PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

GARI BIBAT Y
DESCARGAR, defendant-appellant.
D E C I S I O N
PURISIMA, J .:
Appeal interposed by accused Gari Bibat y Descargar from the judgment rendered
by Branch IV of the Regional Trial Court of Manila, finding him guilty of the crime of
Murder in Criminal Case No. 93-123648.
Filed on July 23, 1993 by Assistant Prosecutor Alfeo T. Siccuon, the Information
indicting accused for Murder, alleges:
That on or about October 14, 1992, in the City of Manila, Philippines, the said
accused, conspiring and confederating with others whose true names, identities and
present whereabouts are still unknown and helping one another did then and there
willfully, unlawfully and feloniously, with intent to kill and with treachery and
evident premeditation, attack, assault and use personal violence upon the person of
one LLOYD DEL ROSARIO Y CABRERA, by then and there stabbing him with
bladed weapon hitting him on the chest and abdomen, thereby inflicting upon the
latter mortal stab wounds, which are necessarily fatal and which where the direct and
immediate cause of his death thereafter.
Contrary to law.
With the accused entering a negative plea upon arraignment thereunder, with
assistance of the counsel de oficio, Atty. Alejandro G. Yrreborre, Jr., trial ensued with
the prosecution presenting Nona Avila Cinco, P03 Julian Bustamante, Florencio Castro
and Rogelio Robles, as its witnesses.
Aside from accused, Marte Soriano, Lino Asuncion III, and Rogelio Robles (who
was recalled to the stand by the defense), testified for the defense.
As synthesized by the trial court of origin :
From the record and evidence presented, it appears that the accused Gari Bibat
stabbed to death one Lloyd del Rosario on October 12, 1992 at around 1:30 p.m.
along G. Tuazon cor. Ma. Cristina Sts., Sampaloc, Manila. The victim was on his
way to school waiting for a ride when he was stabbed. Thereafter the suspect fled
while the victim was brought to the United Doctors Medical Center (UDMC)
where he was pronounced dead on arrival.
The incident was witnessed by Nona Avila Cinco, a laundry woman, who testified
that on October 14, 1992, while she was at Funeraria Gloria waiting for her bettor,
she saw a person about one meter away talking to the accused. Said person told
the accused O pare, anduon na. Puntahan mo na. Siguruhin mo lang na itumba
mo na. to which the accused answered: Oo ba. Ganito ba, ganito ba? (as the
witness was speaking, she was demonstrating with her arms.)
[1]

After hearing the accused, she (witness) left towards Honrades Street to see
another bettor. She first went inside a house and after a while, she went outside
where she saw the accused along Honrades Street, entering an alley. She walked
along with the accused. She and the accused were even able to look at each other.
While the victim was going out of a gate, the accused hurried towards the
victim and took a pointed object from a notebook, then stabbed the victim in
the left chest twice.
She was only about 4 to 5 meters away from the scene of the crime.
Thereafter, the accused fled, the victim shouted for help. Upon hearing the shouts
of the victim, the accused returned and stabbed the victim again in the middle part
of the chest. She (witness) then left the scene of the crime after the accused ran
away.
She reported the matter to the authorities only on July 20, 1993 because she
was afraid.
[2]

xxx
Florencio Castro testified among others that he saw the accused together with
four others inside the Gloria Memorial Homes along G. Tuason St. on October 14,
1992. One of them used the phone inside said place to call somebody. The rest
stayed beside the one calling. He saw one of them open a notebook where a
stainless knife was inserted. He heard the one using the phone, asking kung
nasaan. Thereafter, the group went out and left towards the direction of Balic-
Balic.
Rogelio Robles, testified among others that the accused Gari Bibat had been
going to his place at 424 Berdad St., Sampaloc, Manila, for a long time already
because their Samahang Ilocano (SI) president, Tonton Montero, is his (witness)
neighbor. Before the incident occurred, Tonton Montero told him (witness) about a
rumble in school whereby somebody died. The group of the accused was planning
to take revenge against the victim, Lloyd del Rosario (see TSN, pp. 7-8,
6/30/94), thus:
PROS. EUGENIO:
Q - Now, do you know personally what this group of Gari Bibat and his companions plan to
do regarding that trouble related to you by your neighbor, Tonton Montero?
A -What I know, the person against whom they will take revenge is living from a far place. I
did not know that he is from our place.
Q -Did they ever mention, during that meeting the name of the person whom they will take
revenge?
A -In the beginning, no, sir, but later they told me.
Q -What was the name, if they did mention to you the name?
A -The one who was killed, Lloyd, sir.
Q -The same Lloyd del Rosario, the victim in this case?
A -Yes, sir, Lloyd del Rosario.
He further testified that he (witness) only knows Lloyd del Rosario by the face
because the latter is from his place. He only knew what had happened to Lloyd
after that fateful incident because 6 or 7 of the members of the group arrived, all
with a tusok and they even kept two (2) guns in his (witness) house. Gari Bibat
was one of the 6 or 7 people he saw on that day, with a tres-cantos or veinte
nueve tucked in his (Bibats) waistline. (see pp. 11-12, TSN, 6/30/94). He further
narrated that he actually saw the killing of the victim, (see pp. 22-24, Ibid). that
even before the day Lloyd died, they (accused and companions) already hid some
guns and tusok in his house. (see pp. 20, TSN, Ibid.)
xxx xxx xxx
Accused Gari Bibat testified among others that on October 14, 1992, he was
staying in his house at 629 Reten St., Sampaloc, Manila; at that time it was his
mothers birthday; that he was reviewing his lessons from 7:00 oclock to 10:00
oclock in the morning in preparation for his final oral exams on October 14,
1992; that Marte Soriano, a friend of his and a neighbor were in his house; that
after lunch, they (he and Marte Soriano) left for school at 12:35 noon; that they
did not pass by Funeraria Gloria; that he and his friend were able to reach the
school; that he had a review of with his classmates up to 1:45 oclock in the
afternoon, afterwhich they proceeded to their room for the final exams; that their
examination lasted from 7:30 to 4:30 oclock in the afternoon; that he passed the
subject with a grade of 2.25; that he does not know Nona Cinco but only later in
the precinct; that he saw Rogelio Robles who was also detained at the Manila City
Jail; that when he asked why Rogelio Robles testified against him, Robles told
him that it was merely concocted because the complainant is Robles neighbor
whom he cannot refuse; that he does not know Tonton Montero; that he did
frequent Verdad St., near Rogelio Robles house, neither did he go there on
October 14, 1992 between 1:00 and 2:00 oclock in the afternoon; that he is not a
member of Samahang Ilocano fraternity but the United Ilocandia fraternity, a
school fraternity; that he could not remember of his fraternity being involved in
any school rumble as the same is a very peaceful group which promotes
brotherhood; that they did not have a quarrel with the victim who is already dead
because the latter is not studying at Arellano University; that with respect to the
death of Lloyd del Rosario, the same is an added charge (ipinatong) to him and
that he was just implicated therein; that he knows nothing about it.
On cross examination, he testified that he neither saw the two prosecution
witnesses before nor did he know of any grudge which said witnesses have
against him; and that he does not know of any reason why they would testify
against him and identify him as one of the killers of Lloyd del Rosario.
Marte Soriano, testified among others that he was at the house of Gari Bibat at
Reten St., Sampaloc, Manila, attending the birthday (party) of Garis mother on
October 14, 1992; that Gari Bibat was reviewing his studies at that time in
preparation for an oral examination. After taking lunch, he, together with Gari,
went to school (Arellano University) at around 12:00 noon. There, he reviewed
his lessons in preparation for his exams while Gari Bibat had a group study with
his classmates until 2:00 P.M. when Gari went inside the classroom. He knew
that Gari Bibat had an exam that day at 2:00 P.M. because he (witness) is also
studying at Arellano University. The next time he saw the accused was two (2)
days after October 14, 1992.
Lino Asuncion III, testified among others: that he is a classmate of Gari Bibat at
Arellano University; that their common subject on MWF is Math 2, English 2,
Computer 2; that they had a last/final oral examination in Computer 2 on October
14, 1992; that he saw Gari Bibat in school on that day at about 1:00 P.M.; that he
and Gari Bibat took the said last final oral exam; that they both left the room at
the same time at 4:30 P.M.
Rogelio Robles - (was recalled to the stand to testify contrary to what he had
previously stated in court). He testified inter alia that he did not really see what
transpired on October 14, 1992 at 1:30 oclock in 6the (sic) afternoon; that he
only assisted the parents of the victim because they come from the same place;
that the father of the victim handed to him the handwritten statement which he
(witness) based his previous testimony; that he did not actually see the killing.
On December 27, 1995, the court a quo handed down its decision in question;
disposing, thus:
Wherefore, with all the foregoing, the Court finds the accused GARI BIBAT Y
Descargar, guilty beyond reasonable doubt of the crime of MURDER and hereby
sentences him to suffer the penalty of reclusion perpetua; to indemnify the heirs
of the victim in the amount of P49,786.14 as actual damages; and to
pay P50,000.00 as and for moral damages, with costs.
SO ORDERED.
Appellant places reliance on the assignment of errors, that:
I
THE TRIAL COURT ERRED IN GIVING FULL FAITH AND CREDENCE TO
THE TESTIMONIES OF THE ALLEGED EYEWITNESSES NONA AVILA
CINCO AND ROGELIO ROBLES.
II
THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE VERSION OF
ACCUSED-APPELLANT THAT HE WAS NOT AT THE SCENE OF THE
CRIME WHEN THE SAME HAPPENED.
III
THE TRIAL COURT ERRED IN APPRECIATING THE AGGRAVATING
CIRCUMSTANCE OF EVIDENT PREMEDITATION.
FIRST ISSUE:
CREDIBILITY OF PROSECUTION WITNESSES
The Court discerns no basis for disturbing the finding and conclusion arrived at
below on the credibility of the prosecution witnesses.
In the matter of credibility of witnesses, we reiterate the familiar and well-
entrenched rule that the factual findings of the trial court should be
respected. The judge a quo was in a better position to pass judgment on the
credibility of witnesses, having personally heard them when they testified and
observed their deportment and manner of testifying. It is doctrinally settled that
the evaluation of the testimony of the witnesses by the trial court is received on
appeal with the highest respect, because it had the opportunity to observe the
witnesses on the stand and detect if they were telling the truth. This assessment is
binding upon the appellate court in the absence of a clear showing that it was
reached arbitrarily or that the trial court had plainly overlooked certain facts of
substance or value that if considered might affect the result of the case.
[3]

As well explained by the Solicitor General, Persons do not necessarily react
uniformly to a given situation, for what is natural to one may be strange to
another.
[4]
Verily, there is no standard form of human behavioral response when one is
confronted with a strange and startling experience.
[5]

It was thus natural for Nona Cinco to just have stayed at the sidelines. She is a
woman who could not have prevented the armed appellant from stabbing the victim,
anyway. The suddenness of the happening and Nona Cincos fear for her own life must
have prevented her from shouting for help.
[6]

Delay in divulging the name of the perpetrator of the crime, if sufficiently reasoned
out, does not impair the credibility of a witness and his testimony nor destroy its
probative value. It has become judicial notice that fear of reprisal is a valid cause for
the momentary silence of the prosecution witness.
[7]

In the case at bench, witness Nona Avila Cinco gave an eyewitness account of the
killing complained of in a categorical and straightforward manner.
Appellant belittles the fact that Nona Cinco remembers the stabbing incident to the
minutest details. According to him, this is alright if the crime just happened, or after the
happening of the crime, the witness FORTHWITH reported the matter to the proper
authorities. Unfortunately, the witness reported the said incident after NINE (9) LONG
MONTHS.
It does not appear that it was impossible for Nona Cinco to have a detailed
recollection of the stabbing sued upon. Even before the incident, she already saw the
accused with some companions inside Funeraria Gloria and overheard the plan to kill
someone. At that time, she was only about one (1) meter from the accused and his
companions. And when she proceeded to Honrades Street, she and the accused
walked along with and even looked at each other.
At the time when the stabbing in question was taking place, Nona Cinco was only
four to five meters away. The possibility of her recalling even the minutest details
cannot therefore be ruled out.
Appellant faults Nona Cinco for reporting the stabbing incident to the police
authorities only after nine (9) months, and for her apparent indifference during the
incident, doing nothing even while witnessing a cruel and gruesome crime.
Appellant also theorizes that Nona Cinco was lying when she testified that she was
taking bets for a PBA game on October 14,1992, a Wednesday. Claiming that PBA
games are held only on Tuesdays, Thursdays and Saturdays; appellant concludes that
She lies on a simple or minor thing, all the more, she can lie on a bigger scale.
On the other hand, the Solicitor General pointed out that: There are 100
combinations which bettors can try their luck on the so-called PBA game ending and,
therefore, 100 corresponding bets should be collected for maximum profit. It was not
farfetched, therefore, for Nona Cinco to collect bets a day or two before the actual PBA
games which would decide the winning bet.
Besides, the lie alluded pertains to an insignificant matter which does not affect the
material details of the stabbing incident, and the unequivocal eyewitness account of the
killing of the victim, Lloyd del Rosario. The maxim or rule falsus in unos, falsus in
omnibus does not lay down a categorical test of credibility. It is not a positive rule of
law of universal application. It should not be applied to portions of the testimony
corroborated by other evidence particularly where the false portions could be innocent
mistakes. Moreover, the rule is not mandatory but merely sanctions a disregard of the
testimony of the witness if the circumstances so warrant. To completely disregard all
the testimony of a witness on this ground, his testimony must have been false as to a
material point, and the witness must have a conscious and deliberate intention to falsify
a material point.
[8]

SECOND ISSUE:
THE DEFENSE OF ALIBI
The accused relies on the defense of alibi, an inherently weak defense.
[9]
In a long
line of cases, this court has held that alibi is generally considered a weak defense
because of the facility with which it can be fabricated. Thus, courts have always looked
upon it with suspicion. Well-settled is the rule that for alibi to prevail, it must
be established by positive, clear and satisfactory proof that it was physically impossible
for the accused to have been at the scene of the crime at the time of its commission,
and not merely that he was somewhere else.
[10]

Appellant failed to convince the court that it was physically impossible for him to be
at the scene of the crime at G. Tuazon cor. Ma. Cristina Sts. He claimed that during the
stabbing incident at around 1:30 p.m., he was reviewing for an oral examination in his
subject of Computer 2 at the Arellano University. But as the trial court noted, the situs
of the crime was not far from Arellano University such that granting arguendo that the
accused was initially at the Arellano University, he could have easily sneaked back to
the scene of the crime considering that the two places are just near each other.
[11]

To buttress his theory that he was actually reviewing for his final oral examination in
Computer 2 at the very time the crime occurred, he alleged that he received a grade of
2.25 in said subject. But aside from his testimony and that of Lino Asuncion, no other
evidence was presented to substantiate this submission. Appellant should have, at
least, exhibited his class card or grading sheet to show that he did really take an
examination in that subject.
Furthermore, positive identification, where categorical and consistent and without
any showing of ill motive on the part of the eyewitness testifying on the matter, prevails
over alibi and denial which, if not substantiated by clear and convincing evidence, are
negative and self-serving evidence undeserving of weight in law.
[12]

In the instant case, prosecution witness Nona Cinco positively identified appellant
as the culprit. Another prosecution witness, Rogelio Robles, testified to the actual
killing of the victim by appellant. Although the latter recanted, the lower court correctly
held that the later retraction made by Rogelio Robles does not by itself render his
previous testimony false or perjured because the same testimony appears to be
credible and worthy of belief.
[13]
Then too, affidavits of recantation are considered as
exceedingly unreliable because they can be easily secured from poor and ignorant
witnesses usually for monetary consideration and most likely to be repudiated
afterwards.
[14]

THIRD ISSUE:
THE PRESENCE OR ABSENCE OF EVIDENT PREMEDITATION
Appellant argues that the trial court erroneously appreciated evident premeditation
against him. Assuming for the sake of argument that he is the felon, the crime he
committed is not MURDER but HOMICIDE,
[15]
he maintains.
Appellant correctly states the rule that the circumstance which would qualify the
killing to murder must be proved as convincingly as the crime itself.
[16]

Here, we are of the irresistible conclusion that the attendance of evident
premeditation to qualify the killing complained of to murder is borne out by the evidence.
There is evident premeditation when the following requisites are met:
1. The time when the offender determined (conceived) to
commit the crime;
2. An act manifestly indicating that the culprit has clung to his
determination; and
3. A sufficient lapse of time between the determination and
execution to allow him to reflect upon the consequences of his act.
[17]

The essence of premeditation is that the execution of the criminal act is preceded
by cool thought and reflection upon the resolution to carry out the criminal intent during
the space of time sufficient to arrive at a calm judgment.
[18]

The appellant, in his brief, implies that the first requisite of evident premeditation
was not sufficiently proven, contending, that:
xxx the aggravating circumstance of evident premeditation was appreciated by
the trial court based solely on the testimony of witness Rogelio Robles. The said
witness testified that accused-appellant and several others often met in his
(Rogelio Robles) house. In one of their meetings, accused-appellant and his
companions hid some guns and tusok in the said witness house. Other than
these testimonies, the trial court proffered no other rationale to justify the
application of evident premeditation.
[19]

At first glance, it may seem that the first requisite of evident premeditation, [i.e. the
time when the offender determined (conceived) to commit the crime], was appreciated
by the lower court solely on the basis of the testimony of Rogelio Robles.
Appellant theorizes that the testimony of Robles is not believable; ratiocinating, thus
:
xxx such testimonies which were retracted by Rogelio Robles cannot by any
yardstick be considered credible in itself. It simply defy human experience. For
evidence to be believed, it is basic that it must not only proceed from the mouth of
a credible witness, but it must be CREDIBLE IN ITSELF. (Emphasis supplied;
Layug v. Sandiganbayan and People of the Phil., supra; Tuason v. C.A., supra;
Lee Eng Hong v. C.A., 241 SCRA 392) If it were true that accused-appellant and
several others planned the subject killing, they would not be crazy enough to have
openly discussed the same in the presence of another person (TSN, June 30, 1994,
p. 9). They would be very discreet about it because even the most unlearned or
unschooled person would know that killing is against the law of man and of
God. If indeed they have planned it, they did it in complete secrecy. More, there
is no explanation why of all places, accused-appellant and his group met at
Rogelio Robles house. The latter is only the neighbor of the alleged president of
the formers organization. Worse, accused-appellant and his group hid some guns
(Ibid., p. 11) and tusoks (Ibid., p. 22), in Rogelio Robles house. Any person
who is in his right frame of mind would not allow anybody to use his house as an
armory so to speak or for any illegal purposes.
Appellant faults Rogelio Robles for his utter lack of concern knowing fully well that
the appellant and his companions were planning to kill someone and even allowed them
to hide guns and tusok in his house. But the reason for the apparent indifference of
Robles could be gleaned from the following revelation :
ATTY. CALIMAG:
Q - And when they left your house and took the tusok and left the guns, you know very
well from Tonton Montero that they are going to kill somebody, am I right?
A - In school. I did not know that the one they will kill is from my place.
Q - Now, my question you know that they are going to kill somebody, what did you do, if
any as a concerned citizen?
A - What if they turn their ire on me.
COURT:
Aside from that English translation, you put on record the Tagalog answer of the witness: a
Eh, kung ako naman ang pagbalingan.
ATTY. CALIMAG
Q - Now, Mr. Witness, why it took you so long to come out and testify, if you really know the
truth about this matter?
A - Because the parents of the victim were still mad or angry, what would happen to me if I
tell them early, what if they said that I am a part of it.
Q - Why, what do you think about yourself, are you not a part of it, Mr. Witness? Because
you failed to report this matter immediately to the police officer?
A - I kept it to myself for fear that my brother and sisters might be involved, what will happen
to me.
Fully aware that the appellant and his companions were armed with guns and
tusok, it was but natural for Robles to just observe the protagonists and not get
involved. Fear for his own life and that of his family may have overcome whatever
humanitarian inclination he had as a concerned citizen.
Besides, even without the testimony of Rogelio Robles, the presence of the first
requisite of evident premeditation appears to have been thoroughly and sufficiently
established. The determination or conception of the plan to kill the victim could be
deduced from the outward circumstances that happened on the fateful day of October
14, 1992. Records show that at 11:30 in the morning of October 14, 1992, prosecution
witness Nona Cinco saw the accused with some companions at Funeraria Gloria. She
personally heard the plan to kill someone. Another prosecution witness, Florencio
Castro, who works at the Funeraria Gloria also saw the group of Gari Bibat in the said
place. At around 1:30 in the afternoon, Nona Cinco saw the appellant for the second
time. She saw the appellant hurry towards the victim, take a pointed thing from a
notebook and with the use of such weapon, stabbed the victim on the chest. These
overt acts clearly evinced that the appellant clung to his resolution to kill the victim.
From the time Nona Cinco heard the plan to kill someone at 11:30 up to the killing
incident at 1:30 in the afternoon of the same day, there was a sufficient lapse of time
for appellant to reflect on the consequences of his dastardly act.
As held in the case of People v. Dumdum
[20]
the killing of the deceased was
aggravated by evident premeditation, because the accused conceived of the assault at
least one hourbefore its perpetration. In the case under examination, two hours had
elapsed from the time appellant clung to his determination to kill the victim up to the
actual perpetration of the crime.
WHEREFORE, the Decision appealed from is hereby AFFIRMED. Costs against
accused-appellant.
SO ORDERED.
Narvasa, C.J., (Chairman), Romero, and Kapunan, JJ., concur.



