G.R. No.
L-74324 November 17, 1988 The deceased Miranda, a 25-year old retardate, and the accused Pugay were friends. Miranda used to run errands for Pugay
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FERNANDO PUGAY y BALCITA, & BENJAMIN SAMSON y MAGDALENA, accused-appellants.
The Solicitor General for plaintiff-appellee.
Citizens Legal Assistance Office for accused-appellants.
MEDIALDEA, J.:
For the death of Bayani Miranda, a retardate, FERNANDO PUGAY y BALCITA and BENJAMIN SAMSON y MAGDALENA were
charged with the crime of MURDER in Criminal Case No. L-175-82 of the Court of First Instance (now Regional Trial Court) of
Cavite, under an information which reads as follows:
That on or about May 19, 1982 at the town plaza of the Municipality of Rosario, Province of Cavite, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping and assisting
one another, with treachery and evident premeditation, taking advantage of their superior strength, and with the decided
purpose to kill, poured gasoline, a combustible liquid to the body of Bayani Miranda and with the use of fire did then and
there, wilfully, unlawfully and feloniously, burn the whole body of said Bayani Miranda which caused his subsequent death, to
the damage and prejudice of the heirs of the aforenamed Bayani Miranda.
That the crime was committed with the qualifying circumstance of treachery and the aggravating circumstances of evident
premeditation and superior strength, and the means employed was to weaken the defense; that the wrong done in the
commission of the crime was deliberately augmented by causing another wrong, that is the burning of the body of Bayani
Miranda.
CONTRARY TO LAW (p. 1, Records).
Upon being arraigned, both accused pleaded not guilty to the offense charged. After trial, the trial court rendered a decision
finding both accused guilty on the crime of murder but crediting in favor of the accused Pugay the mitigating circumstance of
lack of intention to commit so grave a wrong, the dispositive portion of which reads as follows:
WHEREFORE, the accused Fernando Pugay y Balcita and Benjamin Samson y Magdalena are pronounced guilty beyond
reasonable doubt as principals by direct participation of the crime of murder for the death of Bayani Miranda, and appreciating
the aforestated mitigating circumstance in favor of Pugay, he is sentenced to a prison term ranging from twelve (12) years of
prision mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum, and Samson to suffer the penalty of
reclusion perpetua together with the accessories of the law for both of them. The accused are solidarily held liable to
indemnify the heirs of the victim in the amount of P13,940.00 plus moral damages of P10,000.00 and exemplary damages of
P5,000.00.
Let the preventive imprisonment of Pugay be deducted from the principal penalty.
Cost against both accused.
SO ORDERED (p. 248, Records).
Not satisfied with the decision, both accused interposed the present appeal and assigned the following errors committed by
the court a quo:
1. THE COURT A QUO ERRED IN UTILIZING THE STATEMENTS OF ACCUSED-APPELLANTS IN ITS APPRECIATION OF
FACTS DESPITE ITS ADMISSION THAT THE ACCUSED-APPELLANTS WERE NOT ASSISTED BY A COUNSEL DURING
THE CUSTODIAL INVESTIGATION.
2. THE COURT A QUO ERRED IN NOT FINDING THAT THE SUPPRESSION BY THE PROSECUTION OF SOME
EVIDENCE IS FATAL TO ITS CASE.
3. . THE COURT A QUO ERRED IN LENDING CREDENCE TO THE INCREDIBLE TESTIMONY OF EDUARDO GABION
WHO WAS ONE OF THE MANY SUSPECTS ARRESTED BY THE POLICE (Accused-appellants' Brief, p. 48, Rollo).
The antecedent facts are as follows:
and at times they slept together. On the evening of May 19, 1982, a town fiesta fair was held in the public plaza of Rosario,
Cavite. There were different kinds of ride and one was a ferris wheel.
Sometime after midnight of the same date, Eduardo Gabion was sitting in the ferris wheel and reading a comic book with his
friend Henry. Later, the accused Pugay and Samson with several companions arrived. These persons appeared to be drunk as
they were all happy and noisy. As the group saw the deceased walking nearby, they started making fun of him. They made the
deceased dance by tickling him with a piece of wood.
Not content with what they were doing with the deceased, the accused Pugay suddenly took a can of gasoline from under the
engine of the ferns wheel and poured its contents on the body of the former. Gabion told Pugay not to do so while the latter
was already in the process of pouring the gasoline. Then, the accused Samson set Miranda on fire making a human torch out of
him.
The ferris wheel operator later arrived and doused with water the burning body of the deceased. Some people around also
poured sand on the burning body and others wrapped the same with rags to extinguish the flame.
The body of the deceased was still aflame when police officer Rolando Silangcruz and other police officers of the Rosario Police
Force arrived at the scene of the incident. Upon inquiring as to who were responsible for the dastardly act, the persons around
spontaneously pointed to Pugay and Samson as the authors thereof.
The deceased was later rushed to the Grace Hospital for treatment. In the meantime, the police officers brought Gabion, the
two accused and five other persons to the Rosario municipal building for interrogation. Police officer Reynaldo Canlas took the
written statements of Gabion and the two accused, after which Gabion was released. The two accused remained in custody
After a careful review of the records, We find the grounds relied upon by the accused-appellants for the reversal of the
decision of the court a quo to be without merit.
It bears emphasis that barely a few hours after the incident, accused-appellants gave their written statements to the police.
The accused Pugay admitted in his statement, Exhibit F, that he poured a can of gasoline on the deceased believing that the
contents thereof was water and then the accused Samson set the deceased on fire. The accused Samson, on the other hand,
alleged in his statement that he saw Pugay pour gasoline on Miranda but did not see the person who set him on fire. Worthy of
note is the fact that both statements did not impute any participation of eyewitness Gabion in the commission of the offense.
..
While testifying on their defense, the accused-appellants repudiated their written statements alleging that they were extracted
by force. They claimed that the police maltreated them into admitting authorship of the crime. They also engaged in a
concerted effort to lay the blame on Gabion for the commission of the offense.
Thus, while it is true that the written statements of the accused-appellants were mentioned and discussed in the decision of
the court a quo, the contents thereof were not utilized as the sole basis for the findings of facts in the decision rendered. The
said court categorically stated that "even without Exhibits 'F' and 'G', there is still Gabion's straightforward, positive and
convincing testimony which remains unaffected by the uncorroborated, self-serving and unrealiable testimonies of Pugay and
Samson" (p. 247, Records).
Accused-appellants next assert that the prosecution suppressed the testimonies of other eyewitnesses to the incident. They
claim that despite the fact that there were other persons investigated by the police, only Gabion was presented as an
eyewitness during the trial of the case. They argue that the deliberate non- presentation of these persons raises the
presumption that their testimonies would be adverse to the prosecution.
There is no dispute that there were other persons who witnessed the commission of the crime. In fact there appears on record
(pp. 16-17, Records) the written statements of one Abelardo Reyes and one Monico Alimorong alleging the same facts and
imputing the respective acts of pouring of gasoline and setting the deceased on fire to the accused-appellants as testified to by
Gabion in open court. They were listed as prosecution witnesses in the information filed. Considering that their testimonies
would be merely corroborative, their non-presentation does not give rise to the presumption that evidence wilfully suppressed
would be adverse if produced. This presumption does not apply to the suppression of merely corroborative evidence (U.S. vs.
Dinola, 37 Phil. 797).<re||an1w> Besides, the matter as to whom to utilize as witness is for the prosecution to decide.
Accused-appellants also attack the credibility of the eyewitness Gabion alleging that not only was the latter requested by the
mother of the deceased to testify for the prosecution in exchange for his absolution from liability but also because his
testimony that he was reading a comic book during an unusual event is contrary to human behavior and experience.
Gabion testified that it was his uncle and not the mother of the deceased who asked him to testify and state the truth about
the incident. The mother of the deceased likewise testified that she never talked to Gabion and that she saw the latter for the
first time when the instant case was tried.
Besides, the accused Pugay admitted that Gabion was his friend and both Pugay and the other accused Samson testified that
they had no previous misunderstanding with Gabion. Clearly, Gabion had no reason to testify falsely against them.
the ferris wheel; that it was while Pugay was in the process of pouring the gasoline on the body of the deceased when Gabion
warned him not to do so; and that Gabion later saw Samson set the deceased on fire.
However, there is nothing in the records showing that there was previous conspiracy or unity of criminal purpose and intention
between the two accused-appellants immediately before the commission of the crime. There was no animosity between the
deceased and the accused Pugay or Samson. Their meeting at the scene of the incident was accidental. It is also clear that the
accused Pugay and his group merely wanted to make fun of the deceased. Hence, the respective criminal responsibility of
Pugay and Samson arising from different acts directed against the deceased is individual and not collective, and each of them is
liable only for the act committed by him (U.S. vs. Magcomot, et. al. 13, Phil. 386; U.S. vs. Abiog, et. al. 37 Phil. 1371).

In support of their claim that the testimony of Gabion to the effect that he saw Pugay pour gasoline on the deceased and then The next question to be determined is the criminal responsibility of the accused Pugay. Having taken the can from under the
Samson set him on fire is incredible, the accused-appellants quote Gabion's testimony on cross-examination that, after telling engine of the ferris wheel and holding it before pouring its contents on the body of the deceased, this accused knew that the
Pugay not to pour gasoline on the deceased, he (Gabion) resumed reading comics; and that it was only when the victim's body can contained gasoline. The stinging smell of this flammable liquid could not have escaped his notice even before pouring the
was on fire that he noticed a commotion. same. Clearly, he failed to exercise all the diligence necessary to avoid every undesirable consequence arising from any act that
may be committed by his companions who at the time were making fun of the deceased. We agree with the Solicitor General
However, explaining this testimony on re-direct examination, Gabion stated: that the accused is only guilty of homicide through reckless imprudence defined in Article 365 of the Revised Penal Code, as
Q. Mr. Gabion, you told the Court on cross-examination that you were reading comics when you saw Pugay poured amended. In U.S. vs. Maleza, et. al. 14 Phil. 468, 470, this Court ruled as follows:
gasoline unto Bayani Miranda and lighted by Samson. How could you possibly see that incident while you were reading
comics? A man must use common sense and exercise due reflection in all his acts; it is his duty to be cautious, careful, and prudent, if
A. I put down the comics which I am reading and I saw what they were doing. not from instinct, then through fear of incurring punishment. He is responsible for such results as anyone might foresee and for
Q. According to you also before Bayani was poured with gasoline and lighted and burned later you had a talk with acts which no one would have performed except through culpable abandon. Otherwise his own person, rights and property, all
Pugay, is that correct? those of his fellow-beings, would ever be exposed to all manner of danger and injury.
A. When he was pouring gasoline on Bayani Miranda I was trying to prevent him from doing so.
Q. We want to clarify. According to you a while ago you had a talk with Pugay and as a matter of fact, you told him not The proper penalty that the accused Pugay must suffer is an indeterminate one ranging from four (4) months of arresto mayor,
to pour gasoline. That is what I want to know from you, if that is true? as minimum, to four (4) years and two (2) months of prision correccional, as maximum. With respect to the accused Samson,
A. Yes, sir. the Solicitor General in his brief contends that "his conviction of murder, is proper considering that his act in setting the
Q. Aside from Bayani being tickled with a stick on his ass, do you mean to say you come to know that Pugay will pour deceased on fire knowing that gasoline had just been poured on him is characterized by treachery as the victim was left
gasoline unto him? completely helpless to defend and protect himself against such an outrage" (p. 57, Rollo). We do not agree.
A. I do not know that would be that incident.
Q. Why did you as(k) Pugay in the first place not to pour gasoline before he did that actually? There is entire absence of proof in the record that the accused Samson had some reason to kill the deceased before the
A. Because I pity Bayani, sir. incident. On the contrary, there is adequate evidence showing that his act was merely a part of their fun-making that evening.
For the circumstance of treachery to exist, the attack must be deliberate and the culprit employed means, methods, or forms
Q. When you saw Pugay tickling Bayani with a stick on his ass you tried according to you to ask him not to and then in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from any
later you said you asked not to pour gasoline. Did Pugay tell you he was going to pour gasoline on Bayani? defense which the offended party might make.
A. I was not told, sir.
Q. Did you come to know..... how did you come to know he was going to pour gasoline that is why you prevent him? There can be no doubt that the accused Samson knew very well that the liquid poured on the body of the deceased was
A. Because he was holding on a container of gasoline. I thought it was water but it was gasoline. gasoline and a flammable substance for he would not have committed the act of setting the latter on fire if it were otherwise.
Q. It is clear that while Pugay was tickling Bayani with a stick on his ass, he later got hold of a can of gasoline, is that Giving him the benefit of doubt, it call be conceded that as part of their fun-making he merely intended to set the deceased's
correct? clothes on fire. His act, however, does not relieve him of criminal responsibility. Burning the clothes of the victim would cause
at the very least some kind of physical injuries on his person, a felony defined in the Revised Penal Code. If his act resulted into
A. Yes, sir. a graver offense, as what took place in the instant case, he must be held responsible therefor. Article 4 of the aforesaid code
provides, inter alia, that criminal liability shall be incurred by any person committing a felony (delito) although the wrongful act
Q. And when he pick up the can of gasoline, was that the time you told him not to pour gasoline when he merely pick done be different from that which he intended.
up the can of gasoline.
As no sufficient evidence appears in the record establishing any qualifying circumstances, the accused Samson is only guilty of
A. I saw him pouring the gasoline on the body of Joe. the crime of homicide defined and penalized in Article 249 of the Revised Penal Code, as amended. We are disposed to credit
in his favor the ordinary mitigating circumstance of no intention to commit so grave a wrong as that committed as there is
Q. So, it is clear when you told Pugay not to pour gasoline he was already in the process of pouring gasoline on the evidence of a fact from which such conclusion can be drawn. The eyewitness Gabion testified that the accused Pugay and
body of Bayani? Samson were stunned when they noticed the deceased burning (Tsn, June 1, 1983, pp. 16-17).<re||an1w>

A. Yes, sir (Tsn, July 30, 1983, pp. 32-33). The proper penalty that the accused Samson must suffer is an indeterminate one ranging from eight (8) years of prision mayor,
as minimum, to fourteen (14) years of reclusion temporal, as maximum.
It is thus clear that prior to the incident in question, Gabion was reading a comic book; that Gabion stopped reading when the
group of Pugay started to make fun of the deceased; that Gabion saw Pugay get the can of gasoline from under the engine of
The lower court held the accused solidarily liable for P13,940.00, the amount spent by Miranda's parents for his
hospitalization, wake and interment. The indemnity for death is P30,000.00. Hence, the indemnity to the heirs of the deceased
Miranda is increased to P43,940.00.

Both accused shall be jointly and severally liable for the aforesaid amount plus the P10,000.00 as moral damages and
P5,000.00 as exemplary damages as found by the court a quo.

Accordingly, the judgment is affirmed with the modifications above-indicated. Costs against the accused-appellants.

SO ORDERED.
G.R. No. L-49430 March 30, 1982
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BELINDA LORA Y VEQUIZO alias LORENA SUMILEW, accused-appellant.
PER CURIAM:
The defendant Belinda Lora y Vequizo alias Lorena Sumilew was accused in the Court of First Instance of Davao of serious
illegal detention with murder in an amended information which reads as follows:
The undersigned accuses the above-named accused of the crime of Serious Illegal Detention with Murder under Art. 267 in
relation to Articles 248 and 48 of the Revised Penal Code, committed as follows:
That on or about May 28, 1976, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the
abovementioned accused being then a private person, wilfully, unlawfully and feloniously and for the purpose of extorting
ransom from spouses Ricardo Yap and Myrna Yap, illegally detained their three (3) year old child Oliver Yap, a minor, from May
28 to 29, 1975 and with treachery, evident premeditation and with intent to kill wilfully, unlawfully and feloniously attacked,
assaulted Oliver Yap by tying his mouth with stocking, placing him inside a Pallmall cigarette box, covering the said box with a
mat and piece of sack and filing the same with other boxes in the third floor (bodega) of the house owned by said spouses
Ricardo Yap and Myrna Yap, thereby inflicting upon said Oliver Yap the following to wit: Asphyxia due to suffocation" which
caused the death of said Oliver Yap.
That the commission of the foregoing offense was attended by the following aggravating circumstances: (1) taking advantage
of superior strength; (2) disregard of the respect due the offended party on account of his age; (3) that the crime was
committed in the dwelling of the offended party; (4) that the crime was committed with abuse of confidence, she being a
domestic helper (maid) or obvious ungratefulness; (5) that craft, fraud and disguise was employed; and (6) that the crime was
committed with cruelty, by deliberately and inhumanly augmenting the suffering of the victim.
Contrary to law.
According to the trial judge, "he has appointed as counsel de oficio Atty. Hildegardo Inigo a bar topnotcher with considerable
practice," in view of the gravity of the offense.
Upon motion of the counsel for the accused, the arraignment was postponed to enable him to study the charge against the
accused. Thereafter, after being arraigned, the accused Belinda Lora in the presence and with the assistance of her counsel,
entered a plea of guilty in Visayan dialect, which is her native dialect
The Court thereafter directed the prosecution to present its evidence and the counsel for the "accused manifested that the
evidence of the defense would be presented only for proving mitigating circumstances.
Eight witnesses for the prosecution, namely: Myrna Yap, David Cortez, Fidencio Bisnar, Ricardo Yap, Agaton Bonahos,
Emmanuel Mesias, Rolando Estillori and Juan Abear, Jr. were presented.
The facts are undisputed.
On May 26, 1975, accused Belinda Lora using the name "Lorena Sumilew", applied as a housemaid in the household of the
spouses Ricardo Yap and Myrna Yap at 373 Ramon Magsaysay Avenue, Davao City. The spouses had a store on the ground
floor; a mezzanine floor was used as their residence; while the third floor was used as a bodega for their stocks. They had two
children, Emily and Oliver Yap. Oliver was 3 years and five months old. 1
Belinda Lora was accepted as a housemaid in the residence of the Yaps and reported for work the following day, May 27, 1975.
Her duties were to wash clothes and to look after Oliver Yap. 2
On May 28, 1975, Mrs. Myrna Yap returned home from the market to find her mother-in-law and her husband panicky because
their son, Oliver, and the maid, accused Belinda Lora were missing. The mother-in-law had found a ransom note at the stairway
to the mezzanine floor. The note said that Oliver was to be sold to a couple and that the writer (defendant herein) needed
money for her mother's hospitalization. 3 Four pieces of residence certificates were also found inside the paper bag of the
maid. One residence certificate bore the No. 1941785 with the name Sumiliw, Lorena Pamintil. 4
The incident was reported immediately to the police. Mrs. Yap, accompanied by one Mrs. Erlinda Velez, went to look for Oliver
and the housemaid. Not finding them in Davao City, they went to Digos and Bansalan (Davao) and looked in the hospitals
there. The residence certificate in the name of Lorena Sumiliw was issued in Digos and the ransom letter stated that the
mother of the defendant was very sick. 5
In the evening of May 28, 1975, the Yaps received two telephone calls at their residence. The first call was received by Mrs.
Yaps's mother-in-law while the second call was received by Ricardo Yap. Lorena Sumiliw (defendant), the caller, instructed
Ricardo Yap to bring the amount of P3,000.00 to the island infront of the (Davao) Regional Hospital and to go there alone
without any policeman or companion, after which his son (Oliver) would be left to the security guard of the hospital at the
emergency exit. 6
The Yaps borrowed the amount of P3,000.00. Upon instructions of the NBI, the money was marked with Mrs. Yap's initials
"MY". 7
Ricardo Yap wrapped the P3,000.00 in a piece of paper and went to the Regional Hospital at 9:30 in the evening of May 28,
1975. He placed the money near the Imelda Playground. He proceeded to the hospital and looked for his child from the
security guard. However, the security guard said nobody left a boy with him. 8 Ricardo Yap stayed at a corner looking and
calling for his child but could not locate him. After ten minutes, he went back to where he had placed the money but the
money was not there anymore. He waited until 11:00 o'clock, after which he went home. 9
The following morning, May 29, 1975, Mrs. Yap received a phone call from the accused informing her that her son was at the
Minrapco Terminal and that she was asking for another P 3,000.00. Mrs. Yap proceeded to the terminal whereupon she
learned that the terminal had moved to a place near a theatre. When Myrna Yap arrived at the place, she saw the accused
board a Minica bus. She followed and grabbed the accused. 10 As the accused said that Mrs. Yap's son was brought to the
Regional Hospital they proceeded there. Upon arriving there, a couple, Mr. and Mrs. Bonahos said that the Yap son was in
Panacan. Mrs. Yap and the accused went to Panacan. After arriving at Panacan the accused told Mrs. Yap that her son was in
the custody of a woman whom she paid P 100.00 and that the woman would return her son at 6:00 o'clock P.M. that day. Mrs.
Yap therefore, made the accused sign a promissory note that she would return Oliver on the same day. 11 After the accused
boarded a bus for Surigao, Mrs. Yap listed down the bus number and the seat number and reported to Lt. Mesias of the Davao
City Police Force that the "kidnapper" was on board the Surigao bus. 12
Lt. Mesias stopped the bus and placed the accused under arrest. From the body of the accused was taken an improvised pouch
containing 36 pieces of P 50.00 bills and 24 pieces of P 20.00 bills. The money had initials reading "MY" below the serial
numbers. 13
The following morning, May 30, 1975, upon waking up at around 6 o'clock in his house, Ricardo Yap noticed that blood was
dripping from the ceiling. He went upstairs, which was being utilized as a bodega, to verify, and found his son placed inside the
carton of Marlboro cigarettes. The head of the child was inside the carton while his feet protruded outside. 14 His mouth was
tied with stockings. 15 The child was already dead. 16 He had died of "asphyxhia due to suffocation. 17
The defendant presented evidence only for the purpose of proving alleged mitigating circumstances. She claims that she did
not intend to kill the child. 18
To support her plea for mercy, she stated that she had three children aged from one to five years whom she left in Pagadian.
19 On objection to the materiality of the evidence, the appellant's counsel pleaded that she be allowed to prove those facts for
"humanitarian consideration" which might enable the Supreme Court to review the penalty with compassion. 20
The defendant capped her testimony with the following plea:
A I would request the Honorable Court that LIFE IMPRISONMENT will be the penalty imposed upon me because I
really committed the crime. I did not really intend to kill the child.
Q Would you like to make any further appeal?
A I really repent to what I have done, sir. 21
On cross-examination, the defendant admitted that she gagged the child's mouth with stockings; placed the child inside the
box with head down and legs up; that she covered the box with some sacks and boxes and left the child in that condition inside
the storeroom of the house of Ricardo Yap. 22
When the defendant left the store room, the voice of the child, who was previously shouting, "was already slow and to make
sure that his voice would not be heard I closed the door. 23
On the basis of the plea of guilt of the defendant and the evidence of the prosecution, the court convicted the defendant with
complex crime of serious illegal detention with murder and imposed, among others, the extreme penalty of death.
Hence, this automatic review.
The guilt of the defendant is so patent that there is no further need to discuss the evidence. The only task remaining after the
plea of guilty and the presentation of the undisputed evidence for the prosecution is to determine the crime committed, the
penalty to be imposed and the aggravating and mitigating circumstances to be appreciated. The crime actually committed is
not the complex crime of kidnapping with murder, as found by the trial court, but the simple crime of murder qualified by
treachery.
Kidnapping is a crime against liberty defined in Article 267, Title IX, Book 11 of the Revised Penal Code. The essence of
kidnapping or serious illegal detention is the actual confinement or restraint of the victim or the deprivation of his liberty. 24
Where there is no showing that the accused intended to deprive their victims of their liberty for some time and for some
purpose, and there being no appreciable interval between their being taken and their being shot from which kidnapping may
be inferred, the crimes committed were murder and frustrated murder and not the complex crimes of kidnapping with murder
and kidnapping with frustrated murder. 25
In the instant case. the gagging of the child with stockings, placing him in a box with head down and legs upward and covering
the box with some sacks and other boxes were only the methods of the defendant to commit murder. The child instantly died
of suffocation. This is evident from the testimony of Dr. Juan Abear, Jr. who performed the autopsy on May 30, 1975 at 8 o'
clock in the morning. When Dr. Abear conducted the autopsy, the body of the child was already in a state of decomposition.
Dr. Abear opined that the child must have died three days before the autopsy. 26 In other words, the child died practically on
the very day that the child was stuffed into the box on May 28,1975.
The demand for ransom did not convert the offense into kidnapping with murder. The defendant was well aware that the child
would be suffocated to death in a few moments after she left. The demand for ransom is only a part of the diabolic scheme of
the defendant to murder the child, to conceal his body and then demand money before the discovery of the cadaver.
There is treachery because the victim is only a 3-year old child. 27 The commission of the offense was attended with the
aggravating circumstances of lack of respect due to the age of the victim, cruelty and abuse of confidence.
The circumstance of lack of respect due to age applies in cases where the victim is of tender age as well as of old age. This
circumstance was applied in a case where one of the victims in a murder case was a 12-year-old boy. 28 In the instant case, the
victim was only 3 years old. The gagging of the mouth of a three-year-old child with stockings, dumping him with head
downwards into a box, and covering the box with sacks and other boxes, thereby causing slow suffocation, is cruelty. There
was also abuse of confidence because the victim was entrusted to the care of the appellant. The appellant's main duty in the
household is to take care of the minor child. There existed a relation of trust and confidence between the appellant and the
one against whom the crime was committed and the appellant made use of such relation to commit the crime.
When the killer of the child is the domestic servant of the family and was sometimes the deceased child's amah the
aggravating circumstance of grave abuse of confidence is present. 29
On the other hand, the defendant invokes the following as mitigating circumstances, namely; (1) she pleaded guilty; (2) she did
not intend to commit so grave a wrong, (3) she was overcome by fear that her mother will die unless she is able to raise money
for her mother's hospitalization, thus; she committed kidnaping for ransom (4) the appellant should live so that her children
who are of tender years would not be deprived of a mother; and (5) we have a compassionate society. 30
The only mitigating circumstance that may be appreciated in favor of the defendant is her voluntary plea of guilt. Her
contention that she had no intention to kill the child lacks merit. The defendant was well aware that her act of gagging the
mouth of the child with stockings, placing him with head down and feet up in a box and covering the box with sacks and other
boxes would result to the instant suffocation of the child.
There being three aggravating circumstances, namely, lack of respect due to the tender age of the victim, cruelty and abuse of
confidence and only one mitigating circumstance in favor of the defendant, she deserves the death penalty imposed upon her
by the lower court.
WHEREFORE, the defendant is guilty beyond reasonable doubt of the crime of murder qualified with treachery and
appreciating the aggravating circumstances already indicated above, We hereby impose the penalty of death with costs de
oficio.
With this modification, the rest of the decision is hereby affirmed.
Barredo, Makasiar, Concepcion, Jr., Fernandez, Guerrero, Abad Santos, De Castro, Melencio-Herrera, Ericta, Plana and Escolin,
JJ., concur.
Fernando, CJ., took no part.
Teehankee, J., concur in the result.
Separate Opinions
AQUINO, J., concurring:
I concur in the result. The penalty imposed by the trial court was death with an indemnity of P12,000. The crime committed by
the accused is the complex crime of murder and kidnapping of a minor penalized in article 270 of the Revised Penal Code. She
also committed the separate crime of robbery penalized under article 294(5) of the Revised Penal Code. (extortion).
Separate Opinions
AQUINO, J., concurring:
I concur in the result. The penalty imposed by the trial court was death with an indemnity of P12,000. The crime committed by
the accused is the complex crime of murder and kidnapping of a minor penalized in article 270 of the Revised Penal Code. She
also committed the separate crime of robbery penalized under article 294(5) of the Revised Penal Code. (extortion).G.R. No. L-
50905 September 23, 1982
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FRANCISCO JUMAWAN alias "KIKO", CESARIO JUMAWAN alias "SARIO", MANUEL JUMAWAN alias "OWEL" and
PRESENTACION JUMAWAN-MAGNAYE alias "ESEN" accused-appellants.
ABAD SANTOS, J.:
On the basis of a written statement made by Vicente Recepeda on July 18, 1976, and an affidavit executed by Trinidad
Alcantara on July 19, 1976, a complaint for murder was filed in the Municipal Court of Sariaya, Quezon, on July 19, 1976, by
Station Commander Sisenando P. Alcantara, Jr. against Francisco Jumawan, Cesario Jumawan, Manuel Jumawan and
Presentacion Jumawan for the death of Rodolfo Magnaye.
The affidavit of Trinidad Alcantara clearly states that her son Rodolfo Magnaye was married to Presentacion Jumawan albeit
they had been living separately from each other. (During the trial Presentacion admitted her marriage to Rodolfo. See t.s.n.,
pp. 811-812.) The Station Commander can perhaps be excused for not accusing Presentacion of parricide but when the case
was elevated to the Court of First Instance of Quezon where it was docketed as Criminal Case No. 1408, the Provincial Fiscal
perpetuated the mistake by filing an information for murder against all the accused. The information reads:
The undersigned Provincial Fiscal accuses CESARIO JUMAWAN alias 'Sario,' MANUEL JUMAWAN alias 'Owel', FRANCISCO
JUMAWAN alias 'Kiko' and PRESENTACION JUMAWAN alias 'ESEN', of the crime of murder, defined and punished under Article
248 of the Revised Penal Code, committed as follows:
That on or about the 19th day of June 1976, in the Municipality of Sariaya, Province of Quezon, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, armed with a bolo (gulukan), conspiring and confederating
together and mutually helping one another, with intent to kill and with evident premeditation and treachery, taking advantage
of their superior strength, did then and there wilfully, unlawfully and feloniously attack, assault and stab with the said bolo one
Rodolfo Magnaye alias 'Digo', thereby inflicting upon the latter a stab wound on the chest, which directly caused his death.
After a long trial and 1,211 pages of stenographic transcript, the trial court rendered the following judgment:
Wherefore, the Court finds Cesario Jumawan, Presentacion Jumawan-Magnaye, Manuel Jumawan, and Francisco Jumawan
guilty as principals beyond reasonable doubt of the crime of Murder as defined and punished under Art. 248 of the Revised
Penal Code and hereby sentences each of them to suffer a penalty of life imprisonment and to indemnify jointly and severally
the parents of the victim in the amount of Twenty-four Thousand (P24,000.00) Pesos.
The case is now before this Court on appeal.
The brief of the appellants gives the following:
STATEMENT OF FACTS
The Accused:
Francisco Jumawan is the father of his co-accused, namely, Cesario Jumawan, Manuel Jumawan and Presentacion Jumawan.
Presentacion Jumawan was married to Rodolfo Magnaye.
Death of Rodolfo Magnaye:
As described by the lower court, '... when Rodolfo Magnaye did not return home in (that) evening of 19 June 1976, his mother
(Trinidad Alcantara) went to the public market to look for him on the following day. She met four (4) children who told her that
they saw a man near the water. They accompanied her to the place and she recognized the dead man as her son Rodolfo
Magnaye. She then proceeded to the police headquarters to report the matter. ...' (page 5, Judgment).
For the death of Rodolfo Magnaye, the accused stand charged of the crime of MURDER.
The People's brief, on the other hand, merely reproduces the trial court's findings of facts as follows:
It appears from the evidence adduced during the trial that Rodolfo Magnaye was married on 26 January 1974 to Presentacion
Jumawan, one of the accused in the above entitled criminal case. Presentacion Jumawan-Magnaye left the conjugal home and
stayed with her sister Sebastiana Jumawan. Rodolfo Magnaye, on the other hand, went and stayed with his mother Trinidad
Alcantara.
The mother of Mrs. Presentacion Jumawan-Magnaye made several attempts to secure the signature of Rodolfo Magnaye on a
document agreeing to a separation from his wife so that both he and his wife will be free to marry again but Rodolfo Magnaye
persisted in refusing to sign said document.
On one occasion the mother of Mrs. Presentacion Jumawan-Magnaye even brought Rodolfo Magnaye and his mother to the
Provincial Constabulary Command to ask for the assistance of Sgt. Mortilla to assist her daughter in securing a separation from
Rodolfo Magnaye but they were told by Sgt. Mortilla that it cannot be legally done.
Between 5:00 and 6:00 o'clock in the afternoon of 19 June 1976 while Trinidad Alcantara was in her house, her son Rodolfo
Magnaye was dressing up and told her that he was going to the public market because his wife asked him to fetch her. He
asked his mother to prepare food because they are going to talk about their lives. He left home at about 6:00 o'clock in the
evening.
At about 9:30 o'clock in the evening of 19 June 1976 one Mr. Vicente Recepeda came from the Aglipayan fiesta in Sariaya,
Quezon and after eating at the Sariling Atin eating place he went to the former BLTB station at Sariaya, Quezon. While he was
infront of the public market on the way to the former BLTB station he heard the noise of pigs being butchered and being in the
business of buying pigs and chicken he went to the direction of [the] slaughter house to inquire about the prices of pigs and
chicken.
Before reaching the slaughter house he heard the noise (sic) of a person being attacked by three (3) persons and a woman
inside a store which was lighted. He saw accused Francisco Jumawan holding the hands of Rodolfo Magnaye while accused
Manuel Jumawan was behind Rodolfo Magnaye with his arm around the neck of Rodolfo Magnaye while Cesario Jumawan was
infront of Rodolfo Magnaye with his left hand holding the collar of Rodolfo Magnaye and in his right hand he was holding a
small pointed bolo with which he stabbed Rodolfo Magnaye below the right nipple.
At about 11:00 o'clock in that evening a certain Mr. Policarpio Trinidad who also came from the Aglipayan fiesta in Sariaya,
Quezon was waiting infront of a gasoline station across the old station of the BLTB waiting for a ride home when he saw
Cesario Jumawan and Manuel Jumawan with Rodolfo Magnaye between them while they were crossing the national highway
towards the south to a road opposite the Emil Welding Shop. They went on walking after crossing the highway. At that time
the head of Rodolfo Magnaye was bowed infront while his two (2) arms were on the shoulder of Cesario and Manuel Jumawan.
Rodolfo Magnaye was not walking.
At about 11:45 o'clock in the evening of 19 June 1976 Presentacion Jumawan-Magnaye reported to Patrolman Marcial Baera
and Patrolman Albufera that the store of Bastiana (Sebastiana) Jumawan where she works is threatened to be robbed by
Rodolfo Magnaye. When asked by Patrolman Baera Presentacion Jumawan-Magnaye denied being related to Rodolfo
Magnaye. He went to investigate the reported attempt to rob the store of Sebastiana Jumawan and he saw one of the panels
used to close the store was destroyed but nothing appears to have been taken from the store.
Presentacion Jumawan-Magnaye and her companions Tita Daez and Anabelle Jumawan told Patrolman Baera that they will
file charges against Rodolfo Magnaye. Patrolman Baera entered the report of Presentacion Jumawan-Magnaye in the police
record book.
When Rodolfo Magnaye did not return home in that evening of 19 June 1976, his mother (Trinidad Alcantara) went to the
public market to look for him on the following day. She met four (4) children who told her that they saw a man near the water.
They accompanied her to the place and she recognized the dead man as her son Rodolfo Magnaye. She then proceeded to the
police headquarters to report the matter.

