ribs on her left chest and the 3rd, and 4th ribs, right chest of Asuncion Pablo on the same evening of May 21, 1970. The trial judge observed: "There was never any attempt on the part of the accused to repudiate the sworn statements wherein he admitted that the cause of death of his wife was his having elbowed her many times on her breast." 10 Having realized the gravity of his act, the appellant presented a witness to prove that sometime in February or March, 1969 his wife was pinned down by a sack of rice and the side portion of a bullcart and was attended to by a town quack doctor called an arbularyo. This witness said that two (2) ribs on each side of the chest were fractured, without stating which particular ribs were so affected. From all these observations, findings, and an incisive study of the necropsy report, the cause of death of the wife-victim in this case is cardiac arrest and primary shock caused by the strong pressure applied on the upper front chest bone. This happens when one steps, kneels or presses the body of a victim against a wall. The man-size blows coming from the elbow of the aggressor upon a thin-framed woman can only bring about fatal results. We find relevance in Wharton and Stilles' findings in their book, Medical Jurisprudence under the title of "SHOCK," to wit:
Sec. 225. Shock. Death may also be due to the shock associated with the injury. The possibility of a person dying from the shock attendant upon an injury which, by itself appears to be unimportant is attested by experience. No satisfactory explanation of the cause of the shock seems to have been found, though it is due in some way to the upsetting of the nervous equilibrium of the body. Shock from an injury may be fatal even when the blow leaves no trace behind it; as, for instance, when a person receives a violent blow upon the pit of the stomach, or behind the ear, or to the larynx. ... In the case of Reg. v. Slane, et al., 11 the deceased had received injuries to the abdomen by kick and blows, but there were no marks of bruises present, or anything to show the cause of

death. Death however, had followed twenty minutes after the maltreatment and was evidently due to the shock. The prisoners were convicted of murder. 12

We have previously stated that: Even if the victim is suffering from an internal ailment, liver or heart disease, or tuberculosis, if the blow delivered by the accused (a) is the efficient cause of death; or (b) accelerated his death; or
(c) is the proximate cause of death; then there is criminal liability.
13

Apropos to all these is that time-respected doctrine: "He who is the cause of the cause is the cause of the evil caused." This is the rationale in Article 4 of the Revised Penal Code which provides that "criminal liability shall be incurred by a person committing a felony (delito) although the wrongful act done be different from that which he intended." Again, We elucidated that: even though a blow with the fist or a kick does not cause any external wound, it may easily produce inflammation of the spleen and peritonitis and cause death, and even though the victim may have been previously affected by some internal malady, yet if the blow with the fist or foot accelerated death, he who caused such acceleration is responsible for the death as the result of an injury willfully and unlawfully inflicted. 14 We are, therefore, convinced that there is no fundamental disagreement between the two medical witnesses as to the cause of the victim's death and that cardiac arrest and primary shock took away the life of the victim, Asuncion Pablo. There is that clear and categorical showing that on the appellant fell the blame for these in human acts on his wife. He should answer for her tragic death. The indemnity to the heirs of his deceased wife should be increased to P30,000.00. WHEREFORE, with the above modification as to indemnity, the judgment appealed from is hereby AFFIRMED in all other respects. SO ORDERED.