[1]

TSN, September 30, 1993, pp. 8-9, cited in Decision, p. 2.

[2]

Ibid., p. 18, cited in Ibid.

[3]

People v. Morales, 241 SCRA 267, 273, February 13, 1995; citing People v. Jacalan, 230 SCRA 1, February 10, 1994, People v. Abo, 230 SCRA 612, March 2,
1994, and People v. Revillame, 230 SCRA 650, March 3, 1994.

[4]

People v. Cabrera, 241 SCRA 28 [1995].

[5]
People v. Paricia, 243 SCRA 557 [1995].
[6]

Appellees Brief, pp. 16-17.

[7]

People v. Villanueva, 4 March 1995.

[8]

People v. Pacapac, 7 September 1995, 248 SCRA 77, 89.

[9]

People v. Bocatcat, Sr., 188 SCRA 175

[10]
People v. Magana, G.R. No. 105673, p. 14, July 26, 1996; citing People v. Cortes, 226 SCRA 91,
September 3, 1991; People v. Marquez, 153 SCRA 700, September 14, 1987; and People v.
Nescio, 239 SCRA 493, December 28, 1994.
[11]

Decision , p. 6.

[12]

People v. Amonia, 248 SCRA 486, 493, September 21, 1995.

[13]

Decision, p. 6.

[14]

People v. Celedonia de Leon, et al., G.R. No. 110558, July 3, 1995.

[15]

Appellants Brief, p. 10.

[16]

People v. Machete, 231 SCRA 272, cited in Ibid.

[17]

People v. Leano, C.A. 36 O.G. 1120; People v. Diva, et al., G. R. No. L-22946, April 29, 1968; People v. Lagarto, 196 SCRA 611 [1991].

[18]

People v. Durante, 53 Phil 363, cited in LUIS B. REYES, THE REVISED PENAL CODE: CRIMINAL LAW, BOOK ONE, Twelfth Edition (1981), p. 378,
Emphasis in the original text.

[19]

Appellants Brief , pp. 10-11.

[20]
92 SCRA 198 [1978].

G.R. No. 85735 January 18, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JULIO LUG-AW and ROGELIO BANNAY alias JUNIOR BANNAY, defendant-appellants.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.

ROMERO, J .:
This case demonstrates how passion can sway people who perceive that their right to till the soil
is being violated Carlos Pal-loy was shot to death as he was fencing the boundary limits of
the land he was farming by persons identified with the owner of the land adjacent to his own and
with whom Pal-loy had a boundary dispute.
Pal-loy was farming part of the communal forest land located in Sitio Kalipkip, Sto. Nio,
Maddela, Quirino. Despite the boundary dispute between him and his neighbor, Conchita Tipon
(Nipol or Ngipol), on December 12, 1985, Pal-loy straightened out the boundary line by putting
up a fence allegedly upon the instruction of the public forester.
1

As Pal-loy went about the task, his 13-year old-daughter, Sonia, and another daughter named
Carina, followed him around. Pal-loy was proceeding towards the house when Sonia heard a
gun report. Immediately, she went uphill and just as a second gun report resounded, she saw
Rogelio Bannay and Julio Lug-aw from a distance of around four meters. She saw, too, that as
her father was about to draw his bolo, Lug-aw shot him.
Approaching here father, she found him wounded on the right shoulder and the lower portion of
the breast. Pal-loy asked her to call her mother. Sonia obeyed and together with her mother,
they returned to him. He told them that his assailants were Lug-aw and Bannay. Her mother told
her to seek help but no one responded. It was only when her mother herself called for help that
Boy Culap, Gorio Gay-yaman and Patumbay Immul-yap came to their assistance. They brought
Pal-loy to their house.
According to Sonia, Lug-aw was behind a tree stump when he shot her father. Bannay, who
was with Lug-aw, was hiding and he did not do anything.
2
She was around ten meters from the two
but she could not have seen them had she and her sister Carina not climbed a tree after the first shot.
After shooting Pal-loy, Lug-aw ran towards the left side of Pal-loy with Bannay following him. Sonia saw
the gun used in shooting hr father but could not tell its caliber.
3

Carmen, Pal-loy's wife, was at home at around 5:00 o'clock in the afternoon of December 12,
1985 when he heard a gun report which was followed by another shot three minutes later. She
rushed to where she thought she heard the shots and found her daughters hiding behind the
stump of a tree near their father. Her daughters informed her that their father's assailants were
Julio
Lug-aw and Junior Bannay, the nephew of Conchita Tipon. Her husband himself corroborated
this and told her, "Awan sabali nga pimmaltog, nangpatay kaniak no haan nga ni Julio Lug-aw
kenni Rogelio Bannay" meaning, "nobody killed me except Lug-aw and Bannay."
4

Instructing her daughters to look after their father, Carmen forthwith proceeded to the barangay
captain and councilmen of Sto. Nio to ask for help. Since no one came to help her, she sought
the assistance of her neighbors. Her husband died at around 12 o'clock midnight and they
buried him within the premises of their residence.
5

Having heard of the "suspicious circumstances" surrounding the death of Pal-loy, the police
station commander in Maddela requested the municipal health officer to conduct an autopsy
after the body of Pal-loy shall have been exhumed.
6
For his part, the municipal health officer, Dr.
Teodomiro R. Hufana, Jr., manifested before the municipal trial judge that after the burial of Pal-loy on
December 15, 1985, the police acted on the case only upon the order of the commanding officer of the
166th PC company. Dr. Hufana also requested that the police bring down the body of Pal-loy from the
mountain as he was incapable of negotiating the six-kilometer distance to the place where Pal-loy was
buried.
7

Upon exhuming the body on July 7, 1987, Dr. Hufana found it dressed in white T-shirt and
wrapped in a blanket. The bones were all in "chronological order" and there were four pellets in
the lower quadrant of the abdomen and three pellets in the thoracic cage. There were two holes
on the right side of the back of the T-shirt which were "probably the exit of the two pellets."
According to Dr. Hufana, Pal-loy could have died of "severe hemorrhage secondary to gunshot
wound."
8

The police filed before the municipal trial court of Maddela a complaint for murder against Lug-
aw and Bannay on October 29, 1986.
9
Bannay was arrested on November 18, 1986 while Lug-aw
was apprehended the following day.
10
The court thereafter fixed their bailbond at P20,000.00 each
11
but
it was later reduced to P12,000.00 each.
12
Lug-aw and Bannay were then ordered released from custody
in an Order dated January 26, 1987 upon posting of the bailbond.
13
On May 19, 1987, the following
information was filed against them:
That on or about 5:00 o'clock in the afternoon of December 12, 1985 in barangay
Sto. Nio, Municipality of Maddela, Province of Quirino, Philippines, the above-
named accused, armed with firearms, with intent to kill, conspiring, confederating
and mutually helping one another, attended with treachery and evident
premeditation, did then and there wilfully, unlawfully and feloniously, shot
CARLOS PAL-LOY which caused the death of the latter.
That the crime was attended by the qualifying circumstances of treachery and
evident premeditation.
CONTRARY TO LAW.
Testifying in his own defense, Julio Lug-aw, the son-in-law of Conchita Nipol, swore that he was
plowing his farm in Nalungtutan, Nagtipunan, Quirino around 16 to 17 kilometers away from
Sitio Kalipkip, Sto. Nio, Maddela, Quirino when the shooting occurred. Sitio Kalipkip can be
reached on foot from Nalungtutan for five (5) hours as the road between them can be negotiated
only by a 6 x 6 truck when the river is shallow. He denied farming his mother-in-law's agricultural
land in Sitio Kalipkip as he never set foot therein except when he got married. He expressed
amazement at Sonia Pal-loy's testimony that he was the gunwielder, repeatedly denying any
grudges between him and the victim's family.
14

Rogelio Bannay whose house in Nalungtutan was around fifty meters away from that of Lug-aw,
testified that when the crime occurred, he was at home "peeling peanuts" with his wife. He had
gone to Sto. Nio in January 1984 to attend a wedding but he had not been to Sitio Kalipkip. He
belonged to the same Ifugao tribe as Carlos and Carmen Pal-loy and the latter was his
barriomate in Banawe. Like Lug-aw, he disclaimed bearing any grudge against Pal-loy and his
family. Bannay Buanan and Conchita Nipol, his relatives in Sitio Kalipkip, indeed had a farm
adjacent to thekaingin of Pal-loy but he learned from his relatives that they and Pal-loy enjoyed
"good company" (timpuyog).
15

Both alibis of Lug-aw and Bannay were supported by Jovito Pascual, the barangay captain of
San Dionisio II, Nagtipunan, Quirino, who testified that when the crime transpired, he saw Lug-
aw plowing his farm with four other persons. He also saw Bannay "peeling peanuts" at
home.
16
In its effort to discredit the testimony of Sonia Pal-loy, the defense presented Mario Lingay, a
farmer and storekeeper in Dipintin, Sangbay East, Nagtipunan, Quirino, who testified that on December
13, 1985, two of Pal-loy's children came to his store to buy petroleum gas and gas and when he asked
them who killed their father, both allegedly replied, "I don't know." Lingay asked the children's names but
in a rush, they failed to answer him. Only later did he learn that their names were Sonia and Carmen.
17

In its decision of September 8, 1988, the lower court
18
ruled that the alibi and denial interposed by
the defense cannot overcome the positive identification of the accused by Sonia Pal-loy. Appreciating
both treachery and evident premeditation against the accused, the lower court disposed of the case, as
follows:
IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, the prosecution had
proven the guilt of the accused Julio Lug-aw and Rogelio Bannay beyond
reasonable doubt. Accordingly, the accused ROGELIO BANNAY and JULIO
LUG-AW are hereby sentenced to reclusion perpetua or life imprisonment plus
the accessory penalties provided by law and they are further ordered to
indemnify the heirs of the victim Carlos
Pal-loy in the amount of Thirty Thousand (P30,000.00) Pesos. Cost against the
accused.
SO ORDERED.
The accused then filed a motion for "new trial and/or consideration" based on the "inefficient
legal service" rendered by the CLAO (Citizens Legal Assistance Office) which allegedly denied
the accused due process and prevented them from properly ventilating their cause.
19
Attached to
the motion were the affidavits of: (1) Bannay attesting to the fact that before the promulgation of the
decision, Carmen Pal-loy, the victim's widow, twice approached him begging for forgiveness; telling him
that she was just induced to frame up the accused and expressed her willingness to testify to prove that
both accused were innocent; (2) Fernando Lablalong, stating that he was with Lug-aw plowing the field on
December 12, 1985; that he was in the house of Bannay when Carmen Pal-loy confessed that she and
her daughters were induced to point to the accused as the killers, and that he confirmed the fact that it
was physically impossible for the accused to have been at the scene of the crime, and (3) Gregorio
Gayyaman, swearing that he was one of those who helped Carmen bring her dead husband home; that
being a relative of Pal-loy, he asked Carmen the name of the killer but she replied that she did not know;
that while he and the others made Pal-loy's coffin , no mention of the names of the accused as the killers;
that it was only after Carmen had lived with one Carlos Capinpin that the accused became the suspects
in the killing and that he was surprised that after the victim's family had informed him that there was no
evidence as to who killed Pal-loy, the names of the accused suddenly cropped up.
After the prosecution had filed its comment on the motion, the lower court denied the same in an
Order dated September 8, 1988 explaining that the testimonies of Lablalong and Gayyaman
could not be considered newly-discovered evidence because the defense had all the
opportunity to present them as witnesses at the trial. The court also turned the claim of the
defense regarding the incompetence of counsel stating that, if upheld, there would be no end to
a suit as long as a new counsel could be employed by the accused.
20

The defense filed a motion for reconsideration of said Order quoting the "treatise" of then
Secretary of Justice Sedfrey A. Ordoez on "forgotten evidence" under Rule 37 of the Rules of
Court and ineffective counsel.
21
Attached to the motion were the affidavits of: (1) Rosalina Bookan
stating that Carmen Pal-loy, her townmate, admitted to her that the accused were not the real culprits and
that Carmen was advised against recanting her testimony which might subject her to persecution, and (2)
Carmen Pal-loy swearing that her husband "did not state categorically and clearly that it was the accused
Julio Lug-aw and Rogelio Bannay who shot him" and that she did tell Bookan and the spouses Rogelio
and Julie Bannay that her husband did not say that the accused perpetrated the crime.
In its Order of October 7, 1988, the lower court denied the motion and held that it was Sonia
Pal-loy and not her mother, Carmen, who is the principal witness to the killing and that the
alleged ineffective legal assistance is not a ground for new trial.
22
Hence, the instant appeal.
The appellants contend that the lower court erred in finding that they were positively identified
as the culprits and that the victim's wife and daughter Sonia were present when the crime was
perpetrated. They also assail the lower court's finding that there was a conspiracy between
them in killing Pal-loy.
As in most criminal cases, the linchpin in the resolution of this case is the credibility of the
witnesses. Times without number, this Court has declared that the findings of the trial court on
this matter should not be disturbed on appeal unless some facts or circumstances of substance
and value have been overlooked which, if considered, might well affect the result of the case.
This doctrine is premised on the undisputed fact that, since the trial court has the best
opportunity of observing the demeanor of the witnesses while on the stand, it can discern
whether the witnesses are telling the truth or not.
23
We find no cogent reason to depart from this
doctrine.
As expected, the appellants zeroed in on the testimony of Sonia Pal-loy, the only eyewitness
presented by the prosecution. They contend that Sonia did not actually witness how her father
was shot. In support of this contention, appellants cite discrepancies between her sworn
statement and her testimony in open court. They assert that her failure to specifically name the
two persons running away from the scene of the crime cast a doubt on her testimony that she
saw Lug-aw shooting her father.
24

The Court has always discouraged reliance on affidavits as a basis for resolving a criminal case.
In People v.Caranzo
25
the Court said that "affidavits being taken ex parte usually are incomplete and
often inaccurate, caused sometimes from partial suggestions, sometimes for 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." As correctly pointed out by the Solicitor General, Sonia's
failure to name the appellants in her sworn statement could be attributed to her tender years and the
trauma and shock she had experienced after having witnessed the horrifying killing of her father.
The gaps in Sonia's sworn statement were, however more than offset by her testimony during
the preliminary investigation conducted by the municipal trial judge on November 12, 1986
wherein she testified, thus:
Q Who is your father?
A Carlos Palloy, sir.
Q Where is your father now?
A He was killed, sir.
Q Who killed him?
A Julio Lug-aw and Junior Bannay, sir.
Q Why do you know that your father was killed by Julio Lug-aw
and Junior Bannay?
A I saw them shoot my father, sir.
Q Between the two, Julio Lug-aw and Junior Bannay, who shot
your father?
A Julio Lug-aw, sir.
Q What kind of gun did you see they used to shoot your father?
A Long, sir.
Q How far were you when you saw Lug-aw shot your father?
A About four meters, sir, from my father, sir.
Q Where were Julio Lug-aw and Junior Bannay at the time when
they shot your father?
A They were hiding behind a trunk of a tree, sir.
Q Did you tell your mother that your father was shot?
A Yes, sir.
Q When you heard the gun report and your father was shot what
did you do?
A I called my mother, sir.
Q (Did) you have a companion at the time when you heard a gun
report?
A Yes, sir my sister Carlina.
Q How many gun report(s) did you hear (from) the direction of
your father?
A Two, sir.
Q And the gun report(s) (were) all in the direction of your father?
A Yes, sir.
Q What was your father doing when he was shot?
A He was driving a peg on the ground when he was shot and
when he was shot he tried to draw his bolo but he was prevented
when (sic) drawing his bolo because they hit him on his arm, sir.
Q Before your father died did you talk to him?
A Yes, sir.
Q What did he tell you if any?
A He said that "IF I DIE MY ASSAILANT(S) WHO KILL (ED) BY
SHOOTING ARE JULIO LUG-AW AND JUNIOR BANNAY."
(Emphasis supplied).
26

During the trial, Sonia clung tenaciously to her story and testified that it was during the second
gun report that he saw Lug-aw shot her father. Sonia testified as follows:
Q You said while you were at a lower place where your father was
you heard a gun report, what did you do when you heard the gun
report?
A We went uphill, sir.
Q When you were going uphill, what transpired?
A On the second time that he was shot we saw them, sir.
Q And who were those whom you saw?
A Rogelio and Julio, sir.
xxx xxx xxx
Q You said you saw these persons who shot your father, who
actually shot your father?
A Julio Lug-aw, sir.
Q What was your father doing at the time Julio Lug-aw shot your
father?
A He was about to draw his bolo but the bolo was thrown away,
sir.
Q And how far were you at the time when you saw Julio Lug-aw
shot your father?
A Four (4) meters, sir. (Emphasis supplied.)
27

