[G.R. No. 155791.
March 16, 2005] CAUSE OF DEATH: Asphyxia by drowning; traumatic head injuries,
MELBA QUINTO, petitioner, vs. DANTE ANDRES and RANDYVER
PACHECO, respondents.
DECISION
CALLEJO, SR., J.:
At around 7:30 a.m. on November 13, 1995, eleven-year-old
Edison Garcia, a Grade 4 elementary school pupil, and his playmate,
Wilson Quinto, who was also about eleven years old, were at
Barangay San Rafael, Tarlac, Tarlac. They saw respondents Dante
Andres and Randyver Pacheco by the mouth of a drainage culvert.
Andres and Pacheco invited Wilson to go fishing with them inside the
drainage culvert.[1] Wilson assented. When Garcia saw that it was
dark inside, he opted to remain seated in a grassy area about two
meters from the entrance of the drainage system.[2]
Respondent Pacheco had a flashlight. He, along with
respondent Andres and Wilson, entered the drainage system which
was covered by concrete culvert about a meter high and a meter
wide, with water about a foot deep.[3] After a while, respondent
Pacheco, who was holding a fish, came out of the drainage system and
left[4]without saying a word. Respondent Andres also came out, went
back inside, and emerged again, this time, carrying Wilson who was
already dead. Respondent Andres laid the boys lifeless body down in
the grassy area.[5] Shocked at the sudden turn of events, Garcia fled
from the scene.[6] For his part, respondent Andres went to the house
of petitioner Melba Quinto, Wilsons mother, and informed her that
her son had died. Melba Quinto rushed to the drainage culvert while
respondent Andres followed her.[7]
The cadaver of Wilson was buried without any autopsy thereon
having been conducted. The police authorities of Tarlac, Tarlac, did
not file any criminal complaint against the respondents for Wilsons
death.
Two weeks thereafter, or on November 28, 1995, National
Bureau of Investigation (NBI) investigators took the sworn statements
of respondent Pacheco, Garcia and petitioner Quinto.[8] Respondent
Pacheco alleged that he had never been to the drainage system
catching fish with respondent Andres and Wilson. He also declared
that he saw Wilson already dead when he passed by the drainage
system while riding on his carabao.
On February 29, 1996, the cadaver of Wilson was exhumed. Dr.
Dominic Aguda of the NBI performed an autopsy thereon at the
cemetery and submitted his autopsy report containing the
following postmortem findings:
POSTMORTEM FINDINGS
Body in previously embalmed, early stage of decomposition, attired
with white long sleeves and dark pants and placed inside a wooden
coffin in a niche-apartment style.
Hematoma, 14.0 x 7.0 cms., scalp, occipital region.
Abrasion, 4.0 x 3.0 cms., right face, 5.0 x 3.0 cms., left
forearm.
Laryngo tracheal lumina congested and edematous
containing muddy particles with bloody path.
Lungs hyperinflated, heavy and readily pits on pressure;
section contains bloody froth.
Brain autolyzed and liquefied.
Stomach partly autolyzed.
contributory.[9]
The NBI filed a criminal complaint for homicide against
respondents Andres and Pacheco in the Office of the Provincial
Prosecutor, which found probable cause for homicide by dolo against
the two.
An Information was later filed with the Regional Trial Court
(RTC) of Tarlac, Tarlac, charging the respondents with homicide. The
accusatory portion reads:
That at around 8 oclock in the morning of November 13, 1995, in the
Municipality of Tarlac, Province of Tarlac, Philippines, and within the
jurisdiction of this Honorable Court, the said accused Dante Andres
and Randyver Pacheco y Suliven @ Randy, conspiring, confederating,
and helping one another, did then and there willfully, unlawfully, and
feloniously attack, assault, and maul Wilson Quinto inside a culvert
where the three were fishing, causing Wilson Quinto to drown and
die.
CONTRARY TO LAW.[10]
After presenting Garcia, the prosecution presented Dr. Dominic
Aguda, who testified on direct examination that the hematoma at the
back of the victims head and the abrasion on the latters left forearm
could have been caused by a strong force coming from a blunt
instrument or object. The injuries in the larynx and trachea also
indicated that the victim died of drowning, as some muddy particles
were also found on the lumina of the larynx and trachea (Nakahigop
ng putik). Dr. Aguda stated that such injury could be caused when a
person is put under water by pressure or by force.[11] On cross-
examination, Dr. Aguda declared that the hematoma on the scalp was
caused by a strong pressure or a strong force applied to the scalp
coming from a blunt instrument. He also stated that the victim could
have fallen, and that the occipital portion of his head could have hit a
blunt object.
Dr. Aguda also declared that the 14x7-centimeter hematoma at
the back of Wilsons head could have rendered the latter unconscious,
and, if he was thrown in a body of water, the boy could have died by
drowning.
In answer to clarificatory questions made by the court, the
doctor declared that the 4x3-centimeter abrasion on the right side of
Wilsons face could have also been caused by rubbing against a
concrete wall or pavement, or by contact with a rough surface. He
also stated that the trachea region was full of mud, but that there was
no sign of strangulation.[12]
After the prosecution had presented its witnesses and the
respondents had admitted the pictures showing the drainage system
including the inside portions thereof,[13] the prosecution rested its
case.
The respondents filed a demurer to evidence which the trial
court granted on the ground of insufficiency of evidence, per its Order
dated January 28, 1998. It also held that it could not hold the
respondents liable for damages because of the absence of
preponderant evidence to prove their liability for Wilsons death.
The petitioner appealed the order to the Court of Appeals (CA)
insofar as the civil aspect of the case was concerned. In her brief, she
averred that
THE TRIAL COURT ERRED IN DISMISSING THE CASE AND IN RULING
THAT NO PREPONDERANT EVIDENCE EXISTS TO HOLD ACCUSED-
APPELLEES CIVILLY LIABLE FOR THE DEATH OF THE VICTIM WILSON
QUINTO.[14]
The CA rendered judgment affirming the assailed order of the
RTC on December 21, 2001. It ruled as follows:
The acquittal in this case is not merely based on reasonable doubt but
rather on a finding that the accused-appellees did not commit the
criminal acts complained of. Thus, pursuant to the above rule and
settled jurisprudence, any civil action ex delicto cannot prosper.
Acquittal in a criminal action bars the civil action arising therefrom
where the judgment of acquittal holds that the accused did not
commit the criminal acts imputed to them. (Tan v. Standard Vacuum
Oil Co., 91 Phil. 672)[15]
The petitioner filed the instant petition for review and raised
the following issues:
I beyond reasonable doubt for the crime charged, it is required to
WHETHER OR NOT THE EXTINCTION OF RESPONDENTS CRIMINAL
LIABILITY, LIKEWISE, CARRIES WITH IT THE EXTINCTION OF THEIR CIVIL
LIABILITY.
II
WHETHER OR NOT PREPONDERANT EVIDENCE EXISTS TO HOLD
RESPONDENTS CIVILLY LIABLE FOR THE DEATH OF WILSON
QUINTO.[16]
The petitioner avers that the trial court indulged in mere
possibilities, surmises and speculations when it held that Wilson died
because (a) he could have fallen, his head hitting the stones in the
drainage system since the culvert was slippery; or (b) he might have
been bitten by a snake which he thought was the prick of a fish fin,
causing his head to hit hard on the top of the culvert; or (c) he could
have lost consciousness due to some ailment, such as epilepsy. The
petitioner also alleges that the trial court erred in ruling that the
prosecution failed to prove any ill motive on the part of the
respondents to kill the victim, and in considering that respondent
Andres even informed her of Wilsons death.
The petitioner posits that the trial court ignored the testimony
of the Medico-Legal Expert, Dr. Aguda; the nature, location and
number of the injuries sustained by the victim which caused his death;
as well as the locus criminis. The petitioner insists that the behavior
of the respondents after the commission of the crime betrayed their
guilt, considering that respondent Pacheco left the scene, leaving
respondent Andres to bring out Wilsons cadaver, while respondent
Andres returned inside the drainage system only when he saw Garcia
seated in the grassy area waiting for his friend Wilson to come out.
The petitioner contends that there is preponderant evidence on
record to show that either or both the respondents caused the death
of her son and, as such, are jointly and severally liable therefor.
In their comment on the petition, the respondents aver that
since the prosecution failed to adduce any evidence to prove that
they committed the crime of homicide and caused the death of
Wilson, they are not criminally and civilly liable for the latters death.
The petition has no merit.
Every person criminally liable for a felony is also civilly
liable.[17] The civil liability of such person established in Articles 100,
102 and 103 of the Revised Penal Code includes restitution,
reparation of the damage caused, and indemnification for
consequential damages.[18] When a criminal action is instituted, the
civil action for the recovery of civil liability arising from the offense
charged shall be deemed instituted with the criminal action unless the
offended party waives the civil action, reserves the right to institute it
separately or institutes the civil action prior to the criminal
action.[19] With the implied institution of the civil action in the criminal
action, the two actions are merged into one composite proceeding,
with the criminal action predominating the civil.[20]
The prime purpose of the criminal action is to punish the
offender in order to deter him and others from committing the same
or similar offense, to isolate him from society, to reform and
rehabilitate him or, in general, to maintain social order. [21] The sole
purpose of the civil action is the restitution, reparation or
indemnification of the private offended party for the damage or injury
he sustained by reason of the delictual or felonious act of the
accused.[22] While the prosecution must prove the guilt of the accused
prove the cause of action of the private complainant against the
accused for damages and/or restitution.
The extinction of the penal action does not carry with it the
extinction of the civil action. However, the civil action based on delict
shall be deemed extinguished if there is a finding in a final judgment
in the civil action that the act or omission from where the civil liability
may arise does not exist.[23]
Moreover, a person committing a felony is criminally liable for
all the natural and logical consequences resulting therefrom although
the wrongful act done be different from that which he
intended.[24] Natural refers to an occurrence in the ordinary course of
human life or events, while logical means that there is a rational
connection between the act of the accused and the resulting injury or
damage. The felony committed must be the proximate cause of the
resulting injury. Proximate cause is that cause which in natural and
continuous sequence, unbroken by an efficient intervening cause,
produces the injury, and without which the result would not have
occurred. The proximate legal cause is that acting first and producing
the injury, either immediately, or by setting other events in motion,
all constituting a natural and continuous chain of events, each having
a close causal connection with its immediate predecessor.[25]
There must be a relation of cause and effect, the cause being
the felonious act of the offender, the effect being the resultant
injuries and/or death of the victim. The cause and effect relationship
is not altered or changed because of the pre-existing conditions, such
as the pathological condition of the victim (las condiciones patologica
del lesionado); the predisposition of the offended party (la
predisposicion del ofendido); the physical condition of the offended
party (la constitucion fisica del herido); or the concomitant or
concurrent conditions, such as the negligence or fault of the doctors
(la falta de medicos para sister al herido); or the conditions
supervening the felonious act such as tetanus, pulmonary infection or
gangrene.[26]
The felony committed is not the proximate cause of the
resulting injury when:
(a) there is an active force that intervened between the
felony committed and the resulting injury, and
the active force is a distinct act or fact absolutely
foreign from the felonious act of the accused; or
 (b) the resulting injury is due to the intentional act of the
victim.[27]
If a person inflicts a wound with a deadly weapon in such a
manner as to put life in jeopardy and death follows as a consequence
of their felonious act, it does not alter its nature or diminish its
criminality to prove that other causes cooperated in producing the
factual result. The offender is criminally liable for the death of the
victim if his delictual act caused, accelerated or contributed to the
death of the victim.[28] A different doctrine would tend to give
immunity to crime and to take away from human life a salutary and
essential safeguard.[29] This Court has emphasized that:
Amid the conflicting theories of medical men, and the uncertainties
attendant upon the treatment of bodily ailments and injuries, it would
be easy in many cases of homicide to raise a doubt as to the
immediate cause of death, and thereby to open a wide door by which
persons guilty of the highest crime might escape conviction and
punishment. [30]
In People v. Quianzon,[31] the Supreme Court held:
The Supreme Court of Spain, in a Decision of April 3, 1879, said in a
case similar to the present, the following: Inasmuch as a man is
responsible for the consequences of his act and in this case, the
physical condition and temperament of the offended party nowise
lessen the evil, the seriousness whereof is to be judged, not by the
violence of the means employed, but by the result actually produced;
and as the wound which the appellant inflicted upon the deceased
was the cause which determined his death, without his being able to
counteract its effects, it is evident that the act in question should be
qualified as homicide, etc.[32]
In the present case, the respondents were charged with
homicide by dolo. In People v. Delim,[33] the Court delineated the
burden of the prosecution to prove the guilt of the accused for
homicide or murder:
In the case at bar, the prosecution was burdened to prove the corpus
delicti which consists of two things: first, the criminal act and second,
defendants agency in the commission of the act. Wharton says
that corpus delicti includes two things: first, the objective; second, the
subjective element of crimes. In homicide (by dolo) and in murder
cases, the prosecution is burdened to prove: (a) the death of the party
alleged to be dead; (b) that the death was produced by the criminal
act of some other than the deceased and was not the result of
accident, natural cause or suicide; and (c) that defendant committed
the criminal act or was in some way criminally responsible for the act
which produced the death. To prove the felony of homicide or
murder, there must be incontrovertible evidence, direct or
circumstantial, that the victim was deliberately killed (with malice); in
other words, that there was intent to kill. Such evidence may
consist inter alia in the use of weapons by the malefactors, the