The two Patrolmen Baera and Albufera went to the place and they saw the dead man without a shirt and wearing black pants
with white shoes. They noticed a stab wound on the lower portion of the right breast. The dead man was lying face up.
In the afternoon of the same day Patrolman Loreto Galeon went to the store of Sebastiana Jumawan located at the public
market of Sariaya to follow up the investigation of the reported attempted robbery case against Magnaye. He asked the
storekeeper for permission to look at the wood panels which are used to close the store. He found traces of blood in one of the
wooden panels. He reported what he saw to Sgt. Labitigan when he returned to the police headquarters.
The following day he was ordered by the chief of police to look again at the wooden panel with traces of blood but he saw that
the wooden panels were already planed ('kinatam') and the traces of blood could no longer be seen.
On 23 June 1976, Patrolman Rodrigo Cedonio was ordered to look for Tita Daez in Barrio Mamala Sariaya, Quezon because
Tita Daez was allegedly in the store at the time of the alleged attempted robbery and at the time Rodolfo Magnaye was
allegedly killed.
Patrolman Cedonio was informed by the mother of Tita Daez that she had not gone to her home at barrio Mamala. She
accompanied Patrolman Cedonio in trying to locate Tita Danez. They first went to the store of Sebastiana Jumawan which
turned out to be closed on that day. They then went at Muntingbayan, Tayabas, Quezon where they were able to find Tita
Danez together with Francisco Jumawan, Bienvenido Jumawan and Rosita Abratiga.
Mr. Cesario Jumawan, one of the accused in the above entitled criminal case and a brother-in-law of the victim, set up the
defense of alibi when he testified that between 3:00 and 4:00 o'clock in the afternoon of 19 June 1976 he was at Barrio
Sampaloc, Sariaya, Quezon which is more or less three (3) kilometers away from the poblacion of Sariaya, Quezon. He went
home to Barrio Pili of the same town early in the afternoon of the following day. He did not go anywhere else since 3:00 to
4:00 o'clock in the afternoon of 19 June 1976 up to and until he returned to Barrio Pili.
Mr. Manuel Jumawan, another accused in the above entitled criminal case who is also a brother-in-law of the victim, likewise
set up the defense of alibi when he testified that on 19 June 1976 he was in his house at Barrio Pili, Sariaya, Quezon which is
about five (5) kilometers from the poblacion of Sariaya, Quezon. He went to bed at about 7:00 o'clock in the evening of 19 June
1976. He woke up at about 6:30 o'clock in the morning.
He further claims that he suffers from an abnormality of the left arm which he cannot raise in a normal way and that he was
suffering from said disability since childhood when he fell from a cow continuously up to the present.
Said accused presented a medical certificate, Exhibit 7, issued by Dr. Concepcion dela Merced, a radiologist of the National
Orthopedic Hospital certifying to the fact that Manuel Jumawan is negative for fracture dislocation and that he suffers from a
deformity of the proximal and left humerous probably from a previous fracture. There is no showing that Manuel Jumawan is
incapable of raising his left arm around the neck of Rodolfo Magnaye whose actual height was not established by the evidence
nor was Dr. Concepcion dela Merced presented to testify on her findings.
Presentacion Jumawan-Magnaye claims that in the evening of 19 June 1976 she was in the store of Sebastiana Jumawan
together with Anabelle Jumawan and Tita Daez when she heard a person who wanted to enter the store. She shouted
'thieves' ('magnanakaw'). In response to her shouts several people arrived and chased the person who wanted to enter the
store. She then went to the house of Sebastiana Jumawan where hats are being made and where her father Francisco
Jumawan was staying that night.
While she was in the house where her father was staying, their adjoining neighbor, a certain Mateo Diamante informed her
that the person being chased by several men was Rodolfo Magnaye. She, however, did not talk with any of the person who
chased her husband nor does she know any of them. She then went with her father, Francisco Jumawan, to report the matter
to the police whom they met at the Filipina Restaurant.
While Presentacion Jumawan-Magnaye gave the name of Rodolfo Magnaye as the suspect in the attempted robbery, she did
not reveal to the investigating policemen that he was her husband even if she was asked why they knew his name, neither did
she inform the police that her husband was chased by several persons nor did she give the direction where her husband
supposedly ran.
The two policemen, Patrolmen Baera and Albufera, actually went to the store of Sebastiana Jumawan and after looking at the
store, these two patrolmen told Presentacion Jumawan-Magnaye that because nothing happened they will continue the
investigation on the next day.
None of those who allegedly chased her husband that evening was even presented as a witness.
Mr. Francisco Jumawan, who is the father of his three (3) other co-accused, likewise set up the defense of alibi when he
testified that in the evening of 19 June 1976 at about 8:00 o'clock more or less he was alone in the house of Sebastiana
Jumawan situated near the former garage of the BLTB in Sariaya, Quezon and that he was awakened only when his daughter
Presentacion woke him up to ten him that someone was trying to enter the store of Sebastiana Jumawan.
In a brief which is more noteworthy for legal rhetoric rather than a critical analysis of the evidence, the appellants claim that
the trial court committed the following errors:
THE LOWER COURT ERRED IN NOT FOCUSING OBJECTIVELY AND IMPARTIALLY THE EVIDENCE FOR THE PROSECUTION EVEN AS
IT FOCUSED SUBJECTIVELY AND UNFAIRLY ON SUPPOSED WEAKNESS OF THE EVIDENCE FOR THE DEFENSE.
THE CONSTITUTIONAL GUARANTEE THAT THE ACCUSED ARE PRESUMED INNOCENT OF THE CRIME CHARGED AND ARE
ENTITLED TO A RIGHT TO A DAY IN COURT CANNOT BE OVERTURNED BY THE DOCTRINE THAT APPELLATE COURTS ARE NOT
PRONE TO DISTURB THE FINDINGS OF THE TRIAL COURT WITH RESPECT TO THE CREDIBILITY OF WITNESSES.
THE LOWER COURT ERRED IN NOT FINDING AND TAKING INTO SERIOUS ACCOUNT THE FATAL WEAKNESSES OF THE EVIDENCE
FOR THE PROSECUTION IN TERMS OF IMPROBABILITIES, GROSS INCONSISTENCIES AND IRRECONCILABLE CONTRADICTIONS.
THE LOWER COURT ERRED IN GIVING CREDIT AND CREDENCE TO THE TESTIMONIES OF THE STAR PROSECUTION WITNESS
CONSIDERING THE GLARING WEAKNESS THEREOF, EVEN AS THE LOWER COURT CONVENIENTLY DENIED THE DEFENSE
REASONABLE OPPORTUNITY OF THE PROSECUTION WITNESSES.
THE LOWER COURT ERRED IN ITS ERRONEOUS APPROACH TO AND APPLICATION OF THE PRINCIPLES CONCERNING THE
DEFENSE OF ALIBI IN THE CASE AT BAR. SPECIALLY IN THE LIGHT OF THE FACT THAT THERE WAS NO POSITIVE IdENTIFICATION
OF ACCUSED AND ALSO THAT THE PROSECUTION FAILED TO EFFECTIVELY REBUT THE DEFENSES OF ALIBI WHICH WOULD HAVE
BEEN EASY TO DO IF SUCH DEFENSES WERE REALLY CONCOCTIONS.
The foregoing assignment of errors can be reduced to the simple proposition whether the evidence against the accused,
independent of their alibis, has overcome the presumption of innocence in their favor and created a moral certainty as to their
guilt.
Except for Vicente Recepeda and Policarpio Trinidad, the appellants do not question the credibility of the witnesses for the
prosecution. Hence, the testimony of these witnesses deserves scrutiny.
Vicente Recepeda was 67 years old, jobless and a resident of Lucena City when he first testified on April 29, 1977. He testified
that on June 19, 1976, he went to Sariaya, Quezon, to attend the Aglipayan fiesta; he arrived there at about 5:00 o'clock and
thereafter did the following: listened to the music and singing, went to the Aglipayan church and the "perya," ate at a
restaurant, and walked to the public market where there was a former BLTB station. While he was waiting for a trip to Lucena,
he heard the shriek of pigs being killed so he walked toward the butchers for the purpose of asking the price of pigs since he
was then engaged in the business of buying and selling pigs. In fact, at one time Rodolfo Magnaye, the deceased, tied the feet
of a pig which he had bought. He was not able to talk to the butchers because an unusual event intervened which in his own
words was:
Q. At about 9:30 o'clock in the evening of June 19, 1976, do you remember where were you?
A. Yes sir. Ask the person to Identify herself.

Q. Where were you on that particular date and hour? INTERPRETER:

A. I was in the public market of Sariaya, Quezon, sir. What is your name?

Q. While you were in the market of Sariaya, Quezon, on that particular date and hour, do you remember if there was A. Presentacion Jumawan.
any unusual incident that you witnessed?
INTERPRETER:
A. There was, sir.
The person pointed to by the witness your honor, Identified herself as Presentacion Jumawan.
Q. What was that unusual incident that happened on that particular place and hour?
ATTY. ALCALA:
A. I saw a person being attacked by three persons, sir.
And what is the name of the person whom you said was being attacked by the three men on that particular occasion inside the
Q. What else did you see there on that particular occasion, aside from a person being attacked by three persons? store?

A. There was a woman who ordered the three persons to stab and kill the person being attacked by these three A. Rodolfo Magnaye, sir.
persons, sir.
Q. And what are the names of the three persons attacking Rodolfo Magnaye, will you please state it before this
Q. Where in particular in the public market of Sariaya, Quezon did you see this incident happen? Honorable Court?

A. Inside the store within the public market of Sariaya, Quezon, sir. A. Yes, sir, one is Francisco Jumawan, Manuel Jumawan and the other one is Cesario Jumawan.

Q. Did you recognize, or did you come to know these three persons whom you said were inside the store within the Q. That Francisco Jumawan whom you said was one of the persons attacking Rodolfo Magnaye, on that particular
public market of Sariaya, Quezon at about 9:30 o'clock in the evening of June 19, 1976? occasion, will you be able to recognize him if you will see him again?

A. I recognize their faces, sir. A. Yes, sir.

Q. Did you come to know their names later on? Q. If this Francisco Jumawan is inside the courtroom, will you please point him out before this Honorable Court?

A. Yes sir. A. Yes, sir.

Q. What is the name of the woman whom you said was there on that particular occasion? Q. Please do so.

A. Presentacion Jumawan, sir. A. That one sir.

Q. If you will see that Presentacion Jumawan again, will you be able to Identify her? ATTY. ALCALA:

A. Yes, sir. Your honor please may we ask that the person pointed to by the witness Identify himself.

Q. Will you please look around the courtroom and point to Presentacion Jumawan if she is here. COURT:

A. She is here sir. Ask the Identity of the person pointed to by the witness.

Q. Please point her out to this Honorable Court. INTERPRETER:

A. That one sir. What is your name?

ATTY. ALCALA: A. Francisco Jumawan.

May we respectfully ask if your honor please that the person pointed to by the witness Identify herself. INTERPRETER:

COURT: The person pointed to by the witness your honor Identify himself as Francisco Jumawan.
Q. And that person whom you said the name as Manuel Jumawan will you be able to recognize him if you will see him Q. On that occasion what was Francisco Jumawan doing at that time you saw him?
again?
A. He was standing besides Rodolfo Magnaye and holding his hands.
A. Yes, sir.
Q. Who was holding his hands?
Q. Please look around the courtroom and point out to this Honorable Court if Manuel Jumawan is here inside the
courtroom. A. Francisco Jumawan was holding the hands of Rodolfo Magnaye, sir.

A. Yes, sir, that one. Q. How about Manuel Jumawan, what was he doing?

ATTY. ALCALA: A. Manuel Jumawan was at the back of Rodolfo Magnaye with his arm around the neck of Rodolfo Magnaye, sir.

May we ask Your Honor that the person pointed to by the witness be made to Identify himself. Q. How about Cesario Jumawan what was he doing on that particular occasion?

COURT: A. He was in front of Rodolfo Magnaye, his left hand is holding the collar of Rodolfo Magnaye and his right hand
holding a bolo, sir.
Ask the person pointed to by the witness to Identify himself.
Q. How about Presentacion Jumawan, what was she doing on that particular occasion?
INTERPRETER:
A. She was standing inside the store ordering the three persons to stab and kill Rodolfo Magnaye, sir.
What is your name?
Q. What happened when Presentacion Jumawan give that order?
A. Manuel Jumawan.
A. Rodolfo Magnaye was stabbed, sir.
INTERPRETER:
Q. Who stabbed Rodolfo Magnaye on that occasion?
The person pointed to by the witness Your Honor Identified himself as Manuel Jumawan.
A. Cesario Jumawan, sir.
Q. And that person whom you mentioned is named Cesario Jumawan, will you be able to Identify him if you will him
again? Q. At that time that Cesario Jumawan stabbed Rodolfo Magnaye on that particular occasion, what were Francisco
Jumawan and Manuel Jumawan doing.?
A. Yes, sir.
A. Francisco Jumawan was holding the hands of Rodolfo Magnaye with his arms around the neck of Rodolfo Magnaye,
Q. Please look around the courtroom and point to this Honorable Court the person whom you said is Cesario Jumawan. sir.

That one sir. Q. What happened to Rodolfo Magnaye when he was stabbed by Cesario Jumawan on that occasion?

ATTY. ALCALA: A. He was hit by the stab, sir.

May we request your honor that the person pointed to by the witness Identify himself. Q. Where was Rodolfo Magnaye hit by the stab of Cesario Jumawan on that occasion?

COURT: A. Under the right nipple, sir. Below the right nipple.

Ask the person pointed to by the witness to Identify himself. Q. What did Rodolfo Magnaye do on that particular occasion after he was hit?

INTERPRETER: A. He said, why did you stab me.

What is your name? Q. What did you do after that?

A. Cesario Jumawan. A. I left, sir.

INTERPRETER: Q. While you were walking away did you hear anything?

The person pointed to by the witness Identify himself as Cesario Jumawan Your Honor. .A. Yes, sir.
Q. What did you hear? A. They proceeded walking, sir.

A. A voice of a woman shouting, thief, thief. Q. Where did you go upon seeing them?

Q. What did you do when you heard the shout of a woman? A. I went directly to my house, sir.

A. I hurriedly walked away, sir. (t.s.n., pp. 628-631.)

Q. Did you finally came to know what happened to Rodolfo Magnaye as a result of that incident? The testimony of Vicente Recepeda linked to that of Trinidad Alcantara and Policarpio Trinidad shows that the four appellants
conspired and cooperated in the assassination of Rodolfo Magnaye.
A. Yes, sir.
The victim and his wife had a rendezvous in the evening of June 19, 1976, in order to discuss the fate of their marriage. While it
Q. What happened to him? is not known if they actually conversed, the purpose of the rendezvous was in fact accomplished; the marriage was terminated
by the murder of the husband.
A. He died, sir. (t.s.n., pp. 494-509.)
The report to the police by Presentacion that Rodolfo Magnaye had attempted to rob the store of Sebastiana Jumawan was a
Policarpio Trinidad was 28 years old and a laborer at the time he first testified on June 27, 1977. He testified that he knew crude diversionary tactic to enable Cesario and Manuel to transfer the cadaver to another place.
Manuel Jumawan, Cesario Jumawan and Rodolfo Magnaye; that on June 19, 1976, at about 11:00 p.m., he was in Sariaya,
Quezon, near the old station of the BLTB; and on that occasion he saw the aforesaid persons thus: The alibis of Francisco, Cesario and Manuela are for naught.

Q. Will you please describe before this Honorable Court their position when you saw them? Francisco claimed that in the evening of June 19, 1976, he was in the house of Sebastiana Jumawan, not in her store. Cesario
said that while his residence was Barrio Pili, Sariaya, on the night of June 19, 1976, he and his wife were in Barrio Sampaloc,
A. Their hands were on the shoulders of each other. Sariaya, visiting his brother Benigno Jumawan and they did not return to Pili until the next day. Manuel said that on the night
of June 19, 1976, he was in his house at Barrio Pili.
Q. And who was in the middle?
These alibi cannot prevail for the following reasons: (a) Francisco, Cesario and Manuel were positively Identified to be at the
A. Rodolfo Magnaye, sir. scene of the crime by Vicente Recepeda and Cesario and Manuel were similarly Identified by Policarpio Trinidad; and (b) the
places where they claimed to be were not far from the scene of the crimeso that it was not impossible fro them to be there.
Q. Will you please tell this Honorable Court the appearance of Rodolfo Magnaye when you saw him being in the Sebastiana Jumawan's house where Francisco was supposed to be is within walking distance from the former's store. Barrio
middle of Cesario Jumawan and Manuel Jumawan on that occasion? Sampaloc, where Cesario claimed he was, is only about three kilometers from the poblacion of Sariaya. Barrio Pili, where
Manuel said he slept that night, is about five kilometers from the same poblacion.
A. His head falls and his two hands were on the shoulder of Cesario Jumawan and Manuel Jumawan.
Presentacion should have been accused of parricide but as it is, since her relationship to the deceased is not alleged in the
Q. Did you see where these persons were going on that particular occasion when you said you saw them? information, she, like the others, can be convicted of murder only qualified by abuse of superior strength.

ATTY. CUARTOY Although not alleged in the information, relationship as an aggravating circumstance should be assigned against the appellants.
True, relationship is inherent in parricide, but Presentacion stands convicted of murder. And as to the others, the relationships
Objection Your Honor, that has already been answered, that they are going out of the old BLTB station. of father-in-law and brother-in-law aggravate the crime. (Aquino, Penal Code, Vol. I. p. 406 [1976].)

COURT: The penalty for murder with an aggravating circumstances is death. However, for lack of necessary votes, the penalty is
reduced to reclusion perpetua.
Witness may answer.
WHEREFORE, the jugment of the court a quo is hereby affirmed in toto. No costs.
A. They cross the highway, sir.
SO ORDERED.
Q. In what particular place did they go when they cross the highway?
Fernando, C.J., Teehankee, Barredo, Makasiar, Aquino, Concepcion, Jr., Guerrero, De Castro, Melencio-Herrera, Plana, Escolin,
A.. They went to the road opposite the Emil Welding Shop, sir. Vasquez, Relova and Gutierrez, Jr., JJ., concur

Q. Did you see on that particular occasion whether Rodolfo Magnaye was walking?

A. He was not walking and he cannot step his feet, sir.

Q. When they went to that place, near the Emil Welding Shop, did they go any further?
G.R. No. 78781-82 October 15, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PEDRO RAVELO, JERRY RAVELO, BONIFACIO "PATYONG" PADILLA, ROMEO ASPIRIN, NICOLAS GUADALUPE AND HERMIE
PAHIT, accused-appellants.
The Solicitor General for plaintiff-appellee.
Robert J. Landas for acussed-appellants.
GUTIERREZ, JR., J.:
The accused Pedro Ravelo, Bonifacio "Patyong" Padilla, Romeo Aspirin, Nicolas Guadalupe and Hermie Pahit appeal the two (2)
judgments of the Regional Trial Court of Tandag, Surigao del Sur, Branch 27, which convicted them of murder of one Reynaldo
Cabrera Gaurano and of frustrated murder of Joey Lugatiman.
In the murder case (Criminal Case No. 1187), each of the accused was sentenced to serve the penalty of reclusion perpetua and
to severally pay an indemnity of P25,000.00 to the mother of the victim. In the frustrated murder case (Criminal Case No.
1194), each of them was sentenced to serve the penalty of imprisonment ranging from eight (8) years and one (1) day of
prision mayor as minimum to ten (10) years of prision mayor as maximum.
The accused were all charged with kidnapping with murder and kidnapping with frustrated murder. However, the trial court
found accused-appellants guilty only of murder and frustrated murder as convicted. The accused Josen Ravelo and Jerry Ravelo
are still at large.
The present petition was originally one that sought the issuance of a writ of habeas corpus. The Court instead resolved to treat
it as an appeal in view of the near capital nature of the crimes for which the appellants were convicted.
The accused-appellants are all membersof the Civilian Home Defense Force (CHDF) stationed at a checkpoint near the airport
at Awasian in Mabua, Tandag,Surigao del Sur. The prosecution alleged that they stopped the two (2) victims for questioning on
the suspicion that the latter were insurgents or members of the New People's Army. (NPA).
In Criminal Case No. 1187, the accused-appellants were charged with having committed kidnapping with murder in the
following manner:
That at approximately 6:30 o'clock in the evening, May 21, 1984, in Barangay Dawis, San Agustin Sur, municipality of Tandag,
province of Surigao del Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, PEDRO
RAVELO, JERRY RAVELO, BONIFACIO `Patyong' PADILLA, ROMEO ASPIRIN, NICOLAS GUADALUPE, HERMIE PAHIT and JOSEN
RAVELO, conspiring, confederating, and mutually helping each other did, then and there, wilfully, unlawfully and feloniously
take, pick-up, kidnap by meansof force, one REYNALDO CABRERA GAURANO, a minor, while the latter was walking along
Tandag Bridge at barangay Dawis, San Agustin Sur, then the above-named accused carried away the said, Reynaldo Cabrera
Gaurano to barangay Awasian and detained, kept and locked him in a room at the house of Pedro Ravelo, one of the accused
herein, from 7:00 o'clock in the evening, May 21, 1984 to 4:00 o'clock dawn, May 22, 1984, or a period of 10 hours under
restraint and against the will of said minor, Reynaldo Cabrera Gaurano and that the above named accused during the said
period of kidnapping, maltreated and refused to release said Reynaldo Cabrera Gaurano, and while on the same period of time
at about 4:00 o'clock dawn, May 22, 1984, at barangay Awasian, Tandag, Surigao del Sur and within the jurisdiction of this
Honorable Court, the above-named accused, Pedro Ravelo, Jerry Ravelo, Bonifacio `Patyong' Padilla, Romeo Aspirin, Nicolas
Guadalupe, Hermie Pahit, and Josen Ravelo, conspiring, confederating, and mutually helping each other, armed with a pistol,
armalites, and carbines, with intent to kill, with treachery and evident premeditation did, then and there wilfully, unlawfully
and feloniously, assault, attack, cut, slash, and burn, the said Reynaldo Cabrera Guarano, hitting and inflicting upon the latter,
the following wounds or injuries:
1. Blisters formation noted all over the body reddish in color, which easily peel off on pressure; containing clear fluids;
with hemorrhagic reaction beneath blisters;
2. Swollen face with contusion and hematoma formation; loosening of hair notes; right ear missing with circular
incised wound around;
3. Incised wound 24 cm. length around the neck cutting the esophagus, pharynx, arteries and veins; up to the 2nd
cervical bone in depth;
4. Contusions and hematomas noted anterior chest wall, abdomen and at the back; upper and lower extremeties of
different sizes and forms. (Rollo, pp. 8-9)
In Criminal Case No. 1194, they werecharged with kidnapping with frustrated murder committed as follows:
That on or about 1:00 o'clock in the morning on May 22, 1984 in barangay Awasian, municipality of Tandag, province of
Surigao del Sur, Philippines and within the jurisdiction of this Honorable Court, the above named accused PEDRO RAVELO,
HERMIE PAHIT, BONIFACIO PADILLA, ROMEO ASPIRIN, NICOLAS GUADALUPE, JERRY RAVELO AND JOSEN RAVELO, conspiring,
confederating and mutually aiding one another armed with the deadly weapons such as pistols, armalite and carbine, did then
and there wilfully, unlawfully and feloniously by means of force and at gun point stop the hauler truck of the South Sea
Merchant Company which was on the way to Tandag, Surigao del Sur from sitio Lumbayagan, Barangay Maticdom, municipality
of Tandag, Surigao del Sur and kidnap one JOEY LUGATIMAN, who is on board the said hauler truck by forcibly taking said Joey
Lugatiman and carry him to the house of accused Pedro Ravelo then to the Airborne Headquarters at Mabua, Tandag, Surigao
del Sur, and while thereat and in pursuance of their conspiracy, with intent to kill, with evident premeditation and treachery
and by taking advantage of their superior strength being armed with deadly weapon did then and there wilfully, unlawfully and
feloniously assault, by hitting and inflicting upon the latter the following wounds or injuries:
1. Small abrasion and hematoma, both wrist and left ankle;
2. Multiple small abrasions, chest and right neck and right ankle;
3. Multiple small abrasions and small hematoma, back;
4. Abrasion, upper left lips. (Rollo, pp.18-19)
The trial court based its findings on evidence presented by the prosecution at the trial proper which commenced several
months after the informations were filed. The prosecution evidence in Criminal Case No. 1187 are quoted from the judgment,
thus:
Witness Edilberto Salazar, 17 years old, student and resident of Tandag, testified that he knew all the accused Pedro Ravelo,
Bonifacio Padilla, Romeo Aspirin, Nicolas Guadalupe and Hermie Pahit. On May 21, 1984 at 5:30 in the afternoon, he was with
a certain Diego Gallardo and Reynaldo Cabrera Gaurano walking from Dawis to Dagocdoc to attend a dance. The dance not
having began being too early yet, they decided to go back to Dawis. On their way back while crossing the Tandag bridge across
the Tandag river, the accused Pedro Ravelo, Jerry Ravelo, Josen Ravelo, Bonifacio Padilla, Romeo Aspirin, Hermie Pahit and
Nicolas Guadalupe stopped them by pointing their guns. He and Diego Gallardo ran away towards a group of old junk tractors
and hid there. He saw Reynaldo Gaurano chased by all the accused. He saw Reynaldo Gaurano ran up to the house of a certain
Fernando Cortes which was just opposite the tractors they were hiding, and which was just across the road in front of the
house of Fernando Cortes. Reynaldo Gaurano was caught up in the house by Jerry Ravelo, Bonifacio Padilla and Nicolas
Guadalupe. He saw Reynaldo Gaurano forced and dragged down to a waiting pick-up on the road by Jerry Ravelo, Bonifacio
Padilla and Nicolas Guadalupe. Reynaldo Gaurano was loaded on the pick-up owned and driven by the accused Pedro Ravelo.
All the accused, together with Reynaldo Gaurano rode on the pick-up towards the Tandag airport at Awasian. After Reynaldo
Gaurano disappeared, he and Diego Gallardo went to the police and reported the matter that Reynaldo Gaurano was brought
by the accused to the airport.
On May 23, 1984, he was with the group who exhumed the body of Reynaldo Gaurano under a mango tree near the Tandag
airport and pointed to the investigator that that was the body of Reynaldo Gaurano with blisters, without ear and a big wound
on the neck. Placed on the mat the cadaver was brought to the Mata Funeral Parlor at Tandag, Surigao del Sur in that morning
of May 23, 1984.

Witness Francisco Villasis, 48 years old, farmer and resident of Awasian, testified that he knew very well all the accused and
that he personally saw them in the early dawn of May 22, 1984. He declared that he was at the Awasian creek near a mango
tree catching crabs with the use of a "panggal", a bamboo knitted trap. From a distance of around twenty meters away, he saw
a man hanging from the mango tree over a fire. He saw the accused Jerry Ravelo placed fire on the hanging person and the
accused Romeo Aspirin placed a burning torch made of dried coconut leaves at the back of the hanging person. The man
hanging was not known to him. The man hanged was also surrounded by Pedro Ravelo, Josen Ravelo, Nicolas Guadalupe,
Hermie Pahit and Bonifacio Padilla. For five minutes watching, he saw the clothing and body burned, he heard the moanings of
the person and heard the laughters of the accused. After witnessing that horrible incident he went home hurriedly. On cross
examination he further stated that he saw for the first time the man already hanging under a fire (sic).
Witness Joey Lugatiman, 22 years old and resident of Dawis, Tandag, testifies that all the accused are known to him for a long
time. On May 21, 1984, with ten companions they went to a place in the interior called Maticdum, Tandag, Surigao del Sur.
After five hours stay, he, together with his companions left Maticdum past midnight for Tandag on a loggingtruck. As soon as
they passed by the airport, they were stopped by the accused and were told to go down from the truck for questioning. He was
brought to the house of the accused Pedro Ravelo near the checkpoint. He was asked if he was Joey Lugatiman and if he knew
Reynaldo Gaurano. There at the headquarters, he was asked if he was an NPA. For almost an hour stay at the headquarters he
was boxed, kicked and manhandled by Pedro Ravelo and by the other accused with the use of their guns until he became
almost unconscious. Then, from the headquarters at Mabua on that early dawn he was brought again back in the same pick-up
to Awasian airport, to the house of Pedro Ravelo and then to the house of Bonifacio Padilla. Before proceeding to the house of
Bonifacio Padilla, he saw his friend Reynaldo Gaurano, one meter away, already weak with bruises on his face, hands tied at
the back and with a gag around the mouth, moving as if in the act of trying to free himself, with a bleeding mouth. When he
reached the house of Bonifacio Padilla, he was chained and tied to the wall near the window of the house. Alone, he peeped
through the window and saw Reynaldo Gaurano hanging up the mango tree with fire below him. He heard the moanings of
Reynaldo Gaurano while hanging from the mango tree thirty meters away from the window of the house of Bonifacio Padilla.
He saw Pedro Ravelo and Josen Ravelo set fire on the body of Reynaldo Gaurano. At 5:00 o'clock a.m. May 22, 1984, when
alone, after being told that he would be killed at 9:00 o'clock in the evening at the Awasian bridge, he escaped by being able to
untie himself at 10:00 o'clock in the morning of May 22, 1984. He reported what happened to him and to Reynaldo Gaurano,
to his parents and then to the police authorities and later submitted for physical examination on that day, May 22, 1984 and
finally was investigated on May 23, 1984 in connection with this case. On cross examination he said that he knew all the
accused. He knew that all the accused are members of the CHDF.
Witness Zosima Gaurano, 46 years old, market vendor, a native of Tandag, testified that she is the mother of Reynaldo
Gaurano. Her son Reynaldo Gaurano left Cebu City on April 12, 1984 for Tandag. On May 22, 1984 she received a telegram
from her sister Remedios Fernandez that her son Reynaldo is dead. She left for Tandag upon receipt of the telegram and
arrived at Tandag on May 24, 1984. Upon her arrival she went to the Mata Funeral Parlor and then she found the dead body of
her son Reynaldo Gaurano inside the coffin and she saw many parts of the body of her son with burns. She suffered moral
damages and other expenses to the tune of P64,350.00.
Witness Remedios Cabrera Fernandez, widow, meat vendor and resident of Tandag testified that Reynaldo Gaurano is her
nephew because his mother Zosima is her younger sister. Her nephew Reynaldo Gaurano was here in Tandag on vacation. On
May 20, 1984, with two companions, Diego Gallardo and Edilberto Salazar, he failed to go home to the house of her sister.
After the second day, May 22, 1984 at around 5:00 o'clock in the afternoon Edilberto Salazar and Diego Gallardo informed her
that Reynaldo Gaurano was kidnapped by Pedro Ravelo and his men. The message was relayed to her to Atty. Buenaflor and to
Col. Jesus Hermosa. On the following day, May 23, 1984, Col. Hermosa, with other officers inspected the house of Pedro Ravelo
and the nearby surroundings at Awasian. She was made to Identify an exhumed body at the back of the house of Pedro Ravelo
near the Mango tree. She saw the dead body of her nephew Reynaldo Gaurano without an ear, the neck was almost cut, entire
body with blisters, and naked. His body was pictured and later on brought to the Mata Funeral Parlor at Tandag. She requested
Dr. Romeo delos Reyes of the Tandag Provincial Hospital to conduct an autopsy and after which the dead body of Reynaldo
Gaurano was embalmed to await the arrival of the mother from Cebu City.
Witness Dr. Romeo delos Reyes, a senior Resident physician of the Tandag Provincial Hospital testified that he conducted an
autopsy on the dead body of a certain Reynaldo Gaurano, Exhibit "A", at the Mata Funeral Parlor. He found blisters formation
caused by fire burns throughout; the body was reddish and skin peels off easily; swollen face, hematoma, contusion, losing of
hair, wound around the neck; and these injuries could have been inflicted 36 to 48 hours before the autopsy. Death certificate,
Exhibit "B" was issued. The burns and the injuries above stated were suffered before Reynaldo Gaurano died.
Witness Roberto Awa, a photographer of the Similar Studio who, for fifteen years, is a photographer at Tandag, testified that
he took the pictures of a dead man inside a hole upon orders of Col. Hermosa at Awasian near the airport. He took pictures as
shown in Exhibit "C", "C-1"; he took 8 positions of the dead body. While yet inside the holeexhibit "D" and as shown in Exhibit
"E" and "F", that was the dead body of Reynaldo Gaurano near the mango tree; Exhibit "G", while the cadaver was inside the
hole and Exhibit "H" is the picture while the body was lying on the mat.
Witness Cresenciano Rulona, Police Investigator of the Tandag Police Force, testified that at around 8:00 o'clock in the morning
of May 23, 1984, he was the assistant team leader of the group that proceeded to Tambacan, Awasian, Tandag to look for and
inspect the place where a certain Reynaldo Gaurano was kidnapped. Under a mango tree and about 25 meters near the house
of Bonifacio Padilla the group recovered a P.25 coin, a small comb, two zippers and burned pieces ofcloth and burned coconut
leaves, together with new excavated soil. Further search under the mango tree led to the very place where the body of
Reynaldo Gaurano was buried. At around 10:00 o'clock a.m., May 23, 1984, they exhumed the dead body which was buried
under a depth of around one meter under the mango tree which was around 25 meters from the house of Bonifacio Padilla
and around 150 meters from the house of Pedro Ravelo. The cadaver was first Identified to be that of Reynaldo Gaurano by
Edilberto Salazar. A photographer was called and pictures were taken of the dead body of Reynaldo Gaurano from the hole and
then the body was brought to the surface and placed on the mat. Not one of the accused was present during the period while
the group was searching and exhuming the body of Reynaldo Gaurano. The body of Reynaldo Gaurano shows signs of burns
and several injuries, and was finally brought to the funeral parlor at Tandag.
As shown by the evidence, Reynaldo Cabrera Gaurano died on May 22, 1984 at Awasian, Tandag, Surigao del Sur. His death
was the result of the shock secondary to the wound around the neck, Exhibit "A", and occurred while he was hanged by the
accused with hands tied to a branch of a mango tree. Sufferings of pains, through his moanings, were augmented and
aggravated by the tortures inflicted as vividly seen through the removal of the right ear, the wound around the neck and
placing of fires on his body, and the fire below his feet. Not only were these acts brutal and cruel but also heartless and savage
acts of the accused, devoid of an iota of sympathy, who, instead, were happy and delighted to see the miseries suffered by
their victim. Further, it was shown that they helped one another or conspired with one another in torturing with the use of
their firearms, and in killing Reynaldo Gaurano. (Rollo, pp. 10-16)
Meanwhile, the prosecution evidence in Criminal Case No. 1194 are as follows:
The evidence of the prosecution consisted of the testimonies of the witnesses and the Medical Certificate. Witness Joey
Lugatiman, 22 years old, resident of Dawis, Tandag, Surigao del Sur testified that he personally knew all the accused for quite a
long time. On May 21, 1984 with ten companions he went to a place called Maticdom, Tandag, Surigao del Sur. After staying at
Maticdum for five hours he went home on board on a cargo truck. On the way near the Tandag Airport they were stopped by
all the accused. They, including himself, were ordered by the accused Pedro Ravelo to come down from the truck. Then he was
brought to the nearby house of Pedro Ravelo and there he was asked if he was Joey Lugatiman and if he knows Reynaldo
Gaurano.
His companions were ordered to proceed to Tandag while he was loaded on a service pick up driven by the accused Pedro
Ravelo. He was brought by all the accused to the Headquarters of the Airborne Company at Mabua, Tandag, Surigao del Sur. In
the Headquarters of the Airborne, he was interrogated if he was an NPA. After hearing his denial of being an NPA he was
boxed, kicked and pistol whipped by the accused Pedro Ravelo and his co-accused. He was manhandled by the accused with
the use of the firearms for almost an hour. Later he was brought back again to Awasian Airport to the house of Pedro Ravell
(should be Ravelo) then to the house of Bonifacio Padilla. But before proceeding to the house of Bonifacio Padilla, he saw his
friend Reynaldo Gaurano one meter away, already weak with bruises on the face, hands, tied at the back and gagged around
the mouth. Reynaldo Gaurano could not talk and he was moving in the act to free himself and with a bleeding mouth. Upon
arriving in the house of Bonifacio Padilla he was chained and hogtied near the open window by the companions of Pedro
Ravelo. Not long after, through the window, he saw Reynaldo Gaurano hanging up the mango tree and a big fire was set on the
ground. He heard the groaning and moaning of Reynaldo Gaurano. He saw Pedro Ravelo and Jerry Ravelo setting fire on the
right and left side of Reynaldo Gaurano with the use of dried coconut leaves. He saw all the accused surrounding and watching
the hanging and burning of Reynaldo Gaurano. It was Pedro Ravelo who cut the right ear and who also slashed the neck of
Reynaldo Gaurano. He could not shout because he was afraid. While lying down after he saw the horrible incident he fell
asleep. At around 5:00 o'clock in the morning of May 22, 1984 he awoke and saw Bonifacio Padilla bringing nylon line with
which he was tied to a piece of wood; while Nicolas Gaudalupe gagged him, and he was blind folded by Hermie Pahit. While
the three were about to leave him behind, he heard them saying that they will kill him at the Awasian bridge at 9:00 o'clock in
the evening of May 22, 1984. When he was left alone in that house he successfully freed himself. He jumped out of the window
and escaped via the nipa palm grove. As consequences of the manhandling of the accused, he suffered several bruises on the
breast, at the back and his mouth. He was physically examined by a doctor in the Provincial Hospital on that day, Exhibit "A",
"A-1" and "A-2" which is Exhibit "1" and "2", "1-A", and "1-B" for the defense. On cross examination, he testified that he
escaped at around 10:00 o'clock in the morning from the house of Bonifacio Padilla, and that he knew all the accused to be
members of the Civilian Home Defense Force (CHDF). He testified that the house of Pedro Ravelo and the house of Bonifacio
Padilla is around one hundred (100) meters away from each other.
Witness Dr. Petronila Montero testified that she is a resident physician of the Provincial Hospital, and on May 22, 1984 she
examined Joey Lugatiman and she issued a medical certificate, Exhibit "A". All her findings were placed down in Exhibit "A".
Upon being cross-examined, she testified that the hematomas, small abrasions will not cause death. When she examined Joey
Lugatiman, she found that he was weak and haggard caused by the injuries mentioned in Exhibit "A".
Witness Emilio Espinoza, 68 years old, farmer, resident of Awasian, Tandag testified that while he was tendering his carabao
near the house of Bonifacio Padilla he was surprised to see Joey Lugatiman, wearing blue t-shirt and a jogging pants jumped
out of the window of the house of Bonifacio Padilla, twelve meters away from him. He saw Joey Lugatiman ran towards the
nipa palm then ran towards the airport. He knew Joey Lugatiman because during the barrio fiesta Joey used to stay in his house
at Awasian.
Witness Bernardo Frias, 21 years old, farmer and resident of Awasian, testified that on May 22, 1984 he was in Maticdom
together with Joey Lugatiman, Miguel, Gregorio Urbiztondo, Leonildo Naragas, Jesus Espinoza, Mauricio Estoya, the driver and
a helper from 5:00 o'clock in the afternoon and started to go home at around 11:00 o'clock p.m. for Tandag. On the way, near
the airport, he, together with his companions on a logging truck was stopped by the accused Pedro Ravelo, Jerry Ravelo, Josen
Ravelo, Hermie Pahit, Bonifacio Padilla, Romeo Aspirin and Nicolas Guadalupe. They were ordered to come down and were
made to identify each other. He saw Bonifacio Padilla dragged Joey Lugatiman to the house of Pedro Ravelo. It was Pedro
Ravelo who later brought Joey Lugatiman to the pick-up. They were ordered to board on the truck except Joey Lugatiman who
loaded in the pick-up driven by Pedro Ravelo. Then, the accused Bonifacio Padilla ordered the group to proceed to Tandag
while Joey Lugatiman was left behind. He reported to the police authorities that his companion Joey Lugatiman was being held
under arrest at Awasian and that he knows all the accused before this incident. (Rollo, pp. 21-24)
The accused-appellants were not able to or did not present evidence on their behalf, nor were they themselves able to
confront the prosecution witnesses who testified against them except through a counsel de oficio appointed by the trial judge
to represent them namely, Atty. Pretextato Montenegro and Atty. Florito Cuartero, in place of their defense counsel, Atty.
Eliseo Cruz.
The continued absence of Atty. Cruz, a Quezon City-based lawyer who perennially made requests for postponements by
telegrams stating his inability to appear for health reasons, led to the refusal by the accused-appellants to be present at the
trial. The accused-appellants alleged that Atty. Cruz left an instruction that they will not submit themselves to trial without
him.
The accused-appellants now maintain that they did not "waive" their right to be present during the trial because their refusal
was not done by their own free will but only in accordance with their lawyer's instructions.
The Court notes that Atty. Cruz resorted to several other delaying tactics aside from sending telegraphic notes requesting for
postponements. He filed a petition for change of place of detention and venue for trial before this Court, which denied it; a
first petition for habeas corpus on the ground that they should be tried by a military tribunal, which petition was denied; and a
motion for new trial on the ground of lack of due process due to improper waiver of presence at the trial. This motion for new
trial was granted to give the accused-appellants a last chance to be heard and be present. Still, the defense counsel failed to
appear and so did the appellants.
In their second petition for habeas corpus which we now treat as an appeal, Atty. Cruz failed to file the required brief. The
Court then appointed a new counsel de oficio for the accused-appellants.
Accused-appellants raised the following alleged errors of the trial court:
I
THE LOWER COURT'S FINDING THAT ACCUSED-APPELLANTS ARE GUILTY OF FRUSTRATED MURDER HAS NO BASIS IN FACT AND
IN LAW.
II
THE LOWER COURT ERRED IN CONCLUDING THAT ACCUSED-APPELLANTS WAIVED THEIR RIGHTS TO BE PRESENT DURING THE
TRIALS AND TO PRESENT EVIDENCE TO PROVE THEIR INNOCENCE (Brief for Appellants, pp. 10-11; Rollo, p. 144)
It is contended that there can be no frustrated murder committed in Criminal Case No. 1194 absent any proof of intent to kill,
which is an essential element of the offense of frustrated murder.
Appellants aver that the trial court erroneously based its conclusion on the fact that when Lugatiman was tied and gagged, the
latter heard one of the accused-appellants utter that they would kill him at Awasianbridge.
The trial court made the following inference which we find to be erroneous:
To this Court the real intention to kill Joey Lugatiman was made manifest at 5:00 in the morning of May 22, 1984 when the
accused Bonifacio Padilla together with Hermie Pahit and Nicolas Guadalupe tied his hands to the wall with a nylon line and
gagged him; and when the accused said they will kill him (Joey Lugatiman) at 9:00 o'clock p.m. at Awasian bridge. These final
and parting words uttered to Joey Lugatiman eloquently expressed intent to kill. Killing, however, was not consummated
because Joey Lugatiman was able to escape at around 10:00 o'clock in the morning of May 22, 1984. (Rollo, p. 25)
The facts and evidence on record do not show anything from which intent to kill could be deduced to warrant a conviction for
frustrated murder. A mere statement by the accused stating that Lugatiman would be killed is not sufficient proof of intent to
kill to convict a person of frustrated murder.
In a crime of murder or an attempt or frustration thereof, the offender must have the intent or the actual design to kill (US v.
Burns, 41 Phil. 418 [1921]) which must be manifested by external acts. For there to be frustrated murder, the offender must
perform all the acts of execution that would produce the felony as a consequence, but the felony is not thereby produced by
reason of causes independent of the will of the perpetrator. A verbal expression that Lugatiman would be killed sixteen (16)
hours after such statement was made is not sufficient to show an actual design to perpetrate the act. Intent must be shown
not only by a statement by the aggressor of the purpose to kill, but also by the execution of all acts and the use of means
necessary to deliver a fatal blow while the victim is not placed in a position to defend himself. However, after the performance
of the last act necessary, or after the subjective phase of the criminal act was passed, the crime is not produced by reason of
forces outside of the will of the aggressor. (People v. Borinaga, 55 Phil., 433 [1930]).
Tying the victim's left leg with a chain on a 2" by 3" piece of wood and leaving him inside the house of accused-appellant,
Bonifacio Padilla are not acts that would result in death. These were done only to restrain his liberty of movement for the
period of time the accused-appellants were busy hanging and burning the body of Reynaldo Gaurano some thirty (30) meters
away from where Lugatiman was left. Also, tying Lugatiman's hands behind his back and his whole body to the wall, and
blindfolding him were for the purpose of restraining his liberty until the evening of May 22, 1984 came.
Accused-appellants also maintain that the injuries sustained by Lugatiman from the manhandling at the Headquarters of the
Airborne Company were not fatal as stated by the prosecution's expert witness, Dr. Petronila Montero; hence, there can be no
frustrated murder. This is supported by the records (Exhibit "A-2", Records of Criminal Case No. 1194, p. 21; TSN, June 4, 1985,
pp. 24-26) Lugatiman did not lose consciousness as a result of the blows he sustained (TSN, May 31, 1985, p. 49, Record, p.
115)
It is worthy to note that the trial court, in concluding the existence of frustrated murder, did not even use as its basis, the
manhandling of Lugatiman. The trial court in fact concedes that the real purpose of the manhandling or torture was to have
Lugatiman admit and confess his being a member of the New People's Army (NPA) and the activities of the NPA's. It was the
statement made by the accused-appellant NicolasGuadalupe that Lugatiman would later be killed, that was the basis of the
court for inferring the commission of frustrated murder. According to the trial court, murder was not committed because of
the timely escape. Escape from the aggressors cannot establish frustrated murder without first showing that the aggressors
intended to kill and that they really attacked the victim.
Under the circumstances, accused-appellants could not even be convicted of an attempt to commit murder. There was no
commencement of the criminal act by over acts which have a direct connection with the crime of murder intended to be
committed. As stated earlier the manhandling, express statement of purpose, and the restraint of liberty were not such as to
put the victim in danger of an imminent death. The small abrasions and hematomas of the victim resulting from the torture by
the accused were not mortal. After the victim was restrained of his liberty immediately before Gaurano was killed, he was able
to watch how Gaurano was burned hanging upside down from a mango tree near the Awasian bridge. Due to his fatigue and
extreme weakness, he was even able to lie down and sleep after looking at the horrible incident. (TSN, May 31, 1985, pp. 22-
23)
During the long period of time Lugatiman was informed that "he would be killed" and was left behind (5:00 in the morning)
until he was able to escape at 10:00 in the morning, it was not certain whether or not appellants would really kill him as they
did to Gaurano. Anything could have happened in between. There was no distinct evidence to prove that the accused
appellants were really decided on killing him at the time specified.
Q. You only saw Reynaldo Gaurano, including yourself detained by Ravelo and his group on May 21, in the early
morning rather, on May 22, 1984 dawn?
A. Yes. (TSN, May 31, 1985, pp. 54-55)
After a review of the allegations of the information in Criminal Case No. 1194 and the evidence received and admitted by the
court a quo, the Court is of the view that accused-appellants are not guilty of frustrated murder but only the crime of slight
physical injuries. There is evidence to show that the several small abrasions on the chest, right neck and right ankle of
Lugatiman as well as the hematoma at his back was due to the hitting by a rough, hard object like a butt of a gun. The
prosecution witness, Dr. Montero testified that the injuries were inflicted by some other persons aside from the victim, and
needed medical treatment of four (4) to five (5) days to avoid infection. (TSN, June 4, 1985, pp. 21-26)
Accused-appellants aver that there was no deliberate waiver on their part of their right to be present at the scheduled hearing
dates because they "did not appear to know the import of their decision not to appear in the trials." According to them, the
judge should have explained to them the meaning and the consequences of their decision not to appear.
The issue of due process had been fully considered by this Court when we acted on the habeas corpus petition. In our May 8,
1988 resolution, we outlined in detail the reasons for our finding of dilatory tactics on the part of the petitioners and their
counsel and why the lower court correctly proceeded with trial.