In their attempt to discredit Sonia, the appellants pointed out that the normal reaction of a
person to such a traumatic happening would be to flee. However, no hard and fast rule can be
laid down with respect to the reaction of persons to the same situation. Running to one's father
who has been shot to give him succor is equally a normal reaction of any daughter.
The failure of the defense to attribute any ill motive on the part of Sonia in order to pin
responsibility on the appellant adds more credence to her testimony. In fact, both appellants
admitted before the court that there was no reason for Sonia to testify against them. Indeed, it is
inconceivable for a
13-year-old who barely finished third grade to impute a very serious offense on anyone unless it
were true. If she were merely fabricating her testimony, she would have broken down during the
intensive cross-examination at the stand. Al contrario, as observed by the trial court, Sonia was
"natural in her manners" and testified "straight forwardly."
Her positive identification of the accused as the perpetrators of the crime demolished their alibi
and denial. Even standing alone, such positive sole testimony is enough basis for
conviction.
28
Thus, even if we lend credence to defense's claim that the victim's widow, Carmen,
prevaricated as shown by the fact that she allegedly tried to recant after the termination of the trial,
Sonia's testimony suffices as a basis for a finding of guilt. Noteworthy is the fact that, unlike her daughters
Sonia and Carina, Carmen was not an eyewitness.
Hence, it is principally from Sonia's testimony that we conclude that the crime committed was
not murder but homicide. The qualifying circumstances of treachery and evident premeditation
had not been proven beyond reasonable doubt. The trial court drew the conclusion of the
presence of treachery because the attack was sudden as Pal-loy was simply going about his
task of fencing his kaingin. We find however, that no one witnessed the initial attack. As Sonia
herself testified, she heard the first shot, went up a hill, climbed a tree and from there, saw Lug-
aw shooting her father with the shot reverberating as the second gun report. Nowhere do we
find in the records any evidence that she witnessed the first shot nor how her father reacted to
it. What she did see was her father trying to repel the assault with a bolo but he failed because
a second shot hit him. As this Court held in People v. Castor,
29
where the lone eyewitness was not
able to observe the commencement of the assault, he could not, therefore, testify on how it all began and
developed. Citing United States v. Perdon
30
and United States v. Pangilion,
31
the Court held in
the Castorcase that absent any particulars as to the manner in which the aggression commenced or how
the act resulted in the death of the victim unfolded, treachery cannot be appreciated to qualify the killing
to murder.
Similarly, the records are bereft of evidence that the crime was committed with evident
premeditation. The three requisites of this aggravating circumstance, namely, the time when the
offender determined to commit the crime, an act manifestly indicating that the culprit has clung
to his determination and a sufficient lapse of time between the determination and execution to
allow the accused opportunity to reflect upon the consequences of his act,
32
are wanting in the
case at bar. Evident premeditation was, therefore, incorrectly appreciated by the trial court.
33

While the guilt of Lug-aw, the gunwielder, has been established beyond reasonable doubt, the
complicity of his companion, Bannay, is open to question. As regards his participation in the
crime, Sonia testified as follows:
Q At the time Julio Lug-aw shot your father, what was the other
accused Rogelio Bannay also doing at that time?
A He was hiding, sir.
Q Did you notice if he has a firearm?
ATTY. FLORES
Objection.
FISCAL FERNANDEZ
Q What did you notice to (sic) Rogelio Bannay when he was
hiding?
A None, sir.
Q And what was the participation of Rogelio Bannay if any in
connection with the shooting of your father?
A None, sir.
COURT
Q (To the witness) But he was there near Julio Lug-aw?
A Yes, Your Honor.
34

Additionally, Sonia stated that after Lug-aw shot her father, Bannay followed him in running
away.
35
Bannay's presence at the scene of the crime was also proven by the victim's declaration that
Bannay and Lug-aw were his assailants. While these circumstances and utterances may prove Bannay's
presence at the scene of the crime, unless conspiracy is proven, these do not, by themselves, indicate
criminal culpability. The quantum of evidence required for a finding that Bannay was in conspiracy with
Lug-aw has not been met. Conspiracy, as with any other ingredient of the offense, must be proved as
indubitably as the crime itself through clear and convincing evidence and not merely by conjecture. As
such, proof beyond reasonable doubt is required.
36

There is conspiracy when two (2) or more persons come to an agreement concerning the
commission of a felony and decide to commit it.
37
Direct proof, however, is not essential to prove
conspiracy. It may be shown by acts or circumstances from which maybe logically inferred the existence
of a common design among the accused to commit the offense charged; it may likewise be deduced from
the mode and manner in which the offense was perpetrated.
38
To extricate himself from criminal liability,
the conspirator must have performed an overt act to dissociate or detach himself from the unlawful plan to
commit the felony.
39

There is no evidence that Bannay shared Lug-aw's criminal intent. Thus, although he did not do
anything in contravention of the supposed conspiracy, his mere passive presence at the scene
of the crime did not make him liable therefor.
40
Moreover, the prosecution failed to show other facts
and circumstances, aside form Bannay's presence near Lug-aw as the latter committed the dastardly act
and following Lug-aw as he ran away, from which a community of interest and design between the two
may be construed. The prosecution's weakness in this respect cannot be taken against Bannay. We
should take into account the doctrine that, in case of doubt as to the culpability of an accused, it should
be resolved in accordance with the presumption of innocence.
Homicide under Art. 249 of the Revised Penal Code is punishable by reclusion temporal. In the
absence of any aggravating or mitigating circumstances, the penalty imposable is the medium
degree of reclusion temporal.
41
Applying the Indeterminate Sentence Law, the penalty that should be
imposed on Lug-aw is ten (10) years and one (1) day ofprision mayor maximum as minimum penalty to
seventeen (17) years and four (4) months of reclusion temporal medium as maximum penalty. Pursuant
to the latest jurisprudence, Lug-aw shall indemnify the heirs of Carlos Pal-loy in the amount of fifty
thousand pesos (P50,000.00).
WHEREFORE, appellant Julio Lug-aw is hereby found guilty beyond reasonable doubt of
homicide under Art. 249 of the Revised penal Code for killing Carlos Pal-loy and he shall serve
the indeterminate sentence of ten (10) years and one (1) day of prision mayor maximum as
minimum penalty to seventeen (17) years and four (4) months ofreclusion temporal medium as
maximum penalty, and indemnify the heirs of Carlos Pal-loy in the amount of fifty thousand
pesos (P50,000.00). Appellant Rogelio Bannay is hereby ACQUITTED of the crime charged and
he shall be released from custody immediately. No costs.
SO ORDERED.
Feliciano, Bidin, Melo and Vitug, JJ., concur.

#Footnotes
1 TSN, July 23, 1987, pp. 17-18.
2 TSN, August 24, 1987, pp. 3-10.
3 Ibid., pp. 12-15.
4 TSN, July 23, 1987, pp. 12-22.
5 Ibid, pp. 16-17 & 26.
6 Record, p. 5.
7 Ibid, p. 4.
8 Exh. "A".
9 Record, p. 1.
10 Ibid, pp. 21 & 23.
11 Ibid, pp. 34-35.
12 Ibid, p. 37.
13 Ibid, p. 100.
14 TSN, July 12, 1988, pp. 2-8.
15 TSN, July 6, 1988, pp. 2-12.
16 TSN, April 7, 1988, pp. 2-6.
17 TSN, May 12, 1988, pp. 3-5.
18 Presided by Judge Carlos T. Aggabao, RTC Branch XXXII, Cabarroguis,
Quirino.
19 Record, p. 301.
20 Record, p. 312.
21 Ibid, p. 314.
22 Ibid, p. 320.
23 People v. Galendez, G.R. Nos. 56465-66, June 26, 1992, 210 SCRA 360.
24 Appellant's Brief, pp. 6-8; Rollo, pp. 82-84.
25 G.R. No. 76743, May 22, 1992, 209 SCRA 232, 243-244.
26 Exh. "C"; Record, pp. 14-15.
27 TSN, August 24, 1987, pp. 4-5.
28 People v. Fagyan, G.R. No. 90197, May 22, 1992, 209 SCRA 275.
29 G.R. No. 93664, December 11, 1992, 216 SCRA 410, 422.
30 4 Phil. 141 (1905).
31 34 Phil. 786 (1916).
32 People v. Balatuan, G.R. Nos. 93805-06, February 7, 1992, 206 SCRA 81.
33 People v. Competente, G.R. No. 96697, March 26, 1992, 207 SCRA 591.
34 TSN, August 24, 1987, pp. 9-10.
35 Ibid, p. 15.
36 People v. Donato, G.R. No. 94530, March 6, 1992, 207 SCRA 125.
37 Art. 8, Revised Penal Code.
38 People v. Pama, G.R. No. 90297-98, December 11, 1992, 216 SCRA 385,
401.
39 People v. De Los Reyes, L-44112, October 22, 1992, 215 SCRA 63.
40 People v. Garcia, G.R. No. 94187, November 4, 1992, 215 SCRA 349.
41 Art. 64 (1), Revised Penal Code.

G.R. No. 70392 June 30, 1986
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
REGINO CAMILET, defendant-appellant.

FERNAN, J .:
Convicted of murder and sentenced to "life imprisonment" by the Regional Trial Court in Iloilo,
Regino Camilet interposed this appeal.
The information filed on October 25, 1982 by the Provincial Fiscal in the then Court of First
Instance of Iloilo stated thus:
That on or about the 2nd day of July, 1982 in the Municipality of Leon, Province
of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the
above- named accused, armed and with the use of a deadly weapon, a knife,
with treachery and evident premeditation and taking advantage of nighttime to
better realize his purpose and in utter disregard of the rank [barangay captain]
and age [62 years old] of his victim, with deliberate intent and decided purpose to
kill, did then and there wilfully, unlawfully and feloniously assault, attack, stab and
hit Perfecto Camancho, Sr. who at the time was in the performance of his duty as
barangay captain, thereby inflicting upon said Perfecto Camancho, Sr. a stab
wound at the left middle inguenal [sic] region [stomach] which directly caused his
death immediately thereafter.
At the arraignment on April 20, 1983, Camilet pleaded not guilty.
The prosecution's version of the crime is as follows:
At around 7:00 o'clock in the evening of July 2, 1982, a Baptist prayer meeting was held at the
residence of Barangay Captain Perfecto Camancho, Sr. in Coyogan Sur, Leon, Iloilo. After the
prayer meeting, the members of the group stayed in that house and whiled away their time
conversing with each other.
Shortly before 9:00 o'clock, Dione [Jolly] Camancho, a dumb nephew of Perfecto, Sr., arrived
crying. By making signs with his hands and fingers, Dione communicated to the group that he
was strangled and hit on his buttocks by someone at a certain place. He asked Perfecto, Sr. to
go with him to the place where he was attacked to locate the person who choked and hit him.
Although it was a moonlit night, Perfecto, Sr. brought along his flashlight. Accompanied by
Dione, Perfecto Camancho, Jr., Rosita Camayo and Cobin [Joven] Cagayao, Perfecto, Sr. went
to the place indicated by Dione.
When they had walked a distance of around 150 meters, Camilet suddenly stepped from a
grove of banana plants and, without word or warning, stabbed Perfecto, Sr. with a one- foot-
long, sharp-bladed knife. Perfecto, Sr. exclaimed "To Reno, ginbuno mo ako" [To Reno, you
stabbed me]. Cagayao also heard Perfecto, Sr. say, "You flee"
Perfecto, Jr., who was seven meters behind Perfecto, Sr., stopped in his tracks after he saw his
father being stabbed by Camilet. He also saw his father grappling momentarily with Camilet and
then both fell down the ground. He then went to a barangay official to ask for help.
Cagayao, who was around eight feet from Perfecto, Sr., ran away from the scene after he heard
Perfecto, Sr. telling them to flee. Rosita, who was eight meters away from Perfecto, Sr., also
scampered away after she heard him say that Camilet had stabbed him.
Perfecto, Sr. sustained a stab wound with a 5-centimeter entrance at his left inguinal region. His
large intestine, which was injured, protruded. When autopsied, his intra-abdominal cavity
revealed a great amount of blood clot [Exhibit A]. He died because of the massive hemorrhage
caused by the stab wound [Exhibit B].
The Camancho family incurred expenses in the total amount of P4,520 for the burial and
interment of Perfecto, Sr. [Exhibits C and D].
The defense presents another story. Witness Emilio Cachila related in court that on the night of
July 2, 1982, while he was on his way home, he saw Perfecto, Sr. and his children, Sherwin,
Perfecto, Jr. and Niel. Perfecto, Sr. was standing near the dike along the road. Later on, Camilet
arrived, Perfecto, Sr. told Camilet, "Reno, so you are here. I will kill you. Your soul has no value
to me. "
Camilet, a 43-year old farmer, testified that he was walking along the road to his mother-in-law's
house to ask for help in planting rice the following morning when the Camanchos "waylaid" him.
Perfecto, Sr. allegedly hit his mouth with a hammer and knocked off five of his teeth. He fell
down on the muddy ricefield. As he stood up, Sherwin struck him on the shoulder with the
muzzle of an air rifle. He fell down again and received another blow from Sherwin's air rifle.
Once again, he fell on the mud. Sherwin hit his left eye which caused it to swell.
Camilet's wife, Thelma, who came to his aid after hearing the shout of Perfecto, Sr., tried to help
by lifting Camilet up from the mud. While Thelma was leading him home, he pulled out his one-
foot-long knife, swung it and hit someone whose identity he did not know. He only learned that
he wounded and killed Perfecto, Sr. the following morning. Camilet was brought to the Aleosan
General Hospital where his injuries required treatment for ten days.
The trial court discredited Camilet's claim of self-defense. If Perfecto, Sr. really hit Camilet with a
hammer, which assault would have constituted unlawful aggression, Camilet would have been
rendered unconscious. If Sherwin really attacked him, Camilet would have filed a case against
him. And, if it were true that his wife came to his rescue, then the Camanchos would have
attacked her as well. During the trial, when Camilet opened his mouth to show the alleged
missing teeth, the court observed that he had lost them due to decay.
The trial court found him guilty of murder aggravated by disregard of rank and sentenced him to
"life imprisonment". It ordered Camilet to pay the heirs of Perfecto Camancho, Sr. total damages
amounting to P35,000.
In this appeal, Camilet alleges that the lower court erred in not holding that he acted in self-
defense, and in convicting him. He avers that the injuries he suffered from the Camanchos
caused his hospitalization. He prays that he be acquitted of murder.
We agree with the Solicitor General that Camilet's claim of self-defense is devoid of merit.
Camilet's testimony that he had a knife with him because he had to prepare his ricefield and at
the same time make bamboo stakes for the dike is simply incredible. Those tasks are not
performed at night. It is more likely that he was preparing for an encounter with Perfecto, Sr. or
any of his children.
It should be noted that prior to the incident described earlier, there was a misunderstanding
between the Camanchos and Camilet. According to one of Perfecto's sons, Niel, his land and
the land of Camilet's mother-in-law were adjoining each other. Camilet worked in the latter land.
A dispute over a portion of that land was referred to the barangay captain who happened to be
Perfecto, Sr.
In the presence of the barangay councilmen, the dispute was settled when Camilet's mother-in-
law agreed to turn over the disputed land to Niel. That settlement apparently did not satisfy
Camilet. In fact, that morning of July 2, 1982, he passed by that land and warned Niel that he
and his family should be careful [TSN, February 27, 1984, pp. 4-6]. Camilet himself related in
his sworn statement taken by the police at the Aleosan General Hospital, that in that encounter
with the Camanchos, Perfecto, Sr. and Niel challenged him to a fight which he allegedly did not
mind at all although they harvested his corn and took the produce away [Exhibit 3].
Camilet's claim that he was attacked in unison by the Camanchos is an attempt at self-
exoneration. Considering their number, the Camanchos could have succeeded in killing him,
and, his wife who allegedly arrived to help him, would also have been harmed.
That Camilet was hospitalized after that incident is an accepted fact. However, Exhibit 2 shows
that he sustained only superficial injuries. Doctor Alejandro C. Caelian, his attending physician
at the Aleosan General Hospital, made the following findings:
1. Lacerated wound bridge of the noses superficial 2cm.
2. Contusion and swelling of the supra orbital region, left.
3. Contusion, hematoma, infra orbital region, left.
4. Lacerated wound, superficial 2 cm. lateral angle of the left eye.
5. Conjunctival hemorrhage and swelling of the eyeball, left.
6. Swelling of the mandibular region, left.
7. Depress[ed] portion of the 7th rib posterior to the axillary line.
Doctor Caelian certified that barring complications, those injuries would heal in seven to ten
days.
Those injuries may prove that a scuffle or "grappling" occurred between Perfecto, Sr. and
Camilet. It is possible that during that momentary grappling between the two, Perfecto, Sr. hit
Camilet with his flashlight. Emilio Cachila's testimony that Perfecto, Sr. "stabbed an instrument"
at Camilet [TSN, November 28, 1984, p. 7] was totally ignored by the trial court.
If no unlawful aggression attributable to the victim is established, there can be no self-defense,
either complete or incomplete [People vs. Gamut L-34517, November 2, 1982, 118 SCRA 35].
However, by invoking self-defense, Camilet in effect admitted having stabbed and killed
Perfecto, Sr. The rationale for the requirement of clear and convincing proof of self-defense
stems from the admission of the accused that he has killed or wounded another which is a
felony for which he should be criminally liable [Castaares vs. Court of Appeals, L-41269-70,
August 6, 1979, 92 SCRA 567].
The information alleged treachery, evident premeditation, nighttime and disregard of rank and
age as aggravating circumstances. The trial court's decision, on the other hand, does not
indicate what circumstance qualified the killing to murder but it considers disregard of rank an
aggravating circumstance.
As only one circumstance suffices to qualify the killing as murder [People vs. Dueo L-31102,
May 5, 1979, 90 SCRA 23], either treachery or evident premeditation must be proven.
Treachery cannot be appreciated in this case. The testimonial evidence as to the inception of
the stabbing is quite nebulous. The prosecution only succeeded in presenting the witnesses'
reaction to the assault which indirectly proved its suddenness. However, mere suddenness of
an attack is not sufficient to constitute treachery where it does not appear that the aggressor
adopted such mode of attack to facilitate the perpetration of the killing without risk to himself
[U.S. vs. Namit, 38 Phil. 926; People vs. Torejas, L- 29935, January 31, 1972, 43 SCRA 158].
Also, the prosecution failed to discredit Emilio Cachila's testimony that Perfecto, Sr. greeted
Camilet when he saw the latter. Furthermore, it should be noted that the fatal wound inflicted on
Perfecto, Sr. was in the inguinal region or near the stomach. This shows that the attack was
frontal. Treachery does not exist where the victim is facing the assailant when the assault starts
[People vs. Casiguran, L-45387, November 7, 1979, 94 SCRA 244].
Likewise, evident premeditation was not established by the prosecution. Although the facts tend
to show that Camilet might have harbored ill-feelings towards the Camanchos after they took a
portion of the land he was farming and, as he himself stated to the police investigator, they also
took the produce from his cornfield, there is no proof that Camilet conceived of killing Perfecto,
Sr. Indeed, there is no evidence of [1] the time when he determined to commit the crime, [2] an
act manifestly indicating that he has clung to his determination, and [3] sufficient lapse of time
between determination and execution to allow him to reflect upon the consequences of his act
and to allow his conscience to overcome the resolution of his will had he desired to hearken to
its warnings [People vs. Gravino, L-31327, May 16, 1983,122 SCRA 123].
Nighttime can not be considered aggravating in this case as there is no proof that it was
especially sought by Camilet to perpetuate the crime [People vs. Villar, Jr., L-34092, August 21,
1974, 58 SCRA 512]. Neither could disregard of rank be aggravating here because, as correctly
observed by the Solicitor General, there is no clear evidence that Camilet committed the crime
in disregard of the respect due Perfecto, Sr. as barangay captain.
In the absence of a qualifying circumstance, the fatal stabbing of Perfecto Camancho, Sr. is a
homicide, not a murder. Homicide is punishable under Articles 249 and 64[l] of the Revised
Penal Code with reclusion temporalmedium as there are neither aggravating nor mitigating
circumstances. Applying the Indeterminate Sentence Law, the proper penalty is an
indeterminate sentence of eight [8] years and one [1] day of prision mayor medium as minimum
to sixteen [16] years of reclusion temporal medium as maximum. In accordance with the ruling
in People vs. De la Fuente, L- 63251-52, December 29, 1983, 126 SCRA 518, the indemnity is
pegged at P30,000.
WHEREFORE, the judgment of the trial court is modified. Appellant Regino Camilet is hereby
found guilty of homicide and sentenced to eight [8] years and one [1] day of prision
mayor medium as minimum to sixteen [16] years of reclusion temporal medium as maximum,
and to pay the heirs of Perfecto Camancho, Sr. an indemnity of P30,000. Costs against the
appellant.
SO ORDERED.
Fernan (Chairman), Alampay, Gutierrez, Jr., and Paras, JJ., concur.