nature, location and number of wounds sustained by the victim and
the words uttered by the malefactors before, at the time or
immediately after the killing of the victim. If the victim dies because
of a deliberate act of the malefactor, intent to kill is conclusively
presumed.[34]
Insofar as the civil aspect of the case is concerned, the
prosecution or the private complainant is burdened to adduce
preponderance of evidence or superior weight of evidence. Although
the evidence adduced by the plaintiff is stronger than that presented
by the defendant, he is not entitled to a judgment if his evidence is
not sufficient to sustain his cause of action. The plaintiff must rely on
the strength of his own evidence and not upon the weakness of that
of the defendants.[35]
Section 1, Rule 133 of the Revised Rules of Evidence provides how
preponderance of evidence is determined:
Section 1. Preponderance of evidence, how determined. In civil cases,
the party having the burden of proof must establish his case by a
preponderance of evidence. In determining where the
preponderance or superior weight of evidence on the issues involved
lies, the court may consider all the facts and circumstance of the case,
the witnesses manner of testifying, their intelligence, their means and
opportunity of knowing the facts to which they are testifying, the
nature of the facts to which they testify, the probability of their
testimony, their interest or want of interest, and also their personal
credibility so far as the same may legitimately appear upon the trial.
The court may also consider the number of witnesses, though the
preponderance is not necessarily with the greater number.[36]
In the present case, we rule that, as held by the trial court and
the CA, the prosecution failed to adduce preponderant evidence to
prove the facts on which the civil liability of the respondents rest, i.e.,
that the petitioner has a cause of action against the respondents for
damages.
It bears stressing that the prosecution relied solely on the
collective testimonies of Garcia, who was not an eyewitness, and Dr.
Aguda.
We agree with the petitioner that, as evidenced by the
Necropsy Report of Dr. Dominic Aguda, the deceased sustained a
14x7-centimeter hematoma on the scalp. But as to how the deceased
sustained the injury, Dr. Aguda was equivocal. He presented two
possibilities: (a) that the deceased could have been hit by a blunt
object or instrument applied with full force; or (b) the deceased could
have slipped, fell hard and his head hit a hard object:
COURT:
The Court would ask questions.
Q So it is possible that the injury, that is the hematoma,
caused on the back of the head might be due to the
victims falling on his back and his head hitting a
pavement?
A Well, the 14x7-centimeter hematoma is quite
extensive, so if the fall is strong enough and would
fall from a high place and hit a concrete pavement,
then it is possible.
Q Is it possible that if the victim slipped on a concrete
pavement and the head hit the pavement, the
injury might be caused by that slipping?
A It is also possible.
Q So when the victim was submerged under water while
unconscious, it is possible that he might have taken
in some mud or what?
A Yes, Sir.
Q So it is your finding that the victim was submerged
while still breathing?
A Yes, Your Honor, considering that the finding on the
lung also would indicate that the victim was still
alive when he was placed under water.[37]
 The doctor also admitted that the abrasion on the right side of
the victims face could have been caused by rubbing against a concrete
wall or pavement:
Q The abrasion 4x3 centimeters on the right [side of the]
face, would it be caused by the face rubbing against
a concrete wall or pavement?
A Yes, Sir. Abrasion is usually caused by a contact of a skin
to a rough surface.
Q Rough surface?
A Yes, Your Honor.
Q When you say that the trachea region was full of mud,
were there no signs that the victim was strangled?
A There was no sign of strangulation, Your Honor.[38]
The trial court gave credence to the testimony of Dr. Aguda that
the deceased might have slipped, causing the latter to fall hard and
hit his head on the pavement, thus:
Q -Could it be possible, Doctor, that this injury might have
been caused when the victim fell down and that
portion of the body or occipital portion hit a blunt
object and might have been inflicted as a result of
falling down?
A - If the fall if the victim fell and he hit a hard object, well,
it is also possible.[39]
The trial court took into account the following facts:
Again, it could be seen from the pictures presented by the
prosecution that there were stones inside the culvert. (See Exhibit D
to D-3). The stones could have caused the victim to slip and hit his
head on the pavement. Since there was water on the culvert, the
portion soaked with water must be very slippery, aside from the fact
that the culvert is round. If the victim hit his head and lost
consciousness, he will naturally take in some amount of water and
drown.[40]
The CA affirmed on appeal the findings of the trial court, as well
as its conclusion based on the said findings.
We agree with the trial and appellate courts. The general rule is
that the findings of facts of the trial court, its assessment of probative
weight of the evidence of the parties, and its conclusion anchored on
such findings, affirmed no less by the CA, are given conclusive effect
by this Court, unless the trial court ignored, misapplied or
misconstrued cogent facts and circumstances which, if considered,
would change the outcome of the case. The petitioner failed to show
any justification to warrant a reversal of the findings or conclusions of
the trial and appellate courts.
That the deceased fell or slipped cannot be totally foreclosed
because even Garcia testified that the drainage culvert was dark, and
that he himself was so afraid that he refused to join respondents
Andres and Pacheco inside.[41] Respondent Andres had no flashlight;
only respondent Pacheco had one.
Moreover, Dr. Aguda failed to testify and explain what might
have caused the abrasion on the left forearm of the deceased. He,
likewise, failed to testify whether the abrasions on the face and left
forearm of the victim were made ante mortem or post mortem.
The petitioner even failed to adduce preponderance of
evidence that either or both the respondents hit the deceased with a
blunt object or instrument, and, consequently, any blunt object or
instrument that might have been used by any or both of the
respondents in hitting the deceased.
It is of judicial notice that nowadays persons have killed or
committed serious crimes for no reason at all.[42] However, the
absence of any ill-motive to kill the deceased is relevant and
admissible in evidence to prove that no violence was perpetrated on
the person of the deceased. In this case, the petitioner failed to
adduce proof of any ill-motive on the part of either respondent to kill
the deceased before or after the latter was invited to join them in
fishing. Indeed, the petitioner testified that respondent Andres used
to go to their house and play with her son before the latters death:
Q Do you know this Dante Andres personally?
A Not much but he used to go to our house and play with
my son after going from her mother who is
gambling, Sir.
Q But you are acquainted with him, you know his face?
A Yes, Sir.
Q Will you please look around this courtroom and see if
he is around?
A (Witness is pointing to Dante Andres, who is inside the
courtroom.)[43]
When the petitioners son died inside the drainage culvert, it
was respondent Andres who brought out the deceased. He then
informed the petitioner of her sons death. Even after informing the
petitioner of the death of her son, respondent Andres followed the
petitioner on her way to the grassy area where the deceased was:
Q Did not Dante Andres follow you?
A He went with me, Sir.
Q So when you went to the place where your son was
lying, Dante Andres was with you?
A No, Sir. When I was informed by Dante Andres that my
son was there at the culvert, I ran immediately. He
[was] just left behind and he just followed, Sir.
Q So when you reached the place where your son was
lying down, Dante Andres also came or arrived?
A It was only when we boarded the jeep that he arrived,
Sir.[44]
In sum, the petitioner failed to adduce preponderance of
evidence to prove a cause of action for damages based on the
deliberate acts alleged in the Information.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for
lack of merit. No costs.
SO ORDERED.
G.R. No. L-30801 March 27, 1974
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DOMINGO URAL, accused-appellant.
AQUINO, J.:p
This is an appeal of defendant Domingo Ural from the decision of
Judge Vicente G. Ericta of the Court of First Instance of Zamboanga
del Sur, convicting him of murder, sentencing him to reclusion
perpetua, and ordering him to indemnify the heirs of Felix Napola in
the sum of twelve thousand pesos and to pay the costs (Criminal Case
No. 3280).
The judgment of conviction was based on the testimony of Brigido
Alberto, a twenty-six year old former detention prisoner in Buug,
Zamboanga del Sur. He had been accused of murder and then set at
liberty on June 9, 1966 after posting bail. He went to Barrio Camongo,
Dumalinao where his father resided. On July 31, 1966, he intended to
go to his residence at Barrio Upper Lamari, Buug but night overtook
him in the town. He decided to sleep in the Buug municipal building
where there would be more security.
Upon arrival in the municipal building at around eight o'clock, he
witnessed an extraordinary occurrence. He saw Policeman Ural (with
whom he was already acquainted) inside the jail. Ural was boxing the
detention prisoner, Felix Napola. As a consequence of the fistic blows,
Napola collapsed on the floor. Ural, the tormentor, stepped on his
prostrate body.
Ural went out of the cell. After a short interval, he returned with a
bottle. He poured its contents on Napola's recumbent body. Then, he
ignited it with a match and left the cell. Napola screamed in agony. He
shouted for help. Nobody came to succor him.
Much perturbed by the barbarity which he had just seen, Alberto left
the municipal building. Before his departure, Ural cautioned him:
"You better keep quiet of what I have done" (sic). Alberto did not
sleep anymore that night. From the municipal building, he went to the
crossing, where the cargo trucks passed. He hitchhiked in a truck
hauling iron ore and went home.
Doctor Luzonia R. Bakil, the municipal health officer, certified that the
thirty-year old victim, whom she treated twice, sustained second-
degree burns on the arms, neck, left side of the face and one-half of
the body including the back (Exh. A). She testified that his dermis and
epidermis were burned. If the burns were not properly treated, death
would unsue from toxemia and tetanus infection. "Without any
medical intervention", the burns would cause death", she said. She
explained that, because there was water in the burnt area, secondary
infection would set in, or there would be complications.
Napola died on August 25, 1966. The sanitary inspector issued a
certificate of death indicating "burn" as the cause of death (Exh. B).
The trial court fittingly deplored the half-hearted manner in which the
prosecution (represented by Fiscal Roque and the private prosecutor,
Delfin Agbu) handled the case. It bewailed the prosecution's failure to
present as witnesses Juanito de la Serna and Ernesto Ogoc, the
detention prisoners who saw the burning of Napola. They had
executed a joint affidavit which was one of the bases of the
information for murder.1
It noted that Rufina Paler, the victim's widow, who was present in
court, was a vital witness who should have been presented as a
witness to prove the victim's dying declaration or his statements
which were part of the res gestae.2
In this appeal appellant's three assignment of error may be
condensed into the issue of credibility or the sufficiency of the
prosecution's evidence to prove his guilt beyond reasonable doubt.
His story is that at around nine o'clock in the evening of July 31, 1966
he was in the municipal jail on guard duty. He heard a scream for help
from Napola. He entered the cell and found Napola's shirt in flames.
With the assistance of Ernesto Ogoc and Anecio Siton, Ural removed
Napola's shirt. Ural did not summon a doctor because, according to
Napola, the burns were not serious. Besides, he (Ural) was alone in
the municipal building.
Felicisima Escareal, Ogoc's common-law wife, whom the trial court
branded "as a complete liar", testified that she heard Napola's scream
for help. She saw that Napola's shirt was burning but she did not know
how it happened to be burned. She said that Ural and Siton removed
the shirt of Napola and put out the fire.
Teofilo Matugas, a policeman, declared that he was relieved as guard
by Ural at eight-thirty in the evening of July 31st. Matugas denied that
Alberio was in the municipal building at eight o'clock.
The trial court held that Ural's denials cannot prevail over the positive
testimony of Alberio. It observed that Ural's alleged act of removing
Napola's burning shirt was at most an indication that he was
"belatedly alarmed by the consequence of his evil act" but would not
mean that he was not the incendiary.
Appellant Ural (he was thirty-four years old in March, 1969), in
assailing the credibility of Alberio, pointed out that he was not listed
as a prosecution witness and that he was convicted of murder.
Those circumstances would not preclude Alberio from being a
credible witness. It should be noted that the accused was a
policeman. Ordinarily, a crime should be investigated by the police. In
this case, there was no police investigation. The crime was
investigated by a special counsel of the fiscal's office. That might
explain why it was not immediately discovered that Alberio was an
eyewitness of the atrocity perpetrated by Ural.
The testimonies of Felicisima Escareal, Ogoc's common-law wife, and
Policeman Matugas are compatible with the prosecution's theory that
Ural burned Napola's shirt. Ultimately, the factual issue is: who should
be given credence, Alberio or Ural? As already stated, the trial court
which had the advantage of seeing their demeanor and behavior on
the witness stand, chose to believe Alberio. This Court, after a
searching scrutiny of the whole record, does not find any justification
for disbelieving Alberio.
This case is covered by article 4 of the Revised Penal code which
provides 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 presumption is "that a
person intends the ordinary consequences of his voluntary act" (Sec. court properly imposed the penalty of reclusion perpetua which is the
5[c], Rule 131, Rules of Court). medium period of the penalty for murder (Arts. 64[4] and 248,
Revised Penal Code).
The rationale of the rule in article 4 is found in the doctrine that "el
que es causa de la causa es causa del mal causado" (he who is the Finding no error in the trial court's judgment, the same is affirmed
cause of the cause is the cause of the evil caused)."Conforme a dicha with costs against the appellant.
doctrina no alteran la relacion de causalidad las condiciones
preexistentes (como las condiciones patologicasdel lesionado, la So ordered.
predisposicion del ofendido, la constitucion fisica del herido, etc.); ni
las condiciones sobrevenidas (como el tetanos, la pulmonia, o la
gangrena sobrevenidos a consequencia de la herida)" (1 Cuello Calon,
Codigo Penal, 12th Ed., 1968, p. 335-336).