The records show that Lugatiman himself was not sure that the accused-appellants would pursue it. After stating the various incidents characterizing the initial proceedings and the trial of the case, we stated:

The uncertainty can be seen from Lugatiman's testimony on cross-examination, thus: xxx xxx xxx

xxx xxx xxx The petitioners are members of the Civilian Home Defense Force (CHDF) who have been convicted of murder and frustrated
murder committed under particularly brutal circumstances. A notice of appeal was filed thirty-nine (39) days from the
Q. Why did you say a while ago that "I will be the next one to be hung and to be killed by Ravelo and his group"? promulgation of judgment and was clearly out of time. A motion for new trial was also characterized by plainly dilatory tactics
in its handling.
A. I was just afraid that I will be the next.
Were it not for the effectivity of the present Constitution, there is a likelihood that the petitioners would have been sentenced
Q. Now, when you saw these persons burning the body of Reynaldo, did you hear also what the people around to capital punishment. The near-capital nature of the crimes for which the petitioners were convicted and the rather unusual
Reynaldo were talking of? circumstances surrounding the trial of the two cases and the failure to appeal, however, call for a closer look at the judgments
of conviction. This can best be done by calling for all the records of the case including the transcripts of stenographic notes. If,
A. What I heard was their laughing and the moaning. after the consideration of the cases as appealed cases, there appears to have been a miscarriage of justice or a need for further
evidence, the case can always be remanded for further proceedings as instructed. Otherwise, the judgment will have to be
Q. And you heard their laughing? affirmed or reversed on the basis of all the present records. (Rollo, p. 73)

A. Yes. For purposes of this decision, we emphasize that in the morning of May 30, 1985, the date of the first day of the trial proper, or
after five (5) postponements, the accused-appellants came to court without their counsel of record, Atty. Eliseo Cruz. Atty.
Q. Why did you know that they were laughing? Cruz allegedly sent a telegram through one Mrs. Delfina Cruz indicating that he met a vehicular accident and requesting a
resetting of the hearing date. The several instances in which the Court received similar telegrams including one where he
A. Because I heard it. claimed a "very sick heart ailment" led the trial court to doubt and disregard the last request of the defense. The court had
earlier categorically stated that it wouldentertain no further requests for postponement.
Q. Their appearance you can see?
The court, in deciding to push through with the trial at 2:00 in the afternoon of May 30, 1988 and in appointing two (2)
A. Their appearance is clear because there is a big light. counsels de oficio for the accused-appellants did not only consider the right of the accused to speedy trial which should not be
abused by the defense by willful delays, but more so, the rights of public justice. (Mercado v. Santos, 66 Phil. 215 [1938]).
Q. And your name was never mentioned that you will be the next to be hung? Despite their new counsels who appeared to be doing their best, the accused-appellants insisted on absenting themselves
stating that they cannot and would not appear without Atty. Cruz and allegedly for fear that they would be harassed by
A. I did not hear them saying. members of the New People's Army. At this point, the Court informed them of (1) the importance of the appointment of
competent counsels de oficio considering the gravity of the offense and the difficulty of the questions that may arise during the
Q. There were also no other people like you who were apprehended or being detained by Pedro Ravelo and his group? trial; and (2) the fact that there is no legal obstacle to proceeding with the reception of prosecution evidence in their absence.

A. I did not see.

Absence at the trial did not deprive the accused-appellants of cross-examination except the right to personally confront the
prosecution witnesses face to face. Notwithstanding their absence, they were represented by the counsels de oficio who took
turns in cross-examining each of the prosecution witnesses.

Accused-appellants also maintain that they did not actually refuse to present evidence on their behalf. They argued that the
counsels de oficio misapprehended a telegram of Atty. Cruz which stated that he (Atty. Cruz) cannot attend the June 20 and 21,
1985 trial because he had a prior engagement in another court in Ilocos Sur on those dates. They also contend that their failure
to appear and present evidence was "simply because of their misplaced trust and obedience to the instructions of their
counsel, Atty. Eliseo Cruz, whose negligence and lack of vigilance in the handling of the cases, despite the seriousness of the
crimes charged, had caused injustice to the accused-appellants." They ask this Court to take their case as an exception to the
rule that a client shall suffer the consequences of negligence or incompetence of his counsel.

The actual desire of the accused-appellants to testify and present other evidence is not manifest from a thorough review of the
records of the case. If it were true that they wanted to present evidence, they should have taken advantage of the opportunity
to be present, to be heard and to testify in open court with the assistance of their appointed lawyers. As a matter of fact, they
were able to convince the lower court to grant them a chance to have a new trial. However, they still failed to make use of
their last opportunity. They cannot now claim that they were denied their right to be present and to present evidence. This
Court upholds the lower court's position that the accused-appellants were given more than generous time and opportunity to
exercise their constitutional rights which should not be overemphasized at the expense of public policy.

The circumstances of the case do not preclude the application of the rule that a client is bound by the acts of his counsel who
represents him. Nevertheless, at the time when the lower court appointed the de oficio counsels, the court already had ample
notice of the futility of waiting for Atty. Cruz to come and appear for the defense. From the time the accused-appellants were
represented by Atty. Montenegro and Atty. Cuartero, their decision not to attend the trial nor to present evidence is clearly a
product of their own free will.

WHEREFORE, the appealed judgments in Criminal Cases Nos. 1187 and 1194 are hereby, respectively, affirmed and modified as
to the crime proven. The accused-appellants PEDRO RAVELO, BONIFACIO "PATYONG" PADILLA, ROMEO ASPIRIN, NICOLAS
GUADALUPE and HERMIE PAHIT are hereby sentenced:

(1) To serve the penalty of reclusion perpetua and to pay the increased indemnity of FIFTY THOUSAND PESOS
(P50,000.00) in Criminal Case No. 1187 solidarily; and

(2) To serve the penalty of arresto menor in Criminal Case No. 1194.

SO ORDERED.

Fernan, C.J., (Chairman), Feliciano, Bidin and Davide, Jr., JJ., concur.
[G.R. No. 86941. March 3, 1993.]
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. TEODORO BASAY @ "DORO" and JAIME RAMIREZ @ "NEBOY", Accused.
JAIME RAMIREZ @ "NEBOY", Accused-Appellant.
The Solicitor General for Plaintiff-Appellee.
Public Attorneys Office for Accused-Appellant.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO REMAIN SILENT AND TO COUNSEL AND TO BE INFORMED OF
SUCH RIGHTS; WAIVER THEREOF; CUSTODIAL INVESTIGATION; DEFINED; PROCEDURAL SAFEGUARDS TO BE EMPLOYED. ." .
.." . . The landmark opinion of Miranda v. Arizona, decided in 1966, as noted above, the source of this constitutional provision,
emphasized that statements made during the period of custodial interrogation to be admissible require a clear intelligent
waiver of constitutional rights, the suspect being warned prior to questioning that he has a right to remain silent, that any
utterance may be used against him, and that he has the right to the presence of a counsel, either retained or appointed. In the
language of Chief Justice Warren: Our holding will be spelled out with some specificity in the pages which follow, but briefly
stated, it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against
self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards
to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure
a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be
warned that he has a right to remain silent, that any statement he does not make (sic) may be used as evidence against him,
and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of
those rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and
at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise,
if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question
him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive
him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents
to be questioned."
2. ID.; ID.; ID.; PROCEDURE TO BE FOLLOWED BY PEACE OFFICERS WHEN MAKING ARREST AND WHEN CONDUCTING
CUSTODIAL INVESTIGATION. In Morales v. Enrile, in the light of the said Section 20, prescribed the procedure to be followed
by peace officers when making an arrest and when conducting a custodial investigation. Thus: "7. At the time a person is
arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the
warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any
statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer,
a relative, or anyone he chooses by the most expedient means by telephone if possible or by letter or messenger. It shall
be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted
unless it be in the presence of counsel engaged by the reason arrested, by any person on his behalf, or appointed by the court
upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver
shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid
down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence
3. ID.; ID.; ID.; PHRASE "RIGHT TO BE INFORMED OF SUCH RIGHTS" EXPLAINED; CASE AT BAR. In People v. Nicandro,
this Court declared that ones right to be informed of the right to remain silent and to counsel contemplates "the transmission
of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle."
Thus, is not enough for the interrogator to merely repeat to the person under investigation the provisions of section 20, Article
IV of the 1973 Constitution, now Section 12, Article III of the 1987 Constitution; the former must also explain the effects of
such provision in practical terms e.g., what the person under interrogation may or may not do - and in a language the
subject fairly understands. The right "to be informed" carries with it a correlative obligation on the part of the police
investigator to explain, and contemplates effective communication which results in the subjects understanding of what is
conveyed. Since it is comprehension that is sought to be attained, the degree of explanation required will necessarily vary and
depend on the education, intelligence and other relevant personal circumstances of the person undergoing investigation. In
further ensuring the right to counsel, it is not enough that the subject is informed of such right; he should also be asked if he
wants to avail of the same and should be told that he could ask for counsel if he so desired or that one could be provided him
at his request. If he decides not to retain counsel of his choice or avail of one to be provided for him and, therefore, chooses to
waive his right to counsel, such waiver, to be valid and effective, must still be made with the assistance of counsel. That
counsel must be a lawyer. . . . the kind of "advice" proffered by the unidentified interrogator belongs to that stereotyped class
a long question by the investigator informing the appellant of his right followed by a monosyllabic answer which this
Court has condemned for being unsatisfactory. The investigator gave his advice perfunctorily or in a pro-forma manner,
obviously to pay mere lip service to the prescribed norms. As this Court observed in People v. Newman, this stereotyped
"advice" : ". . . has assumed the nature of a legal form or model. Its tired, punctilious, fixed and artificially stately style does
not create an impression of voluntariness or even understanding on the part of the accused. The showing of a spontaneous,
free and unconstrained giving up of a right is missing
4. ID.; ID.; ID.; PRIMARY OF RIGHT TO COUNSEL STRESSED IN 1987 CONSTITUTION. "SEC 12(1). Any person under
investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have
competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must
be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (3) Any confession or
admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him." The adjectives
competent and independent, which qualify the kind of counsel an accused is entitled to during investigation, were not found in
the previous Constitution. Their incorporation in the 1987 Constitution was thus meant to stress the primacy of this right to
counsel.
5. REMEDIAL LAW; EVIDENCE; COMPETENCY OF WITNESSES; IN CASE AT BAR, CONDITION OF WITNESS AT TIME SHE
SUPPOSEDLY GAVE STATEMENT RENDERED EFFECTIVE COMMUNICATION IMPOSSIBLE. We harbor very serious doubts
about the alleged statement given by Bombie Toting to Sgt. Tabanao and Jaime Saguban identifying the appellant and Teodoro
Basay as the perpetrators of the heinous crime. In the first place, the trial court itself ruled that Bombie was not a competent
witness. We agree with such a conclusion, not necessarily because she was only six (6) years old, but because her condition at
the time she supposedly gave her statement made it impossible for her to have communicated effectively. She suffered the
following injuries: "Infected hack wound from the right anterior lumbar area transecting mid abdomen, inguinal area left to the
medial thigh left through and through, with necrotic transected muscle." She was taken from the crime scene only on 6 March
1986, or two (2) days after the commission of the crime, and died in the hospital on 7 March 1986. The doctor who first
attended to her when she arrived at the Provincial Hospital, a certain Dr. Sy, was not presented as a witness. On the other
hand, the doctor who attended to her before she died, Dr. Edgar Cantalao, testified that when he last saw Bombie alive, she
could not talk.
6. ID.; ID.; CIRCUMSTANTIAL EVIDENCE; WHEN SUFFICIENT FOR CONVICTION; CASE AT BAR. While it may be true
that the appellant ran away when he first saw the armed law officers, he did so merely out of fear of them. This act should not
be considered as the flight which is indicative of guilt. The appellant had not left his house or barangay since 4 March 1986, the
day the crime was committed. If he were indeed one of the perpetrators and had the intention to flee in order to avoid arrest,
he should have vanished sooner and should not have remained in his house. Besides, if indeed his running away could be
construed as flight, it could only be considered as circumstantial evidence. Such evidence would still be insufficient for a
conviction. Under Section 4, Rule 133 of the Rules of Court, in order that circumstantial evidence may sustain a conviction,
there must, inter alia, be more than one (1) circumstance. No other circumstance was established in this case.
DECISION
DAVIDE, JR., J.:
Teodoro Basay and Jaime Ramirez were charged with Multiple Murder with Arson in a criminal complaint 1 filed on 24 March
1986 with the Municipal Circuit Trial Court (MCTC) of Pamplona-Amlan-San Jose in the Province of Negros Oriental for having
allegedly killed the spouses Zosimo and Beatrice Toting and their six-year old daughter, Bombie, and for having burned the said
spouses house to conceal the crime; as a consequence of such fire, the spouses other daughter, Manolita, was burned to
death.
On 31 March 1986, the MCTC issued a warrant for the arrest of the accused; no bail was recommended. 2 It appears, however,
that the accused had earlier been apprehended on 6 March 1986 by elements of the Philippine Constabulary (PC) and Civilian
Home Defense Forces (CHDF) and were detained at the Pamplona municipal jail.chanrobles.com.ph : virtual law library
On 15 April 1986, the accused filed a Waiver of Preliminary Investigation 3 which prompted the MCTC, the following day, to
order the clerk of court to forward the records of the case to the Office of the Provincial Fiscal. 4
Meanwhile, on 14 August 1986, the Integrated National Police (INP) Station Commander of Pamplona amended the complaint
by including therein the name of another victim, Manolo Toting, who suffered second and third degree burns because of the
burning of the house. 5
On 11 December 1986, the Second Assistant Provincial Fiscal of Negros Oriental filed with the Regional Trial Court (RTC) of
Negros Oriental an Information for Multiple Murder and Frustrated Murder with Arson 6 against the accused. The accusatory
portion of the Information reads:chanrob1es virtual 1aw library
x x x Reynaldo Tabanao, Sgt. Nestorio Rubia, Jaime Saguban and three members of the Civilian Home Defense Force to go to
"That on or about March 4, 1986, at sitio Tigbao, Barangay Banawe, Pamplona, Negros Oriental, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and acting in common
accord, with intent to kill, evident premeditation and treachery, did then and there willfully, unlawfully and feloniously assault,
attack, stab and hack with the use of a bolo and sickle, with which the accused were then respectively armed and provided,
one ZOSIMO TOTING, SR., thereby inflicting upon the victim hack wound, neck posterior area 5" long, 3" depth, hack wounds,
left upper back 3" long, 4" depth, stab wound, thru and thru, lower abdomen, 4" width , exit lower back 1" width, 90% 2nd and
3rd degree burns of the body, and which wounds caused the death of said Zosimo Toting, Sr., immediately thereafter; one
BEATRICE TOTING, thereby inflicting upon the victim hacking (sic) wound, neck posterior area, 5" long, 6" depth, incised
wound, epigastric area 11" long, 4" depth, exposing vital organs, lower abdomen, 11" long, 4" depth exposing intestines, 90%
2nd and 3rd degree burns of the body, and which wounds caused the death of said Beatrice Toting immediately thereafter;
one BOMBIE TOTING, thereby inflicting upon the victim infected hack wound from the right anterior lumbar area transecting
mid-abdomen, inguial area left to the medial thigh left, through and through, with necrotic transected muscle, and which
wounds caused the death of said Bombie Toting shortly thereafter; and in order to cover-up the heinous crime committed, the
above-named accused, conspiring and confederating together and acting in common accord, did then and there willfully,
unlawfully and feloniously set to fire the house of the aforesaid victim (sic) spouses Zosimo Toting, Sr. and Beatrice Toting,
thereby razing it to the ground, and as a consequence thereto MANOLITA TOTING suffered Third degree burns, all burn (sic)
body, head, extremities or 100% burns, and which wounds caused the death of said Manolita Toting immediately thereafter
and also causing injuries to MANOLO TOTING, to wit: 20% 2nd and 3rd degree burns on the upper extremity bilateral, posterior
shoulder, left and back, and which wounds would have caused the death of victim Manolo Toting, thus performing all the overt
acts of execution which would have produced the crime of Murder as a consequence, but nevertheless did not produce it by
reason of causes independent of the will of the perpetrator, that is, the timely medical assistance extended to said Manolo
Toting which prevented his death.chanrobles virtual lawlibrary
Contrary to Article 248 in relation to Articles 6, 48 and 50 of the Revised Penal Code."cralaw virtua1aw library
The case was docketed as Criminal Case No. 7411 and was raffled off to Branch 40 of the said court.
After both accused entered a not guilty plea during their arraignment on 23 February 1987, 7 trial on the merits ensued. The
prosecution presented Dr. Edgardo Barredo, MCTC Judge Teopisto Calumpang, Jaime Saguban, Sgt. Reynaldo Tabanao, Dr.
Edgar Gantalao and Dr. Lucio Togonon as its witnesses for the evidence in chief, and Judge Calumpang and Elpedio Catacutan
in rebuttal; for its surrebuttal, Pfc. Urbano Cavallida was presented. On the other hand, the accused testified for the defense
together with witnesses Joven Lopez and Maxima Basay. Accused Ramirez took the witness stand again in surrebuttal.
On 15 December 1988, the trial court promulgated its Decision, dated 14 December 1988, acquitting accused Teodoro Basay
but convicting accused Jaime Ramirez. 8 Its dispositive portion reads:chanrob1es virtual 1aw library
WHEREFORE, the prosecution having failed to prove the guilt of the accused beyond reasonable doubt for the crime of
Multiple Murder, Frustrated Murder With Arson against the accused Teodoro Basay, this Court hereby finds said accused
Teodoro Basay NOT GUILTY and orders his immediate release from detention.
The prosecution has proven the guilt of the accused beyond reasonable doubt for the crime of Multiple Murder, Frustrated
Murder With Arson against accused Jaime Ramirez (sic), this Court finds him GUILTY to (sic) said crime and hereby sentences
him to suffer the penalty of life imprisonment and to indemnify the heirs of the victims in the sum of Thirty Thousand
(P30,000.00) Pesos as his civil indemnity.
SO ORDERED." 9
The evidence for the prosecution upon which the decision is based is summarized in detail in the trial courts decision and is
further condensed in the Appellees Brief 10 as follows:jgc:chanrobles.com.ph
"On March 6, 1986, Zosimo Toting Jr. reported to the Nabalabag Philippine Constabulary Patrol at Pamplona, Negros Oriental,
that his parents had been killed and their house at Tigbaw, [Pamplona] Negros Oriental, burned. This prompted PC Sgt.
Tigbaw, [Pamplona] Negros Oriental, to investigate the incident (TSN, January 20, 1988, p. 5).
Upon arriving at Tigbaw, they found a burned house and several dead bodies. The trial court identified the four (4) fatalities
and their injuries as follows:chanrob1es virtual 1aw library
(1) Zosimo Toting, Sr., with hack wound neck, posterior area, . . . hack wound, left upper back . . . stab wound, through
and through, lower abdomen, . . . 90% second and third degree burns of the body;
(2) Beatrice Toting, hack wound, neck posterior are . . . incised wound, epigastric area . . . exposing vital organs, lower
abdomen . . . exist (sic) lower back, 90% second and third degree burns of the body;
(3) Bombie Toting, inflicted hack wound from the anterior lumbar area transecting mid-abdomen, inguial area left to
the medial thigh left, through and through, with necrotic transected muscle;chanrobles virtual lawlibrary
(4) Manolita Toting, third degree burns, all burned body, head, extrimities (sic) or 100% burns;
Manolo Toting did not die but suffered 20% second and third degree burns on the upper extremity bilateral, posterior
shoulder, left and back (Records, p. 213).
Zosimo Toting, Sr, Beatrice Toting, Manolita Toting and Manolo Toting were found near the vicinity of the burned house. About
forty (40) meters away, the investigating officers found six year old Bombie Toting suffering from serious hack wounds (TSN,
January 20, 1988, p. 18). The young girl said that she had been in this condition for one and a half days already.
Bombie Toting related to Sgt. Tabanao that on March 4, 1986 at 7:00 oclock in the evening, appellant and Teodoro Basay killed
her parents and burned their house (TSN, January 20, 1988, p. 18, Records, p. 9).
On the same day the investigating officers went to the appellants house. They saw appellant fixing the roof of his house and
when appellant saw them, he went down and tried to ran (sic) away (TSN, January, 20, 1988, p. 22). Appellant was turned over
to the Pamplona Police Station (TSN, January 20, 1988, p. 25).
Bombie Toting was brought to the hospital but due to the gravity of her injuries she died on March 7, 1986 at 1:40 P.M.
(Records, p. 12, Exhibit I).
Appellant was brought into the chamber of Judge Teopisto Calumpang, the municipal circuit trial judge of Pamplona, Amlan,
and San Jose, on March 14, 1986. He was accompanied by Mr. Elpedio Catacutan who acted as appellants counsel (TSN, June
6, 1988, p. 6). They brought with them an affidavit previously typed by a police investigating officer. The Judge then made the
court interpreter translate the allegations of the sworn statement into the local dialect for appellant (TSN, June 6, 1988).
Thereafter, in the presence of the Judge, appellant and Mr. Catacutan signed the affidavit. (TSN, January 20, 1988, p. 14).
Appellant and counsel also signed the vernacular translation of Exhibit F (Records, p . 12)."cralaw virtua1aw library
Upon the other hand, the evidence for accused Jaime Ramirez is substantially summarized in the Appellants Brief 11 in this
wise:jgc:chanrobles.com.ph
"Evidence for the Defense:chanrob1es virtual 1aw library
x x x
Accused Jaime Ramirez testified that he was cooking food for the pig when the armed uniformed men arrested him on March
5, 1986 and was brought (sic) to the Nabalabag PC Detachment where he was maltreated. Later, he was brought to Municipal
(sic) Jail where he stayed for one month and 23 days.
Queried on the Joint Waiver, this witness said he did not read it because he did not know how to read. When it was read to
him, he did not understand it because it was read in English. Elpedio Catacutan was not his lawyer and he did not know him
(TSN, March 5, pp. 3, 5-6, 9-10).
On cross-examination, this witness said he reached Grade II and knows how to write his name. He was alone at the time he
was arrested. He was arrested ahead of Teodoro Basay and those who arrested him where (sic) not the same persons who
arrested Teodoro Basay.
He first saw Elpedio Catacutan in the Pamplona Municipal Hall when Elpedio was going upstairs. When he signed Exhibit "F",
Catacutan was in front of him. They did not converse with each others (sic). He did not engage Catacutan to assist him, nor
solicit his services. He does know (sic) any one who solicited Catacutans services for him. He did not ask the Judge
(Calumpang) that a lawyer be designated to help him in connection with the affidavit. The Pamplona Judge did not offer to give
him a lawyer to assist him in the execution of the affidavit (TSN, October 4, 1988, p.4)." 12
Jaime Ramirez is a farmer and at the time he testified on 8 March 1988, was nineteen (19) years old and single. 13 The
prosecution did not rebut his claim that he had only finished Grade II and that he does not know how to read. He, however,
understands the Cebuano dialect. 14
The Exhibit "F" referred to above is the Sworn Statement, 15 in English, of accused Jaime Ramirez taken in the Pamplona police
station on 7 March 1986 and subscribed and sworn to only on 14 March 1986 before Judge Teopisto L. Calumpang of the MCTC
of Pamplona-Amlan-San Jose. The trial court described this document as the Extra-Judicial Confession 16 of
Ramirez.chanrobles law library : red
The Joint Waiver (Exhibit "G") mentioned the testimony of Jaime Ramirez is in the Cebuano dialect and was signed by accused
Basay and Ramirez on 7 March 1986. Both accused state therein that for their safety and security, they voluntarily decided to
be detained and that they killed the spouses Zosimo Toting and Betty Toting and thereafter burned the spouses house; this
fire resulted in the death of one and the hospitalization of two Toting children. 17
The trial court disregarded this Joint Waiver insofar as it tended to incriminate the accused "because when they signed said
Joint Waiver, they were not represented by counsel;" thus, the same was prepared in violation of "Section 12, Article 3 of the
Bill of Rights of the 1987 Constitution." 18 There being no other evidence against Basay, the trial court acquitted him.
However, it admitted in evidence the so-called extra-judicial confession of Jaime Ramirez, considered as part of the res gestae
the alleged statement given by Bombie Toting to PC Sgt. Reynaldo Tabanao and Jaime Saguban identifying Ramirez and Basay
as the perpetrators of the crime and considered as flight which is indicative of guilt Ramirezs running away when he saw
the law enforcers on 6 March 1986. It further ruled that the latter signed the extra-judicial confession voluntarily and in the
presence of Elpedio Catacutan, the COMELEC registrar of Pamplona "a barister (sic) who appeared as counsel for accused
Jaime Ramirez;" hence it is admissible against the latter. 19
On the other hand, the trial court did not admit the statement of Bombie Toting as a dying declaration but merely as part of
the res gestae because the prosecution failed to prove two (2) of the requisites for the admissibility of a dying declaration, viz.,
that the statement was given under consciousness of an impending death and that Bombie Toting is a competent witness. 20
Accused Jaime Ramirez neither filed a notice of appeal nor orally manifested his intention to appeal. However, on 31 January
1983, the trial court handed down an order directing the clerk of court to transmit to this Court the entire records of the case
because in view of the penalty imposed life imprisonment "such Decision is subject for automatic review by the Supreme
Court." 21 This of course is erroneous as, pursuant to Section 10, Rule 122 of the Rules of Court, the automatic review of a
criminal case is applicable only where the penalty of death has been imposed which, nevertheless, is now banned under
Section 19(1), Article III of the 1987 Constitution.
In the interest of justice, however, We accepted the appeal in the Resolution of 8 May 1989. 22
In his Appellants Brief, 23 Jaime Ramirez, hereinafter referred to as the Appellant, imputes upon the trial court the
commission of this lone error:jgc:chanrobles.com.ph
"THE TRIAL COURT ERRED IN FINDING THE APPELLANT GUILTY AS CHARGED ON THE BASIS OF EXHIBIT "F" (AFFIDAVIT) WHICH
WAS EXECUTED IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS AND ON THE BASIS OF HEARSAY EVIDENCE AND ON THE
PRESUMPTION OF GUILT."cralaw virtua1aw library
Appellant contends that his so-called extra-judicial confession, Exhibit "F", was executed in blatant disregard of his
constitutional right to counsel and to remain silent during custodial investigation. It is therefore inadmissible in evidence. 24
Without the said confession, the only piece of evidence which seems to point to his guilt is the alleged statement of Bombie
Toting. Appellant asserts, however, that the said statement was "very doubtful and . . . no reasonable mind would conclude
that she was candidly truthful;" hence, her statement, besides being hearsay as it came from a person who was not presented
in court to testify, should not have been taken at "face value against any of the accused, much less against the appellant." 25
Besides, the appellant asserts that the same statement was not used against his co-accused Basay who was, unlike him,
acquitted by the trial court. As to his having run away upon seeing the armed law enforcers, appellant claims that he did so out
of fear as the latter were armed. 26
On the other hand, it is maintained by the People, in the Appellees Brief 27 submitted by the Office of the Solicitor General,
that the appellant executed the extra-judicial confession voluntarily and without duress; in signing such confession, he was
accompanied by a certain Mr. Catacutan, a non-lawyer, inside the chambers of Judge Calumpang "an environment . . . other
than vindictive and oppressive which the courts desired to guard against in Miranda v. Arizona, 384 US 436." 28 As to Bombies
statement, it is claimed that the same should be considered as a dying declaration.
We find merit in the appeal.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
1. Jaime Ramirezs sworn statement or extra-judicial confession was prepared on 7 March 1986 at about 11:00 oclock
in the morning in the Pamplona police station. Pertinent portions thereof read as follows:jgc:chanrobles.com.ph
"PRELIMINARY MR. JAIME RAMIREZ, you are now under investigation in connection with the death of the couple and the
burning of their house, ZOSIMO TOTING and BEATRICE TOTING alias BETTY TOTING on March 4, 1986 at about 7:00 oclock in
the evening at sitio Togbao, Barangay Banawe, Pamplona, Negros Oriental. You are also informed that under our new
constitution you have the right to remain silent and not to answer questions which will incriminate you and to have a counsel
of your own choice to assist you in this investigation, do (sic) you aware of this?
ANSWER Yes.
Q You are also informed that whatever statement you may offer in this investigation it (sic) might be used as evidence in
your favor or against you in the future, do (sic) you aware of this this (sic)?
A Yes.
Q After you have informed (sic) of your rights are you willing to proceed with this investigation of yours even if you have no "SECTION 20. No person shall be compelled to be a witness against himself. Any person under investigation for the
counsel of your own choice that will assist you in this investigation? commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force,
violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession
A Yes. I dont need any counsel in this investigation because I will just tell the truth. obtained in violation of this section shall be inadmissible in evidence."cralaw virtua1aw library

1. Question If so, please state your name, age and other personal circumstances? The source of this provision is Miranda v. Arizona, 30 in connection therewith, this Court stated in People v. Caguioa 31
that:jgc:chanrobles.com.ph
Answer Jaime Ramirez y Tano, 19 years old, single, Filipino, farmer and a resident of sitio Palale, Barangay San Isidro,
Pamplona, Negros Oriental. ". . . The landmark opinion of Miranda v. Arizona, decided in 1966, as noted above, the source of this constitutional provision,
emphasized that statements made during the period of custodial interrogation to be admissible require a clear intelligent
x x x waiver of constitutional rights, the suspect being warned prior to questioning that he has a right to remain silent, that any
utterance may be used against him, and that he has the right to the presence of a counsel, either retained or appointed. In the
language of Chief Justice Warren: Our holding will be spelled out with some specificity in the pages which follow, but briefly
11. Q What more can you say? stated, it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against
A No more. I proved that my statement is correct I signed this 7 March 1986 (sic), at Pamplona, Negros Oriental. self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards
(Sgd.) JAIME T. RAMIREZ to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure
a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be
(TYP) JAIME T. RAMIREZ warned that he has a right to remain silent, that any statement he does not make (sic) may be used as evidence against him,
and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of
Affiant those rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and
at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise,
NOTE: ASSISTED BY:chanrob1es virtual 1aw library if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question
him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive
(Sgd.) ELPEDIO B. CATACUTAN him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents
to be questioned." (Citations omitted).chanrobles virtual lawlibrary
(TYP) ELPEDIO B. CATACUTAN
Then, in Morales v. Enrile, 32 in the light of the said Section 20, prescribed the procedure to be followed by peace officers
Counsel of the accused when making an arrest and when conducting a custodial investigation. Thus:jgc:chanrobles.com.ph

SUBSCRIBED AND SWORN to before me this 14th day of March 1986, at Pamplona, Negros Oriental, Philippines. "7. At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the
arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and
(Sgd.) TEOPISTO L. CALUMPANG to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to
communicate with his lawyer, a relative, or anyone he chooses by the most expedient means by telephone if possible or
(TYP) TEOPISTO L. GALUMPANG by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial
investigation shall be conducted unless it be in the presence of counsel engaged by the reason arrested, by any person on his
Mun Trial Circuit Judge behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel
may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in
CERTIFICATION violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in
evidence."cralaw virtua1aw library
I HEREBY CERTIFY that I have personally examined the affiant and that I am satisfied that he voluntarily executed and
understood his affidavit. This was reiterated in People v. Galit. 33