G.R. No. 94308 June 16, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RUBEN E. ILAOA and ROGELIO E. ILAOA, accused-appellants.
The Solicitor General for plaintiff- appellee.
Buen Zamar for accused- appellants.

BELLOSILLO, J .:
Pfc. Reynaldo P. Angeles was dispatched in the early morning of 5 November 1987 to Tinio St.,
Sta. Maria Phase I, Balibago, Angeles City, where the decapitated body of a man, later
identified through his voters identification card as Nestor de Loyola, was found in a grassy
portion thereof. Apart from the decapitation, the deceased bore forty-three (43) stab wounds in
the chest as well as slight burns all over the body. The head was found some two (2) feet away
from the corpse.
Five persons, Ruben E. Ilaoa, Rogelio E. Ilaoa, Rodel E. Ilaoa, Julius Eliginio and Edwin
Tapang, were charged for the gruesome murder of Nestor de Loyola. However, only the
brothers Ruben and Rogelio stood trial since the other accused escaped and were never
apprehended.
On 15 June 1990, the Regional Trial Court of Angeles City found Ruben and Rogelio guilty of
murder with the attendant circumstances of evident premeditation, abuse of superior strength
and cruelty, and imposed upon them the penalty of "life imprisonment."
1
The conviction was
based on the following circumstantial evidence:
One. The deceased Nestor de Loyola was seen at about eleven oclock in the evening of 4
November 1987, in a drinking session with his compadre Ruben Ilaoa together with Julius
Eliginio, Edwin Tapang and a certain "Nang Kwang" outside Rubens apartment.
2

Two. The drunken voices of Ruben and Nestor engaged in an apparent argument were later on
heard.
3
Nestor was then seen being kicked and mauled by Ruben and his brother Rodel, Julius Eliginio
and Edwin Tapang.
4
Nestor was crying all the while, "Pare, aray, aray!" Afterwards, Nestor, who
appeared drunk, was seen being "dragged"
5
into Ruben Ilaoas apartment. Nestor was heard saying,
"Pare, bakit ninyo ako ginaganito, hirap na hirap na ako!"
6

Three. Ruben Ilaoa and Julius Eliginio borrowed Alex Villamils tricycle at about two oclock the
following morning allegedly for the purpose of bringing to the hospital a neighbor who was about
to give birth. Ruben was seen driving the tricycle alone, with a sack which looked as though it
contained a human body, placed in the sidecar. The tricycle was returned an hour later to Alex
who noticed bloodstains on the floor. The latter thought that they were those of the pregnant
woman.
Four. Blood was found on Rubens shirt when he was asked to lift it during the investigation by
the police.
7
Moreover, Rubens hair near his right forehead was found partly burned and his shoes were
splattered with blood.
8
Susan Ocampo, Rubens live-in partner, was likewise seen in the early morning of
5 November 1987 sweeping what appeared to be blood at the entrance of their apartment.
9

In this appeal, brothers Ruben and Rogelio Ilaoa argue for their acquittal. They contend that the
circumstantial evidence relied upon by the trial court for their conviction failed to establish their
guilt beyond reasonable doubt. Specifically, they assail the finding of evident premeditation,
abuse of superior strength and cruelty as totally unwarranted.
We affirm Ruben Ilaoas guilt having been satisfactorily established by the evidence on hand,
albeit circumstantial. However, we reverse the conviction of Rogelio as we find it patently
baseless.
In finding Rogelio guilty of murder, the court a quo relied solely on the testimony that he helped
his brother Ruben drag Nestor de Loyola inside Rubens apartment where the deceased was
last seen alive. Apart from such testimony, however, there is nothing else to link Rogelio to the
killing.
To warrant a conviction on the basis of circumstantial evidence, three requisites must concur:
(a) there must be more than one circumstance; (b) the circumstances from which the inferences
are derived are proven; and, (c) the combination of all the circumstances is such as to prove the
guilt of the accused beyond reasonable doubt.
10
In the case at bench, it does not require much
analysis to conclude that the circumstance relied upon to establish Rogelio Ilaoas guilt, i.e., the alleged
dragging of the deceased to his brothers apartment, is totally inadequate for a conviction, having
miserably failed to meet the criteria. This is especially so where the veracity of such circumstance is even
open to question. While Antonio Ramos and Abdulia Logan testified that Rogelio Ilaoa helped his brother
drag the deceased to his apartment, Eustancia Bie who claimed to have witnessed the same incident
positively testified that it was Ruben Ilaoa and Julius Eliginio who did so.
11
Rogelio Ilaoa was not
mentioned. Not having been adequately established, in addition to being uncorroborated, such
circumstance alone cannot be the basis of Rogelios conviction.
Rubens case, however, is a totally different matter. Unlike that of his brother, Ruben Ilaoas fate
was most definitely assured by the unbroken chain of circumstances which culminated in the
discovery of Nestor de Loyolas decapitated body in the early morning of 5 November 1987.
As found by the trial court, in the late evening of 4 November 1987, appellant Ruben Ilaoa was
engaged in a drinking session with the deceased Nestor de Loyola together with several others.
Ruben was heard arguing with Nestor. A few moments later, Ruben mauled and kicked the
deceased with the help of their drinking companions just outside Rubens apartment. As the
deceased cried "Aray! Aray!" and "Pare, bakit nyo ako ginaganito? Hirap na hirap na ako!"
appellant dragged the deceased with the help of Julius Eliginio to the apartment from where a
mans cries were continued to be heard later. To further seal the case against him, Ruben
borrowed Alex Villamils tricycle at two oclock in the morning of 5 November 1987 on the
pretext that a neighbor was about to give birth and had to be rushed to the hospital. However,
he was seen driving the tricycle alone with a sack placed in the sidecar. The sack looked as if it
contained a human body.
12
Then, an hour later, or at three oclock in the morning, the tricycle was
returned with bloodstains on the floor.
For his defense, appellant Ruben Ilaoa does not dispute the testimony of an eyewitness that he
was driving the tricycle at past two oclock in the morning with the sack in the sidecar. However,
he claims that the sack containedbuntot ng pusa, a local term for marijuana, not a human body,
which he delivered to a designated place in Fields Avenue as a favor to his compadre Nestor de
Loyola whom he could not refuse. Moreover, it was the vomit discharged by his drinking
companions that was being swept clean by his girlfriend at the entrance of their apartment in the
early morning of 5 November 1987, not blood as the witnesses asseverated.
We find the version of the prosecution more persuasive than the defense. The fact that
appellant quarreled with the deceased, then mauled and pulled him to the apartment where the
latter was last seen alive, in addition to borrowing a tricycle which was found with bloodstains
when returned, sufficiently point to Ruben as the culprit responsible for the crime. The fact that
the deceased was his compadre, hence, presumably would have no motive to kill the latter, is
not enough to exculpate appellant. It is a matter of judicial knowledge that persons have been
killed or assaulted for no apparent reason at all,
13
and that friendship or even relationship is no
deterrent to the commission of a crime.
14

If we are to believe appellant Ruben, we will not be able to account for the blood found on the
floor of the tricycle after it was brought back to the owner. Ruben himself could not explain away
such testimony for he belied the excuse that the tricycle was needed to rush a pregnant woman
to the hospital, which was the explanation he gave to Alex Villamil when he borrowed it. We
cannot even consider that the story about the blood on the tricycle was simply concocted by
Alex Villamil to incriminate Ruben because the latter was his friend, as Ruben himself has
admitted.
15
In fact he could think of no reason for Alex Villamil to testify falsely against him.
16

Despite the foregoing, however, we hold appellant liable only for homicide, not murder, on the
ground that the qualifying circumstances alleged in the information, namely, abuse of superior
strength, cruelty and evident premeditation, were not sufficiently proved to be appreciated
against appellant.
Abuse of superior strength cannot be considered because there was no evidence whatsoever
that appellant was physically superior to the deceased and that the former took advantage of
such superior physical strength to overcome the latters resistance to consummate the
offense.
17
The fact that Nestor de Loyolas decapitated body bearing forty-three (43) stab wounds,
twenty-four (24) of which were fatal,
18
was found dumped in the street is not sufficient for a finding of
cruelty where there is no showing that appellant Ruben Ilaoa, for his pleasure and satisfaction, caused
Nestor de Loyola to suffer slowly and painfully and inflicted on him unnecessary physical and moral
pain.
19
Number of wounds alone is not the criterion for the appreciation of cruelty as an aggravating
circumstance.
20
Neither can it be inferred from the mere fact that the victims dead body was
dismembered.
21
Evident premeditation cannot likewise be considered. There is nothing in the records to
show that appellant, prior to the night in question, resolved to kill Nestor de Loyola, nor is there proof to
show that such killing was the result of meditation, calculation or resolution on his part. On the contrary,
the evidence tends to show that the series of circumstances which culminated in the killing constitutes an
unbroken chain of events with no interval of time separating them for calculation and meditation. Absent
any qualifying circumstance, Ruben Ilaoa should only be held liable for homicide.
The penalty prescribed for homicide in Art. 249 of the Revised Penal Code is reclusion
temporal. Applying the Indeterminate Sentence Law, and in the absence of any mitigating or
aggravating circumstances, the maximum shall be taken from the medium period of reclusion
temporal, which is fourteen (14) years, eight (8) months and one (1) day to seventeen (17)
years and four (4) months, while the minimum shall be taken from the penalty next lower in
degree, which is prision mayor, in any of its periods, the range of which is six (6) years and one
(1) day to twelve (12) years.
In line with present jurisprudence, the civil indemnity fixed by the court a quo for the death of
Nestor de Loyola is increased from P30,000.00 to P50,000.00.
WHEREFORE, the judgment finding accused RUBEN E. ILAOA guilty beyond reasonable doubt
is AFFIRMED but only for homicide, instead of murder. Consequently, he is sentenced to an
indeterminate prison term of eight (8) years, ten (10) months and twenty (20) days of prision
mayor medium, as minimum, to sixteen (16) years, four (4) months and ten (10) days
of reclusion temporal medium as maximum. In addition, accused-appellant RUBEN E. ILAOA is
ordered to pay the heirs of Nestor de Loyola P50,000.00 as civil indemnity and, as fixed by the
court a quo, P46,765.00 as actual damages, P10,000.00 as reasonable attorneys fees and
expenses of litigation, and P10,000.00 for moral damages.
Accused-appellant ROGELIO E. ILAOA, however, is ACQUITTED of the crime charged for
obvious insufficiency of evidence.
SO ORDERED.
Cruz, Davide, Jr., Quiason and Kapunan, JJ., concur.

# Footnotes
1 Decision penned by Judge Reynaldo B. Daway, Regional Trial Court of
Angeles City, Branch 58,Rollo, pp. 81-88.
2 TSN, 17 October 1989, pp. 16-17.
3 TSN, 4 May 1988, p. 31; 17 October 1989, p. 11.
4 TSN, 14 November 1989, pp. 22-23.
5 TSN, 4 May 1988, pp. 34-36; 7 November 1989, pp. 19-21.
6 TSN, 13 April 1988, p. 9; 7 November 1989, p. 22.
7 TSN, 24 October 1989, p. 20.
8 TSN, 13 April 1988, pp. 14-15.
9 TSN, 4 May 1988, p. 42.
10 Sec. 4, Rule 133, Rules of Court.
11 TSN, 7 November 1989, pp. 19-21.
12 TSN, 4 May 1988, p. 38; Original Records, p. 61.
13 People v. Basadre, No. L-36383, 17 April 1984, 128 SCRA 641, 648; People
v. Reyno, No. L-19071, 30 April 1965, 13 SCRA 647, 651-652.
14 People v. Bicog, G.R. No. 76529, 19 July 1990, 187 SCRA 556, 564.
15 TSN, 5 January 1990, p. 30.
16 Ibid.
17 People v. Montilla, G.R. No. 95048, 3 July 1992, 211 SCRA 119, 128; People
v. Canciller, G.R. No. 97296, 4 March 1992, 206 SCRA 827, 833; People v.
Jimenez, Jr., G.R. No. 84276, 13 February 1992, 206 SCRA 214, 222.
18 TSN, 4 May 1988, pp. 12-13; Original Records, pp. 35-36.
19 People v. Luna, No. L-28812, 31 July 1974, 58 SCRA 198, 209; People v.
Llamera, Nos. L-21604-5-6, 25 May 1973, 51 SCRA 48, 60.
20 People v. Tonog, Jr., G.R. No. 94533, 4 February 1992, 205 SCRA 772, 782;
People v. Manzano, Nos. L-33643-4, 31 July 1974, 58 SCRA 250, 262.
21 People v. de Pascual, No. L-32512, 31 March 1980, 96 SCRA 722, 738.

EOPLE OF THE PHILIPPINES,
Plaintiff-Appellee,



- versus -



RICARDO MONDEJAR y
BOCARILI,
Accused-Appellant.

G.R. No. 193185
Present:
CARPIO, J.,
Chairperson,
BRION,
SERENO,
REYES, and
PERLAS-BERNABE, JJ.
*


Promulgated:

October 12, 2011

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION

SERENO, J .:

On 29 August 2006, an Information was filed against Ricardo Mondejar
(accused-appellant) for violation of Section 5, Article II of Republic Act (R.A.)
No. 9165 in the following manner:
That on or about August 27, 2006, in the City of Manila, Philippines, the
said accused, not having been authorized by law to sell, trade, deliver or give
away to another any dangerous drug, did then and there willfully, unlawfully and
knowingly sell to a poseur-buyer ZERO POINT ZERO ONE ONE (0.011)
GRAM of white crystalline substance placed in one (1) heat sealed transparent
plastic sachet marked as RMB containing methylamphetamine hydrochloride
known as SHABU, a dangerous drug.
CONTRARY TO LAW.

The case was docketed as Criminal Case No. 06-246328 on 12 October
2006 and raffled to Branch 35 of the Regional Trial Court, Manila.
On 12 October 2006, accused-appellant pleaded not guilty to the offense
charged upon arraignment in Filipino.
During trial, the prosecution presented the testimonies of Senior Police
Officer 2 (SPO2) Federico Casuple and PO2 Elymar Garcia, while the defense
presented accused-appellant himself as its sole witness.
The first prosecution witness was SPO2 Casuple, a police officer assigned at
the Station Anti-Illegal Drug Special Operation Task Unit (SAID-SOTU), Police
Station 2 of the Manila Police District. He testified that a female informant went to
their office on 26 August 2006 to report that a certain person known by the alias
Danny was selling illegal drugs at the Manila International Container Port
(MICP) in Tondo, Manila.
[1]
In view thereof, the police officers prepared the
corresponding Pre-Operation and Coordination Report.
[2]
The police undertook
surveillance at the site that night but they did not see accused-appellant. This was
the only surveillance they conducted on the matter.
[3]
The informant explained that
accused-appellant sold drugs only in the daytime.
[4]

Accordingly, the police instructed the informant to report back to their
office the next day should accused-appellant be seen around the area. The next day
or on 27 August 2006, at around 1 p.m., the informant returned to their office to
inform the police that accused-appellant was again selling drugs in the area.
[5]
The
Chief of the SAID designated SPO2 Casuple as the poseur-buyer and gave
him P100
[6]
which the latter marked PS2 at the upper left corner.
[7]
SPO2
Casuple then went to the site together with the informant, PO2 Roman Jimenez,
and PO2 Garcia. SPO2 Casuple and the informant went on foot to look for
accused-appellant. They were informed that he had already gone home. SPO2
Casuple relayed this information to his fellow police officers.
Thereafter, the informant reported that accused-appellant could be found at
his home in Purok 2, Isla Puting Bato. As the area was just beside MICP, they
decided to proceed to the said address.
[8]
Upon reaching the place, the informant
immediately recognized and approached accused-appellant, telling the latter that
SPO2 Casuple wanted to buy shabu (methylamphetamine hydrochloride).
Accused-appellant asked how much SPO2 Casuple would buy, and the latter
replied, piso or P100 worth.
SPO2 Casuple claimed that accused-appellant did not suspect anything and
demanded immediate payment. SPO2 Casuple gave the money and immediately
pressed the call key of his cellphone, as this was the pre-arranged signal to his
fellow officers that the buy-bust operation had been consummated.
[9]
SPO2
Casuple then introduced himself as a police officer. Soon his fellow officers
arrived and they all brought accused-appellant to the police station.
[10]
At the
police station, SPO2 Casuple personally marked the confiscated item with the
initials RMB, which stands for accused-appellant's name (Ricardo
Mondejar y Bocarili) and then handed it to the investigator.
SPO2 Casuple later testified that the investigator had requested a laboratory
examination
[11]
of the item which was then brought to the Crime
Laboratory.
[12]
SPO2 Casuple stated that after receiving the Chemistry
Report
[13]
on the item seized, he, together with PO2 Garcia, executed an Affidavit
of Apprehension/Poseur-Buyer.
[14]

On cross-examination, SPO2 Casuple admitted that they had not coordinated
with the Philippine Drug Enforcement Agency (PDEA) regarding the buy-bust
operation on 27 August 2006, as the box beside the word Buy-Bust was not
checked in the Pre-Operation and Coordination Report.
[15]
SPO2 Casuple
confirmed that an inventory of seized items was prepared, but that he was unaware
of whether a photograph of the plastic sachet confiscated from accused-appellant
had been taken, because he just turned over the plastic sachet to the investigator
and he knows what to do.
[16]
SPO2 Casuple also confirmed that he was aware of
Section 21 of R.A. No. 9165, having been briefed that it refers to planting of
evidence against the accused.
[17]

PO2 Garcia, who was a perimeter back up, testified that around 2:30 or
2:50 in the afternoon of 27 August 2006, they were deployed at the MICP
compound at Parola, Tondo, Manila by the Chief of the SAID, Senior Police
Inspector (SPI) Arnulfo Ibanez for an anti-illegal drug operation.
[18]
PO2 Garcia
testified that he stayed inside the vehicle while SPO2 Casuple and the informant
went around to look for accused-appellant. When SPO2 Casuple and the informant
proceeded to Isla Puting Bato and entered an alley, PO2 Garcia stayed out of the
street until he received the pre-arranged signal.
[19]
Upon receiving the signal, he
approached SPO2 Casuple and found him already accosting accused-appellant.
[20]

PO2 Garcia provided security for the arresting officer and brought accused-
appellant to the SAID office. At the police station, PO2 Garcia witnessed SPO2
Casuple recover from accused-appellant the buy-bust money and one small
transparent plastic sachet containing white crystalline substance, which SPO2
Casuple marked with the letters RMB.
[21]
Later on cross-examination, PO2
Garcia confirmed that he did not have any personal knowledge of the ultimate
source of the plastic sachet.
[22]