The similar rule in American jurisprudence is that "if the act of the
accused was the cause of the cause of death, no more is required" (40
C.J.S. 854). So, where during a quarrel, the accused struck the victim
with a lighted lamp, which broke and fell to the floor, causing the oil
to ignite and set fire to the rug, and, in the course of the scuffle, which
ensued on the floor, the victim's clothes caught fire, resulting in burns
from which he died, there was a sufficient causal relation between
the death and the acts of the accused to warrant a conviction of
homicide (Williams vs. U.S., 20 Fed. 2nd 269, 40 C.J.S. 854, note 90).

There is a rule that "an individual who unlawfully inflicts wounds upon
another person, which result in the death of the latter, is guilty of the
crime of homicide, and the fact that the injured person did not receive
proper medical attendance does not affect the criminal
responsibility" (U.S. vs. Escalona, 12 Phil. 54). In the Escalona case,
the victim was wounded on the wrist. It would not have caused death
had it been properly treated. The victim died sixty days after the
infliction of the wound. It was held that lack of medical care could not
be attributed to the wounded man. The person who inflicted the
wound was responsible for the result thereof.

The crime committed by appellant Ural was murder by means of

fire (incendio) (Par. 3, Art. 248, Revised Penal Code; People vs. Masin,
64 Phil. 757; U.S. vs. Burns, 41 Phil. 418, 432, 440).3

The trial court correctly held that the accused took advantage of his
public position (Par. 1, Art. 14, Revised Penal Code). He could not have
maltreated Napola if he was not a policeman on guard duty. Because
of his position, he had access to the cell where Napola was confined.
The prisoner was under his custody. "The policeman, who taking
advantage of his public position maltreats a private citizen, merits no
judicial leniency. The methods sanctioned by medieval practice are
surely not appropriate for an enlightened democratic civilization.
While the law protects the police officer in the proper discharge of his
duties, it must at the same time just as effectively protect the
individual from the abuse of the police." U.S. vs. Pabalan, 37 Phil.
352).

But the trial court failed to appreciate the mitigating circumstance

"that the offender had no intention to commit so grave a wrong as
that committed" (Par. 3, Art. 13, Revised Penal Code). It is manifest
from the proven facts that appellant Ural had no intent to kill Napola.
His design was only to maltreat him may be because in his drunken
condition he was making a nuisance of himself inside the detention
cell. When Ural realized the fearful consequences of his felonious act,
he allowed Napola to secure medical treatment at the municipal
dispensary.

Lack of intent to commit so grave a wrong offsets the generic

aggravating, circumstance of abuse of his official position. The trial
G.R. No. L-29066 March 25, 1970
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARCELO AMIT, defendant-appellant.
PER CURIAM:
Marcelo Amit was charged in the court below with the complex
crime of rape with homicide described and penalized in Article
335 of the Revised Penal Code, as amended. Arraigned with
the assistance of a counsel de officio, he pleaded guilty.
Due to the gravity of the offense charged, however, the Court
required additional evidence from the prosecution, which the
latter presented in the form of (1) the extrajudicial confession
of appellant in Ilocano (exhibit A) and its translation into
English (Exhibit A-1) wherein he narrated in detail how the
crime was committed; (2) the autopsy report (Exhibit B)
describing the injuries suffered by the victim as she resisted
appellant's criminal advances against her honor; and (3) the
medical certificate (Exhibit C) describing the personal injuries
suffered by the appellant himself during the struggle put up
against him by the victim.
On the basis of appellant's plea of guilty and the
abovementioned evidence, the trial court rendered judgment
sentencing him "to suffer the supreme penalty of death, with
the accessories prescribed by law; to indemnify the heirs of the
deceased Rufina Arellano in the amount of P6,000.00, without
subsidiary imprisonment in case of insolvency, and to pay the
costs." Pursuant to the provisions of Section 9, Rule 122 of the
Revised Rules of Court, said judgment was elevated to us for
review.
While appellant does not question the correctness of the
decision under review in so far as it finds him guilty of the crime
charged, he claims, through his counsel de officio, that the
penalty of death imposed upon him should be reduced to
reclusion perpetua in view of the presence of three mitigating
circumstances which the trial court should have considered in
his favor, namely: (1) plea of guilty; (2) voluntary surrender,
and (3) lack of intention to commit so grave a wrong as the one
actually committed.
The Solicitor General admits that the mitigating circumstances
of plea of guilty and voluntary surrender have been proven,
but denies that the mitigating circumstance of lack of intention
to commit so grave a wrong as the one actually committed was
similarly established. We agree with this latter contention.
Appellant's contention — because of its nature, must
necessarily be judged in the light of the acts committed by him
and the circumstances under which they were committed.
Should they show a great disproportion between the means
employed to accomplish the criminal act — on the one hand
— and its consequences — on the other — the mitigating
circumstance under consideration must be considered in favor
of the accused (U.S. vs. Reyes, 36 Phil. 904, 906-907).
Otherwise, it should not.
In the case at bar, the following excerpts taken from
appellant's extrajudicial confession (Exhibit A-1, translation)
give us an idea of the acts committed by him in executing the
crime:
Q: And what did Rufina Arellano do to you when you made her
lay down and you immediately place yourself on top of her?
A: She resisted a little, nevertheless I was able to do sexual
intercourse with her, sir.
Q: In her act of resisting you, what did Rufina Arellano do to
you?
A: She bit me and scratched me, sir.
Q: What part of your body did Rufina Arellano bit and
scratched?
A: She bit me on a place a little below my shoulder and
scratched me on my breast, sir.
Q: When Rufina Arellano put up a little resistance when you
placed yourself on top of her, what did you do also?
A: I held her on the neck and pressed it downward, sir.
xxx xxx xxx
Q: The left cheek of Rufina Arellano even swelled, do you know
how she sustained it that caused it to swell?
A: I boxed her when she resisted, sir.
Q: What hand of yours boxed the left cheek of Rufina Arellano?
A: My left hand, sir, for my right hand was holding her neck.
Q: So what was the position of Rufina Arellano when your right
hand was holding her neck as you boxed her on the cheek with
your left hand?
A: Rufina Arellano was lying down on her back and I was on top
of her, sir. (pp. 23-24, rec.)
At the time of the commission of the crime, appellant was 32
years of age, while his victim was 25 years his senior; his victim
resisted his attempt to rape her by biting and scratching him;
to subdue her, appellant boxed her and then "held her on the
neck and pressed it down" while she was lying on her back and
he was on top of her. These acts, We believe, were reasonably
sufficient to produce the result that they actually produced —
the death of appellant's victim. Consequently, what we said
in People vs. Yu, G.R. L-13780, promulgated on January 28,
1961, would seem to apply:

The lack of intention to commit so grave a

wrong as that committed cannot be
appreciated in favor of an accused who
employed brute force — choking a 6-year old
girl to death, who tried to shout while he was
raping her — intention being gathered from
and determined only by the conduct and
external acts of the offender, and the results
of the acts themselves.

The penalty of Death prescribed in the last paragraph of Article

335 of the Revised Penal Code, as amended by Republic Acts
Nos. 2632 and 4111 being an indivisible penalty, it has to be
imposed regardless of the presence of mitigating
circumstances, especially in a case like the present where,
according to the evidence of record, the crime was committed
with the aggravating circumstances of nighttime and abuse of
superior strength (first paragraph, Article 63, Revised Penal
Code).

Moreover, the civil indemnity awarded by the trial court must

be increased to P12,000.00.