(Sgd.) TEOPISTO L. CALUMPANG In People v. Nicandro, 34 this Court declared that ones right to be informed of the right to remain silent and to counsel
contemplates "the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an
(TYP) TEOPISTO L. CALUMPANG abstract constitutional principle." Thus, is not enough for the interrogator to merely repeat to the person under investigation
the provisions of section 20, Article IV of the 1973 Constitution, now Section 12, Article III of the 1987 Constitution; the former
Mun Trial Circuit Judge" 29 must also explain the effects of such provision in practical terms e.g., what the person under interrogation may or may not
do - and in a language the subject fairly understands. The right "to be informed" carries with it a correlative obligation on the
We do not hesitate to rule that this purported extra-judicial confession belonging to appellant Jaime Ramirez and obtained part of the police investigator to explain, and contemplates effective communication which results in the subjects
during custodial interrogation was taken in blatant disregard of his right to counsel, to remain silent and to be informed of such understanding of what is conveyed. Since it is comprehension that is sought to be attained, the degree of explanation required
rights, guaranteed by Section 20, Article IV of the 1973 Constitution the governing law at that time. Said section will necessarily vary and depend on the education, intelligence and other relevant personal circumstances of the person
reads:jgc:chanrobles.com.ph undergoing investigation. In further ensuring the right to counsel, it is not enough that the subject is informed of such right; he
should also be asked if he wants to avail of the same and should be told that he could ask for counsel if he so desired or that
one could be provided him at his request. 35 If he decides not to retain counsel of his choice or avail of one to be provided for
him and, therefore, chooses to waive his right to counsel, such waiver, to be valid and effective, must still be made with the
assistance of counsel. 36 That counsel must be a lawyer. 37
The foregoing pronouncements are now synthesized in paragraphs 1 and 3, Section 12, Article III of the 1987 Constitution, to
wit:jgc:chanrobles.com.ph
"SECTION 12(1). Any person under investigation for the commission of an offense shall have the right to be informed of
his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot
afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the
presence of counsel.
x x x (f)
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence
against him."cralaw virtua1aw library
The adjectives competent and independent, which qualify the kind of counsel an accused is entitled to during investigation,
were not found in the previous Constitution. Their incorporation in the 1987 Constitution was thus meant to stress the primacy
of this right to counsel.
A close scrutiny of the questioned extra-judicial confession in the case at bar reveals all possible violations of the appellants
right to remain silent, to counsel and to be informed of such rights, and of the safeguards prescribed by this Court for the
holding of custodial interrogations.
(a) The interrogation was the conducted and the confession was written in English a language the appellant, a farmer in
a remote barangay of Pamplona, cannot speak and does not understand; he only finished Grade II. There is no evidence to
show that the interrogator, who was not even presented as a witness and remains unidentified, translated the questions and
the answers into a dialect known and fairly understood by the appellant.chanrobles lawlibrary : rednad
(b) Appellant was not told that he could retain a counsel of choice and that if he cannot afford to do so, he could be
provided with one.
(c) He did not sign any waiver of his right to remain silent and to counsel.
(d) He was not assisted by any counsel during the investigation. Instead, a certain Elpedio Catacutan, who claimed to
have appeared for him as a "friend-counsel," 38 was present only at the time that appellant was brought to the office of Judge
Catacutan for the preparation of the jurat. It was precisely for this reason that the following notations were inserted above the
jurat of the so-called extra-judicial confession:jgc:chanrobles.com.ph
"NOTE: ASSISTED BY:chanrob1es virtual 1aw library
(Sgd.) ELPEDIO B. CATACUTAN
(TYP) ELPEDIO B. CATACUTAN"
In reality, Catacutan signed not as counsel, but only as a witness. Thus:jgc:chanrobles.com.ph
"Q Do you recall having signed as a witness of an affidavit of one Jaime (sic) T. Ramirez which affidavit is now marked
as Exhibit "F" ?
A Yes.
Q Can you tell the court where did you sign that Exhibit "F" ?
A I signed this affidavit in the office of the Municipal Judge of Pamplona." 39
Moreover, it is to be observed that the appellant does not even know the said Elpedio Catacutan. 40
(e) Assuming arguendo that Elpedio Catacutan may have been summoned to act as appellants counsel, he was,
nevertheless, not present during the custodial interrogation which, by the way, was conducted exactly a week before he
appeared or more correctly, was made to appear before Judge Calumpang. His presence before the latter did not change
the situation. As this Court stated in People v. Burgos, 41 the securing of counsel to help the accused when the latter
subscribed under oath to his statement at the Fiscals Office was too late and had no palliative effect; it did not cure the
absence of counsel at the time of the custodial investigation when the extra-judicial statement was being taken.
Furthermore, Elpedio Calumpang is not a lawyer; according to the trial court, he is "a barister (sic)." In fact, he
candidly admitted that he is not a lawyer but that he obtained a law degree from the Siliman University in 1959. Unfortunately,
however, he failed in three Bar Examinations. 42
(g) There is no showing that the so-called extra-judicial confession, which is in English, was correctly explained and
translated to the appellant by Judge Calumpang. Although the latter claimed in his testimony on direct examination that he
translated the same in the local dialect to the appellant before the latter affixed his signature thereto, 43 Elpedio Catacutan
categorically declared that it was the interpreter, one Pedro Rodriguez, who translated it to the appellant.
Thus:jgc:chanrobles.com.ph
"Q Who is the interpreter who made the translation?
A Pedro Rodriguez.
Q Were you there when the translation was made?
A Sure.
Q So it was not the Judge who made the translation, is that what you mean?
A The translation was course (sic) through the interpreter." 44
(h) Finally, the kind of "advice" proffered by the unidentified interrogator belongs to that stereotyped class a long
question by the investigator informing the appellant of his right followed by a monosyllabic answer which this Court has
condemned for being unsatisfactory. 45 The investigator gave his advice perfunctorily or in a pro-forma manner, obviously to
pay mere lip service to the prescribed norms. As this Court observed in People v. Newman, 46 this stereotyped "advice"
:jgc:chanrobles.com.ph
". . . has assumed the nature of a legal form or model. Its tired, punctilious, fixed and artificially stately style does not create
an impression of voluntariness or even understanding on the part of the accused. The showing of a spontaneous, free and
unconstrained giving up of a right is missing."cralaw virtua1aw library
Consequently, Exhibit "F", which is indisputably an uncounselled confession or admission, is inadmissible in evidence. The trial
court, therefore, committed a fatal error in admitting it.chanrobles.com:cralaw:red
2. We harbor very serious doubts about the alleged statement given by Bombie Toting to Sgt. Tabanao and Jaime
Saguban identifying the appellant and Teodoro Basay as the perpetrators of the heinous crime. In the first place, the trial court
itself ruled that Bombie was not a competent witness. We agree with such a conclusion, not necessarily because she was only
six (6) years old, but because her condition at the time she supposedly gave her statement made it impossible for her to have
communicated effectively. She suffered the following injuries:jgc:chanrobles.com.ph
"Infected hack wound from the right anterior lumbar area transecting mid abdomen, inguinal area left to the medial thigh left
through and through, with necrotic transected muscle." 47
 WHEREFORE, the challenged Decision in Criminal Case No. 7411 of Branch 40 of the Regional Trial Court of Negros Oriental is
She was taken from the crime scene only on 6 March 1986, or two (2) days after the commission of the crime, and died in the REVERSED and appellant JAIME RAMIREZ alias "NEBOY" is hereby ACQUITTED with costs de oficio. His immediate release from
hospital on 7 March 1986. The doctor who first attended to her when she arrived at the Provincial Hospital, a certain Dr. Sy, detention is hereby ordered.
was not presented as a witness. On the other hand, the doctor who attended to her before she died, Dr. Edgar Cantalao,
testified that when he last saw Bombie alive, she could not talk. 48 It was this inability to talk which led the trial court to SO ORDERED.
express its doubts on the veracity of the latters supposed statement:jgc:chanrobles.com.ph
Feliciano, Bidin, Romero and Melo, JJ., concur.
". . . Although persons of tender age are prone to tell the truth, however, the Court must be cautious in appreciating said
testimony where the person had a serious wound and had not eaten for one day and one night. There is no evidence to show Gutierrez, Jr., J., is on terminal leave.
that Bombie Toting told the doctor as to who were the perpetrators of the crime; neither did she tell her own brother, Zosimo
Toting, Jr. that it was the accused, Teodoro Basay and Jaime Ramirez who killed her parents and her brother and sisters and
burned their house. . . . The Court cannot understand why P.C. Sgt. Tabano did not ask Bombie Toting questions concerning the
commission of the crime by the accused. Neither did the P.C. or (sic) the police take any statement from her on her way to the
hospital or at the hospital. Surprisingly, Bombie Toting did not even tell her own brother, Zosimo Toting, Jr. that it was the
accused who committed the crime. Had the statement of Bombie Toting been made to the doctor or to the barangay captain
or to any reputable member of the community where the incident happened, the Court will have to put weight and consider
her statement as a dying declaration. Our experience has shown that persons in authority are prone to fabricate or
misrepresent the facts to serve their own purpose. Innocent people had been charged in Court simply by the false statements
of peace officers. The Court therefore has to be cautious when these peace officers testify in Court." 49

In the second place, as a result of the foregoing observations, the trial court completely disregarded Bombie Totings so-called
statement as against Teodoro Basay. We therefore see neither rhyme nor reason for the trial courts admission of the same as
against the Appellant.

3. While it may be true that the appellant ran away when he first saw the armed law officers, he did so merely out of
fear of them. This act should not be considered as the flight which is indicative of guilt. The appellant had not left his house or
barangay since 4 March 1986, the day the crime was committed. If he were indeed one of the perpetrators and had the
intention to flee in order to avoid arrest, he should have vanished sooner and should not have remained in his house. Besides,
if indeed his running away could be construed as flight, it could only be considered as circumstantial evidence. Such evidence
would still be insufficient for a conviction. Under Section 4, Rule 133 of the Rules of Court, in order that circumstantial
evidence may sustain a conviction, there must, inter alia, be more than one (1) circumstance. No other circumstance was
established in this case.chanrobles lawlibrary : rednad

Hence, the appellants guilt was not established with moral certainty. He should be acquitted.

We cannot, however, close this case without making some observations about the legal conclusions of the trial court anent the
crimes committed and the penalty imposed. The facts indisputably establish that Zosimo Toting, Sr., Beatrice Toting and
Bombie Toting were stabbed and hacked before their house was burned. Zosimo and Beatrice died immediately while Bombie
lived for a few days. As a matter of fact, the thesis of the prosecution is that the house was burned to conceal the stabbing and
hacking. As a result of this fire, Manolita Toting and Manolo Toting suffered burns which caused the death of the former; the
latter, however, survived due to timely medical attention. Four (4) crimes were therefore committed, viz.: three (3) separate
murders under Article 248 of the Revised Penal Code 50 for the deaths of Zosimo, Beatrice and Bombie, and arson as punished
under Section 5 of P.D. No. 1613 51 for the death of Manolita and the injuries sustained by Manolo as a consequence of the
burning of the house. The aforementioned Section 5 reads:jgc:chanrobles.com.ph

"SECTION 5. Where Death Results from Arson. If by reason of or on the occasion of the arson death results, the
penalty of Reclusion Perpetua to death shall be imposed."cralaw virtua1aw library

Also, the information that was filed is clearly duplicitous and thus vulnerable to a motion to quash under Section 3(e), Rule 117
of the Rules of Court. No such motion having been filed, appellant is deemed to have waived the defect.

Finally, We have time and again said that life imprisonment is not a penalty provided for in the Revised Penal Code and is not
the same as reclusion perpetua. 52 Unfortunately, the trial court still disregarded this pronouncement. It is hoped that it will
not happen again.chanrobles virtual lawlibrary
SECOND DIVISION
[G.R. Nos. 112620-21. May 14, 1997]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NOLI PAGAL y LAMQUI and ADOLFO LAMQUI y NATIVIDAD, accused-
appellants.
DECISION
ROMERO, J.:
Before this Court comes a case replete with all the elements of a blockbuster action movie: Violence, motives and alibis. The
law in dispensing justice is, however, constrained to detach itself from sensationalism and, instead, look at the facts
dispassionately as presented and proven in a court of law.
This is an appeal from the decision dated September 23, 1993, of the Regional Trial Court (RTC) of Tayug, Pangasinan, Branch
51, convicting accused Noli Pagal and Adolfo "Boy" Lamqui of the crimes of murder and attempted murder and sentencing
them to reclusion perpetua and imprisonment of two years, ten months and twenty days of prision correcional, as minimum,
to eight years and twenty days of prision mayor, as maximum, respectively.
The two cases were initially filed before the RTC of Lingayen as Criminal Case No. L-4253, for murder, and Criminal Case No. L-
4252 for frustrated murder. Upon motion of the prosecution, the cases were later transferred to the Tayug RTC and
respectively re-docketed as Criminal Case Nos. T-1086 and 1061.
The relevant facts gathered from the records follow:
Paquito Medrano and Jose Rebujio were partners in the business of buying and selling cattle. On March 23, 1990, between the
hours of nine and ten in the morning, they decided to go to Cabuaan, Natividad, Pangasinan to look at a cow that was up for
sale. Medrano drove a motorcycle with Rebujio riding tandem. They, however, never reached their destination as they were
ambushed along the way. Somewhere between Barangay San Miguel and Sitio Tulin of said town, they noticed two bamboo
poles obstructing the road some three (3) meters ahead of them. As they were slowing down, they both noticed, crouched in
the canal on the left side of the road, two men who stood up silently, one after the other, and without a word started firing at
them with an armalite rifle and a short firearm. They later identified the malefactors as Noli Pagal and Adolfo "Boy" Lamqui.
Despite the injuries sustained from the firing, Medrano was able to drive faster and proceed to the hospital while his
companion hung on.
As evidenced by two medical certificates both dated March 27, 1990, and reiterated on the witness stand by the attending
physician, Dr. Cesar Bulosan, Medrano and Rebujio were confined and treated at the Eastern Pangasinan District Hospital. Dr.
Bulosan treated Medrano for gunshot wounds on the left upper abdomen, right upper abdomen, left chest below the nipple
and on the right arm near the wrist and Rebujio for a through-and-through gunshot wound at the left thigh, and gunshot
wounds at the right buttock below the waistline, right forearm and back of the upper right forearm. After considering the
nature and the appearance of the wounds at the time of the examination, he opined that an automatic rifle could have been
used and such must have been fired at close range because of the presence of multiple powder burns.[1]
Rebujio was subsequently transferred to the Armed Forces of the Philippines Medical Center (AFPMC) where he died on March
25, 1990. The cause of his death was cardiorespiratory arrest due to massive internal hemorrhage resulting from the through-
and-through gunshot wound at the left thigh, as stated in the medico-legal report[2] issued by Dr. Perfecto Tebangin, the
Municipal Health Officer of Natividad, Pangasinan.
Upon learning of the incident at around 10:30 in the morning of the fateful day, prosecution witness Patrolman Orlando
Arciaga immediately proceeded to the Eastern Pangasinan District Hospital and was able to interview the victims who divulged
the identities of their assailants, namely, Noli Pagal and Boy Lamqui.[3] Said investigation was taken down in writing and was
presented in evidence as the ante-mortem statement of Rebujio.
Medrano took the stand and positively identified the assailants, corroborating the statement of the late Rebujio.[4] He knew
the assailants well because Pagal is his nephew, and he, Rebujio and the Pagals have been partners in the business of buying
and selling cattle since their childhood.[5] Their cordial relationship deteriorated after a slaying incident in 1988 involving the
members of the Medrano and Pagal families.[6] Although, the matter was amicably settled within the same year, the
relationship between the Medrano and Pagal family has since been strained.
Accused-appellants interposed the defense of denial and alibi. They declared that from eight to eleven in the morning of March
23, 1990, they were in Barangay Calapugan, helping in the construction of a certain Hermenegildo Pate's house. They stressed
that they never left said site until they were called by Pagal's brother at eleven o'clock a.m. because members of the Philippine
Constabulary were looking for them.[7] To corroborate their story, they presented Jun de Guzman, one of the workers in the
construction site, and Pagal's father Arturo.
After trial, Judge Ulysses R. Butuyan rendered a decision dated September 23, 1993, finding accused-appellants guilty of
murder and attempted murder. The dispositive portion thereof states, thus:
"WHEREFORE, in Criminal Case No. T-1061, the Court finds the accused NOLI PAGAL y Lamqui and the accused ADOLFO
LAMQUI y Natividad alias "Boy" guilty beyond reasonable doubt of the crime of Attempted Murder, defined and penalized
under Article 248 of the Revised Penal Code in relation to the third paragraph of Article 6 of the same Code, as co-principals,
and hereby sentences them to each suffer the penalty of imprisonment of Two (2) years, Ten (10) months and Twenty (20)
days of prision correccional as minimum to Eight (8) years and Twenty (20) days of prision mayor as maximum, together with
the accessory penalties provided by law, and to solidarily indemnify the private complainant Paquito Medrano or his heirs, in a
proper case, for actual damages in the amount of P8,000.00 plus moral damages which the Court hereby fixes at P100,000.00
and to pay the costs.
In Criminal Case No. T-1086, the Court finds the aforenamed accused guilty beyond reasonable doubt of the crime of Murder,
defined and penalized under Article 248 of the Revised Penal Code, as co-principals, and hereby sentences them to each suffer
the penalty of reclusion perpetua, together with the accessory penalties provided by law, and to solidarily indemnify the heirs
of the late Jose Rebujio for actual damages of P61,200.00 plus moral damages which the Court hereby fixes at P300,000.00 and
to pay the costs.
SO ORDERED."[8]
Aggrieved, accused-appellants come to this Court seeking the reversal of their conviction on the ground that the trial court
erred in finding both of them guilty of murder and attempted murder.
We find the appeal bereft of merit.
Accused-appellants argue that at a distance beyond eighteen inches from the barrel of a firearm, it would be impossible for
powder burns to be present in the bodies of the victims.
Dr. Bulosan, however, testified that a high caliber firearm like an armalite can leave powder burns on the target although
situated eighteen inches away.[9] It is specious reasoning for accused-appellants to conclude that it is impossible for powder
burns to be present in the bodies of victims shot from a distance beyond eighteen inches considering the undisputed fact that
it was an armalite rifle which was used in the commission of the crimes.
Next, they contend that the results of the paraffin test show that they are innocent of the crimes for which they were charged.
This Court agrees with the court a quo in not giving much weight to the National Bureau of Investigation (NBI) Chemistry
Report finding Lamqui negative for powder burns and Pagal positive for powder burns only on his palm.[10] Well-settled is the
rule that a negative finding on paraffin test is not a conclusive proof that one has not fired a gun,[11] because it is possible for a
person to fire a gun and yet bear no traces of nitrates or gunpowder, as when the hands are bathed in perspiration or washed
afterwards.[12] The trial court also correctly rejected the results of said exam for having been taken eighteen days after the
commission of the crime.[13]
Accused-appellants likewise fault the lower court for lending credence to the testimony of Medrano. They aver that his
testimony that the gunmen were at the right side of the victims is belied by the gunshot wounds located in front of the bodies
of the victims, indicating a face-to-face encounter.[14] Medrano, however, testified that accused-appellants were already firing
at him and Rebujio from a distance of three meters while on board the moving motorcycle.[15] That they were moving targets
would explain the different locations of the wounds in their bodies.

They further question the failure of the prosecution to present the result of the ballistic examination of Pagal's firearm, an
omission which they perceive to be tantamount to suppression of adverse evidence.
We disagree.
To begin with, the adverse presumption arising from suppression of evidence is not applicable when the evidence is merely
corroborative or cumulative and/or likewise available to the defense, as in the case at bar.[16] Furthermore, there is no
suppression of evidence to speak of insofar as the ballistic examination of Pagal's firearm is concerned. The prosecution has
established, and Pagal has admitted, that he is a member of the CAFGU and was issued an armalite rifle with serial number
629161. Exhibit "E" for the prosecution is the original of the memorandum receipt dated March 21, 1989, showing the issuance
to Noli Pagal of one U.S. rifle 7.62 MN M14 with serial number 629161. Exhibit "F" is NBI Forensic Chemistry Report No. C-90-
388 in regard to a specimen known as one M14 armalite rifle with serial number 629161 submitted on April 10, 1990, and
indicating the following findings: "Chemical and microscopic examinations conducted on the above-mentioned firearm showed
the presence of soot, black particles and nitrates. Test firing showed that the firearm could have been fired more than two (2)
weeks prior to the date of examination on April 11, 1990."[17]
Lastly, accused-appellants assail the admission by the court of Rebujio's statement as his dying declaration when such was not
given under the consciousness of an impending death.
This argument is off-tangent and without basis.
The record does not show that the trial court considered the statement of Rebujio as a dying declaration. In fact, it was
expressly disqualified as such and was instead admitted as part of the res gestae, as sanctioned by Section 36 (now Section 42),
Rule 130 of the Rules of Court.[18] This Court has held that although an ante-mortem statement may not be considered as a
dying declaration because it was not given under the consciousness of an impending death, it is admissible as part of the res
gestae if such declaration was made at the time of, or immediately after, the commission of the crime, or at a time when the
exciting influence of the startling occurrence still continued in the declarant's mind, as in the case at bar.[19]
identify persons at such range especially in broad daylight, persons who are not casual acquaintances but kinfolk and former
business partners of the victims.
The testimony of Medrano is supported by the physical evidence and the separate testimonies of Dr. Bulosan, Rebujio's widow,
and Pat. Arciaga. The ante-mortem statement, admitted in evidence as part of the res gestae, further revealed that the late
Rebujio named one of the assailants as "Boy" Lamqui, which was never disputed by the defense throughout the entire
proceeding, hence, proving familiarity between accused-appellants and their victims.
The Court agrees with the trial court that for the death of Rebujio, accused-appellants are guilty of murder. The allegations of
treachery, evident premeditation, and craft charged in the information were duly proved by the prosecution and never refuted
by the defense. The court a quo also correctly convicted them for attempted murder of Paquito Medrano, instead of frustrated
murder as charged in the information, because the injuries sustained by Medrano were merely superficial and not capable of
causing his death even without timely medical intervention. No mortal wound having been inflicted upon the victim, the
offenders failed to perform all the acts of execution which would have produced the felony. They are, therefore, guilty only of
attempted murder.[25]
WHEREFORE, the decision appealed from is hereby AFFIRMED, with the modification as to the award of moral damages which
is hereby reduced to P10,000.00 in Criminal Case No. T-1061 and to P50,000.00 in Criminal Case No. T-1086.
SO ORDERED.
Regalado, (Chairman), Puno, Mendoza, and Torres, Jr., JJ., concur.

Having ruled on accused-appellants' assignment of errors, we now resolve the main issue of whether they were convicted by
the trial court based on the evidence presented at the trial.

The Court finds that, not only was the evidence of the defense weak, but that of the prosecution was sufficient to support the
charges against accused-appellants.

The defense of alibi and denial is unavailing in view of the positive identification of accused-appellants and there being no
physical impossibility for them to commit the crimes charged.[20] It is well-settled that alibi is a defense which is inherently
weak and difficult to begin with, and it cannot stand against the positive identification of accused-appellants as the
perpetrators of the crimes by victims Medrano and Rebujio through the latter's ante-mortem statement.[21] Moreover, there
is no dispute that it was not physically impossible for accused-appellants to be present at the time and place of the incident.
Defense witness Jun de Guzman testified on the proximity of Barangay Calapugan, where accused-appellants supposedly were,
to Barangay San Miguel, where the ambush took place. According to him, at the time of the incident, the distance between the
two barangays is less than a kilometer and it takes less than five minutes to walk from one barangay to the other. He also
stated that a road connects these adjoining barangays.[22] Pagal's father Arturo, for his part, said that the distance is more or
less three kilometers which could be traversed in fifteen minutes. The discrepancy does little to alter the finding of the court a
quo that the two barangays are so close to each other as not to preclude the possibility of the accused being present at the
place where the ambush was committed. For the defense of alibi to prosper, the accused must prove not only that he was at
some other place at the time the crime was committed but that it was likewise physically impossible for him to be at the locus
criminis at the time of the alleged crime.[23]

The evidence for the prosecution, on the other hand, is solid and convincing. Medrano was not only an eyewitness to the
incident but was a victim himself. He has categorically identified accused-appellants as those who staged the ambush because
he saw their faces clearly when he slowed down to avoid a road obstruction which, in all probability, was deliberately placed by
the latter who were crouching in the canal on the left side of the road before splattering their victims with a volley of
gunfire.[24] At a distance of approximately three meters only, it is not impossible for a man of clear eyesight to positively
SECOND DIVISION
[G.R. No. 106582. July 31, 1997]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RUPERTO BALDERAS y CABUSOG, accused-appellant.
DECISION
MENDOZA, J.:
This is an appeal from the decision dated July 10, 1992 of the Regional Trial Court at Dumaguete City (Branch 30), finding
accused-appellant Ruperto Balderas y Cabusog guilty of the murder and sentencing accused-appellant to reclusion perpetua,
and ordering him to indemnify the heirs of the victim Gilbert Cadiente in the amount of P50,000.00 and to pay costs.[1]
It appears that in the evening of March 16, 1991 (not March 17, 1991 as some of the witnesses had mistakenly testified),
William Devila met accused-appellant Ruperto Balderas and the latters companions, Mckinly Diada and Samuel Casido, as the
latter were on their way home from work in Sitio Matambok, Barangay Mandalupang in the Municipality of Manjuyod, Negros
Oriental. The three, who are sugar cane plantation workers, were carrying their lading or cane knives.[2] William Devila invited
the three to go with him to the Mayflower dance at Sitio Matambok and enjoy themselves a little. The three agreed. They
arrived at the dance hall at 8:00 in the evening and proceeded to a store beside the place where the dance was to be held and
there had a drinking session. They consumed one flat bottle of Aejo Rhum compliments of accused-appellant.
What happened afterwards is subject of divergent accounts by the prosecution and the defense. The prosecutions version is as
follows:
Per the testimony of Vicente Calidguid,[3] at around midnight, there was an altercation between Samuel Casido and Rudy
Cadiente. The two were grappling for the hunting knife held by Casido. Calidguid saw Gilbert Cadiente approaching,
presumably to help his brother Rudy, but Gilbert was struck from behind with a cane knife by accused-appellant Ruperto
Balderas. Gilbert was hit on the back of the head. Seriously wounded, he ran towards the house of his brother Rudy which was
12 meters away. Calidguid said he was three to four meters away from the protagonists and that he was unaware of any
previous quarrel between the deceased and the accused.
For his part, Rudy Cadiente, a barangay tanod, testified[4] that at around midnight of March 16, 1991, he saw Samuel Casido
pull out a hunting knife in the middle of the dance floor. As he tried to disarm Casido, William Devila intervened and told him
to leave Casido alone and he (Devila) would take care of Casido. As Rudy released Casidos hand, however, the latter boxed
him. They then wrestled for possession of the hunting knife. As the two fought each other, the Petromax lamp nearby went off,
rendering the place partly dark. Knowing that Casido had companions who were armed, Rudy Cadiente ran away and went
home. He identified Casidos companions as accused-appellant Ruperto Balderas, Mckinly Diada, and William Devila. Upon
reaching his house, Rudy saw his brother downstairs wounded. He had injuries on the nape, right foot, and in the middle of the
chest. He took Gilbert to the Bais Emergency Hospital, but Gilbert was dead on arrival. In his cross-examination, Rudy Cadiente
said that he did not see his brother attacked.[5]
Dr. Norberto J. Baldado, Jr., resident physician of the Bais General Hospital, issued a medical certificate[6] which listed the
wounds suffered by Gilbert as follows:
1) Stab wound, 1 cm., penetrating 6th ICS along left parasternal line;
2) Incised wound, 3 cm., right foot distal third anterior;
3) Lacerated wound, 5 cm., occiput.
Dr. Baldado, Jr. testified[7] that Injury No. 1[8] located just below the nipple on the left side of the breast bone was penetrating
and most probably . . . fatal as it most probably injured the blood vessels of the heart. Injury No. 2,[9] located on the right foot,
was considered by Dr. Baldado, Jr. not fatal unless complications set in. Injury No. 3 [10] at the back part of the head was also
considered by Dr. Baldado, Jr. not fatal because it only lacerated the soft tissue of the head and did not fracture the skull.
According to Dr. Baldado, Jr., damage to the brain as a result of this injury was possible but quite remote.
Accused-appellants defense is basically alibi. He testified[11] that in the evening of March 16, 1991, while he, Samuel Casido,
and Mckinly Diada were on their way to Cagihayan, Lamugong, Manjuyod, after coming from work in Alangilan, they met
William Devila who invited them to go to the dance in Sitio Matambok. They decided to go with Devila, bringing with them
their cane knives, which they used for work, wrapped in the sleeves of their jackets. Accused-appellant and his companions
arrived at the dance at around 8:00 p.m. They proceeded to a small store where they had some drinks and stayed there until
10:00 p.m. Accused-appellant then went home with Mckinly Diada. Samuel Casido had gone with his uncle Vicente Calidguid,
while William Devila had joined his gang. Accused-appellants residence is four kilometers away from Sitio Matambok. Upon
arriving at his house, accused-appellant went to sleep. Diada proceeded to his house farther down the road. The following
morning, accused-appellant was told by Julio Palagtiw that he and Diada were wanted for the killing of Gilbert Cadiente. For
this reason, he and Diada went to the Office of the Chief of Police of Manjuyod to verify the information, but no sooner had
they arrived than they were taken into custody. Samuel Casido, who had earlier been arrested, pointed to them as his
companions. Accused-appellant and Diada stayed in jail from March 19 to 24 until they were released on the 25th upon the
intercession of Alberto and Rudy Cadiente and Devila. Accused-appellants alibi was corroborated by Mckinly Diada[12] and
William Devila.[13]
Devilas testimony added further details regarding the fight between Samuel Casido and Rudy Cadiente. He testified that after
failing to stop the fight, he left the protagonists, but, as he stepped back, he bumped the lamp post and as a result the light
was extinguished. He moved over to a place 30 meters away where there was a light and saw the fight break up as Samuel
Casido ran away and Rudy Cadiente went home, although before going Rudy hurled a stone at Casido.[14] Rudy Cadientes
house could be seen from where the witness was. The people in the house were agog as they found Gilbert Cadiente crawling
on the ground wounded.[15]
In his cross-examination, Devila was shown the affidavit he executed dated March 20, 1991. He denied having made the
answer to Question No. 3, in which he pointed to Samuel Casido as having stabbed Gilbert Cadiente. He said that he had
merely been made to make the answer by Rudy Cadiente.[16]
The defense also called as witness SPO1 Jaime Tolete, who had filed the original criminal complaint against accused-appellant.
Tolete testified concerning entries in the police blotter of the PNP Police Station of Manjuyod. The entries read:[17]
A (Witness reads) Brgy. Capt. Jesus Cadalso Balasabas of Brgy. Mandalupang, reported to this unit at about 1701H March 1991
while holding a benefit dance on the above-mentioned barangay and after the dance ended they found outside the dancing
hall that one Gilbert Cadiente, 17 years old, single and a resident of Sitio Matambok, Manjuyod was lying on the ground
between life and death and thereby his elder brother, Rudy Cadiente saw him and found out that said victim has stab wound at
the center of his breast and allegedly stabbed by unknown person/persons and said victim was rushed to the hospital for
treatment but already died while on the way to the hospital. Sgd. Dominador Acabal.
In reference to Entry 0582 brother of victim, Rudy Cadiente, a Brgy. Ronda came to this office and told the investigator that he
allegedly saw the assailants of his younger brother wherein he further stated that these persons were seen at the dancing area
of said brgy. and were making trouble thereat. The ff. were (1) Samuel Casido (2) Perto Balderas (3) Misoy (surname unknown)
Sgd. SPO3 Errol Pineda.
Upon follow-up by elements of this unit, Samuel Casido was picked up at this residence and stated that he was at the scene
with the ff. persons that were his companions, namely: William Devila, Perto Balderas and Mckinly Diada, all residents of Sit.
Cagihayan, Brgy. Lamogong, this municipality. He further stated that this William Devila struck first the petromax that gave
light to the dancing area. Samuel Casido is detained in jail for further investigation.
Another entry: In reference to Entry 0582, page 090 re murder case that on or about 0345H 18 March 1991 one Restituto
Palagtiw, a Brgy. Ronda of Brgy. Lamogong, this municipality, brought to this station 2 persons in the name of Mckinly Diada
and Ruperto Balderas, all of Sit. Cagihayan, Brgy. Lamogong this municipality. Subject persons were the subject of said murder
case and were detained for further investigation.
Another entry: In reference to Entry 0582, 0584 and 0585 dtd. 17 March 1991 re hacking and stabbing to death of one Gilbert
Cadiente, suspect was apprehended by element of this unit one William Devila y Picante and detained for further investigation.
Reference to Entry 0582, 0584, 0585, 0588 and 0592 dtd. 17 & 18 March 1991 re murder case at Mandalupang this
municipality, turned over to this unit a plastic bag with cane knife, clothing and 2 plastic plates owned by Samuel Casido by
Brgy. Ronda Rudy Cadiente. Sgd. Dominador Acabal. That is all.
On July 29, 1992, the trial court rendered judgment finding accused-appellant guilty beyond reasonable doubt of murder and
sentencing him to reclusion perpetua, and ordering him to indemnify the heirs of Gilbert Cadiente in the amount of P50,000.00
and to pay costs.
In its decision, the RTC disregarded Exhs. 1-4 of the defense, which were the affidavits taken during the preliminary
investigation. Exh. 1 was William Devilas affidavit in the dialect dated May 22, 1991, retracting his affidavit dated March 20,
1991 (Exh. 1-a). Exh. 2 was Alberto Cadientes affidavit, while Exh. 3 was that of Rudy Cadiente. Xerox copies of certain pages of
the police blotter (Exhs. 4 and 4-a) were likewise excluded.[18] The court explained that -
Exhibit 1 is inadmissible as evidence as it is not accompanied by a translation in an official language as required by Section 33,
Rule 132 of the Revised Rules on Evidence. Exhibits 1-a, 2 and 3 which are alleged affidavits are not only unidentified by the
affiants, but have not been testified to as authentic by the person who certified therein that they are true copies. Exhibit 4 is
not certified as a faithful reproduction of the original entries which it purports to represent. It is, therefore, worthless as
secondary evidence.
Exhibits 1 to 4, therefore, cannot be considered in favor of Accused by reason of the foregoing infirmities.
With the exception of Devilas affidavit, the affidavits pointed to Samuel Casido as the person who assaulted Gilbert Cadiente
during the dance. In its decision, the RTC stated:
While the evidence has amply shown the treacherous participation of Accused Ruperto Balderas in inflicting injuries on Gilbert
Cadiente, justice has not been fully served by the absence of a determination of the author or authors of the other injuries
sustained by said victim as found by the medical officer. During the trial the prosecution has passed sub-silencio the matter of
the stab wound in particular which the medical officer described as most probably fatal among the three injuries. It must have
been the active cause of the death of Gilbert Cadiente, yet no one has been called upon to answer for it. This is a sad
commentary on the criminal justice system in this jurisdiction. Accused Ruperto Balderas should not suffer alone for the killing
of Gilbert Cadiente, for all that he may have done to said victim. A little extra effort, one that is sincere, well-meaning and
diligent, is all that is needed approximate the administration of justice to the people of the State who have been offended by
the criminal killing of one of them.
It is, therefore, suggested that another inquiry by the Police and by the office of the Provincial Prosecutor be undertaken for
the purpose of identifying the person or persons responsible for the infliction of the stab wound and the incised wound which
contributed to the death of Gilbert Cadiente so that he or they may be made to answer for the same.
Accused-appellant appealed, assigning the following errors as having been committed by the trial court:
I. THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER.
II. GRANTING WITHOUT ADMITTING THAT THE ACCUSED HACKED THE VICTIM ONCE AT THE BACK OF HIS HEAD ACCORDING TO
THE LONE TESTIMONY OF VICENTE CALIDGUID, THE SAME WAS NOT A FATAL WOUND AS TESTIFIED BY THE DOCTOR.
Accused-appellant lays store by the fact that, during preliminary investigation, witnesses including the victims brother Rudy
Cadiente, pointed to Samuel Casido as the one who attacked the victim with a cane knife and an icepick. He argues that even
granting that he indeed hacked the victim, he could not be held liable for murder as the wound he inflicted was not fatal.
First. As in all criminal prosecutions, the conviction must be based on the strength of the prosecutions evidence and not on the
weakness or absence of evidence of the defense.[19] In this case, the only prosecution eyewitness, Vicente Calidguid, testified
that accused-appellant struck the victim Gilbert Cadiente with a cane knife once, hitting him on the nape. The wound inflicted,
which the doctor identified as Wound No. 3, was according to him not a fatal one.
The Solicitor General argues that infliction of this wound is sufficient to convict accused-appellant of murder, because it could
have caused brain injury as admitted by the attending physician [and] contributed as cause of the death of the victim.[20]
This possibility, however, is a remote one as the following testimony of Dr. Norberto Baldado, Jr. explains:[21]
Q Let us proceed to Finding No. 3 doctor, please elaborate.
A Lacerated wound, 5 cm. occiput, it is somewhere here (witness indicating in the sketch).
Q Please indicate that in your head.
A (Witness touching the back part of his head).
Q What instrument could have caused this type of wound, doctor?
A A sharp-bladed instrument.
Q Are you familiar with the bolo used in cutting sugar cane?
A Yes.
Q Is it possible that that type of instrument could have caused this kind of injury?
A It is possible because it is a bladed instrument.
Q And do you consider this as a fatal wound, doctor?
A No, it is not fatal.
Q Did you try to find out doctor, if there was any fracture of the skull as a result of the injury?
A Yes, and I found that there was no fracture underlying the injury.
Q Did you try to find out doctor, other fractures that might have resulted in this kind of injury, your third finding?
A Well, it is a head injury although how subtle, the victim might sustain a cerebral or brain injury such as hemorrhage or
hematoma formation.
Q In this particular case doctor, did you try to find out whether probably that type of injury precipitated the death of the
victim?
A It is possible although it may be remote because this type of injury has not caused a skull fracture as such.
Q Is it almost necessary that in this type of injury especially located on the head, is it almost necessary that there should be a
fracture of the skull that brain injury will not . . . ?
A It is not necessary that the fracture should sustain a brain injury. However in this case, the instrument used was a bladed
instrument and it seems improbable that the head was hit so hard by the instrument the skull was not fractured, it was only
the soft tissue there that was lacerated, the soft tissue sustained by the victim.
Q But as you said there was a possibility that as a result of this injury and considering its nature, brain damage could result?
A More so with the blunt injury.
Q And by that answer doctor, you mean that it is possible?