The prosecution presented an accomplished Pre-Operation
Report/Coordination Sheet
[23]
dated 26 August 2006 showing that the SAID
Chief, SPI Arnulfo Ibanez, had created a team consisting of six (6) police officers
and three (3) confidential informants to conduct police operation against @
Maribel, Charing, Gina, Danny, Lani involved in illegal drug activities in AOR.
Specifically, the team was to undertake surveillance and casing to run from
1830H 26 Aug 06 to 1830H 27 Aug 06 in the area of operation specified as
Tindalo, Jas, Parola, Bambang, Del Pan Sts. Tondo, PS2 AOR. A facsimile copy
of the Certificate of Coordination issued by the PDEA dated 26 August 2006 was
also presented to show the coordination between PDEA and the police prior to the
conduct of the buy bust.
[24]
The prosecution also offered as evidence the Request
for Laboratory Examination
[25]
of the seized item marked RMB dated 27 August
2006 issued by Station Commander Police Superintendent Ricardo Layug, Jr. The
written request was shown to have been delivered by PO2 Garcia to SPI Reyes
of the Philippine National Police (PNP) Crime Laboratory. PNP Crime Laboratory
Chemistry Report No. D-1007-06,
[26]
which confirmed that the plastic sachet
delivered to it had tested positive for methylamphetamine hydrochloride or
shabu, was likewise offered in evidence. It showed that the examination had
been made by Elisa G. Reyes, Police Senior Inspector, Forensic Chemical
Officer, approved by the Chief of the Chemical Section of the Crime Laboratory,
noted by the Police Chief Inspector, and sworn to before an administering officer.
The defense did not present any documentary evidence.
The defense presented the accused-appellant as lone witness. In his
testimony, accused-appellant claimed that on 27 August 2006, at about 2:30 p.m.,
he was alone in Purok 2, walking along the alley which he estimated to be about
three to four meters wide.
[27]
He was leaving home with a basin about three feet in
circumference
[28]
and full of the corn he was going to sell.
[29]
When he turned back,
he saw that three police officers behind him were chasing someone.
[30]
He knew
they were police officers, because they were wearing blue t-shirts (as opposed to
polo shirts) with collars and name tags stating their surnames.
[31]
The unknown
person being chased bumped accused-appellant, causing the latter to drop the basin
and accidentally spill the corn. The police tripped on the basin and had to stop the
chase.
[32]
Before they resumed the chase, SPO2 Casuple uttered
invectives
[33]
against accused-appellant, threatening to get back at the latter, should
they fail to catch the person they were chasing.
[34]
Accused-appellant claimed that
the police officers were unable to overtake the person they were chasing. So they
went back, picked him up, and showed him a plastic sachet while saying, Eto
gagawin kong ebidensya laban sa iyo.
[35]

Accused-appellant stated that apart from the failure of the police officers to
catch the person they were after when they tripped on his basin of corn, he knew of
no other reason why SPO2 Casuple would falsely testify against him. He claimed
he did not file any countercharge against SPO2 Casuple, because he was unfamiliar
with the law but, given the chance, he would do so.
[36]

On 9 April 2008, the trial court issued its Decision,
[37]
the dispositive portion
of which reads in part:
Wherefore, finding accused Ricardo Mondejar y Bocarili @ Danny
GUILTY beyond reasonable doubt of the offense charged, he is hereby sentenced
to suffer the penalty of life imprisonment; to pay a fine of Five Hundred
Thousand (P500,000.00) Pesos; and the cost of suit.
On 22 May 2008, accused-appellant, through counsel Public Attorney's
Office, filed a Notice of Appeal with the Court of Appeals (CA). In his Appellant's
Brief, accused-appellant argued that the presumption of regularity in the
performance of duty cannot, by itself, affect the constitutional presumption of
innocence of the accused.
[38]
Further, credence is given to police officers as
prosecution witnesses unless there is evidence suggesting ill motives on their part
or a deviation from the regular performance of their duties.
[39]
Accused-appellant
thereafter pointed out that the confiscated plastic sachet was not immediately
marked at the place where it was allegedly seized; nor were photographs taken or
inventories made in the presence of any elected public official, media, or
representative from the Department of Justice, in contravention of Section 21 (1) of
R.A. No. 9165.
On 18 December 2009, the CA issued its Decision,
[40]
the dispositive portion
of which reads:
WHEREFORE, premises considered, the instant appeal is denied for lack
of merit, and accordingly, the assailed April 9, 2008 Decision of the trial court
convicting Ricardo Bocarili Mondejar of violation of Section 5, Article II of R.A.
No. 9165, including the penalties imposed against him, is hereby AFFIRMED IN
TOTO.
SO ORDERED.
In its Decision, the CA held:
Under the circumstances, We see no break in trail of confiscation,
marking, identification, custody, control, examination and disposition of the
prohibited drugs, in the same manner that We find no confusion or uncertainty
over the fact that the 0.011 gram of shabu that was marked at the police station,
then tested and examined positive for shabu at the PNP Crime Laboratory, and
eventually adduced in evidence in court against Mondejar is the same shabu that
was seized from Mondejar during the entrapment operation. (Decision, pp. 10-
11)
[41]


The CA held that accused-appellant's defense that he had merely been
framed up failed to persuade. It cannot believe that the police would be so
brazenly unreasonable as to subject accused-appellant to a false charge only
because they failed to catch the person they intended to arrest when they tripped on
his basin of corn.
[42]

Accused-appellant comes to this Court seeking a reversal of the
CA Decision sustaining the trial court's finding that he is guilty beyond reasonable
doubt of violation of Section 5 of R.A. No. 9165.
We rule to affirm the appealed Decision.
It has been held that in a prosecution for violation of the Dangerous Drugs
Law, a case becomes a contest of credibility of witnesses and their
testimonies.
[43]
Since it was the trial court that had the opportunity to observe the
witnesses' demeanor and deportment while testifying, the rule is that the trial
court's assessment of their credibility is entitled to great respect,
[44]
and even
finality, unless facts of weight and substance bearing on the elements of the crime
have been overlooked, misapprehended or misapplied.
[45]

In arriving at its Decision, the trial court reasoned:
The testimony of the accused is replete with material inconsistencies and
incredible statements which render it unworthy of belief. Thus, at one point, he
claims that when he was picked up by the police a plastic sachet was shown to
him by PO2 Capsule and the latter told him it will be used as evidence against
him. (TSN, October 9, 2007, p. 4). Later, however, he testified that the plastic
sachet was shown to him only when he was brought to the City Hall for inquest.
(TSN, October 9, 2007, p. 9). Being contradictory of each other, it is indicative
of accused's propensity to prevaricate. (Decision, p. 4)
We have gone over the transcripts and note that the trial court was referring
to the following portion of accused-appellant's testimony:
Q Now, you said that police officer Casuple showed you a plastic sachet and told
you that they are going to use the plastic sachet to file a case against you, did I
hear you right?
A That is correct, sir.
Q Where did the plastic sachet come from?
A I do not know, sir, they immediately showed that to me.
Q At the police station before you were brought there were you frisked?
A No, sir, but they mauled me, sir.
Q At the police station, did they frisk you?
A Yes, sir.
Q After the frisking they showed you the plastic sachet?
A Not yet, sir.
Q When was the plastic sachet shown to you
A When they brought me to City Hall, sir.
Q That was on the same day?
A Yes, sir.
Q Why were you brought to the City Hall?
A I was to be presented for inquest, sir.
[46]

Accused-appellant initially testified that the plastic sachet was shown to him
while he was in an alley in Isla Puting Bato, with the police threatening to use it as
evidence against him. On the other hand, in accused-appellant's declaration above,
he stated that he had been shown the plastic sachet when he was brought to the
City Hall for inquest. On its face, there does not seem to be a real contradiction
between the two declarations, considering that accused-appellant has not described
either instance as the first time the plastic sachet was shown to him. Moreover, it is
not impossible that the sachet was shown to him on more than one occasion.
We nevertheless note that the Court reads only in cold print the testimony
of witnesses which is usually translated from the local dialect into English. In the
process of translation, not only the fine nuances but a world of meaning apparent
to the judge present, watching and listening, may escape the reader of the written
translated words. Necessarily, the appellate court is placed at a disadvantage in
this regard. Hence, in the absence of a glaring misapprehension of facts on the part
of the trial court, the appellate court places great reliance on its findings of
facts.
[47]
Hence, while accused-appellant was not conclusively shown to have
contradicted himself as regards the time when the plastic sachet was shown to him
by the police, we have to rely on the perception of the trial court on the matter. At
any rate, the court a quo cites this as only one of several material inconsistencies
and incredible statements made by accused-appellant during the trial.
Accused-appellant argues that the presumption of innocence cannot be
overturned by the presumption of regularity in the performance of official duties.
This is correct. However, both are mere disputable presumptions, which can be
overcome by evidence to the contrary.
In the present case, accused-appellant has not presented any evidence to
support his defense of frame-up apart from his uncorroborated testimony. He could
have at least presented another witness or some other evidence to corroborate his
claim that the accusation against him was a mere fabrication. After all, frame-up,
like alibi, is generally viewed with caution by this Court, because it is easy to
contrive and difficult to disprove. Moreover, it is a common and standard line of
defense in prosecutions of violations of the Dangerous Drugs Act.
[48]

In contrast, the prosecution has adduced testimonial and documentary
evidence, which we have reviewed.
It is true that, as pointed out by accused-appellant, the procedure under
Section 21(1) of R.A. No. 9165 was not strictly followed by the police. The
records show that the plastic sachet seized from accused-appellant was marked at
the police station; and that no elected public official, media or representative from
the Department of Justice was present during the inventory. Nevertheless,
xxx we have held in several cases that non-compliance with Section 21,
Article II of Republic Act No. 9165 is not fatal and will not render an accused's
arrest illegal or the items seized/confiscated from him inadmissible. What is of
utmost importance is the preservation of the integrity and the evidentiary value of
the seized items, as the same would be utilized in the determination of the guilt
or innocence of the accused. In the case at bar, the integrity of the drug seized
from appellants was preserved. The chain of custody of the drug subject matter
of the instant case was shown not to have been broken. xxx Besides, the integrity
of the evidence is presumed to be preserved unless there is a showing of bad
faith, ill will, or proof that the evidence has been tampered with. Appellants in
this case bear the burden of showing that the evidence was tampered or meddled
with to overcome a presumption that there was regularity in the handling of
exhibits by public officers, and that the latter properly discharged their duties.
Appellants failed to produce convincing proof that the evidence submitted by the
prosecution had been tampered with. xxx As earlier discussed, the only elements
necessary to consummate the crime is proof that the illicit transaction took place,
coupled with the presentation in court of the dangerous drug seized as evidence.
Both were satisfactorily proved in the present case.
[49]

Applying the foregoing points to the present case, we note that accused-
appellant has not adduced any evidence to show that the integrity of the evidence
has been compromised. On the other hand, the seized plastic sachet and marked
money were properly presented and identified in court. The prosecution was able
to sufficiently prove the chain of custody of the seized item from the time it was
obtained from accused-appellant and marked by SPO2 Casuple, until it was
delivered by PO2 Garcia to SPI Reyes of the PNP Crime Laboratory who made the
laboratory examination thereof and the corresponding Laboratory Report. Earlier,
during pre-trial, the parties had dispensed with the testimony of SPI Reyes after
stipulating on her position and qualifications and on the results of her examination
of the item submitted for testing.
[50]

We did observe that the police failed to check the box marked buy-bust
operation in its Pre-Operation and Coordination Report. However, standing alone,
this minor omission does not affect the finding of guilt of accused-appellant. As
ruled by the Court in People v. Sta. Maria,
[51]

xxx [Cursorily] read, the foregoing provision is silent as to the
consequences of failure on the part of the law enforcers to transfer drug-related
cases to the PDEA, in the same way that the Implementing Rules and
Regulations (IRR) of Republic Act No. 9165 is also silent on the matter. But by
no stretch of imagination could this silence be interpreted as a legislative intent to
make an arrest without the participation of PDEA illegal nor evidence obtained
pursuant to such an arrest inadmissible.
It is a well-established rule of statutory construction that where great
inconvenience will result from a particular construction, or great public interests
would be endangered or sacrificed, or great mischief done, such construction is
to be avoided, or the court ought to presume that such construction was not
intended by the makers of the law, unless required by clear and unequivocal
words.

As we see it, Section 86 is explicit only in saying that the PDEA shall be
the lead agency in the investigations and prosecutions of drug-related cases.
Therefore, other law enforcement bodies still possess authority to perform similar
functions as the PDEA as long as illegal drugs cases will eventually be
transferred to the latter. Additionally, the same provision states that PDEA,
serving as the implementing arm of the Dangerous Drugs Board, shall be
responsible for the efficient and effective law enforcement of all the provisions
on any dangerous drug and/or controlled precursor and essential chemical as
provided in the Act. We find much logic in the Solicitor General's interpretation
that it is only appropriate that drugs cases being handled by other law
enforcement authorities be transferred or referred to the PDEA as the lead
agency in the campaign against the menace of dangerous drugs. Section 86 is
more of an administrative provision. By having a centralized law enforcement
body, i.e., the PDEA, the Dangerous Drugs Board can enhance the efficacy of the
law against dangerous drugs. To be sure, Section 86 (a) of the IRR emphasizes
this point by providing:
(a) Relationship/Coordination between PDEA and Other Agencies
The PDEA shall be the lead agency in the enforcement of the
Act, while the PNP, the [National Bureau of Investigation (NBI)]
and other law enforcement agencies shall continue to conduct anti-
drug operations in support of the PDEA . . . . Provided, finally,
that nothing in this IRR shall deprive the PNP, the NBI, other law
enforcement personnel and the personnel of the Armed Forces of
the Philippines (AFP) from effecting lawful arrests and seizures in
consonance with the provisions of Section 5, Rule 113 of the
Rules of Court. (Underscoring supplied.)
In other words, the fact that the PDEA was not notified of the buy-bust
operation, as shown in the Pre-Operation and Coordination Report, cannot by itself
exculpate accused-appellant. In the first place, the police are authorized to effect a
warrantless arrest. Second, R.A. No. 9165 does not invalidate a buy-bust operation
in which the PDEA is not notified. Third, the PDEA actually had some knowledge
of the operation against one who had the alias Danny (albeit only for casing
and surveillance), as the Pre-Operation and Coordination Report had been sent
to and confirmed by it prior to the buy-bust operation.
In fine, after going over the records of the case and the evidence adduced by
the parties, we do not find sufficient basis to reverse the ruling of the Court of
Appeals affirming the trial court's conviction of accused-appellant for violation of
Section 5 of R.A. No. 9165.
WHEREFORE, the assailed Court of Appeals Decision is AFFIRMED.

SO ORDERED.



MARIA LOURDES P. A. SERENO
Associate Justice

WE CONCUR:


ANTONIO T. CARPIO
Associate Justice
Chairperson



ARTURO D. BRION BIENVENIDO L. REYES
Associate Justice Associate Justice



ESTELA M. PERLAS-BERNABE
Associate Justice



A T T E S T A T I O N

I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Courts Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division


C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution and the Division
Chairpersons Attestation, I certify that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.

RENATO C. CORONA
Chief Justice



*
Designated as Acting Member of the Second Division vice Associate Justice Jose P. Perez per Special Order No.
1114 dated October 3, 2011.
[1]
TSN, 17 July 2007, p. 4.
[2]
Exhibit G, folder of exhibits, p.5.
[3]
TSN, supra at 8.
[4]
Id. at 5.
[5]
Id. at 6.
[6]
Exhibit F, folder of exhibits, p. 8.
[7]
TSN, supra at 7; Exhibit F-1, folder of exhibits, p. 8.
[8]
Id. at 9.
[9]
Id. at 11.
[10]
Id. at 12.
[11]
Exhibit B, folder of exhibits, p. 37.
[12]
Supra at 12.
[13]
Exhibit D, folder of exhibits, p. 38.
[14]
Supra note 1 at 13.
[15]
Exhibit G, folder of exhibits, p. 5.
[16]
TSN, supra at 20.
[17]
Id. at 21.
[18]
TSN, 19 July 2007, p. 7.
[19]
Id. at 9.
[20]
Id.
[21]
Id. at 10.
[22]
Id. at 13.
[23]
Exhibit G, folder of exhibits, p. 5.
[24]
Exhibit E, folder of exhibits, p. 39.
[25]
Exhibit B, folder of exhibits, p. 37.
[26]
Exhibit D, folder of exhibits, p. 38.
[27]
TSN, 9 October 2007, p. 11.
[28]
Id. at 13.
[29]
Id. at 10.
[30]
Id. at 3.
[31]
Id. at 14-15.
[32]
Supra at 13.
[33]
Accused-appellant recalled that the exact words of SPO2 Casuple were Putang ina mo! Babalikan ka namin pag
di namin inabutan ang hinahabol namin; TSN, supra at 13.
[34]
Id. at 14
.

[35]
Id. at 4.
[36]
Id. at 5.
[37]
The Decision of the Regional Trial Court, Branch 35, Manila in Crim.Case No. 06-246328 was penned by Judge
Eugenio Mendinueto.
[38]
Citing People v. Padilla, G.R. No. 172603, 24 August 2007, 531 SCRA 185 and Valdez v. People, G.R. No.
170180, 23 November 2007, 538 SCRA 611.
[39]
Citing People v. de Guzman, G.R. No. 177569, 28 November 2007, 539 SCRA 306.
[40]
The Decision of the Court of Appeals Thirteenth Division in CA G.R. HC No. 03423 was penned by Justice
Rosmari Carandang and concurred in by Justices Arturo Tayag and Michael Elbinias; rollo, pp. 2-15.
[41]
Rollo, pp. 11-12.
[42]
Decision of the Court of Appeals, rollo, p. 13.
[43]
People v. Evangelista, G.R. No. 175281, 27 September 2007, 534 SCRA 241; People v. Naquita, G.R. No.
180511, 28 July 2008, 560 SCRA 430.
[44]
People v. Bato, G.R. No. 134939, 16 February 2000, 325 SCRA 671; People v. Juntilla, G.R. No. 130604, 16
September 1999, 314 SCRA 568.
[45]
People v. Magbanua, G.R. No. 170137, 27 August 2009, 597 SCRA 287; People v. Encila, G.R. No. 182419, 10
February 2009, 578 SCRA 341; People v. Cabacaba, G.R. No. 171310, 9 July 2008, 557 SCRA 475.
[46]
TSN, supra note 27 at 7-9.
[47]
People v. Sacristan, G.R. No. 74298, 4 June 1993, 223 SCRA 140.
[48]
People v. Eugenio, 443 Phil. 411 (2003).
[49]
People v. Hernandez, G.R. No. 184804, 18 June 2009, 589 SCRA 625.
[50]
Order of RTC, Branch 35, Manila, dated 12 October 2006, p. 1-2.
[51]
G.R. No. 171019, 23 February 2007, 516 SCRA 621.