MODIFIED AS ABOVE INDICATED, the judgment appealed from

is affirmed in all other respects. With costs.
G.R. No. L-58585 June 20, 1988
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FLOREMAR RETUBADO, accused-appellant.
MEDIALDEA, J.:
The accused-appellant was charged with the crime of parricide in an
information filed on July 1, 1981, with the Circuit Criminal Court, 1 XIV
Judicial District, which reads:
That on or about the 8th day of January, 1981, at
1:00 o'clock in the afternoon, more or less, at
Barangay Sambag, Somosa, Municipality of
Tabogon, Province of Cebu, Philippines and within
the jurisdiction of this Honorable Court, the
above-named accused, with deliberate intent to
kill, did then and there willfully, unlawfully and
feloniously attack and assault with the use of fistic
blows his five (5) month old child, named Raul R.
Retubado, inflicting upon said child several
injuries in different parts of his body which caused
his instantaneous death.
CONTRARY TO LAW. (Page 1, Original Record)
Upon being arraigned on July 9, 1981, accused entered a plea of not
guilty. After trial on the merits, the court a quo rendered a decision
on august 13, 1981, convicting the accused of the offense charged,
the dispositive portion of which reads:
WHEREFORE, the Court finds the accused
Floremar Retubado guilty beyond reasonable
doubt of the crime of PARRICIDE defined and
penalized under Article 246 of the Revised Penal
Code. The aggravating circumstances of
treachery, abuse of superior strength,
relationship and disregard of tender age having
been proven, the said circumstances not having
been offset by any mitigating circumstance, the
accused should be, as he is hereby sentenced to
suffer the extreme penalty of DEATH, with the
accessory penalties of the law; to indemnify the
heirs of the deceased baby, Raul Retubado, in the
sum of P12,000.00, and to pay the costs.
SO ORDERED. (Page 48, 0riginal Record).
The case is now before Us on appeal.
The following facts appear from the record:
The accused-appellant, Floremar Retubado, and his wife, Arcadia
Retubado, were legally married and had two children. The younger
child was Raul who was born on August 8, 1980. The couple resided
in a small hut built on a farm land owned by Nicanora Codeniera and
located at Sambag, Somosa, Municipality of Tabogon, Province of
Cebu. Vicentica Robleca, mother of Arcadia, was the tenant of the
farm land. Inside the hut was a hammock made of an empty fertilizer
sack with both its ends tied with ropes. The hammock was made to
hang a few feet above the floor of the hut.
On January 8, 1981, Vicentica and Nicanora harvested corn from the
farm land. After the harvest was finished at around 1:00 o'clock in the
afternoon of the same day, Vicentica called her son-in-law, the
accused-appellant herein, who was then sleeping under the hammock
and asked him to help bring Nicanora's share of the corn harvest to
the road where public transportation was available. The accused
refused unless he was paid P1.00 per sack he would carry. Later,
Vicentica sought the aid of her daughter, Arcadia, in placing on top of
her head some bananas she wanted to bring to the road. Arcadia in
turn told Vicentica to wait for a while as she would first finish
breastfeeding her son, Raul.
Thereafter, Arcadia placed Raul inside the hammock preparatory to
her leaving the hut in order to assist Vicentica. Raul began crying so
that Arcadia tarried a bit to swing the hammock. She even asked the
accused who was then squatting under the hammock, smoking and
picking his teeth, to swing the hammock but the latter did not
respond. Arcadia and Vicentica had barely gone out of the door of the
hut when the accused immediately stood up and boxed Raul who was
inside the hammock twice with his clenched fists. They immediately
went to the rescue of Raul who stopped crying and became
unconscious. Arcadia took Raul in her arms and asked the accused,
What did you do to the child, Bay?" to which the latter retorted, "That
is the prize of a child who cries too much, (he) must be killed."
Afterwards, Arcadia handed Raul to Vicentica. Sensing that Raul did
not regain consciousness, Vicentica asked the accused why he killed
the child and the latter answered, "No one can command me, no. No
one can rule me because this is my child. No one can rule me."
In the meantime, Nicanora, who was then attending to her share of
the corn harvest a few meters away from the hut, rushed to the hut
after hearing Arcadia's call for help and found Vicentica carrying Raul.
Nicanora took Raul from her and massaged him thinking that he just
fainted. After a while, Nicanora noticed that only she, the accused and
the dead Raul were inside the hut as Arcadia and Vicentica left.
Having noticed the bluish discoloration on the left side of the head
and behind the left ear of Raul, Nicanora asked the accused what he
did to the child and the latter answered, "I boxed him inside the
hammock."
Afraid that the accused might leave the hut, Nicanora told him to
carry the dead child and said, "You hold him very close Mar, he might
revive after feeling the heat of your chest." Also, during the time when
they were inside the hut with the dead child, Nicanora asked the
accused why he killed the child and the latter retorted, "Why is it Tiya,
will we be placed in jail if we (can) kill our own child?"
The accused was still holding the dead child Raul when Vicentica
arrived with the chief of police of Tabogon and two policemen. Shortly
thereafter, Arcadia also arrived with two PC soldiers. That same
afternoon, the police officers brought the accused to the municipal
building of Tabogon where he was detained. The following day,
January 9, 1981, Raul was buried without first being medically
examined. The police investigators took the sworn statements of
Arcadia and Vicentica on January 10, 1981. The accused also gave his
sworn statement to the police on January 12, 1981. The sworn
statement of Nicanora was taken on January 14, 1981.
On June 22, 1981, Raul's body was exhumed and autopsied by Dr.
Tomas Refe, NBI CERVO Senior Medico-Legal Officer, who issued a
report stating his findings, as follows:
POST MORTEM FINDINGS
Body, in advanced stage of postmortem decomposition.
Skin, and underlying soft tissues of the abdomen, both sides and
anterior aspect, both thighs, mummified; all the rest of the tissues are
almost gone.
Skeletal remains with bits of adherent markedly putrefied reddish soft
tissue material.
Bone articulations are already separated by decomposition.
Fracture, parietal bone, skull, left side.
Heart, lungs, liver and other visceral organs, markedly autilyzed.
Brain, liquefied, reduced to grayish-white pultaceous mass, and
admixed with clotted and liquid blood.
CAUSE OF DEATH: Skull fracture, traumatic.
The accused-appellant assigned three errors committed by the
court a quo, as follows:
I Claiming that he was sleeping at the time his child, Raul, died, the
IN CONVICTING APPELLANT OF PARRICIDE WITHOUT TAKING DUE
REGARD OF HIS TESTIMONY THAT HE WAS SLEEPING AT THE TIME OF
THE ALLEGED COMMISSION OF THE CRIME, WITHOUT TAKING DUE
REGARD OF THE FACT THAT THE MOST "DAMAGING TESTIMONY
AGAINST HIM WAS VAGUE, INCONSISTENT, AND OF THE FACT AS
WELL THAT THE PROSECUTION WITNESSES WERE BIASED.
II
IN NOT TAKING DUE REGARD OF THE TEMPORARY INSANITY OR
ABSENCE OF DISCERNMENT OF APPELLANT, ASSUMING HIS CLAIM TO
BEING ASLEEP WAS WEAK
III
STILL ASSUMING THAT HIS CLAIM TO BEING ASLEEP WAS WEAK, THE
COURT STILL ERRED IN NOT APPRECIATING IN APPELLANT'S FAVOR
THE MITIGATING CIRCUMSTANCES OF VOLUNTARY SURRENDER AND
LACK OF INTENT TO COMMIT SO GRAVE AN OFFENSE, AS WELL AS IN
NOT FINDING THAT NO AGGRAVATING CIRCUMSTANCE IN FACT WAS
PROVEN, NOR DO THEY EXIST. (Page 35, Rollo)
Being closely interrelated, we shall discuss the first and second
assignments of error together.
The accused's defense that he was asleep at the time of the death of
the child is untenable.
The prosecution witnesses, namely, Arcadia Retubado, Vicentica
Robleca and Nicanora Codeniera, categorically and positively
declared that they actually saw the accused deliver the fistic blows on
the child who was inside the hammock and/or the resulting injuries
inflicted on the latter. The severity of the blows delivered was
confirmed by the findings of the NBI Medico-Legal expert, Dr. Tomas
Refe, that the cause of the child's death was "skull fracture,
traumatic" and who testified in open court that such injury could have
been caused by "a fistic blow applied with tremendous force."
Not to be disregarded were the admissions made by the accused
immediately after the commission of the offense which all tend to
show that he was wide awake and in full possession of his normal
senses when he killed his child. First, immediately after Arcadia went
to assist the child, she asked the accused why he boxed the latter. The
accused replied angrily that death is the prize for a child who cried too
much. Second, when his mother-in-law asked him the same question,
the accused told her not to intervene and order him around because
the child is his. And third, he admitted to Nicanora Codeniera that he
boxed his child while inside the hammock. He even inquired from
Nicanora whether a person may be imprisoned for killing his own
child. Despite all these incriminating statements, the accused did not
bother to refute them while testifying in his defense. The most he did
was to make a bare denial of the testimony of Nicanora to the effect
that he did not admit having boxed his child while inside the
hammock.
The violent nature of the accused was also satisfactorily proven. Clear
evidence was adduced to show that he also broke the arm of his other
child, Floremar Rebutado, Jr., when the latter would not stop crying.
He even made this child drink vinegar and fed him with hot pepper.
accused surmises that the latter may have died due to colic or by
holding his breath. As aptly observed by the court a quo, this is a mere
conjecture. Besides, there is clear evidence showing that the child was
healthy and never suffered from this disease before.
The accused assails the court a quo for giving the testimony of Arcadia
greater weight than his denial. He points out that this witness could
not have seen the actual delivery of the first blow because at that
precise moment she was then on her way down the stairs with her
back towards the hammock. However, this was satisfactorily
explained by the witness who said that immediately prior to the
delivery of the first blow, she looked back at the accused who told her
to go ahead. Besides, it is also clear that the hut where the incident
took place was small and its stairs had only two steps so that Arcadia
could not have missed seeing what the accused actually did. The
accused also assails the prosecution witnesses for being biased and
prejudiced against him. The only evidence adduced by him in support
of this claim is his testimony that his mother-in-law was always
against his marriage with her daughter and even wanted that they live
separately. Assuming that this contention is true, there is nothing in
the records showing that the mother-in-law is that wicked to impute
to her son-in-law the killing of his own child for the sole purpose of
seeing him ultimately separated from her daughter. Likewise, his
allegation that his wife's testimony is biased has no factual basis. On
the contrary, the accused testified that he did not know of any ulterior
motive why his wife testified against him, as he had no quarrel or
misunderstanding with his wife immediately preceding the incident.
The same holds true with Nicanora Codeniera. No proof whatsoever
was adduced to prove that this witness had some motive to falsely
testify against the accused. Consequently, in the absence of credible
evidence to support the charge of bias and prejudice, it is presumed
that the prosecution Witnesses would not have imputed to the
appellant the crime of which he was charged unless he was guilty
thereof (People vs. Ali, L-18512, October 30, 1969, 29 SCRA 756).
Lastly, the accused asserts that the court a quo erred in not giving him The court a quo considered four aggravating circumstances as having
the benefit of the exempting circumstances of temporary insanity or attended the commission of the offense, namely: 1) treachery; 2) use
total absence of discernment assuming, arguendo, that he was awake of superior strength; 3) relationship; and 4) disregard of tender age.
when he killed his child since no motive at all was shown on his part
to commit the crime charged. This claim is also untenable. As correctly Treachery attended the killing of the 5-month old Raul. In People vs.
pointed out by the Solicitor General, the accused did not invoke said Valerio, Jr., L-4116, February 25, 1982, 112 SCRA 231, this Court en
defense during the trial, much less present evidence in support banc, speaking through Mme. Justice Ameurfina Melencio-Herrera,
thereof. His defense then was that he was asleep during the incident said:
and surmised that the baby may have died of colic or simply held his
breath.
Treachery, as alleged in the Information, must be
considered qualifying and must be appreciated
The third assignment of error is likewise devoid of merit. The fact against the accused. The killing of a child is
alone that the accused did not escape after killing his child but murder even if the manner of attacked was not
remained inside the hut where the crime was committed cannot be shown. The qualifying circumstances of treachery
considered voluntary surrender to the authorities. The police officers or "alevosia" exists in the commission of the
arrived at the scene of the crime not upon his behest but because crime of murder when an adult person illegally
they were called by his wife, Arcadia, and his mother-in-law, attacks a child of tender years and causes his
Vicentica. Moreover, when questioned by the police regarding the death.
circumstances surrounding the death of his child, the accused replied
that he did not know anything about it as he was then asleep. In
Clearly, there was abuse of superior strength by the accused over the
People vs. Canoy, 90 Phil. 633, this Court said:
defenseless child, but the same cannot be appreciated as an
additional aggravating circumstance, it being absorbed in treachery.
The court, in our opinion, erred in applying the (People vs. Layson, L-25177, October 31, 1969, 30 SCRA 92).
mitigating circumstance of surrender. Canoy did
not surrender himself within the meaning of
The circumstance of disregard of age cannot also be considered
Article 13, paragraph 7, of the Revised Penal
because it has neither been proved nor admitted by the accused that
Code. The Chief of Police placed Canoy under
in committing the crime he had intended to offend or insult the age
arrest in his employer's home to which that
of the victim. (People vs. Mangsant, 65 Phil. 548). Besides, this
officer was summoned and brought in Broce's
circumstance is included in that of treachery. (People vs. Limaro, 88
jeep on Juvencio Broce's initiative or request. It
Phil. 35, 42).
does not appear that it was Canoy's idea to send
for the police for the purpose of giving himself up.
Under Article 246 of the Revised Penal Code, one guilty of parricide
shall be punished by the penalty ranging from reclusion perpetua to
The accused cannot be credited with the mitigating circumstance of
death. In view, however, of the abolition of the death penalty in the
lack of intent to commit so grave a wrong. He ought to have known
1987 Constitution, the proper penalty for the offense now is
that boxing a 5-month old child twice with the full force of his
only reclusion perpetua.
clenched fists would necessarily result in great physical harm to the
child or even his death. Clearly, brute force was employed by the
accused. In People vs. Yu, L-13780, January 28,1961, 1 SCRA 199, this In the instant case, the crime was committed with the attendance of
Court said: one aggravating circumstance and no mitigating circumstance.
Conformably with the provisions of Article 63, paragraph 1, of the
Revised Penal Code, the proper penalty to be imposed on the accused
... Since intention partakes of the nature of a
is reclusion perpetua. The indemnity in the amount of Twelve
mental process, an internal act, it can, as a
Thousand Pesos (P12,000.00) ordered by the court a quo to be paid
general rule, be gathered from and determined
by the accused to the heirs of the deceased, Raul Retubado, is
only by the conduct and external acts of the
increased to Thirty Thousand Pesos (P30,000.00).
offender, and the results of the acts themselves.
It is easy enough for the accused to say that he
had no intention to do great harm. But he knew ACCORDINGLY, with the modifications above indicated, the judgment
the girl was very tender in age (6 years old), weak appealed from is affirmed in all respects, with costs.
in body, helpless and defenseless. He did not only
cover her mouth to silence her, but choked her.
He knew or ought to have known the natural and
inevitable result of the act of strangulation,
committed by men of superior strength, specially
on an occasion when she was resisting the
onslaught upon her honor. The brute force
employed by the appellant, completely
contradicts the claim that he had no intention to
kill the victim. (People v. Orongon, 58 Phil. 421;
People v. Flores, 50 Phil. 549; People v. Reyes, 61
Phil. 341).
G.R. No. L-15308 | May 29, 1964 the Court, and the Court would like to see to it that the
proper penalty is meted the accused.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, FISCAL DELGRA:
vs. Yes, your Honor, we can present witnesses.
ROBERTO BOYLES and PIO MONTES, defendants-appellant. ATTY. TUPAS
Since the accused had already pleaded guilty there is no
PER CURIAM: need to present evidence.
COURT:
On January 27, 1959, Roberto Boyles and Pio Montes were charged in Under the Rules of Court the Court has discretion to let the
the Court of First Instance of Davao with the crime of robbery with prosecution present evidence for the purpose of satisfying
homicide, the information reciting three (3) a gravating the Court that the accused is really guilty of the offense,
circumstances, to wit: "1. superior strength, 2. dwelling, and 3. especially like this case when it is a capital offense. (pp. 3-4,
nighttime, the accused having purposely sought it to facilitate its t.s.n.)
commission."
In compliance with the foregoing discretion, the prosecution went to
Subsequently, on March 11, 1959, the information was amended to trial and established the following facts:
include a fourth aggravating circumstance, namely, "the fact of two
prior convictions of both accused." Early in the morning of November 28, 1959, at about 3:00 o'clock, the
spouses Eminiano Bayo and Brigida Misona of Barrio Monte Carlo,
Upon assignment, both defendants, duly represented by counsel de Asuncion, Davao, were awakened by the barking of dogs about their
oficio, Atty. Marcial Tupas, pleaded guilty to the charge. premises. Eminiano Bayo went down to investigate what the
commotion was all about and soon returned to sleep when he saw
that the dogs were just barking at some wild pigs foraging for root
ATTY. TUPAS:
crops in their yard. 1äwphï1.ñët
The accused are willing to enter a plea of guilty and they are
ready to be arraigned.
Because of the incident, however, the couple were unable to sleep
COURT:
anymore. At about 5:00 o'clock that same morning, while his wife was
Arraign the accused.
breast-feeding one of their children, Eminiano Bayo decided to start
INTERPRETER: the day and went down the house to prepare their breakfast. As he
Reading the information to the accused. opened the door, however, he was surprised to see a man, later
ACCUSED PIO MONTES: identified as Felizardo Soria, menacingly standing and all set to attack
I understand the information read to me and I PLEAD him, and, just as quickly as he could yell a warning to his wife that
GUILTY. there was an intruder in their abode, the man brokethrough their
ACCUSED ROBERTO BOYLES: door, grabbed and wrestled with Bayo. On seeing the scuffle, Brigida
I understand the information read to me and I PLEAD ran to the rescue of her husband. She tried to break the stranger away
GUILTY. from Bayo, but before she could be of any effective help, the man
COURT: (Soria) shouted for his companions, the herein two appellants, who
To the accused Pio Montes: came rushing to the house. Pio Montes was armed with a knife,
Q. Do you understand the nature of your plea? Roberto Boyles with a gun. Promptly, they joined the fray, and with
their quarry thus greatly outnumbered, Pio Montes stabbed Eminiano
A. Yes, sir.
Bayo in the neck.
Q. You insist on pleading guilty?
A. Yes, Your Honor, because I am at fault.
In panic, fear and terror, Brigida blindly sought the window and
To the accused Roberto Boyles:
jumped, the fall spraining her waist and breaking her legs.
Q. Do you understand the nature of your plea?
Immediately, the stranger who first confronted her husband run
A. Yes, sir. down the house, grabbed and dragged herback upstairs where then
Q. You insist on pleading guilty? A Yes, sir. the group demanded money from her. She opened a trunk and get
Q. You understand the charge against you? the empty tin can of Klim milk in which she and her husband kept their
A. Yes, sir. savings of about P100.00 and handed over the contents to Pio
COURT: Montes.
Ask the same question to Pio Montes.
INTERPRETER: The three, however, did not content themselves with the money-
Asking the accused Pio Montes. loot.Exhibiting one of the ugliest and most revolting criminal
PIO MONTES: perversity this Court has ever been made to pass judgment on, the
A. Yes, sir. (pp. 2-3, t.s.n.) trio forcibly brought Brigida near where her dead husband lay bathe
Taking into account the gravity of the offense charged and the lawful in blood, and completely insensitive to the painful, terrified anguish
penalty that may be imposed therefor, the trial judge directed the of the just-widowed mother, they forced her to lie beside the corpse
prosecution to go to triaI notwithstanding the plea. and there took turns raping her. After everyone had quenched his
COURT: lustful thirst, they tied her hands behind her back and left.
The Court would like the prosecution to present witnesses
to prove the aggravating circumstances because the As soon as her attackers had departed, Brigida worked to free herself
discretion as to the imposition of the proper penalty is with from the ropes. She then woke her 6-year old son and sent him out to
ask for help from their neighbors.
Upon their arrests, both appellants readily confessed to the crime.
Their sworn statements were first taken by the Davao Police
authorities and later subscribed and sworn to before the Assistant
Provincial Fisca1 of Davao. There is no question whatsoever as to the
validity and voluntary execution of the said documents. They were
translated into their dialects and both appellants admit they executed
them upon their own free will and with null awareness of their
contents and consequences.
The third man in the group. Felizardo Soria, was still at large when this
case was filed.
As both accused have pleaded guilty, only one issue is addressed to
this Court for review, and that is, the legality of imposing the capital
punishment on them.
Counsel for the appellants insists that the proceedings in the lower
court have established only two aggravating circumstances in the
commission of the crime, i.e., dwelling and habituality, which are in
turn, however, offset by the two mitigating circumstances borne out
by the records of this case, namely, plea of guilty and lack of intention
to commit so grave a wrong. Consequently, it is urged that the death
penalty may not be legally meted pursuant to Article 63, paragraph 2
of the Revised Penal Code, in relation to paragraph 4 of the same
Article.
ART. 63. Rules for application of indivisible penalties. ...
In all cases in which the law prescribe a penalty composed
of two indivisible penalties, the following rules shall be
observed in the application thereof:
1. ...
2. When there are neither mitigating nor aggravating
circumstances in the commission of the deed, the lesser
penalty be applied.
3. ...
4. When both mitigating and aggravating circumstances
attended the commission of the act, the courts shall
reasonably allow them to offset one another in
consideration of their number and importance, for the
purpose of applying the penalty in accordance with the
preceding rules according to the result such of such
compensation.
We regret to disagree with the position and theory advanced by the
appellants.
To begin with, the appellants are now bound to accept the existence
of four aggravating circumstances in the commission of the crime
imputed against them because they have pleaded guilty to the
information in which said four circumstances were expressly alleged.
The jurisprudence is firmly settled that while a plea of guilty is
mitigating, at the same time, it constitutes an admission of all the
material facts alleged in the information, includingthe aggravating
circumstances alleged, such as no oppoturnity use of superior force,
dwelling, etc. (People v. Egido, L-4217, Jan. 31, 1952; People v. Santos
and Vicente, L-12448, Jan. 22, 1959; People v. Agaton Salazar, L-
13371, Sept. 24, 1959, all cited in Aquino, The Revised Penal Code,
Vol. 1, p. 265, 1961 ed.) It matters not that the offense is capital for
the admission (plea of guilty) covers both the crime as well as its
attendant circumstances qualifying and/or aggravating the crime
(People v. Marcial Ama y Perez, L-14783, April 29, 1961; People v.
Roger Perete y Manlapas, L-15515, April 29, 1961).
Although the foregoing jurisprudence covers the whole scope of
appellants' appeal, We shall discuss more extensively the various
points raised in their brief in recognition of the seriousness of the
penalty imposed and because one aspect of this case needs further
clarification.
The lower court appreciated nocturnity against the appellants solely
on the basis of the fact on record that the crime was committed at
about 5:00 o'clock in the morning. This particular finding can stand
correction. By and of itself, nighttime is not an aggravating
circumstance. It becomes so only when it is especially sought by the
offender and taken advantage of by him to facilitate the commission
of the crime to insure his immunity from capture (People v. Alcala, 46
Phil. 739; People v. Matbagon 60 Phil. 887; People v. Pardo, 79 Phil.
658). Stated differently, in default of any showing or evidence that the
peculiar advantages of nighttime was purposely and deliberately
sought by the accused, the fact that the offense was committed at
night will not suffice to sustain nocturnidad. It must concur with the
intent or design of the offender to capitalize on the intrinsic impunity
afforded by the darkness of night.
In the case presently on appeal, We note that other than the time of
the crime, nothing else whatsoever suggests the aggravating
circumstance of nighttime. Not one of the prosecution evidence, oral
or documentary, makes the slightest indication that the protection of
night's darkness was deliberately availed of by the appellants. In view
of this deficiency in the case for the Government. We are constrained
to disallow the said circumstance even as, technically, it may have
been accepted by them when they pleaded guilty on arraignment.
The appellant also question the lower court's finding that they
employed superior strength in the commission of the crime. They
claim that the evidence on record show otherwise.
We do not think so. In the first place, there is the uncontradicted
testimony of the wife of the victim, an eyewitness to the attack, that
the herein two accused jumped on the victim as he was wrestling with
Felizardo Soria and that it was while they had him thus outnumbered
that Pio Montes delivered the fatal blow. Secondly, the signed
confessions of the appellants substantially tally with and confirm the
above testimony of the wife. The records do show that had not the
appellants herein seized upon their greater number and greater
power to overwhelm the deceased, the latter might have defended
himself more successfully. His aggressors were armed, and he was
unarmed and only by himself. The number of the aggressors here
point to the aggravating circumstance of superior force (U.S. v.
Bañagalo, 24 Phil. 69; People v. Eustaquio Caroz, et al., 68 Phil. 521).
Finally, the point is raised that "aside from the plea of guilty of the
accused, the trial court should have also considered the mitigating
circumstance of lack of intention to commit so grave a wrong as that
committed." The argument is that the accused planned only to rob;
them never meant to kill.
The obvious fallacy of the above argument lies in the failure to
understand the true nature of the aforementioned mitigating
circumstance. Article 13, paragraph 3 of the Revised Penal Code
addresses itself to the intention of the offender at the particular
moment when he execute or commits the criminal act; not to his
intention during the planning stage. Therefore, when, as in the case
under review the original plan was only to rob, but which plan, on
account of the resistance offered by the victim, was compounded into
the more serious crime of robbery with homicide, the plea of lack of
intention to commit so grave a wrong cannot be rightfully granted. It
is utterly of no moment that the herein accused set out only to rob.
The irrefutable fact remains that when they ganged up on their victim,
they employed deadly weapons and inflicted on him mortal wounds
in his neck. At that precise moment, they did intend to kill their victim,
and that was the moment to which Article 13, paragraph 3 of the
Revised Penal Code refers.