A It is possible but quite remote.
The Court cannot convict accused-appellant of murder on this remote possibility that Injury No. 3 could have caused accused-
appellants death. Indeed, the prosecutions evidence in this regard, consisting of Dr. Baldado, Jr.s testimony, fails to establish
that the act of the accused-appellant produced the injury constituting the penal offense for which he stands convicted, i.e.,
murder.[22]
Dr. Baldado, Jr. found it was Injury No. 1, the stab wound located on the left side of the victims chest, which was penetrating
and most probably . . . fatal because right beneath that area [are] the blood vessels of the heart and there are many blood
vessels there and most probably it was injured by that stab wound.[23]
Since there is no eyewitness account regarding the infliction of the fatal wound, it becomes necessary to consider if there is
circumstantial evidence to make accused responsible for the same. The circumstances that might possibly tie accused-
appellant to this wound are the following: (1) the fact that accused-appellant attacked Gilbert Cadiente and wounded him on
the back of his head; (2) the fact that the fatal wound on the chest was caused by a pointed instrument;[24] and (3) the fact
that accused-appellants lading or cane knife was a pointed instrument.
These circumstances must be appraised in light of the requirements of the Rules of Court for sufficiency of circumstantial
evidence, i.e., (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3)
the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.[25] The circumstances
must form an unbroken chain which leads to one fair and reasonable conclusion pointing to the defendant, to the exclusion of
all others, as the guilty person.[26]
First of all the fact that accused-appellant wounded Gilbert Cadiente does not necessarily mean that he also inflicted all the
wounds which the victim was found to have suffered. Indeed Vicente Calidguids testimony was that accused-appellant hit
Gilbert only once after which both he and his victim ran away. Calidguids testimony was as follows:[27]
FISCAL HERMOSA:
Q: How many times did Ruperto Balderas hack Gilbert Cadiente?
A: Once.
Q: What happened to Gilbert Cadiente upon being hit by the hack of Ruperto Balderas?
A: He went to the house of his brother Rudy Cadiente.
Q: What about Ruperto Balderas, what did he do after hacking Gilbert Cadiente?
A: They ran away.
Q: You said they, whom are you referring as they?
A: He (witness pointing to the accused).
xxx xxx xxx
ATTY. GARCIA:
Q: And Gilbert Cadiente upon being hit by the blow of the cane knife at his head went towards the house of his elder brother,
am I right?
A: Yes.
Q: And where was the accused then at that time when this Gilbert Cadiente went to the house of his elder brother?
A: He ran.
Q: Towards where?
A: He went home.
Q: How about the cane knife, where was it?
A: He brought it along with him.
It is quite possible that after hitting the victim once, accused-appellant ran after the victim and wounded him again. But this is
a conjecture and a surmise which cannot stand for proof, much less be the basis of a conviction. Another person could have
inflicted the fatal stab. In fact the trial court suspected there was at least another person responsible for Gilbert Cadientes
killing and it said so in its decision quoted above.
We next go to the matter of the weapon used to inflict the wound in question, a sharp-pointed instrument which penetrated
to the heart of the victim. There were a number of persons present at the dance who also had cane knives, among whom were
accused-appellants companions, Samuel Casido and Mckinly Diada.
Moreover, the medical certificate describes the fatal wound as 1 cm. long. It is doubtful whether a cane knife which has a
maximum width of five inches, although possessing a sharp pointed end, can leave a surface wound of that minuscule length if
it had to penetrate to the heart, thereby damaging the blood vessels thereof. A more probable weapon would be an icepick.
In sum, the circumstantial evidence in this case does not point with certainty to accused-appellant as responsible for the fatal
wound suffered by Gilbert Cadiente. In this, as in all criminal cases, speculation and probabilities cannot take the place of proof
required to establish guilt of an accused beyond reasonable doubt.[28] Suspicion, no matter how strong, can not sway
judgment.[29] Here, the means and the opportunity to inflict the fatal wound were not accused-appellants alone to the
exclusion of all others.
Second. The trial court nonetheless found accused-appellant guilty of the murder of Gilbert Cadiente because of his
treacherous participation in inflicting injuries on Gilbert Cadiente. This would be correct if there was a conspiracy. But, as noted
by the Solicitor General, the information did not allege conspiracy and the number of the author/authors of the other injuries
as in fact, it charged accused-appellant of having inflicted all the wounds.[30]
At any rate, conspiracy must be proven beyond reasonable doubt.[31] In this case not only was there no evidence of prior
agreement. There was also no showing of concerted action taken to kill Gilbert Cadiente.
Third. Although there were many present at the dance who could possibly have witnessed the killing of Gilbert Cadiente, the
prosecution was able to present only one eyewitness, Vicente Calidguid, and that was only with respect to Injury No. 3, a non-
fatal wound. The police seized a cane knife and certain clothing in relation to the incident,[32] but for one reason or another
they did not produce them during trial. On the other hand, the doctor who executed a medical certificate could only talk of
probabilities as to the cause of the victims death for lack of an autopsy.[33] This gap in the prosecutions evidence moved the
trial court to call for zeal and diligence in investigative work by the law enforcement officials concerned.
Fourth. Can accused-appellant totally escape criminal liability in this case?
The answer is in the negative. Accused-appellants main defense is alibi. For alibi to prosper, he must prove not only that he
was not present at the scene of the crime but also that it was physically impossible for him to have been present there at the
time the offense was committed.[34] This accused-appellant failed to do.
By his own account, he left the dance at around 10:00 in the evening to go to his home four kilometers away.[35] Walking with
Mckinly Diada, he arrived home at past 11:00 oclock.[36] (Per Diadas testimony, he looked at his watch and determined
accused-appellants arrival to be at about 11 p.m.)[37] Thus it was possible, assuming that accused-appellant had indeed gone
home, for him to return to the dance and be present when Rudy Cadiente and Samuel Casido had an altercation at past
midnight.

Moreover, there are contradictions in accused-appellants alibi. He testified that when he left the dance at around 10:00 with
Mckinly Diada, Samuel Casido was no longer there, having earlier gone with his uncle, Vicente Calidguid.[38] But William
Devila, who was called to corroborate accused-appellants alibi, belied the latters claim by stating that Casido left with Vicente
Calidguid two minutes after accused-appellant and Mckinly Diada had left. [39]It was therefore possible that accused-appellant
stayed in the place until the time when the fight between Rudy Cadiente and Samuel Casido took place. Hence the testimony
of Calidguid that accused-appellant actually struck Gilbert Cadiente with his cane knife.

There is also variance between accused-appellants testimony and Mckinly Diadas account of the state of accused-appellants
household when accused-appellant arrived home. Accused-appellant claimed that when he arrived home, everybody was
asleep already,[40] but Mckinly Diada said accused-appellants wife and children were still awake because his youngest child is
an abnormal child which caused so much inconvenience because he is premature.[41]

Nor can accused-appellant profit from the affidavits of William Devila dated March 20, 1991 (Exh. 1-a), Alberto Cadiente (Exh.
2), and Rudy Cadiente (Exh. 3), which allegedly point to Casido as the assailant. Devila retracted his affidavit. For its part, the
trial court, as already stated, excluded the affidavits from evidence for the reason that they had not been identified by the
affiants.

Indeed, because Alberto Cadiente was not presented to testify, his affidavit could only constitute hearsay evidence. On the
other hand, Rudy Cadiente was not confronted with his affidavit in which he allegedly stated that Samuel Casido was his
brothers assailant which would cast doubt on his testimony in court that he did not see who his brothers assailant was. Thus
Calidguids eyewitness account that accused-appellant assaulted Gilbert Cadiente from behind stands unrebutted.[42]

Fifth. We go now to the determination of accused-appellants criminal liability. We agree with the Solicitor General that the
weapon used and the location of the wound which is at the back of the head, a vital part of the body, unmistakably show an
intent to kill. However for some reason other than his own desistance, accused-appellant was not able to perform all the acts
of execution necessary to consummate the killing, since the wound he had inflicted was not fatal. Accused-appellant ran away
after delivering the blow to the back of the head of the victim. As all acts of execution necessary to produce the felony were
not done, the crime for which he can be held liable is only that of attempted murder.[43]

Accused-appellants attack was sudden and done without any provocation. Because it was made from behind, the victim was
unable to defend himself. This circumstance constitutes treachery [44] which qualifies the crime to attempted murder.

Under Art. 51 of the Revised Penal Code, the penalty to be imposed upon the principal of an attempted crime shall be lower by
two degrees than that prescribed for the consummated felony. Prior to its amendment by R.A. No. 7659, Art. 248 provided
that the crime of murder shall be punished by reclusion temporal in its maximum period to death. In accordance with Art.
61(3), the penalty two degrees lower would be prision correccional maximum to prision mayor medium. Since there is no
modifying circumstance, the medium period of the penalty, which is prision mayor minimum, should be imposed as the
maximum penalty. Under Indeterminate Sentence Law, accused-appellant is entitled to a minimum penalty of arresto mayor in
its maximum period to prision correccional in its medium period as the penalty next lower than the penalty for attempted
murder.

WHEREFORE, the appealed decision is hereby MODIFIED, finding accused-appellant Ruperto Balderas y Cabusog guilty of
attempted murder only and sentencing him to an indeterminate penalty of four (4) years and two (2) months of prision
correccional, as minimum, to eight (8) years of prision mayor, as maximum, with the accessory penalties provided by law, and
to pay costs.

SO ORDERED.

Regalado, (Chairman), Romero, and Puno, JJ., concur.

Torres, Jr., J., on leave.
THIRD DIVISION
[G.R. No. 116736. July 24, 1997]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENJAMIN ORTEGA, JR. y CONJE, MANUEL GARCIA y RIVERA and JOHN
DOE, accused, BENJAMIN ORTEGA, JR. y CONJE and MANUEL GARCIA y RIVERA, accused-appellants.
DECISION
PANGANIBAN, J.:
A person who commits a felony is liable for the direct, natural and logical consequences of his wrongful act even where the
resulting crime is more serious than that intended. Hence, an accused who originally intended to conceal and to bury what he
thought was the lifeless body of the victim can be held liable as a principal, not simply as an accessory, where it is proven that
the said victim was actually alive but subsequently died as a direct result of such concealment and burial. Nonetheless, in the
present case, Appellant Garcia can not be held liable as a principal because the prosecution failed to allege such death through
drowning in the Information. Neither may said appellant be held liable as an accessory due to his relationship with the principal
killer, Appellant Ortega, who is his brother-in-law.
Statement of the Case
This case springs from the joint appeal interposed by Appellants Benjamin Ortega, Jr. and Manuel Garcia from the Decision,[1]
dated February 9, 1994 written by Judge Adriano R. Osorio,[2] finding them guilty of murder.
Appellants were charged by State Prosecutor Bernardo S. Razon in an Information[3] dated October 19, 1992, as follows:
That on or about October 17, 1992 in Valenzuela, Metro Manila, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring together and mutually helping one another, without any justifiable cause, with treachery
and evident premeditation and with abuse of superior strenght (sic) and with deliberate intent to kill, did then and there
willfully, unlawfully and feloniously attack, assault and stab repeatedly with a pointed weapon on the different parts of the
body one ANDRE MAR MASANGKAY y ABLOLA, thereby inflicting upon the latter serious physical injuries which directly caused
his death.
During arraignment, Appellants Ortega and Garcia, assisted by counsel de oficio,[4] pleaded not guilty to the charge.[5]
Accused John Doe was then at large.[6] After trial in due course, the court a quo promulgated the questioned Decision. The
dispositive portion reads:[7]
WHEREFORE, finding accused Benjamin Ortega, Jr. y Conje and Manuel Garcia y Rivera [g]uilty beyond reasonable doubt of the
crime charged, the Court hereby sentenced (sic) them to suffer the penalty of RECLUSION PERPETUA and to pay the costs of
suit.
Accused are hereby ordered to pay the offended party the sum of P35,000.00 for funeral expenses of deceased Andre Mar
Masangkay and death indemnity of P50,000.00.
The Notice of Appeal, dated March 9, 1994, was thus filed by Atty. Evaristo P. Velicaria[8] who took over from the Public
Attorneys Office as counsel for the accused.
The Facts
Evidence for the Prosecution
The trial court summarized the testimonies of the prosecution witnesses as follows:[9]
Diosdado Quitlong substantially testified that on October 15, 1992 at about 5:30 in the afternoon, he, the victim Andre Mar
Masangkay, Ariel Caranto, Romeo Ortega, Roberto San Andres were having a drinking spree in the compound near the house
of Benjamin Ortega, Jr. at Daangbakal, Dalandanan, Valenzuela, Metro Manila. That while they were drinking, accused
Benjamin Ortega, Jr. and Manuel Garcia who were [already] drunk arrived and joined them. That victim Andre Mar Masangkay
answered the call of nature and went to the back portion of the house. That accused Benjamin Ortega, Jr. followed him and
later they [referring to the participants in the drinking session] heard the victim Andre Mar shouted, Dont, help me! (Huwag,
tulungan ninyo ako!) That he and Ariel Caranto ran towards the back portion of the house and [they] saw accused Benjamin
Ortega, Jr., on top of Andre Mar Masangkay who was lying down in a canal with his face up and stabbing the latter with a long
bladed weapon. That Ariel Caranto ran and fetched Benjamin Ortega, Sr., the father of accused Benjamin, Jr. That he [Quitlong]
went to Romeo Ortega in the place where they were having the drinking session [for the latter] to pacify his brother Benjamin,
Jr. That Romeo Ortega went to the place of the stabbing and together with Benjamin Ortega, Jr. and Manuel Garcia lifted
Andre Mar Masangkay from the canal and brought Andre Mar to the well and dropped the latter inside the well. That Romeo
Ortega, Benjamin Ortega, Jr. and Manuel Garcia then dropped stones measuring 11 to 12 inches high, 2 feet in length and 11 to
12 inches in weight to the body of Andre Mar Masangkay inside the well. That Romeo Ortega warned him [Quitlong] not to tell
anybody of what he saw. That he answered in the affirmative and he was allowed to go home. That his house is about 200
meters from Romeo Ortegas house. That upon reaching home, his conscience bothered him and he told his mother what he
witnessed. That he went to the residence of Col. Leonardo Orig and reported the matter. That Col. Orig accompanied him to
the Valenzuela Police Station and some police officers went with them to the crime scene. That accused Benjamin Ortega, Jr.
and Manuel Garcia were apprehended and were brought to the police station.
On cross-examination, he said that he did not talk to the lawyer before he was presented as witness in this case. That he
narrated the incident to his mother on the night he witnessed the killing on October 15, 1992. That on October 15, 1992 at
5:30 in the afternoon when he arrived, victim Andre Mar Masangkay, Romeo Ortega, Serafin and one Boyet were already
having [a] drinking spree and he joined them. That accused Benjamin Ortega, Jr. and Manuel Garcia were not yet in the place.
That the stabbing happened between 12:00 midnight and 12:30 a.m. That they drank gin with finger foods such as pork and
shell fish. That he met the victim Andre Mar Masangkay only on that occasion. That accused Benjamin Ortega, Jr. and Manuel
Garcia joined them at about 11:00 p.m. That there was no altercation between Benjamin Ortega, Jr. and Manuel Garcia in one
hand and Andre Mar Masangkay, during the drinking session. That at about 12:30 a.m. Andre Mar Masangkay answered the
call of nature and went to the back portion of the house. That he cannot see Andre Mar Masangkay from the place they were
having the drinking session. That he did not see what happened to Andre Mar Masangkay. That he only heard Masangkay
asking for help. That accused Manuel Garcia was still in the drinking session when he heard Masangkay was asking for help.
That Benjamin Ortega, Jr. and Manuel Garcia are his friends and neighbors. That when he heard Andre Mar Masangkay was
asking for help, he and Ariel Caranto ran to the back portion of the house and saw Benjamin Ortega, Jr. on top of Andre Mar
Masangkay and stabbing the latter. That Andre Mar Masangkay was lying down with his back in the canal and Benjamin
Ortega, Jr. on top stabbing the former. That he did not see any injuries on Benjamin Ortega, Jr. That he called Romeo Ortega to
pacify his brother Benjamin, Jr. That he did not do anything to separate Benjamin Ortega, Jr. and Masangkay. That he knows
that Andre Mar Masangkay was courting Raquel Ortega. That Raquel Ortega asked permission from Andre Mar Masangkay
when she left between 8:00 and 9:00 p.m. That there was no trouble that occurred during the drinking session.
PNP Superintendent Leonardo Orig substantially testified that Diosdado Quitlong is his neighbor for about 9 years. That on
October 16, 1992 at 5:00 in the morning, he was summoned by Diosdado Quitlong and reported to him the stabbing incident
that occurred at Daangbakal near the subdivision he is living. That he relayed the information to the Valenzuela Police Station
and a police team under police officer Param accompanied them to the place. That he asked the police officers to verify if
there is a body of person inside the well. That the well was covered with stones and he asked the police officers to seek the
help of theneighbors (sic) to remove the stones inside the well. That after the stones were removed, the body of the victim was
found inside the well. That the lifeless body was pulled out from the well. That the body has several stab wounds. That he
came to know the victim as Andre Mar Masangkay. That two men were arrested by the police officers.
On cross-examination, he said that he saw the body when taken out of the well with several stab wounds. That Diosdado
Quitlong told him that he was drinking with the victim and the assailants at the time of the incident. That Benjamin Ortega, Jr.
stabbed the victim while the latter was answering the call of nature.
NBI Medico Legal Officer Dr. Ludivico J. Lagat substantially testified that he conducted [an] autopsy on the cadaver of Andre
Mar Masangkay on October 16, 1992 at the Valenzuela Memorial Homes located at Macarthur Highway. That he prepared the
autopsy report and the sketch of human head and body indicating the location of the stab wounds. That the cause of death is
multiple stab wounds, contributory, [a]sphyxia by submersion in water. That there were 13 stab wounds, 8 of which were on
the frontal part of the body, 2 at the back and there were contused abrasions around the neck and on the left arm. There was
stab wound at the left side of the neck. That the contused abrasion could be produced by cord or wire or rope. That there is
(an) incised wound on the left forearm. That the stab wounds which were backward downward of the body involved the lungs.
That the victim was in front of the assailant. That the stab wound on the upper left shoulder was caused when the assailant
was in front of the victim. That the assailant was in front of the victim when the stab wound near the upper left armpit was
inflicted as well as the stab wound on the left chest wall. That the stab wound on the back left side of the body and the stab
wound on the back right portion of the body may be produced when the assailant was at the back of the victim. That the
assailant was in front of the victim when the stab wound[s] on the left elbow and left arm were inflicted. That the large airway
is filled with muddy particles indicating that the victim was alive when the victim inhaled the muddy particles. The heart is filled
with multiple hemorrhage, loss of blood or decreased of blood. The lungs is filled with water or muddy particles. The brain is
pale due to loss of blood. The stomach is one half filled with muddy particles which could [have been] taken in when
submerged in water.
On cross-examination, he said that he found 13 stab wounds on the body of the victim. That he cannot tell if the assailant or
the victim were standing. That it is possible that the stab wounds was (sic) inflicted when both [referring to participants] were
standing or the victim was lying down and the assailant was on top. That he cannot tell the number of the assailants.
Evidence for the Appellants
Appellant Manuel Garcia testified that in the early morning of October 15, 1992, he and his wife, Maritess Garcia, brought their
feverish daughter, Marjorie, to the Polo Emergency Hospital. He left the hospital at seven o clock in the morning, went home,
changed his clothes and went to work.[10] After office hours, he and Benjamin Ortega, Jr. passed by the canteen at their place
of work. After drinking beer, they left at eight o clock in the evening and headed home. En route, they chanced on Diosdado
Quitlong alias Mac-mac and Andre Mar Masangkay, who invited them to join their own drinking spree. Thereupon, Appellant
Garcias wife came and asked him to go home because their daughter was still sick. To alleviate his daughters illness, he fetched
his mother-in-law who performed a ritual called tawas. After the ritual, he remained at home and attended to his sick
daughter. He then fell asleep but was awakened by police officers at six o clock in the morning of the following day.
Maritess Garcia substantially corroborated the testimony of her husband. She however added two other participants in the
drinking session aside from Diosdado Quitlong alias Mac-mac and Andre Mar Masangkay, namely, a Mang Serafin and Boyet
Santos.[11]
Benjamin Ortega, Jr. likewise substantially corroborated the testimony of Appellant Manuel Garcia.[12] According to him,
between eleven and twelve o clock in the evening, Masangkay left the drinking session. Thirty (30) minutes after Masangkay
left, he also left the drinking place to urinate.[13] He went behind the house where he saw Masangkay peeping through the
room of his sister Raquel. He ignored Masangkay and continued urinating.[14] After he was through, Masangkay approached
him and asked where his sister was. He answered that he did not know. Without warning, Masangkay allegedly boxed him in
the mouth, an attack that induced bleeding and caused him to fall on his back. When he was about to stand up, Masangkay
drew a knife and stabbed him, hitting him on the left arm, thereby immobilizing him. Masangkay then gripped his neck with his
left arm and threatened to kill him. Unable to move, Ortega shouted for help. Quitlong came and, to avoid being stabbed,
grabbed Masangkays right hand which was holding the knife. Quitlong was able to wrest the knife from Masangkay and, with
it, he stabbed Masangkay ten (10) times successively, in the left chest and in the middle of the stomach. When the stabbing
started, Ortega moved to the left side of Masangkay to avoid being hit.[15] Quitlong chased Masangkay who ran towards the
direction of the well. Thereafter, Ortega went home and treated his injured left armpit and lips. Then, he slept.
When he woke up at six o clock the following morning, he saw police officers in front of his house. Taking him with them, the
lawmen proceeded to the well. From the railroad tracks where he was asked to sit, he saw the police officers lift the body of a
dead person from the well. He came to know the identity of the dead person only after the body was taken to the police
headquarters.[16]
The Trial Courts Discussion
The trial court explained its basis for appellants conviction as follows:[17]
The Court is convinced that the concerted acts of accused Benjamin Ortega, Jr., Manuel Garcia, Jr. and one Romeo Ortega in
lifting, carrying and dumping the victim Andre Mar Masangkay who was still alive and breathing inside the deep well filled with
water, head first and threw big stones/rocks inside the well to cover the victim is a clear indication of the community of design
to finish/kill victim Andre Mar Masangkay. Wounded and unarmed victim Andre Mar Masangkay was in no position to flee
and/or defend himself against the three malefactors. Conspiracy and the taking advantage of superior strength were in
attendance. The crime committed by the accused is Murder.
Concert of action at the moment of consummating the crime and the form and manner in which assistance is rendered to the
person inflicting the fatal wound may determine complicity where it would not otherwise be evidence (People vs. Yu, 80 SCRA
382 (1977)).
Every person criminally liable for a felony is also civilly liable. Accused (m)ust reimburse the heirs of victim Andre Mar
Masangkay the amount of P35,000.00 for the funeral expenses of the deceased.
The Issues
In their ten-page brief, appellants fault the trial court with the following: [18]
I. The trial court erred in holding that there is conspiracy on the basis of the prosecutions evidence that at the time both
accused and one Romeo Ortega lifted the body of Andrew Masangkay from where he succumbed due to stab wounds and
brought and drop said body of Andrew Masangkay to the well to commit murder;
II. The trial court erred in finding and holding that Andrew Masangkay was still alive at the time his body was dropped in the
well;
III. The trial court erred in convicting Manuel Garcia and in not acquitting the latter of the crime charged; and
IV. The trial court erred in not finding that if at all Benjamin Ortega Jr. is guilty only of homicide alone.
On the basis of the records and the arguments raised by the appellants and the People, we believe that the question to be
resolved could be simplified thus: What are the criminal liabilities, if any, of Appellants Ortega and Garcia?
The Courts Ruling
We find the appeal partly meritorious. Appellant Ortega is guilty only of homicide. Appellant Garcia deserves acquittal.
First Issue: Liability of Appellant Ortega
The witnesses for the prosecution and defense presented conflicting narrations. The prosecution witnesses described the
commission of the crime and positively identified appellants as the perpetrators. The witnesses for the defense, on the other
hand, attempted to prove denial and alibi. As to which of the two contending versions speaks the truth primarily rests on a
critical evaluation of the credibility of the witnesses and their stories. In this regard, the trial court held:[19]
The Court has listened intently to the narration of the accused and their witnesses and the prosecution witnesses and has
keenly observed their behavior and demeanor on the witness stand and is convinced that the story of the prosecution is the
more believable version. Prosecution eyewitness Diosdado Quitlong appeared and sounded credible and his credibility is
reinforced by the fact that he has no reason to testify falsely against the accused. It was Diosdado Quitlong who reported the
stabbing incident to the police authorities. If Quitlong stabbed and killed the victim Masangkay, he will keep away from the
police authorities and will go in hiding. x x x
Because the trial court had the opportunity to observe the witnesses demeanor and deportment on the stand as they rendered
their testimonies, its evaluation of the credibility of witnesses is entitled to the highest respect. Therefore, unless the trial
judge plainly overlooked certain facts of substance and value which, if considered, might affect the result of the case, his
assessment of credibility must be respected.[20]
In the instant case, we have meticulously scoured the records and found no reason to reverse the trial courts assessment of
the credibility of the witnesses and their testimonies[21] insofar as Appellant Ortega is concerned. The narration of Eyewitness
Diosdado Quitlong appears to be spontaneous and consistent. It is straightforward, detailed, vivid and logical. Thus, it clearly
deserves full credence.
On the other hand, in asserting alibi and denial, the defense bordered on the unbelievable. Appellant Ortega claimed that after
he was able to free himself from Masangkays grip, he went home, treated his injuries and slept.[22] This is not the ordinary
reaction of a person assaulted. If Ortegas version of the assault was true, he should have immediately reported the matter to
the police authorities, if only out of gratitude to Quitlong who came to his rescue. Likewise, it is difficult to believe that a man
would just sleep after someone was stabbed in his own backyard. Further, we deem it incredible that Diosdado Quitlong would
stab Masangkay ten (10) times successively, completely ignoring Benjamin Ortega, Jr. who was grappling with Masangkay. Also
inconsistent with human experience is his narration that Masangkay persisted in choking him instead of defending himself
from the alleged successive stabbing of Quitlong.[23] The natural tendency of a person under attack is to defend himself and
not to persist in choking a defenseless third person.
Murder or Homicide?
Although treachery, evident premeditation and abuse of superior strength were alleged in the information, the trial court
found the presence only of abuse of superior strength.
We disagree with the trial courts finding. Abuse of superior strength requires deliberate intent on the part of the accused to
take advantage of such superiority. It must be shown that the accused purposely used excessive force that was manifestly out
of proportion to the means available to the victims defense.[24] In this light, it is necessary to evaluate not only the physical
condition and weapon of the protagonists but also the various incidents of the event.[25]
In his testimony, Witness Dominador Quitlong mentioned nothing about Appellant Ortegas availment of force excessively out
of proportion to the means of defense available to the victim to defend himself. Quitlong described the assault made by
Appellant Ortega as follows:[26]
ATTY. ALTUNA:
Q Will you please tell me the place and date wherein you have a drinking spree with Andrew Masangkay and where you
witnessed a stabbing incident?
A It was on October 15, 1992, sir, at about 5:30 in the afternoon we were drinking in the house of Mr. Benjamin Ortega, Sr.,
because the house of Benjamin Ortega Sr. and the house of his son Benjamin Ortega, Jr. are near each other.
xxx xxx xxx
Q Mr. Witness, who were the companions of said persons, Benjamin Ortega, Jr., Manuel Garcia, you (sic) in drinking in said
place?
A The other companions in the drinking session were Ariel Caranto y Ducay, Roberto San Andres and Romeo Ortega.
Q What about this victim, Andrew Masangkay, where was he at that time?
A Also the victim, Andrew Masangkay, he was also there.
Q You said that the two accused, Manuel Garcia and Benjamin Ortega, Jr. arrived drunk and joined the group?
A Yes, sir.
Q What happened next?
A While we were there together and we were drinking ... (interrupted by Atty. Altuna)
Q Who is that we?
A Referring to Benjamin Ortega, Jr., Manuel Garcia, Ariel Caranto, Romeo Ortega, Roberto San Andres, myself and Andrew
Masangkay. Andrew Masangkay answer to a call of nature and went to the back portion of the house, and Benjamin Ortega, Jr.
followed him where he was.
Q What happened next?
A And afterwards we heard a shout and the shout said Huwag, tulungan nyo ako.
Q From whom did you hear this utterance?
A The shout came from Andrew Masangkay.
Q After Benjamin Ortega, Jr. followed Andrew Masangkay to answer a call of nature and after you heard huwag, tulungan nyo
ako coming from the mouth of the late Andrew Masangkay, what happened next?
A Ariel Caranto and I ran towards the back portion of the house.
Q And what did you see?
A And I saw that Benjamin Ortega, Jr. was on top of Andrew Masangkay and he was stabbing Andrew Masangkay.
Q Will you please demonstrate to the Honorable Court how the stabbing was done telling us the particular position of the late
Andrew Masangkay and how Benjamin Ortega, Jr proceeded with the stabbing against the late victim, Andrew Masangkay?
INTERPRETER:
(At this juncture, the witness demonstrating.)
Andrew Masangkay was lying down on a canal with his face up, then Benjamin Ortega, Jr. was nakakabayo and with his right
hand with closed fist holding the weapon, he was thrusting this weapon on the body of the victim, he was making downward
and upward motion thrust.
ATTY. ALTUNA: (To the witness)
Q How many times did Benjamin Ortega, Jr. stabbed Andrew Masangkay?
A I cannot count the number of times.
It should be noted that Victim Masangkay was a six-footer, whereas Appellant Ortega, Jr. was only five feet and five inches
tall.[27] There was no testimony as to how the attack was initiated. The accused and the victim were already grappling when
Quitlong arrived. Nothing in the foregoing testimony and circumstances can be interpreted as abuse of superior strength.
Hence, Ortega is liable only for homicide, not murder.
Second Issue: Liability of Appellant Manuel Garcia
Appellants argue that the finding of conspiracy by the trial court is based on mere assumption and conjecture x x x.[28]
Allegedly, the medico-legal finding that the large airway was filled with muddy particles indicating that the victim was alive
when the victim inhaled the muddy particles did not necessarily mean that such muddy particles entered the body of the
victim while he was still alive. The Sinumpaang Salaysay of Quitlong stated, Nilubayan lang nang saksak nang mapatay na si
Andrew ni Benjamin Ortega, Jr. Thus, the prosecution evidence shows Masangkay was already dead when he was lifted and
dumped into the well. Hence, Garcia could be held liable only as an accessory.[29]
We do not agree with the above contention. Article 4, par. 1, of the Revised Penal Code states that criminal liability shall be
incurred by any person committing a felony (delito) although the wrongful act done be different from that which he intended.
The essential requisites for the application of this provision are that (a) the intended act is felonious; (b) the resulting act is
likewise a felony; and (c) the unintended albeit graver wrong was primarily caused by the actors wrongful acts. In assisting
Appellant Ortega, Jr. carry the body of Masangkay to the well, Appellant Garcia was committing a felony. The offense was that Q And, precisely, you are now testifying that due to stab wounds or asphyxia, the lungs have been damaged per your Report?
of concealing the body of the crime to prevent its discovery, i.e. that of being an accessory in the crime of homicide.[30]
Although Appellant Garcia may have been unaware that the victim was still alive when he assisted Ortega in throwing the body A Yes, sir.
into the well, he is still liable for the direct and natural consequence of his felonious act, even if the resulting offense is worse
than that intended. Q Continuing this brain and other visceral organs, pale. What is this?

True, Appellant Garcia merely assisted in concealing the body of the victim. But the autopsy conducted by the NBI medico-legal A The paleness of the brain and other visceral organs is due to loss of blood.
officer showed that the victim at that time was still alive, and that he died subsequently of drowning.[31] That drowning was
the immediate cause of death was medically demonstrated by the muddy particles found in the victims airway, lungs and Q And, of course, loss of blood could be attributed to the stab wound which is number 13?
stomach.[32] This is evident from the expert testimony given by the medico-legal officer, quoted below:[33]
A Yes, sir.
ATTY. ALTUNA:
Q And the last one, under the particular point hemothorax?
Q Will you please explain this in simple language the last portion of Exhibit N, beginning with tracheo-bronchial tree, that is
sentence immediately after paragraph 10, 2.5 cms. Will you please explain this? A It indicates at the right side. There are around 1,400 cc of blood that accumulate at the thoraxic cavity and this was admixed
with granular materials?
A The trancheo-bronchial tree is filled with muddy particles.
Q And what cause the admixing with granular materials on said particular portion of the body?
Q I ask you a question on this. Could the victim have possibly get this particular material?
A Could be muddy particles.
A No, sir.
Q Due to the taking of maddy (sic) materials as affected by asphyxia? Am I correct?
Q What do you mean by no?
A Its due to stab wounds those muddy particles which set-in thru the stab wounds.
A A person should be alive so that the muddy particles could be inhaled.
Q So, because of the opening of the stab wounds, the muddy particles now came in, in that particular portion of the body and
Q So, in short, you are telling or saying to us that if there is no inhaling or the taking or receiving of muddy particles at that caused admixing of granular materials?
time, the person is still alive?
A Yes, sir.
A Yes, sir.
Q Continuing with your report, particularly, the last two portions, will you please explain the same?
Q Second point?
A The hemoperitoneum there are 900 cc of blood that accumulated inside the abdomen.
A The heart is pale with some multiple petechial hemorrhages at the anterior surface.
Q And what could have cause the same?
Q And this may [be] due to stab wounds or asphyxia?
A [T]he stab wound of the abdomen.
A These are the effects or due to asphyxia or decreased amount of blood going to the heart.
Q The last one, stomach 1/2 filled with muddy particles. Please explain the same?
Q This asphyxia are you referring to is the drowning?
A The victim could have taken these when he was submerged in water.
A Yes, sir.
Q What is the take in?
Q Next point is the lungs?
A Muddy particles.
A The lungs is also filled with multiple petechial hemorrhages.
Q And he was still alive at that time?
Q What could have caused this injury of the lungs?
A Yes, sir. (Underscoring supplied)
A This is due to asphyxia or the loss of blood.
A Filipino authority on forensic medicine opines that any of the following medical findings may show that drowning is the cause
Q Are you saying that the lungs have been filled with water or muddy particles? of death:[34]

A Yes, sir.
1. The presence of materials or foreign bodies in the hands of the victim. The clenching of the hands is a manifestation of
cadaveric spasm in the effort of the victim to save himself from drowning.
2. Increase in volume (emphysema aquosum) and edema of the lungs (edema aquosum).
3. Presence of water and fluid in the stomach contents corresponding to the medium where the body was recovered.
4. Presence of froth, foam or foreign bodies in the air passage found in the medium where the victim was found.
5. Presence of water in the middle ear.
The third and fourth findings were present in the case of Victim Masangkay. It was proven that his airpassage, or specifically his
tracheo-bronchial tree, was filled with muddy particles which were residues at the bottom of the well. Even his stomach was
half-filled with such muddy particles. The unrebutted testimony of the medico-legal officer that all these muddy particles were
ingested when the victim was still alive proved that the victim died of drowning inside the well.
The drowning was the direct, natural and logical consequence of the felony that Appellant Garcia had intended to commit; it
exemplifies praeter intentionem covered by Article 4, par. 1, of the Revised Penal Code. Under this paragraph, a person may be
convicted of homicide although he had no original intent to kill.[35]
In spite of the evidence showing that Appellant Garcia could be held liable as principal in the crime of homicide, there are,
however, two legal obstacles barring his conviction, even as an accessory as prayed for by appellants counsel himself.
First. The Information accused Appellant Garcia (and Appellant Ortega) of attack[ing], assault[ing], and stab[bing] repeatedly
with a pointed weapon on the different parts of the body one ANDRE MAR MASANGKAY y ABLOLA The prosecutions evidence
itself shows that Garcia had nothing to do with the stabbing which was solely perpetrated by Appellant Ortega. His
responsibility relates only to the attempted concealment of the crime and the resulting drowning of Victim Masangkay. The
hornbook doctrine in our jurisdiction is that an accused cannot be convicted of an offense, unless it is clearly charged in the
complaint or information. Constitutionally, he has a right to be informed of the nature and cause of the accusation against him.
To convict him of an offense other than that charged in the complaint or information would be a violation of this constitutional
right.[36] Section 14, par. 2, of the 1987 Constitution explicitly guarantees the following:
(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to
be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy,
impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of
witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the
absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. (Underscoring
supplied)
In People vs. Pailano,[37] this Court ruled that there can be no conviction for rape on a woman deprived of reason or otherwise
unconscious where the information charged the accused of sexual assault by using force or intimidation, thus:
The criminal complaint in this case alleged the commission of the crime through the first method although the prosecution
sought to establish at the trial that the complainant was a mental retardate. Its purpose in doing so is not clear. But whatever it
was, it has not succeeded.
If the prosecution was seeking to convict the accused-appellant on the ground that he violated Anita while she was deprived of
reason or unconscious, such conviction could not have been possible under the criminal complaint as worded. This described
the offense as having been committed by Antonio Pailano, being then provided with a scythe, by means of violence and
intimidation, (who) did, then and there, wilfully, unlawfully and feloniously have carnal knowledge of the complainant, Anita
Ibaez, 15 years of age, against her will. No mention was made of the second circumstance.
Conviction of the accused-appellant on the finding that he had raped Anita while she was unconscious or otherwise deprived of
reason -- and not through force and intimidation, which was the method alleged -- would have violated his right to be informed
of the nature and cause of the accusation against him.[Article IV, Sec. 19, Constitution of 1973; now Article III, Sec. 14(2)] This
right is safeguarded by the Constitution to every accused so he can prepare an adequate defense against the charge against
him. Convicting him of a ground not alleged while he is concentrating his defense against the ground alleged would plainly be
unfair and underhanded. This right was, of course, available to the herein accused-appellant.
In People vs. Ramirez, [fn: 69 SCRA 144] we held that a person charged with rape could not be found guilty of qualified
seduction, which had not been alleged in the criminal complaint against him. In the case of People vs. Montes, [fn: 122 SCRA
409] the Court did not permit the conviction for homicide of a person held responsible for the suicide of the woman he was
supposed to have raped, as the crime he was accused of -- and acquitted -- was not homicide but rape. More to the point is
Tubb v. People of the Philippines, [fn: 101 Phil. 114] where the accused was charged with the misappropriation of funds held
by him in trust with the obligation to return the same under Article 315, paragraph 1(b) of the Revised Penal Code, but was
convicted of swindling by means of false pretenses, under paragraph 2(b) of the said Article, which was not alleged in the
information. The Court said such conviction would violate the Bill of Rights.
By parity of reasoning, Appellant Garcia cannot be convicted of homicide through drowning in an information that charges
murder by means of stabbing.
Second. Although the prosecution was able to prove that Appellant Garcia assisted in concealing x x x the body of the crime, x x
x in order to prevent its discovery, he can neither be convicted as an accessory after the fact defined under Article 19, par. 2, of
the Revised Penal Code. The records show that Appellant Garcia is a brother-in-law of Appellant Ortega,[38] the latters sister,
Maritess, being his wife.[39] Such relationship exempts Appellant Garcia from criminal liability as provided by Article 20 of the
Revised Penal Code:
ART. 20. Accessories who are exempt from criminal liability. -- The penalties prescribed for accessories shall not be imposed
upon those who are such with respect to their spouses, ascendants, descendants, legitimate, natural, and adopted brothers
and sisters, or relatives by affinity within the same degrees with the single exception of accessories falling within the provisions
of paragraph 1 of the next preceding article.
On the other hand, the next preceding article provides:
ART. 19. Accessories. Accessories are those who, having knowledge of the commission of the crime, and without having
participated therein, either as principals or accomplices, take part subsequent to its commission in any of the following
manners:
1. By profiting themselves or assisting the offender to profit by the effects of the crime.
2. By concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its discovery.
3. By harboring, concealing, or assisting in the escape of the principal of the crime, provided the accessory acts with abuse of
his public functions or whenever the author of the crime is guilty of treason, parricide, murder, or an attempt to take the life of
the Chief Executive, or is known to be habitually guilty of some other crime.
Appellant Garcia, being a covered relative by affinity of the principal accused, Benjamin Ortega, Jr., is legally entitled to the
aforequoted exempting provision of the Revised Penal Code. This Court is thus mandated by law to acquit him.
Penalty and Damages
The award of actual damages should be reduced to P31,790.00 from P35,000.00. The former amount was proven both by
documentary evidence and by the testimony of Melba Lozano, a sister of the victim.[40] Of the expenses alleged to have been
incurred, the Court can give credence only to those that are supported by receipts and appear to have been genuinely incurred
in connection with the death of the victim.[41] However, in line with current jurisprudence,[42] Appellant Ortega shall also
indemnify the heirs of the deceased in the sum of P50,000.00. Indemnity requires no proof other than the fact of death and
appellants responsibility therefor.[43]
The penalty for homicide is reclusion temporal under Article 249 of the Revised Penal Code, which is imposable in its medium
period, absent any aggravating or mitigating circumstance, as in the case of Appellant Ortega. Because he is entitled to the
benefits of the Indeterminate Sentence Law, the minimum term shall be one degree lower, that is, prision mayor.