[G.R. No. 138984. June 4, 2004]
PEOPLE OF THE PHILIPPINES, appellee, vs. DENNIS TORPIO y
ESTRERA, appellant.
D E C I S I O N
CALLEJO, SR., J .:
This is an appeal from the Decision
[1]
of the Regional Trial Court of Ormoc City,
Branch 35, in Criminal Case No. 5217-0, finding appellant Dennis Torpio y Estrera guilty
beyond reasonable doubt of murder. The trial court sentenced him to suffer reclusion
perpetua and ordered him to pay the victims heirs the total amount of P200,000 as civil
indemnity, actual damages and attorneys fees.
The appellant and his father Manuel Torpio were charged with murder for the killing
of Anthony Rapas in an Amended Information that reads:
That on or about the 11
th
day of October 1997, at around 12:00 oclock midnight at
Zone 3, Brgy. Camp Downes, Ormoc City, and within the jurisdiction of this
Honorable Court, the above-named accused:DENNIS TORPIO y Estrera
and MANUEL TORPIO, conspiring together, confederating with and mutually
helping and aiding one another, with treachery, evident premeditation and intent to
kill, did then and there wilfully, unlawfully and feloniously stab, hit and wound the
victim herein ANTHONY RAPAS, without giving the latter sufficient time to defend
himself, thereby inflicting upon said Anthony Rapas mortal wounds which caused his
instantaneous death. Autopsy report is hereto attached.
In violation of Article 248, RPC, as amended by RA 7659.
Ormoc City, November 4, 1987.
[2]

At their arraignment, the two accused, assisted by counsel, pleaded not guilty to the
charge. Trial ensued.
The Case for the Prosecution
As culled by the trial court from the evidence on record, the case for the prosecution
is as follows:
As found by the Court, it was October 11, 1997 in Zone 3, Barangay Camp Downes,
Ormoc City. A family of seven, Manuel Torpio and wife included, together with an
old woman visitor named Fausta Mariaca, were taking their supper. Anthony Rapas
knocked and asked for Dennis Torpio who, after eating, went and left home with
Anthony upon the latters invitation for a drinking spree. They have (sic) some round
of drinks at a nearby store together with another companion. Not contented, they left
and proceeded to the seashore where in a cottage there were people also
drinking. Joining the group, Anthony and Dennis again drank. Later, the two and
their companion transferred to another cottage and there they again drank now with
gin liquor except Dennis who did not anymore drink. For one reason or another,
because Dennis did not drink, Anthony got angry and he then bathed Dennis with gin,
and boxed or mauled him and tried to stab him with a batangas knife but failed to hit
Dennis as the latter was crawling under the table. He got up and ran towards
home. His family was awaken[ed], his mother shouted as Dennis was taking a knife
and appearing (sic) bloodied. Manuel Torpio woke up and tried to take the knife from
Dennis but failed and, in the process, wounded or cut himself in his left hand. Dennis
left with the knife, passed by another route towards the seashore and upon reaching
the cottage where Anthony and their companion Porboy Perez were, looked for
Anthony. Anthony upon seeing Dennis sensed danger and he fled by taking the
seashore. But Dennis, being accustomed to the place and having known the terrain
despite the dark (sic) knew, upon being suggested by somebody whom Dennis
claimed to be Rey Mellang, that there is only one exit Anthony could make and, thus,
he went the other way through the nipa plantation and he was able to meet and block
Anthony. Upon seeing the shining knife of Dennis, Anthony tried to evade by turning
to his left and Dennis thus hit the back portion of Anthony. Anthony ran farther but
he was caught in a fishing net across the small creek and he fell on his back. It is at
this juncture (sic) Dennis mounted on (sic) Anthony and continued stabbing the
latter. He left the place but did not proceed to (sic) home, instead, he went to the
grassy meadow near the camp and there slept until morning. He then went to a certain
police officer to whom he voluntarily surrendered and together they went to the police
headquarters.
[3]

The case for the accused is, likewise, summarized by the trial court in its decision
based on the evidence, as follows:
[O]n October 11, 1997 at about 7:00 oclock in the evening, while he and his
family, Manuel, his father and mother and an old woman visitor named Fausta
Mariaca included, were having dinner, Anthony Rapas knocked at their
door. Anthony invited Dennis for a drinking spree. Both left after dinner, went to the
store of a certain Codog and there started drinking. The store was about 70 meters
away from Dennis house, in Barangay Camp Downes, Ormoc City. They consumed
a half gallon of tuba, drinking with a companion named Porboy Perez. Two small
bottles of Red Horse beer were added, after which the three proceeded to the seashore,
in a cottage of a beach resort there named Shoreline. Arriving there, there were some
people drinking also and they offered them drinks and the two obliged. Afterwards,
they went to a cottage and later Porboy arrived bringing with him a liquor gin. Dennis
did not drink the gin, only Anthony and Porboy did. [T]hen after drinking the gin,
Anthony tried to let Dennis drink the gin and as the latter still refused, Anthony
allegedly bathed Dennis with gin and mauled him several times. Dennis crawled
beneath the table and Anthony tried to stab him with a 22 fan knife but did not hit
him. Dennis got up and ran towards their home. Upon reaching home, he got a knife
and as his mother was alarmed and shouted, a commotion ensued. Manuel, his father,
awoke and tried to scold Dennis and confiscate from him the knife but he failed,
resulting to Manuels incurring a wound on his hand (see TSN of October 8, 1998, p.
7 et seq.). He went back to the cottage by another route and upon arrival Porboy and
Anthony were still there. Upon seeing Dennis, Anthony allegedly avoided Dennis and
ran by passing the shore towards the creek. Rey Mellang went out of his house at this
time and said meet him Den, alluding to Anthony and to Dennis, respectively
(TSN of October 8, 1998, p. 31 et seq.). Dennis did meet him, virtually blocked him
and stabbed him. When he was hit, Anthony ran but then he got entangled with a
fishing net beside the creek and Anthony fell on his back, and Dennis mounted on
(sic) him and continued stabbing him. After stabbing (sic), Dennis left and went to
the grassy meadow at Camp Downes and slept there. At about 7:00 in the morning,
he went to a known police officer named Boy Estrera in San Pedro
Street, Ormoc City and to whom he voluntarily surrendered. He was later turned over
to the police headquarters (TSN, supra, pp. 31-38).
[4]

The trial court rendered judgment acquitting accused Manuel Torpio but convicting
the appellant of murder qualified by treachery or evident premeditation and appreciating
in his favor the following mitigating circumstances: (a) sufficient provocation on the part
of the offended party (the deceased Anthony) preceded the act; (b) the accused acted
to vindicate immediately a grave offense committed by the victim; and, (c) voluntary
surrender. The decretal portion of the decision reads:
Wherefore, from all of the foregoing, the Court finds the accused Dennis Torpio
guilty beyond reasonable doubt of the crime of murder and hereby sentences him after
appreciating the existence of mitigating circumstances, to the imprisonment of forty
(40) years reclusion perpetua, and to pay the offended party P50,000.00 as
indemnity, P100,000.00 as actual damages, P50,000.00 for and as attorneys fees. If
said accused is detained, [the] period of imprisonment shall be credited to him in full
if he abides in writing by the term for convicted prisoners, otherwise, for only four-
fifths (4/5) thereof.
On the accused Manuel Torpio, the Court finds him not guilty of the crime charged
and hereby acquits him therefrom. If he is detained, he shall be discharged
immediately from prison unless he is held for other lawful cause.
SO ORDERED.
[5]

Dennis Torpio, now the appellant, appealed the judgment of the trial court alleging
as sole error that
THE TRIAL COURT GRAVELY ERRED IN FINDING THAT TREACHERY AND
EVIDENT PREMEDITATION ATTENDED THE COMMISSION OF THE CRIME,
THUS, QUALIFYING THE SAME TO MURDER.
[6]

According to the appellant, treachery was not attendant when he killed the victim
because he did not consciously adopt a mode of attack to ensure the accomplishment
of his criminal purpose without any risk to himself arising from the defense that the
victim might offer. He posits that his act of stabbing Anthony was preceded by a quarrel
between them; hence, the victim had been forewarned of the danger to his life and limb.
The appellant asserts that evident premeditation was not, likewise, attendant
because the prosecution failed to prove that he had planned and prepared any plot to
kill the victim. Further, no direct and positive evidence had been shown that sufficient
time had elapsed between his determination to commit the crime and its execution to
enable him to reflect upon the consequences of his act. He argues that he is guilty only
of homicide as defined in Article 249 of the Revised Penal Code, as amended.
The appeal is meritorious.
Significantly, apart from its statement that [f]rom the evidence adduced, the Court
is of the considered opinion that the killing of Anthony by Dennis Torpio was attended
with treachery and evident premeditation as to qualify it to murder,
[7]
the trial court did
not state the factual basis for its conclusion.
It is axiomatic that qualifying and aggravating circumstances, like treachery and
evident premeditation, must be proven with equal certainty as the commission of the
crime charged.
[8]
Such circumstances cannot be presumed; nor can they be based on
mere surmises or speculations.
[9]
In case of doubt, the same should be resolved in favor
of the accused.
[10]

There is treachery when the offender employs means, methods or forms in the
execution of the crime which tends directly and specially to insure its execution without
risk to himself arising from the defense which the offended party might make.
[11]
There
must be evidence showing that the mode of attack was consciously or deliberately
adopted by the culprit to make it impossible or difficult for the person attacked to defend
himself or retaliate.
[12]
Further, the essence of treachery is the swift and unexpected
attack without the slightest provocation by the victim.
[13]

In this case, the record is barren of evidence showing any method or means
employed by the appellant in order to ensure his safety from any retaliation that could
be put up by the victim. The appellant acted to avenge Anthonys felonious acts of
mauling and stabbing him. Although the appellant bled from his stab wound, he ran
home, armed himself with a knife and confronted Anthony intentionally. When the latter
fled, the appellant ran after him and managed to stab and kill the victim.
To warrant a finding of evident premeditation, the prosecution must establish the
confluence of the following requisites:
... (a) the time when the offender [was] determined to commit the crime; (b) an act
manifestly indicating that the offender clung to his determination; and (c) a sufficient
interval of time between the determination and the execution of the crime to allow
him to reflect upon the consequences of his act.
[14]

The qualifying circumstance of evident premeditation requires that the execution of
the criminal act by the accused be preceded by cool thought and reflection upon a
resolution to carry out the criminal intent during the space of time sufficient to arrive at a
calm judgment.
[15]
Evident premeditation needs proof of the time when the intent to
commit the crime is engendered in the mind of the accused, the motive which gives rise
to it, and the means which are beforehand selected to carry out that intent. All such
facts and antecedents which make notorious the pre-existing design to accomplish the
criminal purpose must be proven to the satisfaction of the court.
[16]

Nothing in the records supports the trial courts conclusion that evident
premeditation attended the commission of the crime in this case. It was not shown by
the prosecution that, in killing Anthony, the appellant had definitely resolved to commit
the offense and had reflected on the means to bring about the execution following an
appreciable length of time.
According to Manuel, the father of the appellant, the latter told him, I have to kill
somebody, Tay, because I was boxed. To the Courts mind, this utterance is not
sufficient to show that the crime was a product of serious and determined
reflection. The interval between the time when the appellant made this statement and
when he actually stabbed Anthony was not sufficient or considerable enough as to allow
him to reflect upon the consequences of his act. There was no sufficient interregnum
from the time the appellant was stabbed by the victim, when the appellant fled to their
house and his arming himself with a knife, and when he stabbed the victim. In a case of
fairly recent vintage, we ruled that there is no evident premeditation when the fracas
was the result, not of a deliberate plan but of rising tempers, or when the attack was
made in the heat of anger.
[17]

Without any proof of any circumstance that would qualify it, the killing could not
amount to murder. The appellant should, thus, be held liable only for homicide for the
death of Anthony.
The Court agrees with the trial court that mitigating circumstances should be
considered in the appellants favor. However, only two out of the three mitigating
circumstances
[18]
considered by the trial court can be credited to the appellant. The trial
court properly appreciated the mitigating circumstance of voluntary surrender as it had
been established that the appellant, after he killed Anthony, lost no time in submitting
himself to the authorities by going to Boy Estrera, a police officer.
The mitigating circumstance of having acted in the immediate vindication of a grave
offense was, likewise, properly appreciated. The appellant was humiliated, mauled and
almost stabbed by the deceased. Although the unlawful aggression had ceased when
the appellant stabbed Anthony, it was nonetheless a grave offense for which the
appellant may be given the benefit of a mitigating circumstance.
[19]
But the mitigating
circumstance of sufficient provocation cannot be considered apart from the
circumstance of vindication of a grave offense. These two circumstances arose from
one and the same incident, i.e., the attack on the appellant by Anthony, so that they
should be considered as only one mitigating circumstance.
[20]

Under Article 249 of the Revised Penal Code, homicide is punishable by reclusion
temporal. However, considering that there are two mitigating circumstances and no
aggravating circumstance attendant to the crime, the imposable penalty, following
Article 64(5)
[21]
of the Revised Penal Code, is prision mayor, the penalty next lower to
that prescribed by law, in the period that the court may deem applicable. Applying the
Indeterminate Sentence Law, the maximum penalty to be imposed shall be taken from
the medium period of prision mayor, while the minimum shall be taken from within the
range of the penalty next lower in degree, which is prision correccional. Hence, the
imposable penalty on the appellant is imprisonment from six (6) years of prision
correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as
maximum.
It is, likewise, necessary to modify the damages awarded by the trial court. The
award of P100,000 as actual damages representing funeral and wake expenses should
be deleted as there were no receipts or any other tangible documents presented to
support the said award.
[22]
However, the award of attorneys fees in the amount
of P50,000 is proper considering that the records showed that the heirs of the victim
engaged the services of a private prosecutor. The recovery of attorneys fees in the
concept of actual or compensatory damages is allowed under the circumstances
provided in Article 2208 of the Civil Code, one of which is when the court deems it just
and equitable that attorneys fees and expenses of litigation should be recovered.
[23]
The
award of P50,000 as civil indemnity
[24]
to the heirs of Anthony, as well as P25,000 as
temperate damages,
[25]
is, likewise, warranted pursuant to prevailing jurisprudence.
WHEREFORE, the Decision dated March 18, 1999 of
the Regional Trial Court of Ormoc City, Branch 35, in Criminal Case No. 5217-0 is
AFFIRMED WITH MODIFICATIONS. The appellant Dennis Torpio y Estrera is found
guilty beyond reasonable doubt of Homicide under Article 249 of the Revised Penal
Code and is sentenced to suffer an indeterminate penalty from six (6) years of prision
correccional, as minimum, to eight (8) years and one (1) day of prision mayor in its
medium period, as maximum. He is further ordered to pay the heirs of the said victim,
the amounts of Fifty Thousand Pesos (P50,000) as civil indemnity, Twenty-Five
Thousand Pesos (P25,000) as temperate damages and Fifty Thousand Pesos
(P50,000) as attorneys fees.
SO ORDERED.
Puno, (Chairman), Quisumbing, Austria-Martinez, and Tinga, JJ., concur.



[1]
Penned by Judge Fortunito L. Madrona.
[2]
Records, p. 16.
[3]
Id. at 286-287.
[4]
Id. at 285.
[5]
Id. at 289.
[6]
Rollo, p. 63.
[7]
Records, p. 288.
[8]
People v. Loterono, 391 SCRA 593 (2002).
[9]
See People v. Matore, 387 SCRA 603 (2002).
[10]
See People v. Mahilum, 390 SCRA 91 (2002).
[11]
People v. Caloza, Jr., 396 SCRA 329 (2003).
[12]
Ibid.
[13]
People v. Adoc, 330 SCRA 626 (2000).
[14]
People v. Baldogo, 396 SCRA 31 (2003).
[15]
People v. Recepcion, 391 SCRA 558 (2002).
[16]
Ibid.
[17]
People v. Guerrero, Jr., 389 SCRA 389 (2002).
[18]
In appreciating the mitigating circumstances, the trial court ratiocinated, thus:
... [T]he Court considers for appreciation the following (see Art. 13, nos. 4, 5, and 7, Revised
Penal Code): (1) that sufficient provocation on the part of the offended party (the deceased
Anthony Rapas) preceded the act, this is shown by the mauling of Dennis, his being bathed with
liquor, and the deceaseds having tried to stab Dennis at the cottage before Dennis went home
and got his knife. The prosecution failed to rebut, refute, or destroy this particular testimonial
evidence of the defense in this respect. They could have presented Porboy Perez in order to
refute or rebut the testimony of Dennis on this point. For having thus failed, the quantum of proof
shifted to the prosecution and the weight of evidence tilts against them; (2) the act of killing was
committed in the immediate vindication of a grave offense to the one committing the felony (in this
case, Dennis Torpio). Immediate means proximate and, hence, an interval of time may lapse
from the commission of the grave offense to the crime in vindication thereof (People vs. Parano,
64 Phil. 331, cited in Antonio Gregorio, Fundamentals of Criminal Law Review, 1971 Third
Edition, Quezon City: Central Lawbook Publishing Co., p. 57). This was proven by the wrong
done on Dennis by Anthony prior to the stabbing incident. The injury he sustained, the mauling,
the humiliation he suffered, the near attempt at killing Dennis, these constitute some grave
offense and an interval of time elapsed before the accused returned and did the commission (sic)
of a felon which is killing. (3) [T]he voluntary act of surrender to a person in authority, as shown
by Dennis act of going to a police officer named Boy Estrera and to the police headquarters
supported not only by testimony but also by documentary evidence, the certification of the excerpt
of police blotter (Exhibit E for the prosecution and adopted as Exhibit I for the defense).
(Records, pp. 287-288.)
[19]
David v. Court of Appeals, 290 SCRA 727 (1998).
[20]
Ibid.
[21]
The provision reads in part:
Art. 64. Rules for the application of penalties which contain three periods. In cases in which the
penalties prescribed by law contain three periods, whether it be a single divisible penalty or
composed of three different penalties, each one of which forms a period in accordance with the
provisions of Articles 76 and 77, the courts shall observe for the application of the penalty the
following rules, according to whether there are or are no mitigating or aggravating circumstances:
...
5. When there are two or more mitigating circumstances and no aggravating circumstances are
present, the court shall impose the penalty next lower to that prescribed by law, in the period that
it may deem applicable, according to the number and nature of such circumstances.
[22]
People v. Diaz, 395 SCRA 52 (2003).
[23]
People v. Bergante, 286 SCRA 629 (1998).
[24]
People v. Aposaga, G.R. No. 127153, October 23, 2003.
[25]
People v. Delos Santos, G.R. No. 135919, May 9, 2003.