While intent to kill is purely a mental process, it may be inferred from

the weapon used, the extent of the injuries sustained by the offended
party and the circumstances of the aggression (People v. Parana, 64
Phil. 331) as well as the fact that the accused performed all the acts
that should have resulted in the death (People v. Mercado, 51 Phil.
99). In the case at bar, the weapon used, the force of the blow, the
spot where the blow was directed and landed, and the cold-blood in
which it was inflicted, all tend to negative any motion that the plan
was any thing less than to finish their intended victim (People v.
Orongan, 58 Phil. 426). Hence, the charge that the extenuating
circumstance of lack of intent to commit so grave a wrong as that
committed was unjustly denied the appellants is completely
unfounded.

In summary, then, the crime committed was robbery with homicide;

aggravated by three (3) circumstances, namely, dwelling, use of
superior force and habituality. Only one mitigating circumstance,
voluntary plea of guilty, is legally assessible in appellants' favor. There
is absolutely neither basis nor justice for this Court to extend unto
them the extenuating circumstance of lack of intent to commit so
grave a wrong, the records of this case having conclusively
demonstrated the contrary. It may be said, though, that even if We
were to credit the last mentioned circumstance in favor of the herein
accused, they still would have to be meted the death penalty since
the aggravating circumstances would still be one more than the
mitigating circumstances — a condition which under our penal system
makes mandatory the imposition of the greater penalty, death.

Our attention is called to the fact that the trial court sentenced the
appellants to pay, jointlly and severally, an indemnity of only
P3,000.00. As recommended by the Solicitor General's office, this
amount should be increased to P6,000.00 in line with the doctrine
first laid down in the case of People v. Amansec, G.R. No. L-927, March
11, 1948.

IN VIEW OF ALL THE FOREGOING, and, with the sole modification

adverted to in the last paragraph, the decision appealed from is
hereby affirmed. Costs against the appellants.
G.R. No. L-74324 November 17, 1988
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FERNANDO PUGAY y BALCITA, & BENJAMIN SAMSON y
MAGDALENA, 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:
The deceased Miranda, a 25-year old retardate, and the accused
Pugay were friends. Miranda used to run errands for Pugay 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 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.
In support of their claim that the testimony of Gabion to the effect
that he saw Pugay pour gasoline on the deceased and then Samson
set him on fire is incredible, the accused-appellants quote Gabion's
testimony on cross-examination that, after telling Pugay not to pour
gasoline on the deceased, he (Gabion) resumed reading comics; and
that it was only when the victim's body was on fire that he noticed a
commotion.
However, explaining this testimony on re-direct examination, Gabion
stated:
Q. Mr. Gabion, you told the
Court on cross-examination
that you were reading comics
when you saw Pugay poured
gasoline unto Bayani Miranda
and lighted by Samson. How
could you possibly see that
incident while you were
reading comics?
A. I put down the comics
which I am reading and I saw
what they were doing.

Accused-appellants next assert that the prosecution suppressed the Q. According to you also
testimonies of other eyewitnesses to the incident. They claim that before Bayani was poured
despite the fact that there were other persons investigated by the with gasoline and lighted and
police, only Gabion was presented as an eyewitness during the trial of burned later you had a talk
the case. They argue that the deliberate non- presentation of these with Pugay, is that correct?
persons raises the presumption that their testimonies would be
adverse to the prosecution. A. When he was pouring
gasoline on Bayani Miranda I
There is no dispute that there were other persons who witnessed the was trying to prevent him
commission of the crime. In fact there appears on record (pp. 16- from doing so.
17, Records) the written statements of one Abelardo Reyes and one
Monico Alimorong alleging the same facts and imputing the Q. We want to clarify.
respective acts of pouring of gasoline and setting the deceased on fire According to you a while ago
to the accused-appellants as testified to by Gabion in open court. you had a talk with Pugay and
They were listed as prosecution witnesses in the information filed. as a matter of fact, you told
Considering that their testimonies would be merely corroborative, him not to pour gasoline. That
their non-presentation does not give rise to the presumption that is what I want to know from
evidence wilfully suppressed would be adverse if produced. This you, if that is true?
presumption does not apply to the suppression of merely
corroborative evidence (U.S. vs. Dinola, 37 Phil.
A. Yes, sir.
797).<äre||anº•1àw> Besides, the matter as to whom to utilize as
witness is for the prosecution to decide.
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
gasoline unto him?
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?
A. Because I pity Bayani, sir.
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 later you said you asked
not to pour gasoline. Did
Pugay tell you he was going to
pour gasoline on Bayani?
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?
A. Because he was holding on
a container of gasoline. I
thought it was water but it
was gasoline.
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 correct?
A. Yes, sir.
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
up the can of gasoline.
A. I saw him pouring the
gasoline on the body of Joe.
Q. So, it is clear when you told
Pugay not to pour gasoline he
was already in the process of
pouring gasoline on the body
of Bayani?
A. Yes, sir (Tsn, July 30, 1983,
pp. 32-33).
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 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).
The next question to be determined is the criminal responsibility of
the accused Pugay. Having taken the can from under the engine of the
ferris wheel and holding it before pouring its contents on the body of
the deceased, this accused knew that the can contained gasoline. The
stinging smell of this flammable liquid could not have escaped his
notice even before pouring the 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 that the accused is only guilty of homicide through
reckless imprudence defined in Article 365 of the Revised Penal Code,
as amended. In U.S. vs. Maleza, et. al. 14 Phil. 468, 470, this Court
ruled as follows:
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 not from
instinct, then through fear of incurring
punishment. He is responsible for such results as
anyone might foresee and for acts which no one
would have performed except through culpable
abandon. Otherwise his own person, rights and
property, all those of his fellow-beings, would
ever be exposed to all manner of danger and
injury.
The proper penalty that the accused Pugay must suffer is an
indeterminate one ranging from four (4) months of arresto mayor, as
minimum, to four (4) years and two (2) months of prision correccional,
as maximum. With respect to the accused Samson, the Solicitor
General in his brief contends that "his conviction of murder, is proper
considering that his act in setting the deceased on fire knowing that
gasoline had just been poured on him is characterized by treachery as
the victim was left completely helpless to defend and protect himself
against such an outrage" (p. 57, Rollo). We do not agree.
There is entire absence of proof in the record that the accused
Samson had some reason to kill the deceased before the 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 in the execution thereof which
tend directly and specially to insure its execution, without risk to
himself arising from any defense which the offended party might
make.

There can be no doubt that the accused Samson knew very well that
the liquid poured on the body of the deceased was gasoline and a
flammable substance for he would not have committed the act of
setting the latter on fire if it were otherwise. 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 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 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 done be different from that which he intended.

As no sufficient evidence appears in the record establishing any

qualifying circumstances, the accused Samson is only guilty of 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 evidence of a fact from which
such conclusion can be drawn. The eyewitness Gabion testified that
the accused Pugay and Samson were stunned when they noticed the
deceased burning (Tsn, June 1, 1983, pp. 16-17).<äre||anº•1àw>

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.