WHEREFORE, premises considered, the joint appeal is PARTLY GRANTED. Appellant Benjamin Ortega, Jr. is found GUILTY of
homicide and sentenced to ten (10) years of prision mayor medium, as minimum, to fourteen (14) years, eight (8) months and
one (1) day of reclusion temporal medium, as maximum. Appellant Ortega, Jr. is also ORDERED to pay the heirs of the victim
P50,000.00 as indemnity and P31,790.00 as actual damages. Appellant Manuel Garcia is ACQUITTED. His immediate release
from confinement is ORDERED unless he is detained for some other valid cause.

SO ORDERED.

Narvasa C.J., (Chairman), Davide, Jr., Melo, and Francisco, JJ., concur.
FIRST DIVISION
[G.R. Nos. 114003-06. January 14, 1997]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO VIOLIN, REMEGIO YAZAR, CESAR ALLEGO (at large) and
EUTIQUIO CHERRIGUENE, accused.
ANTONIO VIOLIN, REMEGIO YAZAR and EUTIQUIO CHERRIGUENE, accused-appellants.
DECISION
BELLOSILLO, J.:
On 1 January 1986 Dioscoro Astorga Jr. was killed while his brother Darmo Astorga was wounded in Bgy. San Jose in the island
of Daram, Samar. Thereafter, two (2) informations[1] were filed in the Regional Trial Court of Catbalogan, Samar, charging
Antonio Violin, Eutiquio Cherriguene, Cesar Allego, Remegio Yazar, Cata Doe and Peter Doe with murder for the killing of
Dioscoro Astorga Jr.,[2] and frustrated murder for the wounding of Darmo Astorga.[3] On 21 September 1989 Catalino
Figueroa (Cata Doe) and Miguel Figueroa (Peter Doe) were separately charged with murder[4] and frustrated murder[5] in
connection with the same incident.[6]
Except for Cesar Allego, all the accused pleaded not guilty to the charges. Cesar Allego to this date has remained at large.
The four (4) cases, docketed as Crim. Cases Nos. 3030, 3031, 3186 and 3187, were jointly tried.
On 22 December 1993 two (2) decisions were rendered by the trial court in the four (4) cases[7] finding Antonio Violin,
Eutiquio Cherriguene and Remegio Yazar guilty of murder and frustrated murder, and acquitting Catalino Figueroa and Miguel
Figueroa for insufficiency of evidence.
All three (3) accused convicted in Crim. Cases Nos. 3030 and 3031 are now before us on appeal.
These cases demand a thorough examination and analysis, having been lengthily heard in succession by five (5) judges of the
Regional Trial Court.[8]
The evidence discloses that on 31 December 1985 Darmo Astorga was at the house of his sister in Bgy. Muoz, Catbalogan,
Samar, together with Dolores Bolos Astorga, Dioscoro Astorga Jr. and Benito Astorga. Dioscoro Jr. was the Commander of the
Police Station of Daram. At around 6:00 o'clock in the evening, Cesar Allego, Punong Barangay of San Jose, Daram, arrived
seeking the help of Dioscoro Jr. in settling a dispute he had with a certain Mrs. Agas, also a resident of Bgy. San Jose. Acceding
to Allego's request on the condition that he be conducted back to Catbalogan that same night, Dioscoro Jr. left for Bgy. San
Jose with his brother Darmo and Cesar Allego. But before leaving they stopped by the wharf and drank three (3) bottles of beer
each. While the Astorga brothers were drinking, Allego walked to a motorboat docked nearby and conversed with Antonio
Violin, Eutiquio Cherriguene and Remegio Yazar.
The Astorgas and Allegos left for Bgy. San Jose at around 9:00 o'clock that evening on board the motorboat owned by Violin
who together with Cherriguene and Yazar was among the passengers of the boat. Upon reaching Bgy. Pait, Violin disembarked
but agreed to meet Cesar Allego later at a public dance in Bgy. San Jose. Dioscoro Jr., Darmo, Allego, Cherriguene and Yazar
proceeded to Bgy. San Jose and arrived there at around 11:30 o'clock in the evening. Yazar and Cherriguene went with the
group to the house of Allego but left immediately after the latter promised to follow them to the public dance later that
evening. Allego then summoned Mrs. Agas to a meeting; unfortunately she had not yet returned from the sea where she had
gone fishing. Since there was nothing else to do, Dioscoro Jr. requested Allego to take him and his brother back to Catbalogan
but Allego refused purportedly due to lack of transportation. Left with no recourse Dioscoro Jr. and Darmo were constrained to
spend the night in Bgy. San Jose at the house of Allego who left them to attend the public dance.
The following morning, at around four o'clock, 1 January 1986, Dioscoro Jr. and Darmo were roused from their sleep by Allego
who invited them to partake of some food and liquor. At that time Violin, Cherriguene and Yazar were already drinking beer in
the kitchen. After a few rounds Allego asked Violin to buy more beer. Violin left followed by Cherriguene and Yazar.
Shortly after Dioscoro Jr. stood up to urinate but was told by Allego to relieve himself outside the house because he would be
using the comfort room himself. Dioscoro Jr. went out leaving Darmo alone in the kitchen. All of a sudden Darmo heard several
gunshots. Alarmed, he ran towards the door but was met on the way by Dioscoro Jr. who was bleeding, staggering and about
to fall. Dioscoro Jr. told him to hide or he might also be shot by the three Violin, Cherriguene and Yazar. Darmo then crawled
and hid himself under a table measuring about three (3) feet wide, seven (7) feet long and two (2) feet and four-and-a-half (4-
1/2) inches tall. From this position he saw violin standing at the kitchen door, firing at Dioscoro Jr. and shouting Tapos ka, ayos
na an singkwenta mil pesos (P50,000.00) nga bayad ni Cata (You are already through, the fifty thousand pesos (P50,000.00)
paid by Cata is already finished.)[9] A stray bullet fired from the firearm of Violin grazed the right side of Darmo's head. At that
instant, Yazar also fired at Dioscoro Jr. saying Kapitan, waray na kamo kuntra hit election, waray na kuntra iton mga
Figueroa.[10] Cherriguene who positioned himself outside the kitchen window also fired at Dioscoro Jr. The three (3) assailants
then looked for Darmo but could not find him. Failing thus, they left towards the direction of the coconut trees behind the
house.
When Darmo came out of his hiding place and saw his brother dead he looked for the latter's firearm but could not find it. He
proceeded to the kitchen where he found a bolo. Then he went out of the house searching for the three (3) malefactors. When
he could not find them he went back to the house and saw Allego sprawled inside the bathroom crying. Darmo asked Allego to
bring him to Catbalogan but the latter did not respond. Not long after, people milled around the crime scene. One of them, a
barangay councilor, assisted Darmo and took him back to Catbalogan where the latter informed relatives about what
happened to him and his brother, after which he proceeded to the hospital for treatment.
Dr. Honorata L. Gabon autopsied the cadaver of Dioscoro Astorga Jr. and ascertained the cause of death as cardiorespiratory
failure secondary to severe hemorrhage resulting from his multiple gunshot wounds.[11]
Darmo asserted that the murder of his brother was politically motivated. Their father was at that time the mayor of Daram and
the deceased Dioscoro Astorga Jr. was being groomed to take his place. The ex-mayor of Daram, Miguel Figueroa, was planning
a political comeback while Violin, Cherriguene and Yazar, aside from being employees of the Figueroas, were his avid followers.
Cesar Allego was the nephew of vice-mayoralty candidate Emilio Allego who was supposed to run under the ticket of Miguel
Figueroa.
In support of this theory, the prosecution offered the testimonies of Mateo Villaganes and Nestor Pahayahay to the effect that
Miguel Figueroa and Catalino Figueroa had earlier approached hit men for a contract on Dioscoro Jr.'s head.[12]
The defense tells a different story, invoking alibi for all the accused-appellants. Accused Remegio Yazar, overseer of the
coconut plantation and the cattle ranch of Catalino Figueroa, claims that he could not have participated in the killing of
Dioscoro Jr. on 1 January 1986 as he was in Manila from 23 December 1985 to the first week of February 1986. Cherriguene,
another caretaker of the ranch, avowed innocence in the killing saying that he attended a birthday celebration of his friend
Francisco Decallos in the evening of 31 December 1985 and stayed there up to five o'clock the following morning, 1 January
1986. Beatriz Donaire, the 80-year old aunt of the Figueroas, and Antonio Coo, a guest at the birthday celebration, confirmed
the narration of Cherriguene.
The accused Antonio Violin testified that on 31 December 1985 he boarded a motorboat together with Allego and the Astorga
brothers en route to Bgy. San Jose. The boat was piloted by Cesar Allego. However, Violin disembarked at Bgy. Pait where he
resided and spent the whole night of 31 December 1985 at his house drinking with some friends. He denied that he proceeded
to Bgy. San Jose that evening, claiming that he learned of the murder of Dioscoro Astorga Jr. only at around 11:00 o'clock the
following morning when Allego dropped by his house after accompanying Darmo Astorga to a hospital in Catbalogan. He
insisted that he was implicated in the criminal cases because his father was a diehard follower of the Figueroas. He admitted
however that he owned the motorboat used by the Astorgas for Bgy. San Jose and that Allego was his boat mechanic and pilot.
Violin's testimony was corroborated by Diosdado Panis.
We have ruled, time and again, that alibi is the weakest of all defenses and cannot stand against strong and positive
identification. The testimonies of the accused herein and that of their witnesses aside from being self-serving fall flat in the
face of the clear and categorical account given by Darmo Astorga. As correctly observed by the trial court -
x x x there is no doubt in our mind that positive identification of herein defendants by a survivor of the attack has not been
shaken. It is of no moment that the prosecution presented a lone witness. If Darmo's uncorroborated testimony is credible and
positive, it is sufficient to justify a conviction.[13]
While accused-appellants feign bafflement that Darmo would crawl under the table instead of seeking cover outside the
house, there is nothing strange or unnatural about this behavior. Darmo's act appears to be spontaneous and instinctive in that
after the gunshots he ran towards the door where he was met by his brother who was already bleeding and about to fall, and
who told him to hide otherwise he might also be shot. For him to go out of the house would have been illogical and suicidal
since the attackers of his brother were still outside. The only recourse available at that very moment was to seek cover inside
the house, and he found one under a table.[14]
The defense speaks of the impossibility of Darmo crawling and hiding under a table measuring only about three (3) feet wide,
seven (7) feet long, and two feet and four inches high (2'4") considering that he stands five feet and five inches (5'5") tall. A
small table such as that described by Darmo could not have provided ample protection for him, for squatting underneath it
would entail great difficulty. While the proposition may sound plausible we are not persuaded that it was impossible. Truly,
Darmo did not have the luxury of time and choice. He could not at leisure studiously reflect upon the situation and scout
around for a good and comfortable hiding place. His very life was at stake. Safety was his immediate and only concern, not
convenience. Moreover, it does not follow that "since Darmo's head and shoulders would have touched the top of the table,
his vision would be severely inhibited by the breadth and width of the table." [15] To conclude that because of his position "he
could have only seen the lower parts of the attackers' bodies," and consequently, could not have seen the faces and identified
the attackers[16] is specious and delusive because it erroneously assumes the validity of a false premise.
conspired to kill the Figueroa[20] brothers performed all the acts of execution but did not produce the result, the death of
Darmo Astorga, due to a cause entirely independent of their will.[21]
Again we cannot agree. The crime of slight physical injuries[22], not frustrated murder, was committed against Darmo Astorga.
Antonio Violin fired at Dioscoro Astorga Jr. and not at Darmo. There is not the slightest indication that at that time Violin knew
that Darmo was hiding under a table. Darmo himself admitted that he was injured by a stray bullet[23] which grazed the right
parietal region of his head. The wound was diagnosed as superficial [24] and required treatment only for three (3) days.[25]
WHEREFORE, the decision of the court a quo dated 24 November 1993 in Crim. Case No. 3030 finding ANTONIO VIOLIN,
EUTIQUIO CHERRIGUENE and REMEGIO YAZAR guilty of murder qualified by treachery and aggravated by craft and abuse of
superior strength is MODIFIED. The crime committed by the accused was murder qualified by treachery. They are therefore
sentenced to suffer the penalty of reclusion perpetua and to indemnify the heirs of Dioscoro Astorga Jr. the sum of P50,000.00,
and to pay the costs. The decision in Crim. Case No. 3031 for frustrated murder is likewise MODIFIED. Accused ANTONIO
VIOLIN is found guilty only of the crime of slight physical injuries and is accordingly sentenced to suffer a straight prison term of
ten (10) days of arresto menor, and to pay the costs.
SO ORDERED.

Darmo identified with ease the weapons used by the three appellants considering that at the time of the incident he was a Padilla, (Chairman), Vitug, Kapunan, and Hermosisima, Jr., JJ., conc
member of the Civilian Home Defense Force (CHDF) and therefore knowledgeable if not trained in the identification and use of
firearms. He was able to recall what each of the assailants said during the incident because they attacked Dioscoro Jr.
alternately so that Darmo's attention was focused on each perpetrator's act and utterance. As eyewitness to the killing of his
brother Dioscoro Jr., Darmo narrated the harrowing occurrence in vivid detail. Surely, this could not have been the fictive
product of a highly imaginative mind.

Appellants also postulate that Darmo was drunk and therefore incapable of accurate perception. They anchor their hypothesis
on the fact: that the night before the killing Darmo drank three (3) bottles of beer before he and Dioscoro Jr. left for Bgy. San
Jose and, right before the shooting of 1 January 1986, Darmo drank beer again. This is pure conjecture for no evidence was
shown that Darmo was intoxicated to such degree as to deprive him of his perceptive faculties. On the contrary, his detailed
account of the killing shows that he was fully aware of what transpired around him.

Additionally, the defense attempts to destroy the credibility of Darmo by harping on his alleged confusion in certain aspects of
his testimonies, e.g., the number of doors of Allego's house, whether it was Dioscoro Jr. who walked ahead of Allego in going
to the kitchen to eat breakfast, and whether Violin, Yazar and Cherriguene were standing or sitting in the kitchen at that time.
We find these matters to be minor and inconsequential as to change substantially the findings in the case at bar.

The lower court found the killing to be qualified by treachery and aggravated by craft and abuse of superior strength.[17] We
disagree. For craft cannot be considered aggravating herein since the use of intellectual trickery or cunning on the part of the
accused[18] was not established. There is no showing that the accused employed stealth and covert machinations to
camouflage their evil intentions.

We sustain however the finding that the attack was attended with treachery. The victim was not afforded the opportunity to
defend himself while the assailants themselves ensured that the crime would be consummated with the least risk to their
persons. The three (3) conspirators pounced upon their victim as soon as he stepped out of the house. The latter had no inkling
at all that he would be assaulted by them considering that they were all guests of Cesar Allego. This is indicative of treachery
which qualifies the crime to murder. On this score the trial court should not have factored in abuse of superior strength as an
independent aggravating circumstance. When treachery qualifies the crime of murder, the generic aggravating circumstance of
abuse of superior strength is necessarily included in the former. This we ruled as early as 1914.[19]