[G.R. Nos. 132791 & 140465-66. September 2, 2002]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARNEL
BERNAL, accused-appellant.
D E C I S I O N
CORONA, J .:
Accused-appellant Arnel B. Bernal seeks reversal of the judgment of conviction
promulgated by Branch 2 of the Regional Trial Court of the First Judicial Region
stationed in Bangued, Abra, on November 4, 1997, sentencing him to death for the
crime of Murder with the aggravating circumstances of evident premeditation and
habitual drunkenness, and likewise separately sentencing him to suffer the prison terms
of 10 years and 1 day of prision mayor as minimum to 17 years of reclusion temporal as
maximum for the crime of Illegal Possession of Firearms and Ammunition (Presidential
Decree No. 1866), and 2 years and 4 months with disqualification from holding public
office and deprivation of the right of suffrage for violation of Resolution No. 2735 of the
COMELEC otherwise known as the Gun Ban.
The criminal cases were commenced with the filing of three informations for the
crime of murder, and violations of Presidential Decree No. 1866 and Resolution No.
2735 of the COMELEC, pertinently reading as follows:
Criminal Case No. 1645
That on or about February 6, 1995, at Zone 5, in the Municipality of Bangued,
Province of Abra, Philippines and within the jurisdiction of this Honorable Court, the
above named accused, with the intent to kill, with treachery and evident premeditation
and while armed with a caliber .38 revolver Smith and Wesson without serial number
(rcovered) (sic), did then and there, willfully, unlawfully and feloniusly (sic) shot
twice from behind one PEDRITO BERALAS, hitting him on his head, which caused
his death shortly thereafter, to the damage and prejudice of the heirs of the offended
party.
CONTRARY TO LAW.
[1]

Criminal Case No. 1647
That on or about the 6
th
day of February, 1995, at around 9:30 oclock in the evening,
in the Municipality of Bangued, Province of Abra, Philippines and within the
jurisdiction of this Honorable Court, the said accused, not authorize, by law, did then
and there, wilfully, unlawfully and feloniously, kept in his possession, custody and
direct control one caliber 38 Revolver Smith and Session (sic) without serial number
with three (3) live ammunitions for caliber .38 revolver and two (2) empty shells for
caliber .38 (recovered), without first securing the necessary license to possess the daid
(sic) firearms and without lawful permit to carry the same; that the offense was also
committed during the election period in violation of firearm ban.
CONTRARY TO LAW.
[2]

Criminal Case No. 1646
That on or about February 6, 1995, at around 9:30 oclock in the evening, at Zone 5,
Philippines and within the jurisdiction of this honorable Court, the said accused,
person not authorized by law, did then and there, willfully, unlawfully and feloniously
keep in his possession, custody and control one (1) caliber .38 Smith and Wesson
without serial number with three (3) live ammunition for caliber .38 revolver and two
(2) empty shells for caliber .38 revolver (recovered), without first securing the
necessary permit from the COMELEC to carry the same outside his residence.
SO ORDERED.
[3]

Upon arraignment, accused-appellant pleaded not guilty. Thereafter, the cases
were tried jointly.
The inculpatory facts adduced by the prosecution during trial are succinctly
summarized in the Peoples brief as follows:
In the evening of February 6, 1995, appellant, Pedrito Beralas, Felix Bernal, Fernando
Bernal and Rey Bernal were on board a tricycle on their way to the Benedisco pub
house located along Zamora St., Zone 5, Bangued, Abra (p. 3, Decision). Upon
reaching the pub house, Pedrito invited the group to go inside to dance. Pedrito, Rey
and Arnel went inside while Felix and Fernando were left outside (pp. 10-13, TSN,
September 18, 1995).
Later, Fernando went inside to look for the three (appellant, Rey and Pedrito). He saw
them in a sleeping position inside Benedisco. Upon seeing the three (appellant, Rey
and Pedrito), Fernando returned to where Felix was and told him to start the tricycle
engine as they would bring home appellant, Rey and Pedrito. Fernando first brought
Pedrito out of the pub house and had him seated at the passengers seat inside the
tricycle. Thereafter, he returned and got appellant who was roused when they reached
the tricycle. After that, Fernando fetched Rey. While the two (Fernando and Rey)
were already at the gate of Benedisco, Fernando heard a gunshot. When Fernando
looked at the tricycle where his companions were, he saw appellant holding a
gun. Immediately, he rushed to the tricycle where Pedrito was. Then, Fernando heard
a second gunshot. According to Fernando, he knew that appellant shot Pedrito.
Consequently, Fernando attacked appellant and held him. The two (Fernando and
appellant) grappled for possession of the gun. While they were thus grappling, some
policemen arrived (pp. 13-17, TSN, September 18, 1995).
Police Superintendent Sarte called up the police station and ordered his men to pick
up appellant for investigation (p. 10, ibid.).
Subsequently, Police Superintendent Sarte inspected the tricycle. He saw Pedrito
inside who appeared dead because of the bullet wound at his head (ibid.).
After that, Felix and Fernando brought Pedrito to Seares Clinic. Pedrito was already
dead upon arrival at said clinic (pp. 17-18, TSN, September 18, 1995).
Dr. Milagros Burgos, municipal health officer of Bangued, Abra, testified that she
conducted an autopsy on Pedritos cadaver on February 7, 1995 at 9:45 in the morning
at the Baquiran Funeral Homes. Dr Burgos found out that rigor mortis had already set
in when she conducted the autopsy. She found two (2) gunshots wounds. The point of
entry of the first wound was in the parietal area which is located at lower left side of
the back of the head. The other gunshot wound was beside the other wound. Dr.
Burgos opined that the assailant could have been at the back or behind the victim
when the enemy shot the victim because the entry points of the wounds were at the
back (pp. 3-9, TSN, September 18, 1995).
SPO4 Napoleon Pascual, officer-in-charge of the Firearm and Explosives Unit (FEU)
of Abra, PNP Command, testified that appellant is not a holder of any license or
authorized to possess any kind of firearm. He also testified that the gun used in killing
Pedrito is not a licensed firearm (p. 11, Decision). A certification (Exhibit K) was
issued stating that appellant is not a duly licensed firearm holder.
[4]

Accused-appellant denied culpability and offered his own recollection of the
incident. Accused-appellant narrated that when he was only 2 years old, his father was
killed by victim Pedrito Beralas. This he learned from his mother and other relatives.
Accused-appellant admitted that, on February 6, 1995, he joined the victim and his
group in their drinking spree. It was at that time that the alleged killing of the father of
accused-appellant by victim Pedrito was brought up. Accused-appellant maintained that
Pedrito confessed to killing his father. But accused-appellant insisted that they should
stop discussing about the death of his father.
Thereafter, when they were about to go home, accused-appellant and Pedrito had
an altercation. Accused-appellant claimed that Pedrito threatened him and attempted to
fire his gun at him but failed. So, accused-appellant struggled with Pedrito for the
possession of the gun and consequently, the gun went off. Accused-appellant felt that
Pedrito was losing his grip on the gun and so he seized it from him. Because accused-
appellant feared for his life, it was at that moment that he shot the victim.
In its decision dated November 4, 1997, the trial court rendered a judgment of
conviction in the three cases, finding and disposing that
IN CRIMINAL CASE NO. 1645 FOR MURDER, the Court finds the accused Arnel
Bernal guilty beyond reasonable doubt of the crime of murder defined and penalized
under Article 248 of the Revised Penal Code as amended by Sec. 6 of Republic Act
No. 7659 with the aggravating circumstances of evident premeditation and habitual
drunkenness and sentences him to suffer the penalty of DEATH and to indemnify the
family of the late Pedrito Beralas the amount of P52,500.00 in actual expenses
incurred in connection with the burial of the latter plus P50,000.00 for his death and
P500,000.00 in moral and exemplary damages;
IN CRIMINAL CASE NO. 1646 FOR VIOLATION OF RESOLUTION NO. 2735
OF THE COMELEC otherwise known as the gun ban during an election period and
the Omnibus Election Code, the Court finds the accused Arnel Bernal guilty beyond
reasonable doubt of violation of the said COMELEC resolution and as provided by
par. (q) Secs. 261 and 262 of Article XX11 of the Omnibus Election Code and
sentences him to suffer an imprisonment for a period of TWO (2) YEARS and FOUR
(4) MONTHS and to suffer disqualification to hold public office and deprivation of
the right of suffrage; and
IN CRIMINAL CASE NO. 1647 FOR SIMPLE VIOLATION OF PRESIDENTIAL
DECREE NO. 1866 or ILLEGAL POSSESSION OF FIREARM AND
AMMUNITION, the Court likewise finds the accused Arnel Bernal guilty beyond
reasonable doubt of the crime of simple illegal possession of firearm defined and
penalized under Section 1 of Presidential Decree No. 1866 and sentences him to suffer
an indeterminate penalty of TEN (10) YEARS and ONE (1) DAY of prision mayor as
minimum to SEVENTEEN (17) YEARS of reclusion temporal as maximum.
In all these cases, the accused is likewise ordered to pay the costs.
SO ORDERED.
[5]

Hence, the instant review, with accused-appellant anchoring his plea for reversal on
the following assigned errors: (1) the trial court erred in imposing upon the accused the
death penalty; (2) the trial court erred in appreciating evident premeditation and
treachery; and (3) the trial court erred in treating Criminal Case No. 1647 as a separate
offense.
It appears from the record that not one of the prosecution witnesses saw the actual
killing of the victim by accused-appellant. However, the separate and detailed accounts
of the event by prosecution witnesses Fernando and Felix Bernal reveal only one
conclusion: that it was accused-appellant who shot the victim.
Circumstantial as it is, conviction based thereon can be upheld, provided the
circumstances proven constitute an unbroken chain which leads to one fair and
reasonable conclusion that points to accused-appellant, to the exclusion of all others, as
the guilty person.
[6]
Direct evidence of the commission of the crime is not the only matrix
from which the trial court may draw its conclusions and findings of guilt. Circumstantial
evidence is of a nature identical to direct evidence. It is equally direct evidence of minor
facts of such a nature that the mind is led, intuitively or by a conscious process of
reasoning, to a conclusion from which some other fact may be inferred. No greater
degree of certainty is required when the evidence is circumstantial than when it is direct.
In either case, what is required is that there be proof beyond reasonable doubt that a
crime was committed and that accused-appellant committed it.
[7]

As noted by the Solicitor General, the evidence is replete with details to prove the
fact of death of the victim and to sustain the guilt of accused-appellant, to wit:
(1) accused-appellant, victim Pedrito, prosecution witnesses Fernando and Felix
Bernal, and one Rey Bernal together went to Benedisco pub located at Bangued,
Abra;
(2) since accused-appellant, Pedrito, and Rey were already sleeping inside the pub,
Fernando decided to go home, brought out Pedrito first and seated him inside the
tricycle;
(3) then Fernando took out accused-appellant who was roused from sleep and led him
to the tricycle;
(4) thereafter, Fernando went inside again to fetch Rey;
(5) on their way out, Fernando heard a gunshot and he saw accused-appellant holding
a gun;
(6) Fernando rushed to the tricycle where Pedrito was and it was then that he heard
another gunshot;
(7) consequently, Fernando grappled with accused-appellant for the possession of the
gun;
(8) Felix Bernal testified that while Fernando fetched Rey inside the pub, he turned on
the engine of the tricycle;
(9) while doing so, he heard two gunshots;
(10) when he looked at Pedrito, who was supposedly sleeping inside the tricycle, he
saw blood oozing from his head; and
(11) he saw accused-appellant holding a gun.
Concededly, Fernando and Felix did not see the actual shooting and killing of the
victim. Nonetheless, the above-mentioned circumstances taken together form, in our
view, one unbroken chain leading to the fair and reasonable conclusion that indeed,
accused-appellant, to the exclusion of all others, was responsible for the death of the
victim.
Worse, the death of the victim was accomplished with treachery.
The characteristic and unmistakable manifestation of alevosia is the deliberate,
sudden and unexpected attack of the victim from behind, without any warning and
without giving him an opportunity to defend himself or repel the initial assault. If the
attack is sudden, unexpected, not preceded by any provocation and the deceased is not
in a situation to defend himself, treachery must be considered as a qualifying
circumstance of murder.
The circumstances obtaining in the instant case show that treachery attended the
killing of the victim by accused-appellant. The attack on the victim was sudden and
unexpected, and this was evident in the manner accused-appellant shot his victim
from behind and while asleep, giving his victim no opportunity to defend himself or repel
accused-appellants attack.
It has been held by this Court in a long line of cases that the qualifying circumstance
of treachery exists when one takes the life of a person who is asleep because in such a
case, the victim was not in a position to put up any defense.
[8]

Moreover, both prosecution witnesses Fernando and Felix Bernal are one in
claiming that the victim was asleep inside the tricycle when they heard the
gunshots. They did not witness any altercation immediately preceding the actual
shooting nor was there any while both the victim and accused-appellant were inside the
Benedisco pub. The fact is, after accused-appellant was brought out of the pub by
Fernando, the former positioned himself at the back of the unknowing victim and
discharged his firearm twice hitting his victim on the head. Unmistakably, it indicates the
conscious and deliberate actions by accused-appellant to facilitate the killing without
risk to himself. The sudden, unexpected and unprovoked attack during which the victim
was not in a position to defend himself constitutes alevosia.
[9]

Accused-appellant argues that the trial court committed an error when it imposed
the death penalty on him on account of the alternative aggravating circumstance of
habitual drunkenness. He claims that the prosecution was not able to prove the same
at the trial, much less that he intentionally got drunk to commit the crime. We agree.
The general rule is that intoxication may be considered either as aggravating or
mitigating, depending upon the circumstances attending the commission of the
crime. Intoxication is mitigating and therefore has the effect of decreasing the penalty if
the intoxication is not habitual or attendant to the plan to commit the contemplated
crime. On the other hand, when intoxication is habitual or done intentionally to
embolden the malefactor and facilitate the plan to commit the crime,
[10]
it is considered as
an aggravating circumstance.
[11]

In the instant case, accused-appellants intoxication cannot be considered
aggravating because there was no showing that it was habitual or intentional. As
testified to by prosecution witness Felix Bernal, their group drink liquor only
occasionally, that is, if they had visitors. His testimony that if they had visitors everyday,
they drank everyday does not suffice to prove that accused-appellant was a habitual
drunkard. Nor should such statement be taken against the accused-
appellant. Undeniably, accused-appellant was a mere visitor at that time. He came to
Bangued to attend a hearing and from there went to Barangay Dangdangla, Bangued to
visit his relatives.
Further, the prosecution failed to prove that accused-appellant got drunk on the day
the murder occurred for the purpose of committing the same. Neither did accused-
appellant initiate the drinking spree. He merely acceded to the invitation of the victim to
join his group in their drinking spree. Thus, in the absence of clear and convincing proof
that the intoxication was habitual or intentional on the part of accused-appellant, it is
improper to consider the same as an aggravating circumstance.
[12]

But his intoxication cannot likewise be considered mitigating because accused-
appellant failed to show that his intoxication impaired his will power or his capacity to
understand the wrongful nature of his acts. The person pleading intoxication must
prove that he took such quantity of alcoholic beverage, prior to the commission of the
crime, as would blur his reason.
[13]
This accused-appellant failed to do. No proof was
presented by accused-appellant that the amount of liquor he had taken was of such
quantity as to affect his mental faculties. The mere claim of intoxication does not entitle
him to the mitigating circumstance of intoxication.
Accused-appellant likewise reasons that the trial court erred in holding that the
killing of the victim was premeditated. He denies that he had any prior plan or
preparation to kill Pedrito Beralas. He points out that the prosecution failed to establish
the time when he supposedly decided to commit the crime or prove the acts manifesting
that he clung to his determination and that there was a sufficient lapse of time between
determination and execution.
We agree and the Office of the Solicitor General concurs.
Evident premeditation cannot be deduced from mere presumption or speculation. It
must be proven clearly. Evident premeditation cannot be appreciated without proof of
how and when the plan to kill was hatched or how much time elapsed before it was
carried out. The premeditation must be evident and not merely suspected.
[14]

We find no evidence directly showing any pre-conceived plan or devise employed
by accused-appellant to kill the victim. Accused-appellant did not go to Barangay
Dangdangla, Bangued to kill the victim but to attend to some important matters. As
earlier stated, accused-appellant was just invited by his relatives, whom he had not
seen for a while after he changed residence, to have a drinking spree. The probability
is that the decision to shoot the victim was made only right there and then. This should
at least cast reasonable doubt on the existence of a premeditated plan to kill the
victim.
[15]

The trial court thus erred in holding that evident premeditation attended the killing of
the victim merely on the basis of its finding of a deep-seated and long standing grudge
felt by accused-appellant towards the victim. The mere existence of ill-feeling or grudge
between the parties is not sufficient to establish premeditated killing. Even assuming
that accused-appellant felt spite towards Pedrito and harbored a desire to vindicate the
death of his father, such a sentiment does not necessarily translate into a resolution to
commit a crime. There must be an outward act showing or manifesting criminal
intent.
[16]
Such is absent in the instant case. Hence, it would be erroneous to declare
that the killing of the victim was premeditated.
Anent accused-appellants conviction in Criminal Case No. 1647 for violation of
Presidential Decree No. 1866 (illegal possession of firearms and ammunition), the
Office of the Solicitor General (OSG) recommends that it should not be treated as a
separate offense. According to the OSG, the amendments introduced by Republic Act
No. 8294 to Presidential Decree No. 1866 to the effect that the use of an unlicensed
firearm in killing the victim should be treated as an aggravating circumstance finds
application in the instant case. Hence, if the offense was committed before the
effectivity of the amendments, it should be given retroactive effect as it favors accused-
appellant.
We do not, however, see how such retroactive application of the amendments
favors accused-appellant. The amendatory law (RA 8294), which took effect on July 6,
1997, explicitly provides that if homicide or murder is committed with the use of an
unlicensed firearm, such use of an unlicensed firearm shall be considered as an
aggravating circumstance.
Accused-appellant is convicted of the crime of murder which is punishable
by reclusion perpetua to death. Without any aggravating circumstance, accused-
appellant shall be meted the penalty of reclusion perpetua pursuant to Article 63 of the
Revised Penal Code. However, the presence of even one aggravating circumstance
will send accused-appellant to lethal injection. If we were to treat the use of an
unlicensed firearm by accused-appellant in killing the victim as
an aggravating circumstance therefore, the maximum penalty of death would have to be
imposed. This obviously does not strengthen accused-appellants position and does not
at all place him in a more favorable situation. It in fact damns him all the more. In
contrast, accused-appellants separate conviction for the offense of illegal possession of
firearms and ammunition will spare him his life.
But if we do not consider the use of an unlicensed firearm as an aggravating
circumstance in the accused-appellants prosecution for murder, should we not instead
convict him for the separate offense of illegal possession of firearms and ammunition
under PD 1866 on the theory that this will spare him his life and is thus favorable to
him? We do not think so either.
In Criminal Case No. 1647 for illegal possession of firearms and ammunition
(violation of PD 1866), we should apply the ruling enunciated in the recent case
of People vs. Walpan M. Ladjaalam
[17]
where we declared:
xxx if an unlicensed firearm is used in the commission of any crime, there can be no
separate offense of simple illegal possession of firearms.
xxx xxx xxx
The law is clear: the accused can be convicted of simple illegal possession of
firearms, provided that no other crime was committed by the person arrested. If the
intention of the law in the second paragraph were to refer only to homicide and
murder, it should have expressly said so, as it did in the third paragraph. Verily, where
the law does not distinguish, neither should we.
In the above-cited case of Ladjaalam, the appellant was convicted by the trial court
of (1) illegal possession of firearms, (2) direct assault with multiple attempted homicide
and (3) violation of the dangerous drugs law. We acquitted him of the first crime (illegal
possession) but affirmed his conviction of the latter two. In justifying the acquittal, we
said inter alia that when the crime was committed on September 24, 1997, the original
language of PD 1866 had already been expressly superseded by RA 8294 xxx and no
conviction for illegal possession of firearms separate from any other crime was thus
possible.
In the present case, the illegal possession of firearms (as a separate offense) was
committed by accused-appellant before RA 8294 took effect. Since the amendment
contained in RA 8294 is favorable to him in the sense that it would mean his acquittal
(from the charge of illegal possession of firearms), then the law should be given
retroactive effect.
We cannot therefore affirm the conviction of accused-appellant for illegal
possession of firearm in Criminal Case No. 1647.
With respect to the awards of actual, and moral damages, the same cannot likewise
be upheld by this Court. Actual damages cannot be awarded based on the allegation of
a witness without any competent document to support such claim proof is required to
be adequately supported by receipts,
[18]
and not merely a list as done by the prosecution.
However, as the widow of the victim clearly incurred funeral expenses, P10,000.00 by
way of nominal damages should be awarded. This award is adjudicated so that a right
which has been violated may be recognized or vindicated, but not for the purpose of
indemnification.
[19]

Furthermore, the award of P500,000.00 denominated as moral and exemplary
damages by the court below is without basis. The widow of the victim is not entitled to
moral damages because she did not testify on any mental anguish or emotional distress
which she suffered as a result of her husbands death. But recent
jurisprudence
[20]
justifies the imposition of exemplary damages in cases where treachery
is proven as in this case. For this reason, we award the amount of P25,000.00 as
exemplary damages.
Finally, when death occurs as a result of a crime, the heirs of the deceased are
entitled to the amount of P50,000.00 as civil indemnity for the death of the victim without
need for any evidence or proof of damages.
[21]

WHEREFORE, finding the convictions of accused-appellant justified by the
evidence on record, the Court hereby AFFIRMS said judgments, with the following
modifications: (a) in Criminal Case No. 1645 for murder, the penalty imposed is
reduced to reclusion perpetua; (b) aside from the payment of P10,000.00 as nominal
damages, accused-appellant is further ordered to indemnify the heir of the victim
P50,000.00 as civil indemnity, and P25,000.00 as exemplary damages; (c) the awards
of actual and moral damages are deleted; and (d) Criminal Case No. 1647 for illegal
possession of firearm is hereby DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing,
Ynares-Santiago, Carpio, and Austria-Martinez, JJ., concur.
Sandoval-Gutierrez, J., on leave.