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. 39519 November 21, 1991
PEOPLE OF THE PHILIPPINES, petitioner-appellee
vs.
DANIEL PINTO, JR. and NARCISO BUENAFLOR, JR., defendants-
appellants.
FERNAN, C.J.:
As an aftermath of the mission of the Legazpi City Police Department
to serve on Christmas day in 1970 a search warrant on Francisco Bello
who was allegedly training a private army, patrolmen Daniel Pinto, Jr.
and Narciso Buenaflor, Jr. were found guilty beyond reasonable doubt
by the then Circuit Criminal Court in said city, of killing not only Bello
but also 9-year-old Richard Tiongson and Rosalio Andes and seriously
wounding Maria Theresa Tiongson. The dispositive portion of the
decision of June 13, 1974. 1 reads:
WHEREFORE, the Court finds the accused Narciso
Buenaflor, Jr. and Daniel Pinto, Jr. GUILTY beyond
reasonable doubt of crime of:
(a) MURDER in CCC-X-288-Albay, and hereby
sentences each of them to suffer imprisonment
for the rest of their lives (Reclusion Perpetua); to
indemnify the heir of Rosalie Andes in the amount
of Twenty-five Thousand (P25,000.00) Pesos,
jointly and severally; and to pay the costs;
(b) MURDER in CCC-X-289-Albay, and hereby
sentences each of them to suffer imprisonment
for the rest of their lives (Reclusion Perpetua); to
indemnify the heirs of Francisco Bello in the
amount of Twenty-five Thousand (P25,000.00)
Pesos, jointly and severally; and to pay the costs;
(c) MURDER in CCC-X-298-Legazpi City, and
hereby sentences each of them to suffer
imprisonment for the rest of their lives (Reclusion
Perpetua); to indemnify the heirs of Richard
Tiongson in the amount of Twenty-five Thousand
(P25,000.00) Pesos, jointly and severally; and to
pay the costs;
(d) FRUSTRATED MURDER in CCC-X-299 Legazpi
City, and hereby sentences each of them to
imprisonment of from Six (6) Years and One (1)
Day of Prision Mayor as Minimum, to Twelve (12)
Years and One (1) Day of Reclusion Temporal as
Maximum; to indemnify the victim, Maria
Theresa Tiongson, in the amount of Eight
Thousand (P8,000.00) Pesos, jointly and severally;
and to pay the costs.
In addition to the foregoing the accused are sentenced to
suffer perpetual disqualification from public office.
According to the prosecution, on December 25, 1970, the Legazpi City
Police secured from the City Court of Legazpi a warrant for the search
of the house and premises of Francisco Bello in Mariawa, Legazpi City
on the ground that the police had probable cause to believe that Bello
illegally possessed a garand rifle, a thompson submachinegun and
two automatic pistols. 2 The police had earlier undertaken a
surveillance of Bello on the basis of information it had received that
he was conducting an "obstacle course" or training men for combat
since October, 1970. 3
Upon receipt of the search warrant, the Chief of Police, Dr. Solomon Adornado, 4
called his
officers to a "confidential conference" at the residence of Mayor
Gregorio Imperial. Present at the said conference were the mayor, his
secretary, and the officers of the patrol division, secret service and
the administration of the city police. The Chief of Police was assisted
by Major Alfredo Molo, head of the intelligence division of the city
police, in briefing the group on how to serve the search warrant and
to arrest Bello as the latter had been identified as the one who shot
Salustiano Botin the night before. At the time of the briefing, no
warrant of arrest had yet been issued against Bello. 5
The policemen were divided into three teams and around five members of the Philippine Constabulary
(PC) who were also present were assigned to the different teams. 6
Team 3 was placed
under the charge of Sgt. Salvador de la Paz with a policeman named
Luna and appellants Buenaflor and Pinto as members. Wilfredo
Romero was the PC member assigned to the team. 7 Except for
Romero and Pinto who were each armed with a carbine, the
policemen of Team 3 each carried a .38 caliber pistol. 8
Loaded in four vehicles, the three teams proceeded from the residence of the Mayor to barrio Homapon
arriving there at around seven o'clock in the evening. The four vehicles met at the junction of Homapon
and the road to Mariawa. They had decided to ride on the way to Mariawa when one of the jeeps bogged
down because of the muddy road. Hence, the three teams had to walk in single file on the right side of
the road with the teams had to walk in single file on the right side of the road with the teams maintaining
a distance o around ten meters between them. 9
Suddenly, Romero noticed the members of his team running. He ran with them and then he heard
someone shout, "Pondo!" (stop). The shout was followed by a shot and then a burst of gunfire. The team
had by then deployed to the right side of the road. When Romero checked the men by shouting the
agreed password of "bayawas" for which the person challenged answered "santol", 10
he found
that Buenaflor was 5 meters in front of him "at the bank of the road",
Pinto was two meters to the right of Buenaflor, Sgt. de la Paz was two
meters to his (Romero's) right, Luna who was holding a walkie-talkie
was to his left and another policeman was in front of Luna. 11 When
Romero heard the gunburst, he saw "flashes of fire" "just in front" of
him or from the place where Buenaflor was. 12
The area where the team deployed was lower in elevation than the road but Romero heard the rumbling
of a jeep going towards the direction of Homapon when he heard the burst of gunfire and saw the flashes
of fire from the direction of Buenaflor. 13
On the jeep which passed by the deployed policemen were Fr. Felix Cappellan, Mrs. Zenaida
Stilianopolous Tiongson, her six children and the driver. They had just come from a lechonada party in
the hacienda in Mariawa of Mrs. Purificacion Napal Anduiza, the mother of Francisco Bello. Fr. Capellan
had celebrated mass to commemorate the death anniversary of Mrs. Anduiza's father. When Fr. Capellan
decided to go back to his parish, the Anduiza's offered their jeep for his transportation. 14
Seated
on the front seat of the "McArthur type" jeep which had only a
canvass top but no cover on the sides and back, 15 were the driver,
Mrs. Tiongson with a child on her lap and Fr. Capellan. 16 Richard
Tiongson was seated on the steel seat behind the driver while his
sister Maria Theresa was beside him. 17 The three other children were
also seated at the back.
After crossing the creek on their way to Homapon and as the driver
"changed to high gear with a dual", 18 Mrs. Tiongson saw blinking
lights some 300 yards ahead. 19 Fearing that there might be "people
with bad intentions" or hold-uppers, Fr. Capellan told the driver to go
faster. 20 Then Fr. Capellan heard one shot and after a few seconds
and around 50 meters ahead, there was rapid firing with some of the Meanwhile, according to Chief of Police Adornado, after the shooting incident involving the Tiongsons,

bullets hitting the jeep. 21 According to Mrs. Tiongson, the widow of the police pursued their mission to serve the search warrant on Bello. When they reached Bello's

Col. Angel Tiongson of the PC, the rapid firing sounded residence in Mariawa, they were met by a "volley of fire." Suddenly, the house was lighted and a certain

"automatic". 22 The firing came from the left rear side of the jeep. 23 Escober met him. Although Bello and his parents, Mr. and Mrs. Anduiza, were not around, the police
searched the area and found a Japanese Springfield rifle, ammunition of a garand rifle, ammunition of a
carbine, live ammunition for a .38 caliber pistol and 380 bullets for an automatic
Before they were fired upon, Maria Theresa saw a man lying flat on his stomach while holding a gun on
pistol. 42
Thereafter, the Chief of Police declared the search terminated
the left side of the road just ahead of the jeep. 24
Through the light of the jeep, Maria
Theresa noticed that the man was wearing a jacket and a hat and he and the entire searching party left for headquarters. 43 The following
was on the shoulder of the road. 25 After passing the man, the rapid day, he issued Special Order No. 24 which states:
firing ensued. Richard said "ugh" and fell on the floor of the jeep.
Maria Theresa was about to hold Richard when she felt herself hit at December 26, 1970
the buttocks. Then they all screamed. 26
To All Concerned:
The jeep continued its fast uphill climb until it reached a level area and almost fell into a ditch were it
not for a clump of banana plants. The jeep came to a full stop. Fr. Capellan saw three men with flashlights
The following men mentioned below are hereby assigned at
but he could not distinguish their faces as it was dark and their flashlights were focused on the
Homapon until their mission is accomplished, effective as of today,
ground. 27
Mrs. Tiongson saw a PC jeep and some cars and, believing that December 26, 1970:
one of the cars was that of the Mayor, she called Tia Citang, the
mother of the mayor, at the same time identifying herself. 28 She must
1 Sgt. Salvador de la Paz, In-charge
have managed to take Richard from the jeep and was cuddling him on
the ground near the left rear end of the jeep when she requested Fr.
Capellan to administer extreme unction on Richard. As Fr. Capellan 2. Pfc. Carlos Barbin, member
had no holy oil, he gave the boy absolution. 29
3. Pat. Eduardo Arcinue, member
Even after Mrs. Tiongson had identified herself as the widow of Col. Tiongson to the men around, nobody
listened to her appeal for help. When she approached Chief of Police Adornado, she hit him and asked
4. Pat. Juan Luna, member
him why they shot her and her companions. The Chief of Police replied that the shooting was no longer
his fault because Mrs. Tiongson and her companions did not stop when told to do so. She requested the
Chief of Police for a car in which to take Richard to the hospital or for a driver and even for a walkie-
5. Pat. Daniel Pinto, member
talkie so she could talk to Mayor Imperial but the Chief of Police did not heed her pleas. 30 (TSN,
February 9, 1972, pp. 17-22). 6. Pat. Celedonio Abordo, member

A few minutes later, a jeep driven by Fernando Anduiza arrived. Mrs. 7. Pat. Narciso Buenaflor, member
Tiongson and her children boarded the jeep. At the intersection of the
road to Legazpi City proper and the road to Mariawa, the area was Report progress of mission any time of day through the radio system.
brightly lighted and armed men ordered them to put their hands up. For strict compliance.
They were told to alight from the jeep to be searched but Mrs.
Tiongson begged the lieutenant manning the area to let them pass so (Sgd.)
they could bring her two children to the hospital. 31
SOLOMON B. ADORNADO
Richard and Maria Theresa were brought to the Sacred Heart Clinic in Legazpi City. Thirteen-year-old
Chief of Police
Maria Theresa was treated for a gunshot wound at the "right upper quadrant of the right
buttocks." 32
Her pelvis and abdomen were x-rayed. One of the x-ray
Copy furnished: The Honorable City Mayor, The Patrol Command,
plates 33 revealed an oval spot indicating a foreign body in Maria
LCPD, the OIC and file . 44
Theresa's pelvis. The attending physician decided not to extract the
foreign body as Maria Theresa was not a "very good surgical
The mission was to keep peace and order in the specified place and to determine the whereabouts of
risk". 34 The hospital charged P282.90 for Theresa's
Bello. 45
It was not necessary to specify the mission in the order itself
hospitalization. 35 She was later brought by an army plane to the PC
Station Hospital in Camp Crame, Quezon City for further treatment because the Chief of Police "had a close understanding with the squad
and hospitalization 36 but the foreign body was never removed from that went to Homapon". 46For a "convenient tactical deployment,"
her pelvic area. Sgt. De la Paz further divided Team 3 into three groups with
patrolmen Buenaflor and Pinto composing Group II. 47
Richard sustained a gunshot wound at the back about the level of the
At noontime of December 26, 1970, Francisco Bello, more popularly known as Paquito, arrived at the
5th lumbar vertebrae. The bullet travelled obliquely to the left kidney,
residence of Inocencia Malbas in sitio Ando, Talahib, Daraga, Albay. He was with Inocencia's brother,
the lesser sac, the liver and the right auricle. 37 Richard was operated
Francisco Andes, Francisco's son Ananias, and Leoncio Mostoles. Rosalio, another son of Francisco, also
at the hospital but he died at 8:45 the following morning due to
arrived with the group. 48
Bello requested Inocencia and her husband that he
massive hemorrhage caused by the gunshot wound. 38 When he was
autopsied, a lead slug was found embedded in his heart. 39 His mother and his group be allowed to spend the night in Inocencia's house. 49
paid P862.35 40 for his hospitalization and was charged P200 by the
church. Mayor Imperial paid P500 to Funeraria Oro for Richard's Inocencia woke up at around 5:00 o'clock in the morning of December 27, 1970. At the sala, on her way

burial. 41 from her room to the kitchen, she saw Bello sleeping alone. From the kitchen, Inocencia went to the
balcony through the sala. On her way back to the kitchen, she noticed that Bello, who was wearing a red
shirt and an underwear, had awakened. Bello opened the window, spat out and went to the balcony. He
reentered the sala and saying that it was cold, Bello put on his clothes and pants. He also wore his jacket.
He went back to the balcony and asked for water. Inocencia's husband gave Bello a glass of water. After
gurgling, Bello placed the glass on the window sill and ask Inocencia's husband for a cup of coffee. 50
Inocencia's husband was about to offer Bello a cup of coffee when she heard a successive burst of
gunfire. Bello, who was the balcony facing the copra kiln ("agonan") with his back towards the pili tree,
gradually fell to the floor with his hands above his head. Then there was another burst of gunfire. From
the kitchen, Inocencia rushed to the door from where she saw a man holding a long firearm, whom she
later identified as Pinto, near the pili tree which was around eight meters from where Bello was, and
another man, also holding a gun, crouching near the stairs. 51
Inocencia, with her two-year-old child in her arms, 52
was about to rush to Bello when
her husband pulled her. Just then a man, whom Inocencia identified
as Buenaflor, came up the house, pointed a gun at Inocencia and her
husband and told them to lay flat on the floor. The man asked them
where the gun was. Inocencia told him that there was no gun in the
house but then, when she looked around, she saw a long firearm with
its muzzle pointed upward leaning against the wall near the door
around two meters from where Bello laid flat on his back. Bello
himself had a gun but it was in its holster tucked on his waist. 53 It was
Buenaflor who took both the long firearm and the gun in Bello's
holster. 54
When Francisco Andes went up the house, he told Inocencia that Rosalio was dead. 55
Inocencia
went near the pili tree where Rosalio's body was, knelt down and
asked the man with a long firearm why he killed Rosalio. The man
answered that Rosalio fought back. However, Inocencia did not notice
any weapon near Rosalio's body. 56
Bello's hands and feet were tied together and a bamboo pole was inserted between them so that two
men, one of them being Francisco Andes, could carry the cadaver. 57
Bello died because of
"shock secondary to massive hemorrhage due to multiple gunshot
wounds". 58 A former pilot and 28 years old at the time of his death,
Bello sustained a gunshot wound at the left temple, an inch above the
highest point of the pinna of the left ear. The bullet which entered his
head through the squamous temporal bone travelled towards the
occipital region down to the floor of the left middle cranial fosa until
it reached the base of the tongue.
Bello had three gunshot wounds on his chest. One bullet entered the
superior part of the right scapular area about the level of the third
thoracic vertebrae. The bullet travelled to the right inna in a slightly
upward direction making its exit at the lateral part of the right
supraclavicular fossa above the clavicle. The second gunshot wound
was at the left side interscapular area. The bullet travelled upwards
and to the right fracturing the 7th rib, entered the lower lobe of the
left lung, punctured the pulmonary conus, went through the junction
of the right auricular appendage and the right auricle, the
anteromedial side of the pericardium, grazed the medial surface of
the middle lobe of the right lung and exited at the right side of the
chest. The third gunshot wound was below the right nipple. The bullet
went to the chest cavity, the lower lobe of the right lung, the dome of
the diaphragm, the right lobe of the liver, the 8th thoracic vertebrae
and exited at the left of the midline at the inferior interscapular
area. 59
While Bellos corpse was being autopsied, a slug fell from his jacket. A bullet jacket and lead fragments
were found at the base of his skull and a slug was extracted from the floor of his mouth. 60
Rosalio Andes, 23 years old, also died of shock due to multiple gunshot wounds. A bullet entered his right
temporal area, macerated the brain, fractured both parietal bones and exited at the left parietal bone.
Another bullet entered the left scapular area below the level of the 6th rib, travelled to the dome of the
left diaphragm, the left lobe of the liver, the pancreas, the small intestines, and the perineum below the
ramus of the right pubis. The slug was found at the gluteoperineal junction about 2 inches below the tip
of the coccys and 2 1/2 inches above the gluteal line. A third bullet entered the left knee and exited at
the medial side of the leg. 61
The slugs and parts of bullets which were extracted from the bodies of the victims were turned over to
the National Bureau of Investigation (NBI) on December 29, 1970 by Fiscal Aquilino Bonto for safekeeping
purposes. 62
The empty shells and slugs which both the PC and the
Legazpi City police found in Talahib were also turned over to the
NBI 63 in the same manner that the four empty carbine shells 64 found
by the PC near the coconut tree a meter from the shoulder of the road
to Mariawa were also turned over to the NBI. 65 Also submitted to the
NBI for ballistic examination were twelve Smith & Wesson caliber .38
revolvers, two Smith & Wesson "paltik" caliber .22, four Tell caliber
revolvers, one Bosque automatic pistol caliber .380, four carbine
Inland rifles caliber .30, three US Springfield rifles caliber.30, one
Thompson submachine gun caliber .45 and one Colt automatic pistol
caliber.45. 66
Defendants Pinto and Buenaflor both denied having fired at the jeep bearing the Tiongson
family. 67
Pinto, who admitted carrying a caliber .30 carbine during the
incident, 68 testified that the shooting occurred because the
Tiongsons' jeep "was going towards" them. 69
According to Pinto, when they reached Mariawa, it was he who fired one shot in the air. 70
After the
search had been conducted in Bello's premises, Team 3 was instrued
by a "superior officer" "to remain and maintain peace and order in
(the) vicinity including Mariawa". 71 While he and Buenaflor were
patrolling the area, at around midnight, they "chanced upon a house"
wherein Bello and his group were staying. They captured four of
Bello's bodyguards and tied them to a pili tree with the torn shirt of
one of the captives. 72
At daybreak, Pinto saw Bello smoking at the porch. Buenaflor, who was behind him, called Bello. Then a
single shot coming from the house rang out. It was answered by a burst of fire which Pinto "presumed"
came from Buenaflor. By reflex action, Pinto transferred from the pili tree to a nearby coconut tree. But
before he reached the coconut tree, he saw a man with a bolo in his hand running towards him. As the
man was menacingly near him, Pinto shot him. 73
After a lull in the firing, he went up the house to look for Bello's other companions. He saw the body of
Bello on the porch and "near" it was a garand which he took. He also got Bello's short firearm "from a
holster." He turned over both the garand and the short firearm to Buenaflor. One of the captured
persons kicked Bello's body saying that if not for Bello, his son would not have been killed. Thereafter,
the two dead persons were carried by the captured bodyguards to Mariawa. 74
In Mariawa, Pinto contacted (through the radio) police outpost No. 5 in Banquerohan and two jeeps
arrived. When they reached the junction in Homapon, Major Molo, who was with Fiscal Benito Se, told
Pinto to go back with him to Talahib. Although Pinto warned Major Molo that it would be dangerous to
go back because one of Bello's men had escaped, they nevertheless proceeded to Talahib. With three
other policemen, they arrived there between eight and nine in the morning where they were instructed
to "look for evidence specifically . . . for a thompson." He found in the porch two shells and the others
found a hat and a flashlight. Thereafter, they returned to Mariawa and later, to Legazpi City proper. 75
On cross-examination, Pinto stated that he did not know that they found Bello in an area which was
beyond the jurisdiction of Legazpi City. He admitted that while they were instructed patrol the area, they
were also told to effect the arrest of Bello even if no complaint had been lodged against
him. 76
According to Pinto, of the fifteen bullets in the magazine of his
carbine, only two remained. He fired "most" of the thirteen shots
during the "Bello incident". 77
Pinto shot the man later identified as Rosalio Andes when he was at a distance of around three meters.
Rosalio was "face to face" with him when Pinto shot him. As Rosalio did not fall from the first shot, Pinto
continued shooting him. 78 When he went up the porch he saw the garand
"lying on the floor" but the gun tucked on Bello's waist was still in its Thompson submachinegun or automatic rifle in Talahib. 97 His service
holster. 79 revolver was still with him then. 98