The court in the frustrated murder charge found

The defendant Antonio Violin in firing his armalite rifle at Dioscoro Astorga Jr. also hit his younger brother Darmo on his head
particularly on the right parietal region which injury would have caused his death had it not been for the timely medical
assistance rendered him. The crime committed is frustrated murder because there was treachery and the defendants who
SECOND DIVISION
[G.R. No. 112092. March 1, 2001]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERT NUEZ y LAGASCA, accused-appellant.
DECISION
QUISUMBING, J.:
On appeal is the decision[1] dated May 26, 1993, of the Regional Trial Court of Urdaneta, Pangasinan, Branch 48, convicting
appellant of the crime of qualified illegal possession of firearms, sentencing him to life imprisonment, and ordering him to pay
the costs.
The facts are as follows:
On March 6, 1992, at around 2:00 to 3:00 P.M., in Palina Sur, Urdaneta, Pangasinan, four (4) persons, namely Teofilo Pacquing,
Calixto Pacorza,[2] Marlito Parias and Roy Tolentino were riding a tricycle driven by Jerry Almendrez.[3] When they passed by
the gate of appellants family compound, appellant fired at them from a distance of about twenty (20) meters, hitting Pacquing
on the right toe, Almendrez on the left breast, and Pacorza resulting to his death. The records do not indicate the injuries
sustained by Pacorza, but merely state that he died as a result of the shooting incident.[4]
The victims were brought to the Urdaneta Sacred Heart Hospital for treatment. Teofilo Pacquing[5] reported the incident to
the police. SPO1 Ernesto C. Gancea, a member of the Investigation and Intelligence Operations of the Philippine National Police
(PNP) investigated the incident. Teofilo Pacquing informed him that it was appellant who fired at them. Thereafter, SPO1
Gancea, accompanied by PO3 Asterio Dismaya, and SPO1 Henry R. Kang proceeded to the scene of the incident. When they
arrived at appellants house, SPO1 Gancea talked to appellant who readily admitted that he was the one who shot Pacorza.
SPO1 Kang recovered a caliber .22, long rifle, Squibman, model 116 MK with serial no. A-320554 with telescope from appellant.
When asked for the permit for the firearm, appellant could not produce any. Appellant was thereafter brought to the Urdaneta
Police Station for investigation. He refused to give any statement to the police. The incident was entered in the police blotter
by desk officer Romulo Dutong.[6]
For the shooting of Almendrez and Pacquing and the death of Pacorza, appellant was charged under four (4) separate
Informations for (1) homicide, (2) frustrated homicide, (3) frustrated homicide and (4) illegal possession of firearms docketed
as Criminal Case No. U-6449. The cases were raffled to the different branches. Only the Illegal Possession of Firearms case is
before us.
The Information for Illegal Possession of Firearms reads:[7]
That on or about the 6th day of March, 1992, at barangay Palina Sur, municipality of Urdaneta, province of Pangasinan,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully,
unlawfully and feloniously have in his possession, control and custody one (1) Caliber .22 Rifle 116MK, bearing Serial No.
A320554, with trademark Kassnar Squibman and with magazine and nine (9) live ammunitions, without first securing the
necessary permit or license from lawful authorities, which said firearm was used by the accused in the commission of the crime
of homicide and double frustrated homicide against the persons of Calixto Pacursa (sic), Jerry Armendez (sic) and Teofilo
Pacquing.
CONTRARY to Presidential Decree No. 1866.
Urdaneta, Pangasinan, June 16, 1992.
On September 10, 1992, upon arraignment, appellant, duly assisted by counsel de parte, pleaded not guilty.[8] Pre-trial
conference was waived. Trial then commenced.
The prosecution presented the four (4) members of the PNP, Urdaneta, Pangasinan, who were involved in the investigation,
and one of the victims, Teofilo Pacquing.
SPO1 Ernesto C. Gancea testified that he conducted the investigation and that appellant admitted to him that he shot the
victim, Pacorza.[9] PO2 Asterio Dismaya, corroborated the testimony of SPO1 Gancea.[10] SPO1 Henry R. Kang, testified that
he was the one who recovered the firearm from appellant.[11] SPO1 Nestor G. Manongsong, responding to a subpoena duces
tecum, testified that he could not bring the police blotter, but presented the complaint/assignment sheet,[12] and the spot
report[13] pertaining to the incident.[14] Teofilo Pacquing testified on the circumstances surrounding the attack, and identified
appellant as the assailant.[15]
On the other hand, the defense presented five (5) witnesses, namely: (1) appellant, (2) Salvador Paz, a carpenter working in the
house of Alvaro Nuez; (3) Eugene Nuez, a neighbor of the aunt of appellant who allegedly witnessed the shooting incident; (4)
Cesar Nuez Celeste, a cousin of appellant and the owner of the subject firearm and (5) SPO4 Benito Opguar, of the Provincial
Headquarters, PNP Command, Lingayen, Pangasinan, who testified that Cesar Celeste had a temporary license to possess the
subject firearm, but at the time of the shooting incident, the temporary license had already lapsed.[16]
The defense claims that the shooting incident did not happen on the road, but inside the living room of the house of appellants
aunt, Magdalena Celeste. Appellant claims that he shot at the victims in self-defense. He narrates his version of the incident as
follows:[17]
That on March 6, 1992, the accused-appellant was busy sticking tobacco leaves when six (6) armed men namely: Calixto
Pacursa, Gerry Almendrez, Teofilo Tolentino, Teofilo Pacquing, Nick Gascon and Carlito Parnas, arrived in their compound and
went inside their compound and stoned the houses of his grandmother, Maxima Nuez, his uncle Mariano Nuez and his aunt
Magdalena Celeste. When the six (6) men noticed him, they shouted at him so the accused-appellant ran towards the north
and since they ran after him, the accused-appellant hid behind the santol tree, then the six men left the place boarding on the
same tricycle and proceeded towards the west. In the afternoon between 3:00 and 4:00 oclock of the same date, while he is
unloading tobacco leaves, Gerry Almendrez and his companions came back and they shouted at him and he heard one gunshot
so he ran inside the compound where his grandfathers house were being constructed and that was then the time that Cesar
Celeste and Juanito Nuez went to town to report the said incident.
Calixto Pacursa armed with a .38 caliber met the accused-appellant so he ran towards the house of his aunt Magdalena Celeste
and hide (sic) inside the bathroom since Calixto Pacursa continued chasing him. When Calixto Pacursa was about to go the
second floor, he saw the .22 caliber that was placed on top of the bed of Cesar Celeste and he got the said firearm and when
he went out he was still holding the .38 caliber and at the same time holding the .22 caliber firearm. When the accused-
appellant saw Calixto Pacurza tucked his .38 caliber firearm in his waist and loaded the .22 caliber rifle that was the time
accused-appellant went out from the bathroom and grappled with Calixto Pacurza and the accused-appellant was able to
retrieve the subject firearm from Calixto Pacurza. The accused-appellant move two steps backward but Calixto Pacurza drew
his .38 caliber firearm from his waist and that was the time that accused-appellant fired the .22 caliber rifle at Calixto Pacurza.
The accused-appellant and Gerry Almendrez had a misunderstanding because the former noticed that some parts of the
motorcycle driven by the latter had been replaced.
The testimony of herein accused-appellant were corroborated by Salvador Paz, a laborer in the on-going construction of the
house of Alvaro Nuez, and Eugene Nuez, who at that time were inside the kitchen of Magdalena Celeste, the former was
pouring hot water in a thermos while the latter went inside the kitchen to light his cigarette.
Cesar Celeste declared that he is the owner of the subject firearm and he brought outside the said firearm when Teofilo
Pacquing and his companions arrived and stoned the houses in their compound. And before he and Juanito Nuez went to town
to report to the police authorities, he left the licensed firearm on top of his bed. He applied a license to possess the firearm
through First Continental Co., Inc., and had paid the firearm bond.
After presentation of prosecution evidence in the illegal possession case, appellant filed a motion for consolidation of the four
cases. Upon the opposition of the public prosecutor, the trial court denied the motion.[18] Subsequently, on May 26, 1993, the
trial court rendered a decision[19] convicting appellant, the dispositive portion of which provides:
WHEREFORE, this court finds the accused guilty of Illegal possession of firearm resulting to the death of the victim and
pursuant to P.D. 1866 in relation to the 1987 Constitution the court sentences the said accused Robert Nuez to suffer the
penalty of life imprisonment and with costs.
SO ORDERED.[20]
Appellant now assigns the following errors:[21]
I. THE LOWER COURT GRAVELY ERRED IN FINDING HEREIN ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE
CRIME OF ILLEGAL POSSESSION OF FIREARM DESPITE THE FACT THAT THE SAME WAS NOT RECOVERED FROM HIS POSSESSION
AS TESTIFIED TO ON REBUTTAL BY PROSECUTION WITNESS PO3 HENRY KANG.
II. THE LOWER COURT GRAVELY ERRED IN GIVING GREAT WEIGHT TO THE INCONSISTENT AND UNCORROBORATED
TESTIMONIES OF THE PROSECUTION WITNESSES AND IN NOT GIVING CREDENCE TO THE CORROBORATED AND CREDIBLE
TESTIMONIES OF THE DEFENSE WITNESSES.
III. THE LOWER COURT GRAVELY ERRED IN SHIFTING THE BURDEN OF PROOF TO THE ACCUSED APPELLANT.
IV. THE LOWER COURT GRAVELY ERRED IN ADMITTING IN EVIDENCE THE ALLEGED EXTRAJUDICIAL CONFESSION OF THE
ACCUSED-APPELLANT WITHOUT THE ASSISTANCE OF A COUNSEL AND IN ADMITTING THE FIREARM IN ISSUE WHICH WAS
SEARCHED AND SEIZED WITHOUT A VALID WARRANT.
In support of his first and second assignment of errors, appellant points out major inconsistencies in the testimonies of the
prosecution witnesses. SPO1 Gancea testified that appellant was inside his house when the police arrived at the crime scene
and the rifle was located beside appellant, and it was SPO1 Kang who got the rifle from appellant. SPO3 Dismaya, however,
testified that appellant was actually in the yard when they arrived and that appellant was the one who got the rifle from the
house and handed it to SPO2 Kang. SPO2 Kang testified during direct examination that it was appellant who gave him the gun,
but during rebuttal, he said that it was one of appellants cousins who handed to him the gun.
In support of his third assignment of error, appellant claims that it was error for the trial court to shift the burden of proof to
the defense when he invoked self-defense.
In support of his fourth assignment of error, appellant contends that his alleged extra-judicial confession to SPO1 Gancea is
inadmissible since he was not assisted by counsel at the time it was made. Further, the rifle was seized without a search
warrant and therefore, inadmissible in evidence.
The Office of the Solicitor General, on the other hand, points out that it is of no moment who among the responding policemen
received the fatal weapon. What is important is that he admitted possession of the firearm at the time the victim was shot. His
conviction was based not on his alleged extrajudicial confession, but on his admissions in open court. The rifle was not seized
from appellant, but was surrendered by him to the policemen.
Simply put, the issues pertain to (1) the assessment of credibility of witnesses, and (2) the sufficiency of the evidence to convict
appellant of the crime charged.
It is well-settled that, generally, appellate courts will not interfere with the judgment of trial courts in passing upon the
credibility of the witnesses unless there appears in the record some facts or circumstances of weight and significance which the
trial court has overlooked or the significance of which it has misapprehended or misinterpreted.[22] After a careful
examination of the records of the case, we are inclined to give credence to the version of the prosecution. The alleged
inconsistencies as to who recovered the firearm from appellant, in our view, do not pertain to a material matter. What is
important is that one of the police officers recovered the firearm from appellant, who does not deny his possession of said
firearm. Further, the presumption of regularity in the performance of official functions, insofar as the policemen are
concerned, has not been overturned. Credence should be given to the narration of an incident by prosecution witnesses who
are police officers and presumed to have performed their duties in a regular manner, in the absence of evidence to the
contrary.[23]
Anent the second issue, we have held that in crimes involving illegal possession of firearm, the prosecution has the burden of
proving the elements thereof, viz: (a) the existence of the subject firearm and (b) the fact that the accused who owned or
possessed it does not have the license or permit to possess the same.[24] The prosecution was able to prove both elements.
First, prosecution witness Pacquing categorically stated that he saw appellant fire at them with a long gun from a distance of
20 meters.[25] Appellant would make us believe that his possession of the firearm was transient possession. He claims that he
merely acquired it during the scuffle with the victim. Having given credence to the version presented by the prosecution, this
argument deserves scant consideration. Second, the defense presented SPO4 Opguar, who testified that a temporary license of
the rifle was issued in the name of Cesar Celeste, the owner thereof, but said license already lapsed. Clearly, appellant had no
license to possess the rifle.
Appellant was convicted of illegal possession of firearms resulting to the death of the victim. At the time of the commission of
the crime, the existing jurisprudence was People v. Quijada.[26] This Court held then that the use of an unlicensed firearm in a
killing results in two separate crimes - one for the aggravated form of illegal possession of firearm and two, for homicide or
murder. In the meantime, however, Congress passed Republic Act No. 8294,[27] which lowered the penalties for illegal
possession of firearms. Further, Section 1, third par. of R.A. No. 8294 provides -
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.
Thus in People v. Molina, 292 SCRA 742 (1998), this Court held that the use of an unlicensed weapon in the commission of
homicide or murder should now be considered simply as an aggravating circumstance and no longer a separate offense. The
Molina ruling,[28] however, is not applicable to the present case. In Molina, separate Informations for murder, frustrated
murder and illegal possessions were filed, but the cases were eventually consolidated and jointly tried and decided. In the
present case, there were four cases filed against appellant which were all separately tried.[29] Hence, the evidence as to the
homicide and frustrated homicide cases were neither adopted nor presented before the trial court trying the illegal possession
case. For this reason, there is a dearth of evidence on record to support the finding of homicide and/or frustrated homicide.
Accordingly, appellant should only be convicted of simple illegal possession of firearms. The lowered penalties as provided in
R.A. No. 8294, being favorable to the accused, should be applied retroactively.[30] Under R.A. No. 8294, the penalty for simple
illegal possession of a low-powered firearm is prision correccional in its maximum period, which is four (4) years, two (2)
months and one (1) day to six (6) years, and a fine of not less than P15,000.00. It will not be amiss to point out that R.A. No.
8294 contains the proviso: Provided, That no other crime was committed. However, as explained earlier, the facts obtaining in
this case do not indubitably prove the frustrated murder cases or the murder case in relation to the illegal possession case.
Hence, we find it proper to convict appellant only of the crime of simple illegal possession of firearms. Applying the
Indeterminate Sentence Law, appellant should be sentenced to two (2) years, four (4) months, and one (1) day of prision
correccional medium as minimum, to five (5) years, four (4) months, and twenty (20) days of prision correccional maximum as
maximum, and ordered to pay a fine of P15,000.00.[31]
WHEREFORE, the decision of the Regional Trial Court of Urdaneta, Pangasinan, Branch 48, in Criminal Case No. U-6449, is
hereby AFFIRMED WITH MODIFICATIONS. Appellant is hereby convicted of the crime of illegal possession of firearms and
sentenced to two (2) years, four (4) months, and one (1) day of prision correccional medium as minimum, to five (5) years, four
(4) months, and twenty (20) days of prision correccional maximum as maximum, and ordered to pay a fine of P15,000.00 and
the costs.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.
THIRD DIVISION
[G.R. Nos. 136149-51. September 19, 2000]
PEOPLE OF THE PHILIPPINES, appellee, vs. WALPAN LADJAALAM y MIHAJIL alias WARPAN, appellant.
DECISION
PANGANIBAN, J.:
Republic Act No. 8294 penalizes simple illegal possession of firearms, provided that the person arrested committed no other
crime. Furthermore, if the person is held liable for murder or homicide, illegal possession of firearms is an aggravating
circumstance, but not a separate offense. Hence, where an accused was convicted of direct assault with multiple attempted
homicide for firing an unlicensed M-14 rifle at several policemen who were about to serve a search warrant, he cannot be held
guilty of the separate offense of illegal possession of firearms. Neither can such unlawful act be considered to have aggravated
the direct assault.
The Case
Walpan Ladjaalam y Mihajil, also known as Warpan, appeals before us the September 17, 1998 Decision[1] of the Regional Trial
Court (RTC) of Zamboanga City (Branch 16), which found him guilty of three out of the four charges lodged against him.
Filed against appellant were four Informations,[2] all signed by Assistant Regional State Prosecutor Ricardo G. Cabaron and
dated September 25, 1997. The first Information[3] was for maintaining a den for the use of regulated drugs. It reads as
follows:
That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, Walpan Ladjaalam being then the owner of a residential house located at Rio Hondo,[4] this
City, conspiring and confederating together, mutually aiding and assisting x x x his co-accused wife Nur-in Ladjaalam and
Ahmad Sailabbi y Hajaraini, did then and there wilfully, unlawfully and feloniously, maintain said house as a den, where
regulated drug [was] used in any form.[5]
The second Information[6] charged appellant with illegal possession of firearms and ammunition. We quote it below:
That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring and confederating together, mutually aiding and assisting with one another,
without any justifiable reason or purpose other than to use it in the commission of crime, did then and there, wilfully,
unlawfully, and feloniously have in their possession and under their custody and control, the following weapons, to wit: one (1)
M14 rifle with SN 1555225 with magazines and seven (7) rounds of live ammunition; two (2) magazines with twenty (20) and
twenty[-one] (21) rounds of live [ammunition]; one (1) homemade caliber .38 revolver with five (5) live ammunition; one (1) M-
79 (single) rifle with pouch and with five (5) empty shell[s]; one (1) home made caliber .38 with SN-311092 with five live
ammunition and one empty shell of [a] cal. 38 x x x Smith and Wesson; two (2) .38 Caliber paltik revolver with Serial Number
311092 and one defaced M79 grenade launcher paltik, without first having obtained the necessary license and or permit
therefor from authorities concerned, in flagrant violation of the aforementioned law.[7]
The third Information,[8] for multiple attempted murder with direct assault, was worded thus:
That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused being then armed with M-14 Armalite Rifles, M-16 Armalite Rifles and other assorted
firearms and explosives, conspiring and confederating together, mutually aiding and assisting x x x one another and with intent
to kill, did then and there wilfully, unlawfully and feloniously try and attempt to kill SPO1 WILLIAM B. JONES, JR., PO3 ENRIQUE
C. RIVERA[,] SPO1 AMADO A. MIRASOL, JR., and SPO1 RICARDO J. LACASTESANTOS, in the following manner, to wit: by then
and there firing their M-14 x x x Armalite Rifles, M-16 Armalite Rifles and other assorted firearms and explosives, aimed and
directed at the fatal parts of the bodies of the above-named police officers, well known to the accused as members of the
Philippine National Police, Zamboanga City Police Office, and as such, agents of a person in authority, who at the time of the
attack were engaged in the performance of their duties, that is, on the occasion when said officers were about to serve the
Search Warrant legally issued by the Regional Trial Court, this City, to the person of the accused thus commencing the
commission of crime of multiple murder directly by overt acts, and if the accused did not accomplish their unlawful purpose,
that is, to kill the above-named Police Officers, it was not by reason of their own voluntary desistance but rather because of
the fact that all the above-named police officers were able to seek cover during the firing and were not hit by the bullets and
explosives fired by the accused and also by the fact said police officers were able to wrestle with two (2) of the accused
namely: Walpan Ladjaalam y Mihajil a.k.a. Warpan and Ahmad Sailabbi y Hajairani, who were subdued and subsequently
placed under arrest; whereas accused PO2 Nurhakim T. Hadjula was able to make good his escape and has remained at-
large.[9]
In the fourth Information, appellant was charged with illegal possession of drugs.[10]
On December 21, 1997, the cases against Nur-in Ladjaalam and Ahmad Sailabbi y Hajaraini were dismissed upon motion of the
Office of the City Prosecutor, which had conducted a reinvestigation of the cases as ordered by the lower court. The accused
were consequently released from jail.
The arraignment of appellant on all four (4) charges took place on January 6, 1998, during which he entered a plea of not
guilty.[11] After pretrial, the assailed Decision was rendered, the dispositive part of which reads:
WHEREFORE, the Court finds accused WALPAN LADJAALAM y MIHAJIL a.k.a. WARPAN -
1. in Criminal Case No. 14636, GUILTY BEYOND REASONABLE DOUBT of Violation of Section 15-A, Article III, of Republic Act No.
6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, and SENTENCES said accused to the penalty of
RECLUSION PERPETUA and to pay a fine of FIVE HUNDRED THOUSAND (P500,000.00) and to pay the costs;
2. In Criminal Case No. 14637, NOT GUILTY of Violation of Section 16, Article III, in relation to Section 21, Article IV, of Republic
Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, and ACQUITS him of said crime with costs de
oficio;
3. in Criminal Case No. 14638, GUILTY BEYOND REASONABLE DOUBT of the crime of Illegal Possession of Firearm and
Ammunition penalized under Presidential Decree No. 1866, as amended by Republic Act. No. 8294, and SENTENCES said
accused to suffer an indeterminate penalty of SIX (6) YEARS of prision correccional as minimum to EIGHT (8) YEARS of prision
mayor as maximum and to pay a fine [of] THIRTY THOUSAND (P30,000.00) and pay the costs;
4. in Criminal Case No. 14639, GUILTY BEYOND REASONABLE DOUBT of the crime of Direct Assault with Multiple Attempted
Homicide and SENTENCES said accused to an indeterminate penalty of TWO (2) YEARS and FOUR (4) MONTHS of prision
correccional as minimum to SIX (6) YEARS of prision correccional as maximum and to pay a fine of ONE THOUSAND (P1,000.00)
and to pay the costs. (emphasis in the original)
Hence, this appeal.[12]
The Facts
Prosecutions Version
In its Brief,[13] the Office of the Solicitor General presents the facts in this wise:
At 1:45 p.m. of September 24, 1997, PO3 Allan Marcos Obut filed an application for the issuance of a search warrant against
appellant, his wife and some John Does (Exh. C). After the search warrant was issued about 2:30 p.m. of the same day, a
briefing was conducted inside the office of the Anti-Vice/Narcotics Unit of the Zamboanga City Police Office in connection with
the service of the search warrant. The briefing was conducted by SPO2 Felipe Gaganting, Chief of the Anti-Vice/Narcotics Unit.
During the briefing, PO3 Renato Dela Pea was assigned as presentor of the warrant. SPO1 Ricardo Lacastesantos and PO3
Enrique Rivera were designated to conduct the search. Other policemen were assigned as perimeter guards (TSN, March 3,
1998, pp. 33-36).
After the briefing, more than thirty (30) policemen headed by Police Superintendent Edwin Soledad proceeded to the house of
appellant and his wife at Rio Hondo on board several police vehicles (TSN, March 4, 1998, p. 32; April 22, 1998, p. 54). Before
they could reach appellants house, three (3) persons sitting at a nearby store ran towards the house shouting, [P]olice, raid,
raid (Ibid., March 3, 1998, pp. 41, 43-44; April 23, 1998, p. 4). When the policemen were about ten (10) meters from the main
gate of the house, they were met by a rapid burst of gunfire coming from the second floor of the house. There was also gunfire
at the back of the house (Ibid., March 5, 1998, pp. 14-16).
SPO1 Mirasol, SPO2 Lacastesantos, PO3 Rivera, and PO3 Dela Pea who were with the first group of policemen saw appellant
fire an M14 rifle towards them. They all knew appellant. When they were fired upon, the group, together with SPO2 Gaganting,
PO3 Obut and Superintendent Soledad, sought cover at the concrete fence to observe the movements at the second floor of
the house while other policemen surrounded the house (Ibid., March 4, 1998, pp. 50-51).
In front of the house was an extension building connected to the concrete fence (Ibid., pp. 45-46, 57-59, 73-76). Gaganting,
Mirasol, Lacastesantos, Gregorio, and Obut entered the door of the extension building. Gaganting opened the main (steel) gate
of the house. The other members of the team then entered. Lacastesantos and Mirasol entered the house through the main
door and went inside the sala of the ground floor while other policemen surrounded the house. Two (2) old women were in
the sala together with a young girl and three (3) children. One of the old women took the children to the second floor while the
young girl remained seated at the corner (Ibid., pp. 19-21).
Lacastesantos and Mirasol proceeded to the second floor where they earlier saw appellant firing an M14 rifle at them through
the window. While they were going upstairs, appellant noticed their presence. He went inside the bedroom and, after breaking
and removing the jalousies, jumped from the window to the roof of a neighboring house. Seeing this, Mirasol rushed
downstairs and asked help from the other members of the raiding team to arrest appellant. Lacastesantos went to the second
floor and shouted to the policemen outside not to fire in the direction of the second floor because there were children. Mirasol
and SPO1 Cesar Rabuya arrested appellant at the back of his house after a brief chase (Ibid., pp. 21-23).
At the second floor, Lacastesantos saw an M14 rifle (Exh. B-3) with magazine on top of the sofa at the sala on the second floor
(Ibid., P. 27). The rifle bore Serial No. 1555225. He removed the magazine from the rifle and the bullet inside the chamber of
the rifle. He counted seventeen (17) live ammunition inside the magazine. He saw two (2) more M14 rifle magazines on the
sofa, one with twenty (20) live ammunition (Exh. G-3) and another with twenty-one (21) live ammunition (Exh. G-4). He
likewise saw three (3) M16 rifle magazines (Exh. G-2) in a corner at the second floor (TSN, March 5, 1998, pp. 23-32, 53-57).
After Lacastesantos and Mirasol entered appellants house, Rivera, Dela Pea, Gregorio and Obut followed and entered the
house. After identifying themselves as members of the PNP Anti-Vice/Narcotics Unit, Obut presented to the old women a copy
of the search warrant. Dela Pea and Rivera then searched appellants room on the ground floor in the presence of Punong
Barangay Elhano (TSN, March 3, 1998, pp. 41-43). On top of a table was a pencil case (Exh. J) with fifty (50) folded aluminum
foils inside (Exhs. J-1 to J-50), each containing methamphetamine hydrochloride or shabu.
Other items were found during the search, namely, assorted coins in different denominations (Exh. W; TSN, April 28, 1998, pp.
23-25), one (1) homemade .38 caliber revolver (Exh. B-2) with five (5) live [ammunition], one (1) M79 single rifle with [a] pouch
containing five (5) empty shells of an M79 rifle (Exh. B-4), and one (1) empty shell of an M14 rifle (TSN, April 23, 1998, pp. 30-
32).
Rino Bartolome Locson was an informer of the Anti-Vice/Narcotics Unit of the Zamboanga Police. [O]n the morning of
September 24, 1997, he was instructed by SPO2 Gaganting to go to appellants house to buy shabu. Locson knew appellant as a
seller of shabu (TSN, April 22, 1998, p. 5) and had been to appellants house about fifteen (15) times before. He went to Rio
Hondo and arrived at appellants house at 3:20 p.m. He bought P300.00 worth of shabu from appellant. The latter got three (3)
decks of shabu from his waist bag. Appellant instructed Locson to go behind the curtain where there was a table. There were
six (6) persons already smoking. There was a lighted kerosene lamp made of a medicine bottle placed on the table. They asked
Locson to smoke shabu and Locson obliged. He placed the three (3) decks of shabu he bought on the table (Ibid., pp. 8-15).
While they were smoking shabu, Locson heard gunfire coming from appellants house. They all stood and entered appellants
compound but were instructed to pass [through] the other side. They met appellant at the back of his house. Appellant told
them to escape because the police are already here. They scampered and ran away because there were already shots. Locson
jumped over the fence and ran towards the seashore. Upon reaching a place near the Fisheries School, he took a tricycle and
went home (Ibid., pp. 17-19).
The following day, September 25, 1997, he went to the police station and executed an affidavit (Exh. M) narrating what
transpired at appellants house [o]n the afternoon of September 24, 1997.
After the search and before returning to the police station, P03 Dela Pea prepared a Receipt for Property Seized (Exh. P & 3)
listing the properties seized during the search. The receipt was signed by Dela Pea as the seizure officer, and by Punong
Barangay Hadji Hussin Elhano and radio reporter Jun Cayona as witnesses. A copy of the receipt was given to appellant but he
refused to acknowledge the properties seized (TSN, April 23, 1998, pp. 11-12).
An examination conducted by Police Inspector Mercedes D. Diestro, Forensic Chemist of the PNP Crime Laboratory Service
Office 9, on the paraffin casts taken from both hands of appellant yielded positive for gunpowder nitrates (Exh. A-3), giving rise
to the possibility that appellant had fired a gun before the examination (TSN, March 3, 1998, p. 11). Gunpowder residue
examinations conducted on September 26, 1997 showed that the following firearms were fired (Exh. B-5): a .38 caliber
revolver (homemade) with Serial No. 311092 (Exh. B-1), another .38 caliber revolver (homemade) without a serial number
(Exh. B-2), a Cal. 7.62 mm M14 U.S. rifle with Serial No. 1555225 (Exh. B-3), and an M79 rifle without a serial number (Exh. B-4).
They were fired within five (5) days prior to the examination (TSN, March 3, 1998, pp. 16-21).
With respect to the crystalline substances, an examination conducted by Police Inspector Susan M. Cayabyab, likewise a
Forensic Chemist of the PNP Crime Laboratory Service Office 9, on the fifty (50) pieces of folded aluminum foils each containing
white crystalline granules with a total weight of 1.7426 grams (Exh. J-1 to J-50) yielded positive results for the presence of
methamphetamine hydrochloride (shabu) (Exh. L). However, the examination of one (1) crystalline stone weighing 83.2674
grams (Exh. K) yielded negative results for the presence of methamphetamine hydrochloride (Exh. L).
The records of the Regional Operation and Plans Division of the PNP Firearm and Explosive Section show that appellant had not
applied/filed any application for license to possess firearm and ammunition or x x x been given authority to carry [a] firearm
outside of his residence (Exh. X)[14]
Defenses Version
Appellant Ladjaalam agrees with the narration of facts given by the lower court.[15] Hence, we quote the pertinent parts of the
assailed Decision:
Accused Walpan Ladjaalam y Mihajil a.k.a. Warpan, 30 years old, married, gave his occupation as smuggling (tsn, p. 2, May 4,
1998). He used to go to Labuan in Malaysia and bring cigarettes to the Philippines without paying taxes (tsn, pp. 40-41, id). He
said that his true name [was] Abdul Nasser Abdurakman and that Warpan or Walpan Ladjaalam [was] only his alias. However,
he admitted that more people kn[e]w him as Walpan Ladjaalam rather than Abdul Nasser Abdurakman (tsn. pp. 39-40; 46-47,
id). He testified that [o]n the afternoon of September 24, 1997, when he was arrested by the police, he was sleeping in the
house of Dandao, a relative of his wife. He was alone. He slept in Dandaos house and not in his house because they ha[d] a sort
of a conference as Dandaos daughter was leaving for Saudi Arabia. He noticed the presence of policemen in his neighborhood
at Aplaya, Rio Hondo when he heard shots. He woke up and went out of the house and that was the time that he was arrested.
He said he was arrested xxx [at] the other side of my house; at the other side of the fence where I was sleeping. xxx. At the
back of my house (tsn, p. 7, id.). He does not know who arrested him considering that the one who arrested me does not have
nameplate. He was arrested by four (4) persons. Not one of those who arrested him testified in Court. He was handcuffed and
placed inside a jeep parked at Rio Hondo Elementary School. According to him, he did not fire a gun at the policemen from
[t]he second floor of his house. He said the policemen [were] the one[s] who fire[d] at us (tsn, p. 5, id.). If he fired a gun at the
policemen for sure they [would] die [b]ecause the door is very near x x x the vicinity of my house. He does not own the M14
rifle (Exh. B-3) which according to policemen, he used in firing at them. The gun does not belong to him. He does not have a
gun like that (tsn, p. 15, id.). A policeman also owns an M14 rifle but he does not know the policeman (tsn, pp. 16-17, id). He
said that the M79 rifle (Exh. B-4), the three (3) empty M16 rifle magazines (Exh. G; G-1 to G-2), the two (2) M14 magazines with
live ammunition (Exh. G-3; G-4); the two (2) caliber .38 revolvers (Exhs. B-1; B-2), the fifty (50) aluminum foils each containing
shabu (Exhs. J-1 to J-50) placed inside a pencil case (Exh. J, the assorted coins placed inside a blue bag (Exh. W) and the white
crystalline stone (Exh. K) all do not belong to him. He said that the policemen just produced those things as their evidence. The
firearms do not belong to him. They were brought by the policemen (tsn, p. 43, May 4, 1998). Regarding the blue bag
containing assorted coins, he said: that is not ours, I think this (is) theirs, xxx they just brought that as their evidence (tsn, pp.
15-24, id.)
Walpan Ladjaalam declared there were occupants who were renting his extension house. He affirmed that he owns that house.
Four (4) persons were staying in the extension house. He could only recognize the husband whose name is Momoy. They are
from Jolo. They left the place already because they were afraid when the police raided the place. (tsn, pp. 8-10, May 4, 1998).
He does not know prosecution witness Rino Locson y Bartolome. Although Locson recognized him, in his case he does not
know Locson and he does not recognize him (tsn, p.11, id). He did not sell anything to Locson and did not entertain him. He is
not selling shabu but he knows for a fact that there are plenty of person who are engaged in selling shabu in that place, in that
area known as Aplaya, Rio Hondo. One of them is Hadji Agbi (tsn, pp.11-14, id).
After his arrest Walpan Ladjaalam was brought to the police station where he stayed for one day and one night before he was
transferred to the City jail. While at the police station, he was not able to take a bath. He smokes two packs of cigarette a day.
While he was at the police station, he smoked [a] cigarette given to him by his younger sister. He lighted the cigarettes with [a]
match. From the police station, he was brought to the PNP Regional Office at R.T. Lim Boulevard where he was subject to
paraffin examination (tsn, pp. 24-26, May 4, 1998).
During the raid conducted on his house, his cousin Boy Ladjaalam, Ating Sapadi, and Jecar (Sikkal) Usman, the younger brother
of his wife were killed. Walpan Ladjaalam said that he saw that it was the policeman who shot them[,] only I do not know his
name. They were killed at the back of his house. He said that no charges were filed against the one responsible for their death
(tsn, pp. 30-33- May 4, 1998).
Anilhawa Ahamad, more or less 80 years old, a widow was in the house of Walpan Ladjaalam whom he calls Hadji Id at the
time the police raided the house. She is the mother of Ahma Sailabbi. She was together with Babo Dandan, two small children
and a helper when soldiers entered the house. (W)hen they arrived, they kept on firing (their guns) even inside the house (tsn,
p.5, May 5, 1998). They were armed with short and long firearms. They searched the house and scattered things and got what
they wanted. They entered the room of Walpan Ladjaalam. They tried to open a bag containing jewelry. When Anilhawa tried
to bring the bag outside the room, they grabbed the bag from her and poked a gun at her. At that time Walpan Ladjaalam was
not in the house. Ahamad Sailabbi was also not in the house. A Search Warrant was shown to Anilhawa after the search was
conducted and just before the policemen left the place. Anilhawa Ahamad said that it was already late in the afternoon[;]
before they left that was the time the Search Warrant (was) given to us by xxx Barangay Captain Hussin Elhano (tsn, pp.6-8,
May 5, 1998). Barangay Chairman Elhano arrived already late in the afternoon, almost sundown (tsn, p. 9, id). Anilhaw declared
that aside from a bag containing jewelry and a bag full of money, she had not seen anything else that was taken from Walpan
Ladjaalams house (tsn, pp. 9-12, id).
Akmad (Ahmad) Sailabbi, 37 years old, married testified that about 4:00 oclock [o]n the afternoon of September 24, 1997, ha
was standing in front of his house when policemen arrived and immediately arrested him. He was about to go to the City
Proper to buy articles he was intending to bring to Sabah. He had around P50,000.00 placed inside a waist bag tied around his
waist. The policemen told him to lie down in prone position and a policeman searched his back. They pulled his waist bag and
took his DiaStar wrist watch. He was shot three times and was hit on the forehead leaving a scar. His injury was not treated. He
was taken to the police station where he was detained for one day and one night. He was detained at the City Jail for three
months and five days after which he was released (tsn, pp. 25-29, May 5, 1998).
Melba Usma, 20 years old, a widow, testified that [o]n the afternoon of September 24, 1997, she was in the house of her
parents lying together with her husband Sikkal Usma. There is only one house between her parents house and the house of
Walpan Ladjaalam. Her husband Sikkal Usman is the brother of Nur-in Ladjaalam, Walpans wife. When Melba heard shots, she
went downstairs. A policeman was looking for her husband. The policeman called her husband. When her husband went down,
he was instructed by the policeman to lie down in prone position. Then the policeman shot her husband. The policeman had
two other companions who also shot her husband while he was lying down in prone position (tsn, pp.2-7, May 5, 1998).
Murkisa Usman, 30 years old, married, declared that [o]n the afternoon of September 24, 1997, she was sitting at the door of
her house watching her children playing when a motorcyle, driven by a person, stopped near her house. The driver was
Gaganting whom she called a soldier. He went down from his motorcycle, pulled a gun and poked it at Murkisa. Murkisa stood
up and raised her hands. She got her children and when she was about to enter the room of her house, Gaganting again poked
a gun at her and there was a shot. As a result of firing, three persons died, namely, Sikkal Usman, Boy Ladjaalam and Atip Sapali
Sali (tsn, pp. 8-10, May 5, 1998).
Barangay Captain Hadji Hussin Elhano, 51 years old, testified that about 4:00 o clock [o]n the afternoon of September 24, 1997,
he was fetched by two policemen at Catabangan where he was attending a seminar. Because of traffic along the way, they
arrived at the Rio Hondo already late in the afternoon. He saw policemen were already inside the house. Upon entering the
gate, he saw Walpan at the gate already handcuffed. Walpan called him but the police advised him not to approach Walpan.
The search was already over and things were already taken inside the house. When he went inside the house, he saw the
things that they (policemen) searched, the firearms and the shabu (tsn, p. 17. May 8, 1998). He did not see the Search Warrant.
What was shown to him were the things recovered during the search which were being listed. They were being counted and
placed on a table. Upon seeing the things that were recovered during the search, I just signed the receipt (Exh. P; P-1) of the
things x x x taken during the search (tsn, pp. 17-18. May 8, 1998). He saw three dead bodies at the side of the fence when he
went to the other side of the house. The three persons were killed outside the fence of Walpan Ladjaalam (tsn, p. 18, id).[16]
The Trial Courts Ruling
The trial court observed that the house of appellant was raided on September 24, 1997 by virtue of Search Warrant No. 20
issued on the same day. However, the lower court nullified the said Warrant because it had been issued for more than one
specific offense,[17] in violation of Section 3, Rule 126 of the Rules of Court.[18] The court a quo ruled:
It should be stated at the outset that Search Warrant No. 20 is totally null and void because it was issued for more than one
specific offense x x x contrary to Section 3, Rule 1[2]6 of the Rules of Court which provides that A search warrant shall not issue
but upon probable cause in connection with one specific offense xxx. In Tambasan vs. People, 246 SCRA 184 (1995), the
Supreme Court ruled that a search warrant for more than one offense - a scatter shot warrant - violates Section 3, Rule 126 of
the [R]evised Rules of Court and is totally null and void.[19] (emphasis in the original)
Nevertheless, the trial court deemed appellants arrest as valid. It emphasized that he had shot at the officers who were trying
to serve the void search warrant. This fact was established by the testimonies of several police officers,[20] who were
participants in the raid, and confirmed by the laboratory report on the paraffin tests conducted on the firearms and
appellant.[21] Additionally, the judge noted that Appellant Ladjaalam, based on his statements in his Counter Affidavit,
impliedly contradicted his assertions in open court that there had been no exchange of gunfire during the raid.[22] The trial
court concluded that the testimonies of these officers must prevail over appellants narration that he was not in his house when
the raid was conducted.
Prescinding from this point, the court a quo validated the arrest of appellant, reasoning thus:
Under the circumstances, the policemen had authority to pursue and arrest Walpan Ladjaalam and confiscate the firearm he
used in shooting at the policemen and to enter his house to effect said arrest and confiscation of the firearm. Under Rule 113,
Section 5 (a), of the Rules of Court, A peace officer or a private person may, without a warrant, arrest a person xxx (w)hen in
his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. An
offense is committed in the presence or within the view of an officer, within the meaning of the rule authorizing an arrest
without a warrant, when the officer sees the offense, although at a distance, or hears the disturbances created thereby and
proceeds at once to the scene thereof. At the time the policemen entered the house of accused Walpan Ladjaalam after he
had fired shots at the policemen who intended to serve the Search Warrant to him, the accused was engaged in the
commission of a crime, and was pursued and arrested after he committed the crime of shooting at the policemen who were
about to serve the Search Warrant.[23]
As a consequence of the legal arrest, the seizure of the following was also deemed valid: the M14 rifle (with a magazine
containing seventeen live ammunition)[24] used by appellant against the police elements, two M14 magazines, and three
other M16 rifle magazines.[25] The trial court observed that these items were in plain view of the pursuing police officers.
Moreover, it added that these same items were evidence [of] the commission of a crime and/or contraband and therefore,
subject to seizure[26] since appellant had not applied for a license to possess firearm and had not been given authority to carry
firearm outside his residence.[27]
For being incredible and unsupported by evidence, appellants claim that the items that were seized by the police officers had
been planted was disbelieved by the trial court. It ruled that if the police officers wanted to plant evidence to incriminate him,
they could have done so during the previous raids or those conducted after his arrest. To its mind, it was unbelievable that
they would choose to plant evidence, when they were accompanied by the barangay chairman and a radio reporter who might
testify against them. It then dismissed these allegations, saying that frame-up, like alibi, was an inherently weak defense.[28]
The trial court also convicted the accused of the crime of maintaining a drug den. It reasoned as follows:
The testimony of Rino Bartolome Locson, corroborated by SPO1 Ricardo Lacastesantos and SPO1 Amado Mirasol, Jr. clearly
established that Walpan Ladjaalam operated and maintained a drug den in his extension house where shabu or
methamphetamine hydrochloride, a regulated drug, was sold, and where persons or customers bought and used shabu or
methamphetamine hydrochloride by burning the said regulated drug and sniffing its smoke with the use of an aluminum foil
tooter. A drug den is a lair or hideaway where prohibited or regulated drugs are used in any form or are found. Its existence
[may be] proved not only by direct evidence but may also be established by proof of facts and circumstances, including
evidence of the general reputation of the house, or its general reputation among police officers. The uncorroborated
testimony of accused Walpan Ladjaalam a.k.a. Warpan that he did not maintain an extension house or a room where drug
users who allegedly buy shabu from him inhales or smokes shabu cannot prevail over the testimonies of Locson, SPO1
Lacastesantos, and SPO1 Mirasol. He admitted that he is the owner of the extension house but he alleged that there were four
(4) occupants who rented that extension house. He knew the name of only one of the four occupants who are allegedly from
Jolo, a certain Momoy, the husband. Aside from being uncorroborated, Walpans testimony was not elaborated by evidence as
to when or for how long was the extension house rented, the amount of rental paid, or by any other document showing that
the extension house was in fact rented. The defense of denial put up by accused Walpan Ladjaalam a.k.a. 'Warpan is a weak
defense. Denial is the weakest defense and cannot prevail over the positive and categorical testimonies of the prosecution
witnesses. Denials, if unsubstantiated by clear and convincing evidence, are negative and self-serving evidence which deserve
no weight in law and cannot be given evidentiary weight over the testimony of credible witnesses who testify on affirmative
matters. As between the positive declaration of the prosecution witnesses and the negative statements of the accused, the
former deserve more credence.[29]
In conclusion, the trial court explained appellants liability in this manner:
x x x. The act of the accused in firing an M14 rifle to the policemen who were about to enter his house to serve a search
warrant constitutes the crime of direct assault with multiple attempted homicide[,] not multiple attempted murder with direct
assault[,] considering that no policeman was hit and injured by the accused and no circumstance was proved to qualify the
attempted killing to attempted murder.
The accused Walpan Ladjaalam a.k.a. Warpan cannot be held liable [for] the crime of Violation of Section 16, Article III, in
relation to Section 21, Article IV, of Republic Act 6425 otherwise known as the Dangerous Drugs Act of 1992, as amended,
because the fifty (50) pieces of folded aluminum foils having a total weight of 1.7426 grams all containing methamphetamine
hydrochloride or shabu allegedly found in his house are inadmissible as evidence against him considering that they were seized
after [a] search conducted by virtue of Search Warrant No. 20 which is totally null and void as it was issued for more than one
offense, and were not found in plain view of the police officers who seized them. Neither could the accused be held liable for
illegal possession of firearms and ammunition except for the (1) M14 rifle with Serial Number 1555225 and with magazine
containing fifteen (15) live ammunition and two more M14 rifle magazines with twenty (20) and twenty-one (21) live
ammunition respectively considering that the policemen who recovered or seized the other firearms and ammunition did not
testify in court. The blue bag containing assorted coins cannot be returned to the accused Walpan Ladjaalam a.k.a. Warpan
because according to the accused the blue bag and assorted coins do not belong to him[;] instead the said assorted coins
should be turned over to the National Treasury.[30]
The Issues
In his Brief, appellant submits the following Assignment of Errors:
I
The trial court erred when it concluded that appellant Walpan Ladjaalam y Mihajil [had] fired first at the police officers who
went to his house to serve a search warrant upon him which led to an exchange of fire between Ladjaalam and the police
officer.
II
The trial court erred when it denied the appellant the right and opportunity for an ocular inspection of the scene of the
firefight and where the house of the appellant [was] located.
III
The trial court erred when it ruled that the presumption of regularity in the performance of their duties [excluded] the claim of
the appellant that the firearms and methamphetamine hydrochloride (i.e. shabu) were planted by the police.[31]
In the interest of simplicity, we shall take up these issues seriatim: (a) denial of the request for ocular inspection, (b) credibility
of the prosecution witnesses, and (c) the defense of frame-up. In addition, we shall also discuss the proper crimes and
penalties to be imposed on appellant.
The Courts Ruling
The appeal has no merit.
First Issue: Denial of Request for Ocular Inspection
Appellant insists that the trial court erred in denying his request for an ocular inspection of the Ladjaalam residence. He argues
that an ocular inspection would have afforded the lower court a better perspective and an idea with respect to the scene of
the crime.[32] We do not agree.
We fail to see the need for an ocular inspection in this case, especially in the light of the clear testimonies of the prosecution
witnesses.[33] We note in particular that the defense had even requested SPO1 Amado Mirasol Jr. to sketch the subject
premises to give the lower court a fairly good idea of appellants house.[34] Viewing the site of the raid would have only
delayed the proceedings.[35] Moreover, the question whether to view the setting of a relevant event has long been recognized
to be within the discretion of the trial judge.[36] Here, there is no reason to disturb the exercise of that discretion.[37]
Second Issue: Credibility of Prosecution Witnesses
Appellant, in essence, questions the credibility of the prosecution witnesses.[38] Suffice it to state that the trial courts
assessment of their credibility is generally accorded respect, even finality.[39] After carefully examining the records and finding
no material inconsistencies to support appellants claim, we cannot exempt this case from the general rule.[40] Quite the
contrary, the testimonies of these witnesses positively showed that appellant had fired upon the approaching police elements,
and that he had subsequently attempted to escape. SPO1 Amado Mirasol Jr.[41] testified thus:
PROSECUTOR NUVAL:
Q: And, this trail is towards the front of the house of the accused?
A: Yes.
Q: And its there where you were met by a volley of fire?
A: Yes, Your Honor.
COURT:
Q: How far were you from the concrete fen[c]e when you were met by a volley of fire? ... You said you were fired upon?
A: More or less, five (5) meters.
xxxxxxxxx
PROSECUTOR NUVAL:
Q: Now, you said you were able to enter the house after the gate was opened by your colleague Felipe Gaganting ... I will Q: Were you able to go down?
reform that question.
A: Yes.
Q: Who opened the gate Mr. Witness?
Q: What happened when you were there?
A: SPO2 Felipe Gaganting, Efren Gregorio and Allan Marcos Obut.
A: We immediately went out and I asked the assistance of the members of the raiding team and the investigator of the unit
Q: And, at that time you were hiding at the concrete fence? especially SPO1 Cesar Rabuya. I was able to manage to arrest Walfan Ladjaalam.[42]

A: Yes. What happened thereafter was narrated by Senior Police Officer Ricardo Lacastesantos,[43] as follows:

Q: Now, when this gate was opened, you said you went inside the house, right? Q: What did you notice [o]n the second floor?

A: Yes. A: I went where the firing came from, so, I saw [an] M14 rifle and I shouted from the outside, do not fire at the second floor
because there [are] a lot of children here.
Q: What did you see inside the house?
Q: Now, that rifle you said [was an] M14, where did you find this?
A: I, together with SPO1 Ricardo Lacastesantos, entered the main door of the house of Walfran [sic] Ladjaalam at the ground
floor. We went inside the sala on the ground floor of his house[;] I saw two old woman. A: At the sala set.

xxxxxxxxx Q: This sala set where is this located?

PROSECUTOR NUVAL: A: Located [on] the second floor of the house.

Q: Now, what did you do with these two old women? Q: Is there a sala [o]n the second floor?

A: I did not mind those two old women because those two women were sitting on the ground floor. I was concentrating on the A: Yes.
second floor because Ladjaalam was firing towards our group so, I, together with Ricardo Lacastesantos, went upstairs to the
second floor of the house. Q: Can you still identify that M14 rifle which you said you recovered from the sale set?

Q: Were you able to go to the second floor of the house? A: Yes.

A: Yes. Q: Why can you identify that?

Q: What happened when you were already on the second floor? A: The Serial No. of M14 is 1555225 and I marked it with my initial.

A: While we were proceeding to the second floor, Walfan [sic] Ladjaalam, noticed our presence and immediately went inside Q: Now, I have here M14 rifle[;] will you please tell us where is the Serial No. of this?
the bedroom [o]n the second floor and he went immediately and jumped from the window of his house x x x leading to the
roof of the neighbors house. A: 1555225 and I put my initial, RJL.

xxxxxxxxx FISCAL NUVAL:

COURT: This is already marked as our Exhibit B-3 with magazine, one magazine and seven round [ammunition].

Reform. That is leading Q: After recovering this, what did you do with this firearm?

Q: What happened when you entered and he jumped to the roofing of the neighbors house? A: When I recovered it I removed the bullets inside the chamber[.] I removed the magazine and I turned it over to the
investigator.
A: Immediately, I myself, we immediately went downstairs and asked the assistance of the members of the raiding team to
arrest Walfan Ladjaalam. Q: Where did you turn it over?

xxxxxxxxx A: At the crime scene.

PROSECUTOR NUVAL: Q: Now, that magazine, can you still identify this?
A: Yes.
Q: Can we conclude that he fired a gun?
Q: Why?
A: I cannot conclude that he fired a gun because there are so many circumstances [why] a person [would be] positive on his
A: I put x x x markings. hands for gun powder nitrates.

xxxxxxxxx Q: But, most likely, he fired a gun?

COURT: A: Yes.

So, a[si]de from the magazine attached to the M14 rifle you found six more magazines? xxxxxxxxx

A: Yes, so, all in all six magazines, three empty M16 rifle magazines and three M14. PROSECUTOR NUVAL:

Q: The M16 magazines [were] empty? Q: What about, Madam Witness this Exhibit B-3, which is the M14 rifle. What did you do with this?

A: Empty. A: SPO3 Abu did the swabbing both in the chamber and the barrel wherein I observed there [were] black and traces of brown
residue on the bolt, chamber and in the barrel.
Q: How about the M14?
Q: And, that indicates Madam Witness...?
A: Found with [ammunition].
A: It indicates that the gun was fired.
xxxxxxxxx
Q: Recently?
Q: So, where are the three M16 magazines?
A: Because of the traces of brown residue, it could be possible that the gun was fired before the incident x x x.
A: In the corner.
COURT:
Q: What did you do with [these] three magazines of M16?
Q: There is also black residue?
A: I turned [them] over to the investigator.
A: Yes.
Q: Can you identify them?
Q: What does it indicate?
A: Yes, because of my initials[.]
A: It indicates that the firearm was recently fired.
Q: Where are your initials?
Q: And, where is this swab used at the time of the swabbing of this Exhibit?
A: On the magazines.
A: This one.
Q: RJL?
PROSECUTOR NUVAL:
A: RJL.[44]
May we ask that this be marked as Exhibit B-3-A.
These were confirmed by the results of the paraffin tests conducted on appellant and on the weapons seized during the raid.
Both of his hands as well as the weapons, particularly the M-14 which he had used, were positive for gunpowder nitrate. Police COURT:
Inspector Mercedes Delfin-Diestro explained in open court:
Q: The firing there indicates that the gun was recently fired, during the incident?
Q: Okay. Now, what was the result of your examination, Madam Witness?
A: Yes.
A: The result of the examination [was] that both hands of the subject person, ha[d] presence of gun powder nitrates.
Q: And also before the incident it was fired because of the brown residue?
Q: What do you mean Madam Witness, what does that indicate?
A: Yes, Your Honor.[45] (emphasis supplied)
A: It indicates there is presence of powder nitrates.
Duly proven from the foregoing were the two elements[46] of the crime of illegal possession of firearms. Undoubtedly, the
established fact that appellant had fired an M-14 rifle upon the approaching police officers clearly showed the existence of the
firearm or weapon and his possession thereof. Sufficing to satisfy the second element was the prosecutions Certification[47]
stating that he had not filed any application for license to possess a firearm, and that he had not been given authority to carry
any outside his residence.[48] Further, it should be pointed out that his possession and use of an M-14 rifle were obviously
unauthorized because this weapon could not be licensed in favor of, or carried by, a private individual.[49]
Third Issue: Defense of Frame-up
From the convoluted arguments strewn before us by appellant, we gather that the main defense he raises is frame-up. He
claims that the items seized from his house were planted, and that the entire Zamboanga police force was out to get him at all
cost.
This Court has invariably held that the defense of frame-up is inherently weak, since it is easy to fabricate, but terribly difficult
to disprove.[50] Absent any showing of an improper motive on the part of the police officers,[51] coupled with the
presumption of regularity in the performance of their duty, such defense cannot be given much credence.[52] Indeed, after
examining the records of this case, we conclude that appellant has failed to substantiate his claim. On the contrary, his
statements in his Counter Affidavit are inconsistent with his testimony during the trial.[53] He testified thus:
Q Now, Mr. Witness, do you remember having executed an Affidavit/ a Counter-Affidavit?
A I could not remember.
Q I have here a Counter-Affidavit and it was signed before this representation on the 8th day of December 1997[;] tell us
whose signature is this appearing above the typewritten name
FISCAL NUVAL:
Q . . . . Walpan Ladjaalam, whose signature is this?
(Showing)
A Yes, Sir. This is mine.
Q Now, in paragraph[s] 1,2,3,4,5,6,7 and 8; you stated in this Counter-Affidavit which I quote: that I was resting and sleeping
when I heard the gunshots and I noticed that the shots were directed towards our house.. and I inspected and x x x we were
attacked by armed persons.. and I was apprehended by the persons who attacked x x x our house; [the] house you are
referring to [in] this paragraph, whose house [are you] referring to, is this [what] you are referring to [as] your house or the
house of your neighbors [from] which you said you heard gunshots?
A Our house.
Q Now, in paragraph 6 of your Counter-Affidavit you stated and I quote: that [o]n that afternoon of September 24, 1997, I was
at home in my house Aplaya, Riohondo, Bo. Campo Muslim, my companions in my house [were] the two old women and my
children, is this correct?
A They were not there.
Q Now, in that statement Mr. Witness, you said that you were at home in [your] house at Aplaya, Riohondo, Bo. Campo
Muslim[;] which is which now, you were in your house or you were in your neighbors[] house at that time when you heard
gunshots?
A I was in the house near my house.
Q So, your statement particularly paragraph 6 of your Counter-Affidavit that you were at home in [your] house at Aplaya
Riohondo Bo. Campo Muslim, is x x x not correct?
A Yes, Sir. This is not correct.[54]
Crime and Punishment
The trial court convicted appellant of three crimes: (1) maintenance of a drug den, (2) direct assault with attempted homicide,
and (3) illegal possession of firearms. We will discuss each of these.
Maintenance of a Drug Den
We agree with the trial court that appellant was guilty of maintenance of a drug den, an offense for which he was correctly
sentenced to reclusion perpetua. His guilt was clearly established by the testimony of Prosecution Witness Rino Bartolome
Locson, who himself had used the extension house of appellant as a drug den on several occasions, including the time of the
raid. The formers testimony was corroborated by all the raiding police officers who testified before the court. That appellant
did not deny ownership of the house and its extension lent credence to the prosecutions story.
Direct Assault with Multiple Attempted Homicide
The trial court was also correct in convicting appellant of direct assault[55] with multiple counts of attempted homicide. It
found that [t]he act of the accused [of] firing an M14 rifle [at] the policemen[,] who were about to enter his house to serve a
search warrant x x x constituted such complex crime.[56]
We note that direct assault with the use of a weapon carries the penalty of prision correccional in its medium and maximum
periods, while attempted homicide carries the penalty of prision correccional.[57] Hence, for the present complex crime, the
penalty for direct assault, which constitutes the most serious crime, should be imposed and applied in its maximum period.[58]
Illegal Possession of Firearms
Aside from finding appellant guilty of direct assault with multiple attempted homicide, the trial court convicted him also of the
separate offense of illegal possession of firearms under PD 1866, as amended by RA 8294, and sentenced him to 6 years of
prision correccional to 8 years of prision mayor.
The Office of the Solicitor General (OSG) disagrees, on the ground that the trial court should not have applied the new law. It
contends that under the facts of the case, the applicable law should have been PD 1866, as worded prior to its amendment by
RA 8294.
The trial courts ruling and the OSGs submission exemplify the legal communitys difficulty in grappling with the changes brought
about by RA 8294. Hence, before us now are opposing views on how to interpret Section 1 of the new law, which provides as
follows:
SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows:
Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition Instruments Used or
Intended to be Used in the Manufacture of Firearms or Ammunition. -- The penalty of prision correccional in its maximum
period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully
manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other
firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the
manufacture of any firearm or ammunition: Provided, That no other crime was committed.
The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the
firearm is classified as high powered firearm which includes those with bores bigger in diameter than .30 caliber and 9
millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and
caliber .22 centerfire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided,
however, That no other crime was committed by the person arrested.
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.
If the violation of this Section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection,
sedition, or attempted coup detat, such violation shall be absorbed as an element of the crime of rebellion or insurrection,
sedition, or attempted coup detat.
The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or
private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm,
company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding
paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or firearms without any legal authority to be
carried outside of their residence in the course of their employment.
The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence
without legal authority therefor.
Citing People v. Jayson,[59] the OSG argues that the foregoing provision does not cover the specific facts of this case. Since
another crime -- direct assault with multiple unlawful homicide -- was committed, appellant cannot be convicted of simple
illegal possession of firearms under the second paragraph of the aforecited provision. Furthermore, since there was no killing
in this case, illegal possession cannot be deemed as an aggravating circumstance under the third paragraph of the provision.
Based on these premises, the OSG concludes that the applicable law is not RA 8294, but PD 1866 which, as worded prior the
new law, penalizes simple illegal possession of firearms even if another crime is committed at the same time.[60]
Applying a different interpretation, the trial court posits that appellant should be convicted of illegal possession of firearms, in
addition to direct assault with multiple attempted homicide. It did not explain its ruling, however. Considering that it could not
have been ignorant of the proviso[61] in the second paragraph, it seemed to have construed no other crime as referring only to
homicide and murder, in both of which illegal possession of firearms is an aggravating circumstance. In other words, if a crime
other than murder or homicide is committed, a person may still be convicted of illegal possession of firearms. In this case, the
other crime committed was direct assault with multiple attempted homicide; hence, the trial court found appellant guilty of
illegal possession of firearms.
Just as unacceptable is the interpretation of the trial court. We find no justification for limiting the proviso in the second
paragraph to murder and homicide. 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.
The Court is aware that this ruling effectively exonerates appellant of illegal possession of an M-14 rifle, an offense which
normally carries a penalty heavier than that for direct assault. While the penalty for the first is prision mayor, for the second it
is only prision correccional. Indeed, the accused may evade conviction for illegal possession of firearms by using such weapons
in committing an even lighter offense,[66] like alarm and scandal[67] or slight physical injuries,[68] both of which are
punishable by arresto menor.[69] This consequence, however, necessarily arises from the language of RA 8294, whose wisdom
is not subject to the Courts review. Any perception that the result reached here appears unwise should be addressed to
Congress. Indeed, the Court has no discretion to give statutes a new meaning detached from the manifest intendment and
language of the legislature. Our task is constitutionally confined only to applying the law and jurisprudence[70] to the proven
facts, and we have done so in this case.
WHEREFORE, the appealed Decision is hereby AFFIRMED with the MODIFICATION that appellant is found guilty only of two
offenses: (1) direct assault and multiple attempted homicide with the use of a weapon, for which he is sentenced to 2 years
and 4 months to 6 years of prision correccional; and (2) maintaining a drug den, for which he was correctly sentenced by the
trial court to reclusion perpetua. Costs against appellant.
Let a copy of this Decision be furnished the Congress of the Philippines for a possible review, at its sound discretion, of RA
8294.
SO ORDERED.
Melo, (Chairman), Vitug, Purisima, and Gonzaga-Reyes, JJ., concur.