[1]
Rollo, p. 9.
[2]
Rollo, p.11.
[3]
Rollo, p.10.
[4]
Rollo, pp. 208-212.
[5]
Rollo, pp. 43-44.
[6]
People vs. Espina, 326 SCRA 753 [2000].
[7]
People vs. Oscar Oliva, et al., G.R. No. 106826, January 18, 2001.
[8]
People vs. Cotas, 332 SCRA 627 [2000].
[9]
People vs. Alib, 322 SCRA 93 [2000].
[10]
People vs. Ga, 186 SCRA 790 [1990].
[11]
People vs. Buenaflor, 211 SCRA 492 [1992].
[12]
People vs. Baez, 301 SCRA 248 [1999].
[13]
People vs. Buenaflor, 211 SCRA 492 [1992].
[14]
People vs. Tortosa, 336 SCRA 604 [2000].
[15]
People vs. Bacalto, 277 SCRA 252 [1997].
[16]
People vs. Dimailig, 332 SCRA 340 [2000].
[17]
G.R. No. 136149-51, September 19, 2000.
[18]
People vs. Enguito, 326 SCRA 508 [2000].
[19]
People vs. Carillo, 333 SCRA 338 [2000].
[20]
People vs. Catubig, G.R. No. 137842, August 23, 2001; People vs. Espanola, 271 SCRA 689 [1997].
[21]
People vs. Daraman, 294 SCRA 27 [1998].

[G.R. No. 111098-99. April 3, 2003]
PEOPLE OF THE PHILIPPINES, appellee, vs. PIO BISO alias BISOY,
EDUARDO YALONG alias BULOY, appellants.
D E C I S I O N
CALLEJO, SR., J .:
Before us, on appeal, is the decision,
[1]
dated June 9, 1987, of the Regional Trial
Court of Manila, Branch 31, in Criminal Cases Nos. 84-24430 and 84-25774, finding Pio
Biso and Eduardo Yalong guilty beyond reasonable doubt of murder and sentencing
them to suffer the penalty of reclusion perpetua and ordering them to pay in solidum
the heirs of the victim Dario Pacaldo the amount of P50,000 as civil indemnity.
The Antecedents
At a little past 12:00 midnight on February 16, 1984, Dario Pacaldo, a black belt in
karate, entered an eatery located in Masinop, Tondo, Manila, owned by Augustina
Yalong. He seated himself beside Teresita Yalong, the 14-year-old daughter of
Augustina Yalong. He made sexual advances on Teresita in the presence of her
brother, Eduardo (Buloy). Dario embraced and touched Teresitas private parts. As
Dario was older, bigger, taller and huskier than Eduardo, the latter and Teresita could
do nothing but to shout for help from their mother Augustina. However, before
Augustina could do anything, Dario left the eatery and proceeded to the nearby Gereli
Pub House and Disco.
[2]

Augustina and Teresita rushed to the house of Barangay Captain Lachica for
assistance. Although he was out of the house, his wife Dolores Lachica accompanied
Augustina and Teresita to the police station where Teresita and Augustina lodged a
complaint against Dario. Policemen and the three women proceeded to the nearby
Gereli Pub House and Disco where Dario was apprehended by the police officers. They
brought him to the Tondo Police Station where he tried to settle the matter with
Augustina and Teresita by offering to pay them P200. However, the two rejected his
offer. An investigation ensued but Dario was released. Augustina and Teresita were
told to return to the station in the morning for them to file the appropriate criminal
complaint against Dario.
At about 1:00 a.m., Eduardo contacted his cousin, Pio G. Biso (Bisoy), an ex-
convict and a known toughie in the area, and related to him what Dario had done to
Teresita. Eduardo and Pio, Boy Madang and Butso decided to confront Dario. They
waited in an alley near the well-lighted Masinop Street for his arrival.
At or about 1:20 a.m., Eduardo became impatient when Dario had not yet
arrived. Eduardo went to the house of Dario and knocked on the door. When Carmen
Augusto, the house helper of the Pacaldos, opened the door, she was surprised to see
Eduardo at the door. The latter inquired if Dario was at home already. When told that
Dario had not yet arrived, Eduardo and Pio, Boy Madang and Butso positioned
themselves in the alley near the house of Dario. Carmen noticed that Eduardo and his
companions were conversing. Momentarily, Dario arrived on board a taxicab. Eduardo
and Pio, Boy Madang and Butso assaulted Dario. Porfirio Perdigones who was on his
way home from work was startled when he saw the assault. He saw Eduardo hold, with
his right hand, the wrist of Dario and cover with his left hand the mouth of Dario. He
also saw Boy Madang and Butso hold Darios right hand and hair. Pio then stabbed
Dario near the breast with a fan knife. Petrified, Porfirio fled to his house. Eduardo
stabbed Dario and fled with his three companions from the scene.
Dario was able to crawl to their house and knocked at the door. His younger
brother Felixberto was shocked when he opened the door and saw Dario bloodied all
over. Their father Roberto was so incensed when he saw Dario mortally
wounded. When Roberto asked Dario who assaulted him, Dario identified Eduardo with
the help of three others. Roberto and Felixberto then called for help to bring Dario to
the hospital. Dario motioned that it was pointless for him to be brought to the
hospital. However, Roberto and Felixberto insisted, and brought Dario to the nearby
Mary Johnston Hospital. On the way, Dario told his father that he was stabbed by
Eduardo, at the same time flashing three fingers. Dario likewise told his brother
Felixberto that his assailants were Eduardo, Pio, Boy Madang and Butso. Dario died
upon arrival in the hospital.
At about 5:30 a.m., Porfirio went to the house of Roberto and told the latter that
earlier at about 1:00 a.m., he saw Pio and three others assaulting Dario. He also told
Roberto that he cannot recall their names but can recall their faces. He likewise told
Roberto that Pio used a fan knife (balisong) in stabbing Dario.
Roberto reported the incident to the homicide section of the Tondo Police
Station. Police officers arrested Pio. However, Eduardo managed to elude the police
officers and went into hiding. After a month, Eduardo was arrested in Pampanga.
In the meantime, Darios cadaver was autopsied by Dr. Marcial G. Cenido. The
doctor prepared a report on his autopsy which reads:
POSTMORTEM FINDINGS
EXTERNAL INJURIES AND EXTENSIONS INTERNALLY:
1. Penetrating stab wound, left upper anterior thorax, 122 cm, from the heel,
6.5 cm. left of anterior midline, measuring 1.5 cm. x 0.8 cm. in depth, thru
2
nd
left inter-costal space, cutting upper border of the 3
rd
costal cartilage,
directed obliquely backwards, slightly upwards and towards the midline
perforating the pericardium, incising the upper lobe of the left lung about
the hilus;
2. Penetratinf (sic) stab wound, left posterior lumbar, 98 cm. from the heel, 12
cm. left of posterior midline, measuring 2 cm. x 0.9 cm. x 10.5 cm. in
depth, directed obliquely forwards, slightly upwards and towards the
midline and piercing the descending colon of the large intestine; and
3. Deep abrasion, right chin and which measures 1 cm. x 0.2 cm.
INTERNAL FINDINGS:
1. Stab wounds of the internal organs and tissue indicated under the internal
extensions of the external wounds items 1 & 2, with generalized pallor;
2. Massive left hemothorax with a very small amount of blood recovered from
the abdominal cavity; and
3. Recovered from the stomach a small amount of viscid/without alcoholic
odor.
CAUSE OF DEATH
Penetrating stab wounds, left anterior thorax and posterior lumbar.
[3]

Pio Biso was charged with murder in an Information docketed as Criminal Case No.
84-24430 which reads:
That on or about February 16, 1984, in the City of Manila, Philippines, the said
accused, conspiring and confederating with three others whose true names, identities
and present whereabouts are unknown and helping one another did then and there
wilfully, unlawfully and feloniously with intent to kill, and with treachery and evident
premeditation, attack, assault and use personal violence upon one Dario Pacaldo y
Luega by then and there stabbing the latter with the use of a bladed weapon thereby
inflicting upon him mortal stab wounds which were the direct and immediate cause of
his death thereafter.
Contrary to law.
[4]

A separate Information for murder was filed against Eduardo with the said court
docketed as Criminal Case No. 84-25774 which reads:
That on or about February 16, 1984, in the city of Manila, Philippines, the said
accused conspiring and confederating with Pio G. Biso who was also charged with the
Regional Trial Court of Manila docketed under Criminal Case No. 24430, and two
others whose true names, real identities and present whereabouts are still unknown
and helping one another, did then and there wilfully, unlawfully and feloniously, with
premeditation, attack, assault and use personal violence upon one, Dario Pacaldo y
Luega, by there and then stabbing him with a balisong on the left chest and on the
left portion of the back, thereby inflicting upon the said Danilo Pacaldo y Luega
mortal wounds which were the direct and immediate cause of his death.
Contrary to law.
[5]

When arraigned on May 13, 1984 and January 3, 1985, respectively, Pio Biso and
Edruardo Yalong, assisted by their counsel, pleaded not guilty.
[6]
The proceedings in the
two cases were consolidated.
The Case for the Accused
Pio denied any participation in the stabbing and the consequent death of Dario, the
victim. He averred that he was in his house, sleeping with his common-law wife Myrna
when Dario was stabbed to death.
Eduardo, on the other hand, admitted stabbing Dario. However, he stressed that it
was he alone who stabbed the victim. He furthered that he had no intention of killing
the victim. On March 20, 1984, Eduardo gave the same statement to the police officers
admitting having stabbed the victim.
[7]
He related that after having coffee at a nearby
store, he saw the victim who was seemingly drunk alighting from a taxicab. Upon
seeing Eduardo, Dario shouted Nagreklamo pa kayo ay halagang dalawang daang
piso lang kayo. To which Eduardo replied Kami na nga ang naagrabyado ay kayo pa
ang matapang. Dario slapped Eduardo so hard that he was pushed to the
wall. Eduardo asked Dario Ano ba ang kasalanan ko? Dario replied Matapang ka
ha. Simultaneously, he took out his balisong and lunged at Eduardo. However,
Eduardo was able to parry the thrust and wrest the knife from Dario. Eduardo then
swung the knife to Dario, hitting the latter on the chest. Eduardo fled from the scene of
crime and went into hiding.
On June 9, 1987, the court a quo rendered a decision, finding Pio and Eduardo
guilty beyond reasonable doubt of the crime of murder and sentencing them to suffer
the penalty ofreclusion perpetua:
WHEREFORE, the Court finds both accused GUILTY beyond reasonable doubt for
the crime of Murder qualified by treachery and evident premeditation not offset by
any mitigating circumstances and the Court hereby sentences each of them to suffer
imprisonment of reclusion perpetua or life imprisonment.
Ordering both accused to indemnify the heirs of Dario Pacaldo y Luega the sum
of P50,000.00.
Ordering both accused to pay litigation expenses and the costs of this proceedings.
[8]

The accused appealed from the decision of the court.
[9]

After filing his brief with this Court on June 12, 1999, Pio filed a motion dated
January 20, 2000 praying for the withdrawal of his appeal. After verifying the veracity
and the voluntariness of the motion, the Court, in a Resolution dated October 16, 2000,
granted the said motion and declared the case closed and terminated as to Pio Biso.
[10]

Appellant Eduardo filed his brief contending that:
I
THE COURT A QUO GRAVELY ERRED IN FINDING THAT TREACHERY
AND EVIDENT PREMEDITATION ATTENDED THE COMMISSION OF THE
CRIME.
II
THE COURT A QUO GRAVELY ERRED IN CONVICTING ACCUSED-
APPELLANT OF THE CRIME OF MURDER.
[11]

The appellant posits that the prosecution failed to prove beyond cavil of doubt that
he killed the victim with treachery and evident premeditation. Hence, he is guilty only of
homicide and not of murder. He avers that the prosecution failed to prove the essential
requisites for evident premeditation. The trial court, on the other hand, stated in its
decision that evident premeditation attended the commission of the crime:
There was evident premeditation as shown by the burning hatred of accused Eduardo
Yalong to avenge the dishonor of his sister Teresita Yalong who was earlier mashed
and sexually molested by the deceased in the presence of said accused
Yalong. Accused Yalong had a score to settle with the deceased Pacaldo, so he
sought out the help of his ex-convict first cousin Pio Biso, who, together with two (2)
others waited at the scene of the crime for more than one (1) hour near the house of
the deceased until his arrival, thereafter they were able to carry out their plan when
deceased arrived after midnight.
[12]

We agree with the appellant.
Case law has it that qualifying circumstances must be proved with the same
quantum of evidence as the crime itself.
[13]
For evident premeditation to be appreciated,
the prosecution is required to prove the following:
(a) the time when the offender determined to commit the crime; (b) an act
manifestly indicating that the offender clung to his determination; and (c) a sufficient
interval of time between the determination and the execution of the crime to allow
him to reflect upon the consequences of his act.
[14]

Evident premeditation is not presumed from mere lapse of time. The prosecution is
burdened to prove that the malefactors had decided to commit a crime and performed
an act manifestly indicating that the offender had clung to a previous determination to
kill.
[15]
It must be shown that there was a period sufficient to afford full opportunity for
meditation and reflection, a time adequate to allow the conscience to overcome the
resolution of the will, as well as outward acts showing the intent to kill.
[16]
The
premeditation to kill should be plain and notorious. In the absence of clear and positive
evidence proving this aggravating circumstance, mere presumptions and inferences
thereon, no matter how logical and probable, would not be enough.
[17]

Evident premeditation must be established by clear and convincing evidence that
the accused persistently and continuously clung to this resolution despite the lapse of
sufficient time for them to clear their minds and overcome their determination to commit
the same.
[18]

In this case, the prosecution established that the appellant, incensed at seeing the
victim molesting his younger sister Teresita, went to Pio, a notorious toughie in the area,
and with two cohorts, proceeded to the house of the victim to confront him but failed to
see the victim. However, the prosecution failed to prove that the four intended to kill
Dario and if they did intend to kill him, the prosecution failed to prove how the
malefactors intended to consummate the crime. Except for the fact that the appellant
and his three companions waited in an alley for Dario to return to his house, the
prosecution failed to prove any overt acts on the part of the appellant and his cohorts
showing that that they had clung to any plan to kill the victim.
We do not agree with the appellants contention that treachery was not attendant in
the commission of the crime.
For treachery to be appreciated as a qualifying circumstance, the prosecution must
establish that (a) the employment of means of execution which gives the person
attacked no opportunity to defend himself or retaliate; (b) the means of execution is
deliberately or consciously adopted.
[19]

The prosecution discharged its burden. Porfirio Perdigones testified how
appellant Pio, and their cohorts killed Dario with treachery:
Q: When did you see that Dario Pakaldo (sic) was killed by Pio Biso and his
companions?
A: February 16, 1984 about 1:00 in the morning at Masinop St., Tondo, Manila.
Q: How did Pio Biso and his companions killed (sic) Dario Pakaldo?
A: I saw how Dario was killed by Pio Biso, sir. One was holding his right hand, one
was holding his left hand, one was holding his head this way, sir. (witness
demonstrating that the fellow hold (sic) Dario on his head, holding his hand at the
mouth and other hand at the head and he was stabbed by Pio Biso).
[20]

Dario was powerless to defend himself or retaliate against the appellant and his
cohorts.
[21]
By their collective and simultaneous acts, the appellant and his cohorts
deliberately and consciously insured the consummation of the crime. In sum, the
appellant is guilty of murder as defined and penalized under Article 248 of the Revised
Penal Code.
Proper Penalty for the Crime
When the crime was committed in 1984, the penalty for murder was reclusion
temporal in its maximum period to death. The appellant testified that he was 17 years
old at the time of the commission of the crime. In his sworn statement to the police
authorities, he also claimed that he was 17 years old.
[22]
The prosecution did not adduce
any evidence to disprove the evidence of the appellant. Hence, the appellant is entitled
to the privileged mitigating circumstance of minority under Article 63 of the Revised
Penal Code.
[23]
Considering that the appellant was 17 years old at the time of the
commission of the felony, the imposable penalty should be reduced by one
degree. Hence, the imposable penalty for the crime is prision mayor in its maximum
period to reclusion temporal in its medium period with a range of from ten years and one
day to seventeen years and four months. Although the crime was committed at
nighttime, there is no evidence that the appellant and his companions took advantage of
nighttime or that nighttime facilitated the commission of the crime. Hence, nighttime is
not aggravating in the commission of the crime.
[24]
The crime was committed by a
band. However, band was not alleged in the Information as mandated by Section 8,
Rule 110 of the Revised Rules of Criminal Procedure.
[25]
Although the new rule took
effect on December 1, 2000 long after the crime was committed, the same shall be
applied retroactively being favorable to the appellant.
[26]
Taking into account the
indeterminate sentence law, the appellant should be meted an indeterminate penalty of
seven years and one day of prision mayor in its medium period as minimum, to twelve
years, five months and eleven days of prision mayor in its medium period as maximum.
Civil Liabilities of the Appellant
The trial court correctly ordered the appellant to pay to the heirs of the victim Dario
Pacaldo, P50,000 by way of civil indemnity.
[27]
The heirs of the victim are not entitled to
moral damages as none of the heirs testified for the prosecution on the factual basis for
said award. The heirs are also entitled to exemplary damages in the amount
of P25,000 conformably with the ruling of the Court in People v. Catubig.
[28]

The Verdict of the Court
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of
Manila, Branch 31, is hereby AFFIRMED WITH MODIFICATION. The appellant is
found guilty beyond reasonable doubt of murder under Article 248 of the Revised Penal
Code and is sentenced to an indeterminate penalty of from seven years and one day
of prision mayor as minimum to twelve years, five months and eleven days of prision
mayor as maximum. He is ordered to pay to the heirs of the victim Dario Pacaldo, the
amount of P50,000 as civil indemnity and P25,000 as exemplary damages.
With costs de oficio.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Quisumbing, and Austria-Martinez, JJ., concur.



[1]
Penned by Judge Regino T. Veridiano II.
[2]
Exhibit 3, paragraph 12.
[3]
Exhibit D.
[4]
Records, p. 31.
[5]
Id. at 181.
[6]
Rollo, p. 173.
[7]
Exhibit 3.
[8]
Original Records, pp. 182-183.
[9]
Id. at 184-185.
[10]
Rollo, p. 234.
[11]
Id., at 245.
[12]
Records, pp. 182-183.
[13]
People v. Delim, G.R. No. 142773, January 28, 2003.
[14]
People v. Sison, 312 SCRA 792 (1999).
[15]
People v. Sol, 272 SCRA 393 (1997).
[16]
People v. Tabones, 304 SCRA 781 (1999).
[17]
People v. Mahinay, 304 SCRA 767 (1999).
[18]
People v. Manes, 303 SCRA 231 (1999).
[19]
People v. Silvestre, 307 SCRA 68 (1999).
[20]
TSN, April 23, 1985, p. 17.
[21]
People v. Daroy, 336 SCRA 24 (2000).
[22]
Exhibit 3; TSN, February 9, 1987, p. 3.
[23]
People v. Chua, 339 SCRA 405 (2000).
[24]
People v. Lumacang, 324 SCRA 254 (2000).
[25]
SEC. 8. Designation of the offense. The complaint or information shall state the designation of the
offense given by the statute, aver the acts or omissions constituting the offense, and specify its
qualifying and aggravating circumstances. If there is no designation of the offense, reference
shall be made to the section or subsection of the statute punishing it.
[26]
People v. Salvador, G.R. No. 132481, August 14, 2002.
[27]
People v. Sanchez, 313 SCRA 254 (1999).
[28]
363 SCRA 621 (2001).