On the Tiongson incident, Pinto asserted that he did not fire his
carbine. 80
When he saw the headlight of the Tiongsons' jeep, he also
saw a flashlight being waved. A little later, he heard a shout ordering As a result of this series of events, four separate informations were filed against Pinto and Buenaflor.
the jeep to stop. Then he heard one shot and immediately after, the The information charging Pinto and Buenaflor for the murder of Andes which was filed on July 26, 1971
volley of fire as the jeep was going towards his direction. As it passed reads:
by him, he heard the jeep's passengers shriek. 81
That on or about the 27th day of December, 1970, in sitio Ando, Barrio Talahib, Daraga,
For his part, Buenaflor declared that during the mission to serve the search warrant on Bello, he carried Albay and within the jurisdiction of this Honorable Court the accused, conspiring and
the ".38 caliber revolver Tel." (sic) which had been issued to him by the Legazpi City Police Department. confederating together and mutually helping one another, without any justifiable cause
He did not fire his gun at the Tiongsons and, "as a matter of fact," he surrendered his firearm for ballistic or motive, with intent to kill, did, then and there, willfully, unlawfully and feloniously, with
examination. 82
In the afternoon of December 26, however, Major Molo treachery and evident premeditation, accused Pat. Narciso Buenaflor, Jr. and Pat. Daniel
issued him a Thompson submachinegun. 83 Pinto, Jr., and by means of a Cal. 45 Thompson Sub-Machine Gun, SN-213436 and a US
Carbin Inland, Cal. 30, SN-5099407, owned respectively by said accused, shoot one Rosalio
While patrolling Homapon, he and Pinto "chanced upon" some persons who told them that they could Andes, inflicting upon him gunshot wounds as described in the attached Autopsy Report
guide them to where Bello was. At the place which they later found to be Talahib, they went near a pili marked as Annex "A" and being made an integral part of this Information, thereby causing
tree from where they saw a house "below." Then he saw a man who turned out to be Mostoles. upon said Rosalio Andes serious and mortal wounds which led to his instantaneous death.
Buenaflor apprehended Mostoles because the latter was Bello's bodyguard and he had a .22 caliber
firearm with him. He came by another man with a bolo, named "Banteque" and apprehended him also.
Contrary to law.
Then, from behind the pili tree, Pinto appeared with yet another man. They waited for a while until
another man, who turned out to be Francisco Andes, came within four meters of him. Buenaflor pointed
The information charging Pinto and Buenaflor with having murdered Bello contains basically the same
his submachinegun at him so Andes approached him. Buenaflor confiscated Andes' .22 caliber
allegations as the above and it was filed on the same date. On August 24, 1971 two other informations
firearm. 84
were filed against Pinto and Buenaflor: one for the murder of Richard Tiongson and another for the
frustrated murder of Maria Theresa Tiongson. On arraignment, Pinto and Buenaflor both pleaded not
From the group, Buenaflor learned that Bello provided them with firearms and that Bello himself had a guilty to all the charges.
pistol tucked in his holster as well as a garand. He and Pinto then tied the men to the pili tree. Later, he
saw a person in the balcony of the house below and Buenaflor shouted twice: "Paquito, mag-surrender
After trial, the trial court rendered the aforementioned judgment of conviction. For the killing of Bello
ka!" Then Buenaflor heard a "a shot coming from the direction of the balcony followed by successive
and Andes, the trial court appreciated evident premeditation as a qualifying circilmstance and treachery,
shots." He sought cover behind the pili tree and, while in a crouching position, fired his submachinegun
nighttime and use of public position as aggravating circumstances. For the incident involving the
towards the balcony. Pinto was then behind him. As Pinto shifted his position while firing his carbine,
Tiongson children, it considered the crimes as qualified by treachery and aggravated by the use of public
Buenaflor went down to the "elevated portion going down to the nipa shack" until he was near the
position.
coconut tree. There he found a person lying with his face down. He later found out that the person was
the son of Francisco Andes. 85
Pinto and Buenaflor instituted the instant appeal praying for exoneration mainly on the basis of their
claim that the killings were perpetrated in the course of the performance of their official duties as peace
After the firing had stopped, Pinto told him that Bello was dead. Pinto then went up the house. Buenaflor
officers in obedience to the lawful order of their superiors.
went back to the pili tree, untied the four persons they had captured, and told them to do something so
they could carry the bodies of Bello and (Rosalio) Andes. 86

Like Pinto, on cross-examination, Buenaflor also asserted that he did not fire his gun at the jeep carrying
the Tiongsons. 87 In order that the justifying circumstance of fulfillment of a duty under Article 11 of the Revised Penal
While admitting that the person who led them to Bello
Code may be successfully invoked, the defense has to prove that these two requisites are present: (a)
had told them that the latter was in Talahib, Buenaflor did not know
the offender acted in the performance of a duty and (b) the injury or offense committed be the necessary
that Talahib was a barrio of Daraga, Albay and not of Legazpi
consequence of the due performance or lawful exercise of such duty. In the absence of the second
City. 88 He reiterated that he shouted at Bello urging him to
requisite, the justification becomes an incomplete one thereby converting it into a mitigating
surrender 89 but he was not able to fire a warning shot or identify
circumstance under Articles 13 and 69 of the same Code. 99
himself as a member of the police force "because after
the secondshot there was already a burst of gunfire". 90

Buenaflor affirmed that the first shot emanating from the balcony of the house in Talalib which was
around fifteen meters from the pili tree, came from a "high caliber firearm". 91After
they had Admittedly, the appellants and the rest of the police force involved, originally set out to perform a legal

found out that Bello was dead, Pinto went up the house. Later, Pinto duty: the service of a search warrant on Bello. In the process, however, appellants abused their authority

gave him Bello's 380 automatic pistol and garand. 92 Although he resulting in unauthorized and unlawful moves and consequences. Armed with only a search warrant and

looked at those firearms, he did not determine whether they had the oral order to apprehend Bello, they went beyond the ambit of their mission and deprived Bello and

been fired. 93 He noticed, however, that the magazine of the garand two other persons of their lives.