We cannot accept either of these interpretations because they ignore the plain language of the statute. A simple reading
thereof shows that if an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple
illegal possession of firearms. Hence, if the other crime is murder or homicide, illegal possession of firearms becomes merely
an aggravating circumstance, not a separate offense. Since direct assault with multiple attempted homicide was committed in
this case, appellant can no longer be held liable for illegal possession of firearms.

Moreover, penal laws are construed liberally in favor of the accused.[62] In this case, the plain meaning of RA 8294s simple
language is most favorable to herein appellant. Verily, no other interpretation is justified, for the language of the new law
demonstrates the legislative intent to favor the accused.[63] Accordingly, appellant cannot be convicted of two separate
offenses of illegal possession of firearms and direct assault with attempted homicide. Moreover, since the crime committed
was direct assault and not homicide or murder, illegal possession of firearms cannot be deemed an aggravating circumstance.

We reject the OSGs contention that PD 1866, as worded prior to its amendment by RA 8294, should be applied in this case.
When the crime was committed on September 24, 1997, the original language of PD 1866 had already been expressly
superseded by RA 8294 which took effect on July 6, 1997.[64] In other words, no longer in existence was the earlier provision
of PD 1866, which justified a conviction for illegal possession of firearms separate from any other crime. It was replaced by RA
8294 which, among other amendments to PD 1866, contained the specific proviso that no other crime was committed.

Furthermore, the OSGs reliance on People v. Jayson[65] is misplaced. True, this Court sustained the conviction of appellant for
illegal possession of firearms, although he had also committed homicide. We explained, however, that the criminal case for
homicide [was] not before us for consideration.
FIRST DIVISION
[G.R. No. 117033. February 15, 2001]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAFAEL AVECILLA y MOBIDO, accused-appellant.
DECISION
YNARES-SANTIAGO, J.:
Accused-appellant was charged with the crime of Qualified Illegal Possession of Firearm, committed as follows:
That on or about December 24, 1991, in the City of Manila, Philippines, the said accused, not being allowed or authorized by
law to keep, possess and carry a firearm, did then and there wilfully, unlawfully, and knowingly have in his possession, control
and custody a firearm, to wit:
One (1) .38 Caliber Revolver Colt (Paltik) marked made in USA
without first obtaining the necessary license and/or permit to carry and possess the same and in connection and by reason of
such possession, did then and there wilfully, unlawfully and feloniously, with intent to kill, fire and shoot one Macario Afable,
Jr. y Canqui, thus inflicting upon the latter mortal gunshots and injuries which caused the death of the latter as a
consequence.[1]
It appears from the records that at about 11:00 oclock in the evening of December 24, 1991, accused-appellant arrived at the
basketball court located on Dapo Street, Pandacan, Manila, and, for no apparent reason, suddenly fired a gun in the air. He
then went to a nearby alley and, minutes later, proceeded to the closed store about four (4) meters away from the basketball
court. There, he initiated an argument with the group of Boy Manalaysay, Jimmy Tolentino and Macario Afable, Jr. Afable tried
to pacify accused-appellant, whereupon, the latter placed his left arm around Afables neck and shot him pointblank on the
abdomen. Afable ran toward the alley and accused-appellant ran after him. Another shot rang out, so one of the bystanders,
Carlos Taganas, went to the alley and there, he saw accused-appellant and Afable grappling for possession of the gun. The
Chief Barangay Tanod arrived and was able to wrest the gun away from accused-appellant, who immediately fled from the
scene of the incident. Afable was rushed to the Philippine General Hospital, where he eventually expired.
On June 21, 1994, the Regional Trial Court of Manila, Branch 38, rendered judgment convicting accused-appellant of the crime
of Qualified Illegal Possession of Firearm, sentencing him to suffer the penalty of reclusion perpetua, and ordering him to
indemnify and pay damages to the victims heirs.[2] Hence, this appeal filed by accused-appellant.
The records and the evidence show that the elements of the offense of qualified illegal possession of firearms, defined in the
second paragraph of Section 1, Presidential Decree No. 1866, are present in this case. Specifically, there are:
1. there must be a firearm;
2. the gun was possessed by the accused;
3. the accused had no license from the government; and
4. homicide or murder was committed by the accused with the use of said firearm.[3]
The prosecution sufficiently established by evidence that accused-appellant had in his custody and possession the following
firearms and ammunitions:
1. One (1) .38 cal. Rev., Colt paltik without serial number, nickel plated with brown handle, two and one half inches barrel and
marked BC;
2. Three (3) .38 Caliber cartridge cases marked BC-1, BC-2, BC-3;
3. Two (2) .38 cal. Ammo. (used for test);
4. One (1) .38 cal. slug (deformed) marked F from Medico legal.[4]
Likewise, per Certification of the Firearms and Explosives Office dated September 1, 1992,[5] it was proved that accused-
appellant was not a licensed or registered firearm holder of any kind and caliber.
Finally, there was an eyewitness account positively asserting that accused-appellant had the subject firearm in his possession
and used it in shooting the victim.[6] The medical examination on the victim disclosed that the gunshot wounds he sustained
were caused by the same unlicensed firearm in accused-appellants possession, and that the same were the direct cause of the
death of the victim. The ballistics report established that the deformed .38 caliber slugs found in the victims body were fired
from the subject firearm.[7] The victims cause of death was determined as cardio-respiratory arrest due to shock and
hemorrhage secondary to gunshot wound, left antero-lateral thorax.[8]
However, the law on illegal possession of firearms has been amended by Republic Act No. 8294, which took effect on July 6,
1994. The pertinent provision of the said law provides:
SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used
or Intended to be Used in the Manufacture of Firearms or Ammunition. The penalty of prision correccional in its maximum
period and a fine of not less than Fifteen thousand pesos (P15,000.00) shall be imposed upon any person who shall unlawfully
manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other
firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the
manufacture of any firearm or ammunition: Provided, that no other crime was committed.
xxxxxxxxx
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.
If the violation of this Section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection,
sedition, or attempted coup detat, such violation shall be absorbed as an element of the crime of rebellion, or insurrection,
sedition, or attempted coup detat. (Underscoring provided)
It is clear from the foregoing that where murder or homicide results from the use of an unlicensed firearm, the crime is no
longer qualified illegal possession, but murder or homicide, as the case may be. In such a case, the use of the unlicensed
firearm is not considered as a separate crime but shall be appreciated as a mere aggravating circumstance. In view of the
amendments introduced by Republic Act No. 8294 to Presidential Decree No. 1866, separate prosecutions for homicide and
illegal possession are no longer in order. Instead, illegal possession of firearms is merely to be taken as an aggravating
circumstance in the homicide case.[9]
Thus, in People v. Nepomuceno, Jr.,[10] we stated:
But, pursuant to the amendment, the use of an unlicensed firearm in the commission of murder or homicide is treated as an
aggravating circumstance. There, the illegal possession or use of the unlicensed firearm is no longer separately punished. This
Court emphatically said so in People v. Bergante (286 SCRA 629 [1998]), thus:
The violation of P.D. No. 1866 should have been punished separately conformably with our ruling in People v. Quijada.
Nevertheless, fortunately for appellant Rex Bergante, P.D. No. 1866 was recently amended by Republic Act. No. 8294,
otherwise known as An Act Amending the Provisions of Presidential Decree No. 1866, as Amended. The third paragraph of
Section 1 of said Act 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. In short, only one offense should be punished, viz.,
either homicide or murder, and the use of the unlicensed firearm should only be considered as an aggravating circumstance.
Being favorable to Rex Bergante, this provision may be given retroactive effect pursuant to Article 22 of the Revised Penal
Code, he not being a habitual criminal.
The crime of illegal possession of firearm, in its simple form, is committed only where the unlicensed firearm is not used to
commit any of the crimes of murder, homicide, rebellion, insurrection, sedition or attempted coup detat. Otherwise, the use of
unlicensed firearm would be treated either: (1) as an essential ingredient in the crimes of rebellion, insurrection, sedition or
attempted coup detat; or (2) as an aggravating circumstance in murder or homicide.

With respect to the conviction of accused-appellant for illegal possession of firearms under P. D. No. 1866, it was held in the
case of People vs. Molina (292 SCRA 742) and reiterated in the recent case of People vs. Ronaldo Valdez (G.R. No. 127663,
March 11, 1999, 304 SCRA 611), that in cases where murder or homicide is committed with the use of an unlicensed firearm,
there can be no separate conviction for the crime of illegal possession of firearms under P.D. No. 1866 in view of the
amendments introduced by Republic Act No. 8294. Thereunder, the use of unlicensed firearm in murder or homicide is simply
considered as an aggravating circumstance in the murder or homicide and no longer as a separate offense. Furthermore, the
penalty for illegal possession of firearms shall be imposed provided that no other crime is committed (Section 1 of R.A. No.
8294). In other words, where murder or homicide was committed, the penalty for illegal possession of firearms is no longer
imposable since it becomes merely a special aggravating circumstance (People v. Molina, supra, at p. 782).

It bears stressing, however, that the dismissal of the present case for illegal possession of firearm should not be misinterpreted
to mean that there can no longer be any prosecution for the offense of illegal possession of firearms. In general, all pending
cases involving illegal possession of firearms should continue to be prosecuted and tried if no other crimes expressly provided
in R. A. No. 8294 are involved (murder or homicide, under Section 1, and rebellion, insurrection, sedition or attempted coup d
etat, under Section 3) (People v. Valdez, supra).[11]

Inasmuch as the amendatory law is favorable to accused-appellant in this case, the same may be retroactively applied. This
new law applies even to violations that occurred prior to its effectivity as it may be given retroactive effect under Article 22 of
the Revised Penal Code.[12]

R.A. 8294 took effect on July 6, 1997. The crime involved in the case at bench was committed on May 5, 1991. As a general
rule, penal laws will generally have prospective application except where the new law will be advantageous to the accused. In
this case R.A. 8294 will spare accused-appellant from a separate conviction for the crime of illegal possession of firearm.
Accordingly, said law should be given retroactive application.[13]

Neither can accused-appellant be charged with simple illegal possession. As stated above, the same may only done where no
other crime is committed.[14]

With more reason, accused-appellant cannot be convicted of homicide or murder with the use of the unlicensed firearm as
aggravating, inasmuch as said felonies are not charged in the information but merely mentioned as the result of the use of the
unlicensed firearm. Accused-appellant was not arraigned for homicide or murder. Hence, he cannot be convicted of any of
these crimes without violating his right to be informed of the nature and cause of the accusation against him, not to mention
his right to due process.

WHEREFORE, in view of the foregoing, the appealed decision is REVERSED. Criminal Case No. 92-105691, for Qualified Illegal
Possession of Firearm, is DISMISSED.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.
G.R. No. 159703 WHEREFORE, premises considered, the Judgment dated August 2, 2002 rendered by the Municipal Trial Court in Cities, Bais
CEDRIC SAYCO y VILLANUEVA City in Criminal Case No. 99-001 is hereby affirmed in all respects subject only to the modification with respect to the penalty
Petitioner, imposed by the trial court. The herein accused-appellant is hereby sentenced to the indeterminate penalty of four (4) months
- versus - of arresto mayor as maximum [sic] to two (2) years, four (4) months and one (1) day of prision correccional as maximum [sic].

PEOPLE OF THE PHILIPPINES, SO ORDERED.[7]

Promulgated: Petitioner filed with the CA a Petition for Review but the same was denied in the May 23, 2003 CA Resolution assailed herein.
Respondent. Petitioners Motion for Reconsideration[8] was also denied by the CA in its August 7, 2003 Resolution.

March 3, 2008 Hence, the present Petition raising the following issues:
x------------------------------------------------x
I
DECISION Whether the lower court erred in convicting the petitioner for violation of P.D. 1866, as amended by RA 8294, despite the
latters proof of authority to possess the subject firearm.
AUSTRIA-MARTINEZ, J.:
II
Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the May 23, 2003 Whether the prosecutions evidence proved the petitioners guilt beyond reasonable doubt.[9]
Resolution[1] of the Court Appeals (CA) which affirmed the conviction of Cedric Sayco y Villanueva[2] (petitioner) for violation
of Section 1, Presidential Decree (P.D.) No. 1866, as amended by Republic Act (R.A.) No. 8294; as well as the August 7, 2003 CA As summarized by the RTC and MTCC, the evidence for the prosecution consisted of the following:
Resolution[3] which denied his Motion for Reconsideration.
The facts are not disputed. EVIDENCE OF THE PROSECUTION

Petitioner was charged before the Municipal Trial Court in Cities (MTCC), Bais City with illegal possession of firearms under an
Information which reads:
The undersigned Prosecutor II hereby accuses ZEDRIC SAYCO Y VILLANUEVA of the crime of Illegal Possession of Firearm and
Ammunitions penalized and defined under Section 1 of Presidential Decree Number 1866 as amended by Republic Act Number
8294, committed as follows:
That on or about January 3, 1999, at Bais City, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, did, then and there willfully, unlawfully and feloniously possess and carry away one (1) caliber 9MM marked
SIGSAUER P229 with fourteen (14) live ammunitions and with Serial Number AE 25171, without first having obtained the
proper license or authority to possess the same.
An act contrary.[4]
The first prosecution witness in the person of PO3 Mariano Labe testified on January 17, 2002. He declared that on or about
3:35 in the afternoon of January 3, 1999, while they were at the Police Station, they received a telephone call from a
concerned citizen from Tavera Street, Bais City, informing them that one unidentified person was inside Abuevas Repair Shop
located at Tavera Street, tucking a handgun on his waist. They immediately went to the aforementioned place, and upon their
arrival thereat, they saw one unidentified person tucking a handgun on his right side waistline. They approached the
unidentified person and asked him if he had a license to possess said firearm, but the answer was in the negative. At this
juncture, they immediately effected the arrest, and confiscated from his possession and custody a Caliber 9MM marked
SIGSAUER P299 with 14 live ammunitions with Serial No. AE 25171. The arrested person was identified as Zedric Sayco y
Villanueva, a resident of Binalbagan, Negros Occidental.
SPO2 VALENTINO ZAMORA, member of the PNP Bais City, testified on February 26, 2002. He was presented to corroborate the
testimony of Mariano Labe. He further declared that during the incident, they talked to the accused in Cebuano, but they
found out then that the latter is an Ilonggo, so they spoke to him in English.

Upon arraignment, petitioner entered a plea of Not Guilty.[5]
On August 2, 2002, the MTCC rendered a Decision, the dispositive portion of which reads:
WHEREFORE, premises considered, the Court finds that the evidence presented has sufficiently established the guilt of the
accused beyond reasonable doubt. The accused Zedric V. Sayco is convicted for violation of Section 1 of Presidential Decree
No. 1866, as amended by Republic Act No. 8294. There being no modifying circumstances, and applying the Indeterminate
Sentence Law, the Court sentences the accused to a prison term ranging from THREE YEARS, SIX MONTHS AND TWENTY DAYS
of Prision Correccional Medium as minimum, to FIVE YEARS, FOUR MONTHS and TWENTY DAYS of Prision Correccional
Maximum as maximum, and to pay a fine of FIFTEEN THOUSAND PESOS. The firearm (Exhibit A) and the ammunitions (Exhibit
B) are forfeited in favor of the government, to be disposed of in accordance with law.
IT IS SO ORDERED.[6]
On appeal, the Regional Trial Court (RTC), Bais City issued a Decision dated March 14, 2003, affirming the conviction of
petitioner but lowering his
penalty as follows:
SPO2 VICENTE DORADO also testified on February 26, 2002. He corroborated the testimony of SPO2 Valentino Zamora and
PO2 Mariano Labe.
The following exhibits were admitted as part of the evidence of the prosecution:
Exhibit A - one (1) 9 mm pistol with serial no. 25171.
Exhibit B - fourteen (14) pieces live ammunition and one (1) magazine placed in a black plastic bag.
Exhibit C - Joint Affidavit of the police officers.[10] (Emphasis supplied)
For his defense, petitioner does not deny that he was in possession of the subject firearm and ammunitions when he was
apprehended on January 3, 1999 in Bais City, but he insists that he had the requisite permits to carry the same, specifically:
1) Memorandum Receipt for Equipment (Non-expendable Property), which reads:
Hqs Field Station 743, 7ISU, ISG, PA, Camp Montelibano Sr., Bacolod City, Philippines, 01 January 1999. I acknowledge to have
received from MAJOR RICARDO B. BAYHON (INF) PA, Commanding Officer, FS743, 7ISU, ISG, PA the following property for
which I am responsible, subject to the provision of the accounting law and which will be used in the office of FS 7431.
QTY
UNIT Pistol
NAME OF DESCRIPTION
CLASSI-FICATION AE25171
UNIT TOTAL
PRICE ISG Prop
1
ea 24 rds
Cal 9mm (SIG SAUER) VI. SPECIFIC INSTRUCTIONS:
SN: AE 25171 a. For personnel in uniform, the firearms shall be placed in holster securely attached to the belt. Personnel in uniform without
Pistol holster and personnel in civilian attire will ensure that their firearms are concealed unless in actual and lawful use.

2 xxxx
ea RICARDO B. BAYHON (SGD)
Mags for Cal 9mm pistol Major (INF) PA
FS 743 Commander[12]

24 The RTC and MTCC gave no significance to the foregoing documents. The MTCC held that the Memorandum Receipt and
ea Mission Order do not constitute the license required by law because they were not issued by the Philippine National Police
Ctgs for 9mm Ammo (PNP) Firearms and Explosives Unit, but by the Commanding Officer of the Philippine Army who is not authorized by law to
issue licenses to civilians to possess firearms and ammunitions.[13] The RTC added that, as held in Pastrano v. Court of
Appeals[14] and Belga v. Buban,[15] said documents cannot take the place of the requisite license.[16]
x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-NOTHING FOLLOWS-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x
The CA wholly concurred with both courts.
Basis: For use of subject EP in connection with his official duties/mission in the AOR.
In the present Petition, petitioner insists that he is a confidential agent of the Armed Forces of the Philippines (AFP), and it was
NOTED BY: APPROVED BY: in that capacity that he received the subject firearm and ammunitions from the AFP. As said firearm and ammunitions are
Nolasco B. James (SGD) RICARDO B BAYHON (SGD) government property duly licensed to the Intelligence Security Group (ISG) of the AFP, the same could not be licensed under
SSg (Inf) PA Major (INF) PA his name;[17] instead, what he obtained were a Memorandum Receipt and a Mission Order whereby ISG entrusted to him the
FS Supply NCO Commanding Officer subject firearm and ammunitions and authorized him to carry the same around Bacolod City. Petitioner further argues that he
merely acted in good faith when he relied on the Memorandum Receipt and Mission Order for authority to carry said firearm
CA Zedric V. Zayco (SGD) and ammunitions; thus, it would be a grave injustice if he were to be punished for the deficiency of said documents.[18]
Confidential Agent;[11]
The Solicitor General filed his Comment,[19] pointing out that good faith is not a valid defense in the crime of illegal possession
and 2) Mission Order dated January 1, 1999, thus: of firearms.[20]

Mission Orders The arguments of petitioner are not tenable.

Number: FS743-A-241
TO: CA Cedric V. Zayco The corpus delicti in the crime of illegal possession of firearms is the accused's lack of license or permit to possess or carry the
firearm, as possession itself is not prohibited by law.[21] To establish the corpus delicti, the prosecution has the burden of
I. DESTINATION Negros Island proving that the firearm exists and that the accused who owned or possessed it does not have the corresponding license or
II. PURPOSE C O N F I D E N T I A L permit to possess or carry the same.[22]
III. DURATION 01 January 1999 to 31 March 1999
IV. AUTHORIZED ATTIRE/UNIFORM There is no dispute over these key facts: first, that the subject firearm and ammunitions exist; second, that petitioner had
GOA ( ) BDA ( ) Civilian (x) possession thereof at the time of his apprehension; third, that petitioner is a confidential agent of the ISG-AFP; fourth, that
V. AUTHORIZED TO CARRY FIREARMS: (x) Yes ( ) No. petitioner lacks a license issued by the Firearms and Explosives Unit of the PNP; and fifth, that petitioner holds a Memorandum
Caliber Receipt and Mission Order covering the subject firearm and ammunitions. Thus, the issue to be resolved is confined to whether
Make petitioner's Memorandum Receipt and Mission Order constitute sufficient authority for him to possess the subject firearm and
Kind ammunitions and carry the same outside of his residence, without violating P.D. No. 1866, as amended by R.A. No. 8294.
Serial Nr
MR/License Nr As correctly cited by the Solicitor General, it is a settled jurisprudence that a memorandum receipt and mission order cannot
Nr Ammo take the place of a duly issued firearms license,[23] and an accused who relies on said documents cannot invoke good faith as a
defense against a prosecution for illegal possession of firearms, as this is a malum prohibitum.[24] Petitioner interposed no
9mm new argument that would convince this Court to abandon a deep-rooted jurisprudence.
Sig Sauer
However, rather than outrightly dismiss the present petition in the light of existing jurisprudence, this Court finds it opportune
to examine the rules governing the issuance of memorandum receipts and mission orders covering government-owned
firearms to special and confidential civilian agents, in order to pave the way for a more effective regulation of the proliferation
of such firearms and the abatement of crimes, such as extra-judicial killings, attendant to such phenomenon.
In 1901, the United States Philippine Commission enacted Act No. 175, providing for the organization of an Insular
Constabulary. Section 6 vested in the Chief of the Insular Constabulary the following authority over the distribution of firearms:
Section 6. The Insular Chief shall prescribe for the Insular Constabulary suitable arms, uniform, and equipment and shall report
to the Commission, through the Civil Governor, his action in this regard, together with a statement of the cost, to the end that
appropriation may be made to defray the cost thereof. The guns, revolvers, and ammunitions needed to equip the insular and
municipal police shall be purchased by the Insular Purchasing Agent on the order of the Chief of Insular Constabulary, by whom
they shall be distributed to the provinces and municipalities as they may be needed. The Chief of the Insular Constabulary shall
keep a record of the guns and revolvers distributed, by their numbers, to municipalities and provinces x x x. (Emphasis
supplied)
Firearms owned by the government may therefore be distributed by the Chief of the Insular Constabulary to the members of
the insular and municipal police, with merely a record of the distribution being required.
Shortly, the Philippine Commission enacted Act No. 1780[25] regulating possession of firearms:
Section 1. It shall be unlawful for any person, firm, or corporation, for purposes of sale, to import, buy or otherwise acquire,
dispose of, possess, or have the custody of any rifle, musket, carbine, shotgun, revolver, pistol, or air rifle, except air rifles of
small caliber and limited range used as toys, or any other deadly weapon x x x unless and until such person, firm, or
corporation shall secure a license, pay the license fee, and execute a bond and otherwise comply with the requirements of this
Act and the rules and regulations issued in executive orders by the Governor-General pursuant to the provisions of this Act x x
x. (Emphasis supplied)
but exempted therefrom the following government-owned firearms:
Section 16. The foregoing provisions of this Act shall not apply to firearms and ammunition therefor regularly and lawfully
issued to officers, soldiers, sailors, or marines of the United States Army and Navy, the Constabulary, guards in the employ of
the Bureau of Prisons, the police force of the City of Manila, provincial prisoners and jails when such firearms are in possession
of such officials and public servants for use in the performance of their official duties. (Emphasis supplied)
The 1917 Revised Administrative Code[26] retained the foregoing exemption:
Section 879. Exemption as to firearms and ammunition used by military and naval forces or by peace officers. - This article shall
not apply to firearms and ammunition regularly and lawfully issued to officers, soldiers, sailors, or marines of the Unites States
Army and Navy, the Philippine Constabulary, guards in the employment of the Bureau of Prisons, municipal police, provincial
governors, lieutenant governors, provincial treasurers, municipal police, provincial governors, lieutenant governors, provincial
treasurers, municipal treasurers, municipal presidents, and guards of provincial prisoners and jails, when such firearms are in
possession of such officials and public servants for use in the performance of their official duties. (Emphasis supplied)
In People of the Philippines v. Macarandang,[27] we interpreted Section 879 of the 1917 Revised Administrative Code as
applicable to a secret agent appointed by a governor as said agent holds a position equivalent to that of peace officer or
member of the municipal police. We reiterated this ruling in People of the Philippines v. Licera.[28]
In People v. Asa,[29] we acquitted a civilian guard from a charge of illegal possession of firearms on the ground that he acted in
good faith in bearing the firearms issued to him by his superior.
Two years later, in People v. Mapa,[30] the Court, speaking through Justice Fernando, overhauled its interpretation of Section
879, thus:
The law is explicit that except as thereafter specially allowed, "it shall be unlawful for any person to x x x possess any firearm,
detached parts of firearms or ammunition therefor, or any instrument or implement used or intended to be used in the
manufacture of firearms, parts of firearms, or ammunition." The next section provides that "firearms and ammunition regularly
and lawfully issued to officers, soldiers, sailors, or marines [of the Armed Forces of the Philippines], the Philippine
Constabulary, guards in the employment of the Bureau of Prisons, municipal police, provincial governors, lieutenant governors,
provincial treasurers, municipal treasurers, municipal mayors, and guards of provincial prisoners and jails," are not covered
"when such firearms are in possession of such officials and public servants for use in the performance of their official duties."
The law cannot be any clearer. No provision is made for a secret agent. As such he is not exempt. Our task is equally clear. The
first and fundamental duty of courts is to apply the law. "Construction and interpretation come only after it has been
demonstrated that application is impossible or inadequate without them." The conviction of the accused must stand. It cannot
be set aside.
Accused however would rely on People v. Macarandang, where a secret agent was acquitted on appeal on the assumption that
the appointment "of the accused as a secret agent to assist in the maintenance of peace and order campaigns and detection of
crimes, sufficiently put him within the category of a "peace officer" equivalent even to a member of the municipal police
expressly covered by section 879." Such reliance is misplaced. It is not within the power of this Court to set aside the clear and
explicit mandate of a statutory provision. To the extent therefore that this decision conflicts with what was held in People v.
Macarandang, it no longer speaks with authority.[31] (Emphasis supplied)
We also abandoned the view that good faith is a defense against a prosecution for illegal possession of firearms.[32]
On June 29, 1983, P.D. No. 1866 was issued, imposing stiffer penalties on illegal possession of firearms. It also added the
following separate requirement for carrying firearms:
Section 1. Unlawful manufacture, sale, acquisition, disposition or possession of firearms and ammunition or implements used
or intended to be used in the manufacture of firearms or ammunition. - x x x The penalty of prision mayor shall be imposed
upon any person who shall carry any licensed firearm outside his residence without legal authority therefor.
xxxx
Section 7. Unauthorized issuance of authority to carry firearms and/or ammunition outside of residence. - The penalty of
prision correccional shall be imposed upon any person, civilian or military, who shall issue authority to carry firearm and/or
ammunition outside of residence without authority therefor.
P.D. No. 1866 was later amended by R.A. No. 8294,[33] which lowered the imposable penalties for illegal possession of firearm
when no other crime is committed. However, neither law amended or repealed Section 879 of the 1917 Revised Administrative
Code. Even Executive Order No. 292, otherwise known as the 1987 Administrative Code,[34] left Section 879 untouched.
As matters stand, therefore, Section 879, as construed by this Court in Mapa and Neri, and reinforced by paragraph 6, Section
1 of P.D. No. 1866, as amended by R.A. No. 8294, is still the basic law on the issuance, possession and carrying of government-
owned firearms.
In exercise of its rule-making authority under Section 8[35] of P.D. No. 1866, the Chief of the Philippine Constabulary issued
The Implementing Rules and Regulations of P.D. No. 1866, which includes the following provisions salient to the issuance,
possession and carrying of government-owned firearms:
Section 1. Definition of terms. - For purposes of Presidential Decree No. 1866, the following terms shall mean and be
interpreted as hereinafter defined:
xxxx
d. Mission Order - is a written directive or order issued by government authority as enumerated in Section 5 hereof to persons
who are under his supervision and control for a definite purpose or objective during a specified period and to such place or
places as therein mentioned which may entitle the bearer thereof to carry his duly issued or licensed firearm outside of his
residence when so specified therein.
e. Permit to Carry Firearm Outside of Residence - is a written authority issued to any person by the Chief of Constabulary which
entitles such person to carry his licensed or lawfully issued firearms outside of residence for the duration and purpose specified
therein.
f. Residence - refers to that place where the firearm and ammunition are being permanently kept. It includes the office or
house where they are kept and the premises of the house enclosed by walls and gates separating said premises from adjacent
properties. For firearms covered by a regular license or special permit, their residence shall be that specified in the license or
permit; and those covered by a Certificate of Registration or a Memorandum Receipt, their residence in the office/station to
which the grantee belongs.
xxxx
Section 5. Authority to issue mission order involving the carrying of firearm. - The following are authorized to issue mission
orders with provisions which may entitle the bearer thereof to carry his issued/licensed firearm and ammunition for the
duration of such mission:
a. For officers, men and regular civilian agents of the Ministry of National Defense (MOND)/Armed Forces of the Philippines
(AFP) including members of the ICHDF:
xxxx
(8) Provincial commanders, METRODISCOM commanders, company commanders and their equivalent in the Philippine Air
Force and Philippine Navy.
xxxx
Section 6. Specific guidelines in the carrying of firearms outside of residence. - The following specific guidelines shall be strictly
observed in the carrying of firearm outside of residence:
a. Lawful Holders of Firearm Lawful holders of firearm (regular licenses, special permit, certificate of registration or M/R) are
prohibited from carrying their firearms outside of residence except when they have been issued by the Chief of Constabulary a
permit to carry firearm outside of their residence as provided for in Section hereof or in actual performance of duty or official
mission under Section 4 and 5 hereof. (Emphasis supplied.)
Section 6 (a) of the Implementing Rules and Regulations was later amended to read as follows:
a-1. Mission Order. - x x x No Mission Order shall be issued to any civilian agent authorizing the same to carry firearms outside
of residence unless he/she is included in the regular plantilla of the government agency involved in law enforcement and is
receiving regular compensation for the services he/she is rendering in the agency. Further, the civilian agent must be included
in a specific law enforcement/police/intelligence project proposal or special project which specifically requires the use of
firearm(s) to insure its accomplishment and that the project is duly approved at the PC Regional Command level or its
equivalent level in other major services of the AFP, INP and NBI, or at higher level of command. (Emphasis supplied)
The Ministry of Justice also issued Memorandum Circular No. 8 dated October 16, 1986, further strengthening the foregoing
Implementing Rules and Regulations, to wit:
x x x It is unlawful for any person or office to issue a mission order authorizing the carrying of firearms by any person unless the
following conditions are met:
1. That the AFP officer is authorized by the law to issue the mission order.
2. That the recipient or addressee of the mission order is also authorized by the law to have a mission order, i.e., he must be an
organic member of the command/unit of the AFP officer issuing the mission order. If mission orders are issued to civilians (not
members of the uniformed service), they must be civilian agents included in the regular plantilla of the government agency
involved in law enforcement and are receiving regular compensation for services they are rendering. (Emphasis supplied)
Earlier, a Letter Directive dated May 19, 1984[36] was issued to the Chief of Staff of the AFP, prohibiting the issuance of
government-owned firearms to civilians, viz:
4. The Implementing Rules and Regulations of P.D. 1866 which codifies all the laws on firearms and explosives clarify
the following:
xxxx
b. Section 5 identifies the officials/officers of the MOND/AFP who are authorized to issue Mission Orders to enable AFP
officers, men and regular civilian agents carry their firearms in the performance of their duties. Regular civilian agents are
those who are covered by Permanent or Temporary Civil Service attested appointments in the plantilla of civilian employees.
Special or confidential civilian agents or the like are not regular civilian agents and are therefore violating the law when they
carry firearms (personal-owned or government-issued) with Mission Orders.
c. There are no other laws or AFP regulations authorizing the loan of AFP-owned firearms to private firms and individuals.
(Emphasis supplied)
It is noted that the Implementing Rules and Regulations of P.D. No. 1866, as amended, allude to memorandum receipts
covering government-owned firearms. While said rules do not define the term, we can derive its meaning from Section 492 of
the Government Auditing and Accounting Manual (Volume I: Government Auditing Rules and Regulations)[37] to wit:
Section 492. Issues of equipment to officers and employees. - Equipment issued by the property officer for official use of
officials and employees shall be covered by Memorandum Receipt for Equipment (MR) which shall be renewed every January
of the third year after issue. MRs not renewed after three years shall not be considered in making physical count of the
equipment. (Emphasis supplied)
From the foregoing discussion, therefore, the rules governing memorandum receipts and mission orders covering the issuance
to and the possession and/or carrying of government-owned firearms by special or confidential civilian agents may be
synthesized as follows:
First, special or confidential civilian agents who are not included in the regular plantilla of any government agency involved in
law enforcement or receiving regular compensation for services rendered are not exempt from the requirements under P.D.
No. 1866, as amended by R.A. No. 8294, of a regular license to possess firearms and a permit to carry the same outside of
residence;
Second, said special or confidential civilian agents are not qualified to receive, obtain and possess government-owned firearms.
Their ineligibility will not be cured by the issuance of a memorandum receipt for equipment covering said government-owned
firearms. Neither will they qualify for exemption from the requirements of a regular firearms license and a permit to carry
firearms by the mere issuance to them of a government-owned firearms covered by a memorandum receipt; and
Third, said special or confidential civilian agents do not qualify for mission orders to carry firearms (whether private-owned or
government-owned) outside of their residence.
The foregoing rules do not apply to special or confidential civilian agents in possession of or bearing private-owned firearms
that are duly licensed and covered by permits to carry the same outside of residence.
Set against the foregoing rules, it is clear that petitioner is not authorized to possess and carry the subject firearm and
ammunition, notwithstanding the memorandum receipt and mission order which were illegally issued to him. Petitioner is a
planter[38] who was recruited to assist in the counter-insurgency campaign of the AFP.[39] However, as he offered no
evidence that he is in the regular plantilla of the AFP or that he is receiving regular compensation from said agency, he cannot
be considered a regular civilian agent but a mere confidential civilian agent as defined under Section 6(a) of the Implementing
Rules and Regulations of P.D. No. 1866. As such, he was not authorized to receive the subject government-owned firearm and
ammunitions. The memorandum receipt he signed to account for said government properties did not legitimize his possession
thereof. SO ORDERED.

Neither was petitioner authorized to bear the subject firearm and ammunitions outside of his residence. The mission order
issued to petitioner was illegal, given that he is not a regular civilian agent but a mere confidential civilian agent. Worse,
petitioner was not even acting as such confidential civilian agent at the time he was carrying the subject firearm and
ammunitions. Petitioner testified that at that time, he was not on an official mission in Bais City but had merely visited the
place to attend to a family emergency.[40]
While this Court sustains the conviction of petitioner for illegal possession of firearms, we re-examine the imprisonment term
to which petitioner was sentenced by the RTC, as affirmed by the CA.

The MTCC imposed on petitioner the penalty of imprisonment for three (3) years, six (6) months and twenty (20) days of
prision correccional medium as minimum, to five (5) years, four (4) months and twenty (20) days of prision correccional
maximum as maximum.[41] Applying the Indeterminate Sentence Law, the RTC lowered the penalty to four (4) months of
arresto mayor as minimum, to two (2) years, four (4) months and one (1) day of prision correccional as maximum.[42] The CA
affirmed the RTC.

A further revision of the penalty is warranted in view of the special provision in the Indeterminate Sentence Law applicable to
crimes penalized by a special law, to wit:

Section 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the
court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the
attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within
the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other
law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the
maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. (Emphasis
supplied)

P.D. No. 1866 imposed the penalty of reclusion temporal in its maximum period to reclusion perpetua for illegal possession of
firearms. R.A. No. 8294 lowered the penalty, as follows:

Section 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows:

Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used
or Intended to be Used in the Manufacture of Firearms or Ammunition. - The penalty of prision correccional in its maximum
period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully
manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other
firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the
manufacture of any firearm or ammunition: Provided, That no other crime was committed. (Emphasis supplied.)

Under Article 27 of the Revised Penal Code, prision correccional in its maximum period ranges from four (4) years, two (2)
months and one (1) day, to six (6) years. As prescribed under Section 1 of the Indeterminate Sentence Law, the appropriate
penalty that can be imposed on petitioner should keep within said range. Thus, there being no attendant mitigating or
aggravating circumstance, and considering that petitioner accepted the subject firearm and ammunitions from the government
under the erroneous notion that the memorandum receipt and mission order issued to him legitimized his possession thereof,
the appropriate indeterminate penalty is four (4) years, two (2) months and one (1) day as minimum to five (5) years, four (4)
months and twenty-one (21) days as maximum.

WHEREFORE, the petition is DENIED. However, for reasons stated in the text of herein Decision, the Resolutions dated May 23,
2003 and August 7, 2003 of the Court of Appeals in CA-G.R. SP No. 27228 together with the Decision dated March 14, 2003 of
the Regional Trial Court of Bais City are MODIFIED insofar only as the penalty of imprisonment is concerned. Petitioner Cedric
Sayco y Villanueva is sentenced to serve an indeterminate penalty of four (4) years, two (2) months and one (1) day of prision
correccional as minimum, to five (5) years, four (4) months and twenty-one (21) days of prision correccional as maximum.