was "intact". 94 Aside from Bello's firearms, Buenaflor and Pinto

confiscated two .22 caliber revolvers and two bolos found on Bello's
bodyguards. 95
While the defense presented proofs that Bello had a string of record in the police blotter for misdeeds
Buenaflor stated that his Thompson submachinegun had two clips with each clip containing 30 bullets.
ranging from taking the harvest of their hacienda without the permission of his parents to assaulting his
When he gave back the firearm to Major Molo, only four bullets were left of the one clip he had
stepfather, and that he was "dangerous while under the influence of liquor", 100
there was no
used. 96 He remembered having squeezed twice the trigger of his proof that he had been convicted of any offense or that he was a
dangerous fugitive from justice which would warrant a "shoot to-kill"
order from police authorities. Proof of bad moral character of the
victim only establishes a probability that he committed a crime but it
certainly cannot be the reason for annihilating him nor may it prevail
over facts proven showing that the same victim had been cold-
bloodedly killed. 101 As such, the suspicion that Bello was maintaining
a private army was not a sufficient justification for his being rubbed
out without due process of law.
The police theory that Bello authored the shooting of one Salustiano
Botin on Christmas eve is neither a justification for his arrest without
a warrant. It should be observed that while the police had obtained a
search warrant for illegal possession of firearms against Bello even on
Christmas day which was supposed to be a holiday, no such effort was
made in securing warrant of arrest for Bello's alleged frustrated killing
of Botin. The improbability of the defense evidence through the
testimony of Botin himself that Bello had shot him in the evening of
December 24, 1970 is bolstered by the same testimony showing that
while he was shot by Bello in the presence of the police force who
were converging at the junction of Homapon and Mariawa, the same
law enforcers were unable to arrest Bello. Besides the fact that no
other eyewitness corroborated Botin's testimony even in the face of
his own admission that Bello had no reason to shoot him, no
complaint was ever lodged against Bello for the alleged shooting. 102
On the other hand, the prosecution, through eyewitness Rogelio Escober, tried to establish that during
said shooting incident the police were looking for Bello at the store of a certain Serrano. 103
Unable
to find Bello, the police, specifically Pinto, mauled Escober while
asking him to testify against Bello for allegedly shooting Botin. 104 The
police had focused their vehicles' headlights near the bodega of ex-
Mayor Los Baños in their effort to flush out Bello who, unknown to
the police, had earlier left the vicinity. It was when the police fired at
the said bodega that Botin must have been accidentally shot. 105 This
story was uncorroborated but if true, would show the police's
dangerous propensity for using otherwise official operations in an
unlawful manner.
A propensity for rash judgment was likewise amply shown at the
incident involving the Tiongson children. Since the jeep coming
towards them was owned by the Anduizas, the appellants acted
obviously in the belief that Bello was its passenger and posthaste they
fired upon it even without any inquiry as to the identity of its
passengers. 106Granting that the police indeed fired a warning shot,
sound discretion and restraint dictated that, there being no
responding shots from its passengers after the alleged warning shot
and considering the condition of the road which was not only muddy
but uphill, instead of directing aimless gunburst at the jeep, the most
that they could have done was to render the jeep immobile by
shooting its tires. That way, they could have verified the identity of
the passengers. As it were, they riddled the jeep with bullets injuring
in the process innocent passengers who were completely unaware of
what they were up against.
Appellants' stark denial of firing their guns upon the Tiongson family
falls flat in the face of various circumstantial evidence which point to
their culpability. There is the unflinching testimony of Sgt. Romero
that he saw "flashes of fire" from the direction of Buenaflor as the
jeep bearing the Tiongsons passed by. Said testimony was
corroborated by that of Rafael Jacob, the PC member of team 2, that
while no one in his team fired his gun, the "sporadic firing" came from
team 3 after the first of fire which occurred while the jeep was
"abreast of team 2". 107 Even defense witness Mariano Rico, a
policeman who led team 1, was "sure" that he heard gunshots at the
moment when "the jeep had just passed team 2". 108
Then there are the four empty .30 caliber carbine shells which were found near the coconut tree where,
according to Romero, Pinto was deployed. While he himself carried a carbine, Romero did not fire it and
his testimony was never contradicted. The four empty shells were compared with the test shells which
were fired from the US carbine, caliber .30 Inland Division, SN-5099407, which, according to the
aforequoted information charging appellant with having killed Andes, was used by Pinto, they were
found to have "significant similar individual characteristics". 109
While it is true that the ballistic report reveals that the lead bullet taken from the body of Richard was
fired from a Smith & Wesson type firearm 110
and Buenaflor was proven to be
carrying a .38 caliber Tell revolver, the findings of expert witnesses or,
in this case, the ballistic report pointing to another kind of caliber .38
weapon as the source of Richard's wound only serves as a guide for
the courts after considering all the facts of the case. 111 The
undisputed fact is that Buenaflor was specifically pointed by Romero
as the one who fired his firearm as the Anduiza jeep bearing the
Tiongsons passed by. Inasmuch as no evidence that Romero would
prevaricate to pin responsibility on Buenaflor was ever presented,
there is, therefore, no reason to discredit his testimony. 112
In addition to all these, Buenaflor's motive for wanting to do away with Bello has been established. Such
motive provided a circumstantial evidence leading to the inference that indeed he fired his
gun. 113
According to the unrebutted testimony of Rogelio Escober, an
overseer of the Napal hacienda and constant companion of Bello, on
November 1, 1970, Buenaflor and another policeman named Santos
Urbana, Jr. borrowed Bello's jeep on the pretext that they needed it
to transfer Moscoso, the suspect in the Perez killing, to the Albay
Police Headquarters. When it was returned, the jeep had bloodstains.
Bello and Escober later learned from a PC officer that the jeep had
been used in dumping in Guinobatan the body of Moscoso.
Confronted by the PC officer, Bello admitted that the jeep was
borrowed by Buenaflor and Urbina and agreed to execute a sworn
statement on the matter. Consequently, the PC authorities notified
Mayor Imperial of the solution of the Moscoso killing.
Three days later, Escober and Bello met Urbina who warned Bello,
"Kit, if you want to give your statement, just say that I borrowed your
jeep for thirty minutes. This is a brotherly advice because something
might happen to you." Bello retorted that he would do what was right
and that was to tell the truth. Urbina said that it was up to Bello but
he repeated that he was giving Bello a brotherly warning that
something might happen to him 114 (TSN, August 23, 1973, pp. 4-20).
These facts were of course denied by Buenaflor. However, as between
the positive declaration of a prosecution witness and the negative
denial of the accused, the former deserves more credence. 115
All these pieces of circumstantial evidence point to no other inference than that Pinto and Buenaflor
fired their guns in defiance of their superior officer's order only "to find the whereabouts" of
Bello 116
and to desist from using their weapons "without clearance
from the Chief of Police". 117 Since there is more than one
circumstance and the facts from which the inferences are derived are
proven, the combination of all the circumstances is such as to produce
a conviction beyond reasonable doubt. 118
The fact that the victims were different from the ones the appellants intended to injure cannot save
them from conviction. Aberratio ictus or mistake in the identity of the victim carries the same gravity as
when the accused zeroes in on his intended victim. The main reason behind this conclusion is the fact
that the accused had acted with such a disregard for the life of the victim(s) — without checking carefully
the latter's identity as to place himself on the same legal plane as one who kills another willfully,
unlawfully and feloniously. 119Neither
may the fact that the accused made a
mistake in killing one man instead of another be considered a
mitigating circumstance. 120
It is not even necessary to pinpoint who between Pinto and Buenaflor actually caused the death of
Richard or the wounding of Maria Theresa in the presence of proof beyond reasonable doubt that they
acted in conspiracy with each other. 121
Prior agreement between the appellants
to lull their intended victim is not essential to prove conspiracy as the
same may be inferred from their own acts showing joint purpose and
design. 122 In this case, such unity of purpose and design is shown by
the fact that only the two of them fired their guns when the Anduiza
jeep with the Tiongsons passed by. This they did in defiance of the
order of their superior not to shoot unless ordered to do so.
Conspiracy having been proved, the guilt or culpability is imposable
on both appellants in equal degrees. 123
The same conspiracy was evident in the killing of Bello and Andes. The appellants' concerted action was
shown by the manner by which they killed the two. In this incident, however, they invoke self-defense
as a justifying circumstance. Evidence at hand, however, do not favor their claim.
Under Article 11 (1) of the Rules of Court, an accused must prove the presence of all the following
elements of said exempting circumstance: (a) unlawful aggression, (b) reasonable necessity of the means
employed to prevent or repel it, and (c) lack of sufficient provocation on the part of the person defending
himself. 124
The presence of unlawful aggression is a condition sine qua
non. There can be no self-defense, complete or incomplete, unless
the victim has committed an unlawful aggression on the person
defending himself. 125
In this case, Buenaflor insists that he fired at Bello because, after calling out to him to surrender, his
shout was answered by a gunshot. Pinto corroborates his story but the principal prosecution eyewitness
in this incident, Inocencia Malbas, swears that she heard no such shout to surrender nor a gunshot from
Bello's direction before Bello was fired upon by the appellants. Physical evidence as well as the
testimonies of Buenaflor himself and Pinto show that Inocencia, and not the appellants, was telling the
truth.
Rafael Señora, the NBI agent who went to Talahib and the road to Mariawa to investigate as well as to
take pictures, found no bullet marks at the crime scene which would pertain to a .22 caliber "paltik"
firearm which Bello's men allegedly used. 126
As no other "paltik" firearms were
recovered from the crime scene other than the two which Buenaflor
confiscated from Mostoles and Francisco Andes, the possibility of said
firearms or one of its kind having been used by Bello's men against
the appellant particularly the one who escaped is nil.
Buenaflor claimed that the shot after his call to Bello belonged to a
high-powered gun 127 obviously referring to the firearms recovered
from Bello himself. According to Buenaflor however, when he found
the rifle, its magazine was "intact" and he did not manipulate the rifle
to know how many of its bullets had been used. 128 Moreover, if Bello
indeed fired a gun, it must be the firearm in his holster and not the
garand which was found a couple of meters from where Bello had
fallen. That Bello did not fire any of his two firearms is buttressed by
Pinto's own testimony that Bello was smoking with his back towards
them when he was shot at and that at that moment, he did not see
Bello holding a gun. 129 We cannot help, therefore, but conclude that
the defense claim that Buenaflor's call to Bello was answered by a
gunshot is but a figment of their imagination designed for their own
exoneration.
Appellants' claim of unlawful aggression on the part of Bello or his
men would have been clarified had any of Bello's men whom they had
captured been presented in court. These men, Leoncio Mostoles,
Francisco Andes, Domingo Bantique and Ananias Andes had executed
statements before the Legazpi City police to the effect that they heard
Buenaflor's call for Bello to surrender and that Bello fired his gun at
the appellants. However, all four of them later executed statements
before the NBI retracting said earlier statements in view of the fact
that the police had threatened them to make the statements
favorable to the appellants. 130
As regards the unlawful aggression of Rosalio Andes against Pinto, we find that if we are to believe Pinto,
we have to stamp full credibility on his statement alone. Even Buenaflor admitted that he did not see
Rosalio Andes attack Pinto. 131
Inocencia swore that she did not see any
weapon near the fallen Rosalio. Indeed, if the aggression did occur,
Pinto would not have lost time in presenting in court the bolo which
Andes threatened to use on him. But granting that Rosalio had a bolo,
Pinto was not justified in inflicting the wounds sustained by Rosalio
because a mere threatening attitude of the victim will not constitute
unlawful aggression. 132Moreover, Pinto's testimony that Rosalio
menacingly approached him with a bolo after Buenaflor had released
a sunburst directed at the house where Bello was, is contrary to
human behavior if not totally ridiculous. On the contrary, by his own
admission, Pinto continued firing until he saw Rosalio fell.
An accused who admits inflicting fatal injury on his victim and invokes
self-defense must rely on the strength of his own evidence and not
only on the weakness of that of the prosecution for, even if weak, the
prosecution evidence gains more credibility. 133 Unfortunately, in this
case, inspire of the fact that the prosecution had only one eyewitness
to the killing of Bello and Andes, the appellants had not presented
sufficiently strong evidence to shore up their claim of self-defense.
We agree with the trial court that treachery attended the commission
of all four crimes in this case. The killing of Richard Tiongson, Francisco
Bello and Rosalio Andes as well as the wounding of Maria Theresa
Tiongson were all so sudden that all of them were left defenseless.
This is shown not only by the testimonial evidence on the commission
of the crimes but also by the nature and location of the wounds of all
the victims. 134 The presence of treachery qualifies the killings to
murder and the wounding of Maria Theresa to frustrated murder.
Nighttime, however, may not be appreciated as there is no proof that
it was specifically sought in the commission of the crime and
therefore we deem it absorbed by treachery.
Evident premeditation has not been proven beyond reasonable doubt
in this case but we find that the appellants indeed took advantage of
their public position in perpetrating the crime. Under Article 248 of
the Revised Penal Code, murder is punishable by reclusion
temporal in its maximum period to death. There being no mitigating
circumstance to temper the penalty and there being only the
aggravating circumstance of taking advantage of their public office
under Article 14 (1) of the said Code, the proper penalty is
death. 135 However, in view the constitutional abolition of the death
penalty, the penalty of reclusion perpetua shall be imposed on the
appellants for each of the three murders they committed.
For the wounding of Maria Theresa, the penalty imposable, applying
Article 50 of the Revised Penal Code, is prision mayor maximum
to reclusion temporal medium. There being no reason to further
lower the penalty by one degree pursuant to the provision of Article
250, and there being one aggravating circumstance and no mitigating
circumstance, the penalty should be within the range of prision
mayor maximum to reclusion temporal medium. Applying the
Indeterminate Sentence Law, 136 the proper penalty for the frustrated
murder of Maria Theresa is six (6) years of prision
correccional maximum as minimum to ten (10) years and one (1) day
of prision mayor maximum as maximum. The indemnity of eight
thousand pesos imposed by the lower court should be respected
considering that while there is evidence as to the actual amount she
spent while confined at the Sacred Heart Hospital in Legazpi City,
there is no proof as to the expenses she incurred after she was
transferred to the Camp Crame Hospital in Quezon City.

As in all cases wherein peace officers are accused, this case creates a
feeling of frustration in everyone. The crimes committed here ought
to have no place in this democratic and civilized society. True it is that
a police officer is sometimes left in a quandary when faced with a
situation where a decisive but legal action is needed. But, as this Court
said in Calderon vs. People and Court of Appeals (96 Phil. 216, 225
[1954]), "(t)he judgment and discretion of public officers, in the
performance of their duties, must be exercised neither capriciously
nor oppressively, but within reasonable limits. In the absence of a
clear and legal provision to the contrary, they must act in conformity
with the dictates of a sound discretion, and with the spirit and
purpose of the law." Police officers must always bear in mind that
although they are dealing with criminal elements against whom
society must be protected, these criminals are also human beings
with human rights. In the words of then Justice Moran in
the Oanis case (Supra):

It is, however, suggested that a notorious criminal "must be

taken by storm" without regard to his right to life which he
has by such notoriety already forfeited. We may approve of
this standard of official conduct where the criminal offers
resistance or does something which places his captors in
danger of imminent attack. Otherwise, we cannot see how,
as in the present case, the mere fact of notoriety can make
the life of a criminal a mere trifle in the hands of officers of
the law. Notoriety rightly supplies a basis for redoubled
official alertness an vigilance; it never can justify precipitate
action at the cost of human life. Where, as here, the
precipitate action of the appellants has cost an innocent life
and there exist no circumstances whatsoever warrant
action of such character in the mind of a reasonably prudent
man, condemnation—not condonation— should be the
rule; otherwise we would offer a premium to crime in the
shelter of official actuation.

WHEREFORE, the decision of the lower court is hereby affirmed

subject to the modifications that appellants shall solidarily be liable
for the amount of Fifty Thousand (P50,000) for each of the three
murders they committed and, for the frustrated murder of Maria
Theresa Tiongson, each of them shall suffer the indeterminate
penalty of from six (6) years of prision correccional maximum as
minimum to ten (10) years and one (1) day of prision mayor maximum
as maximum.

Inasmuch as appellant Daniel Pinto, Jr. had been a police officer for
only five months 137 when the crimes were committed, let a copy of
this decision be furnished the Office of the President for whatever
action may be proper to temper his penalty. 138

SO ORDERED.
G.R. No. 123485 August 31, 1998
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROLUSAPE SABALONES alias "Roling," ARTEMIO TIMOTEO
BERONGA, TEODULO ALEGARBES and EUFEMIO CABANERO,
accused, ROLUSAPE SABALONES alias "Roling" and ARTEMIO
TIMOTEO BERONGA, accused-appellants.
PANGANIBAN, J.:
Factual findings of trial courts which are affirmed by the Court of
Appeals are, as a general rule, binding and conclusive upon the
Supreme Court. Alibi, on the other hand, cannot prevail over positive
identification by credible witnesses. Furthermore, alleged violations
of constitutional rights during custodial investigation are relevant
only when the conviction of the accused by the trial court is based on
the evidence obtained during such investigation.
The Case
These are the principles relied upon by the Court in resolving this
appeal from the Court of Appeals (CA)1 Decision 2dated September
28, 1995, convicting Rolusape Sabalones and Timoteo Beronga of
murder and frustrated murder. The convictions arose from a shooting
incident on June 1, 1985 in Talisay, Cebu, which resulted in the killing
of two persons and the wounding of three others, who were all riding
in two vehicles which were allegedly ambushed by appellants.
After conducting a preliminary investigation, Second Assistant
Provincial Prosecutor Juanito M. Gabiana Sr. filed before the Regional
Trial Court (RTC) of Cebu City, Branch 7, 3 five amended Informations
charging four "John Does," who were later identified as Rolusape
Sabalones, Artemio Timoteo Beronga, Teodulo Alegarbes and
Eufemio Cabanero, with two counts of murder and three counts of
frustrated murder. The Informations are quoted hereunder.
1) Crim Case No. CBU-9257 for murder:
That on the 1st day of June, 1985, at 11:45 o'clock
in the evening, more or less, at Mansueto Village,
Bulacao, Municipality of Talisay, Province of Cebu,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused,
conspiring, confederating and mutually helping
one another, armed with high-powered firearms,
with intent to kill and treachery, did then and
there wilfully, unlawfully and feloniously attack,
assault and shoot GLENN TIEMPO, who was riding
[i]n a jeep and who gave no provocation, thereby
inflicting upon the latter several gunshot wounds,
thereby causing his instantaneous death.
CONTRARY TO Article 248 of the Revised Penal
Code.
2) Criminal Case No. 9258 for murder:
That on the 1st day of June, 1985 at 11:45 o'clock
in the evening, more or less at Mansueto Village,
Barangay Bulacao, Municipality of Talisay,
Province of Cebu, Philippines, and within the
jurisdiction of this Honorable Court, the above-
named accused, conspiring, confederating and
mutually helping one another, armed with high-
powered firearms, with intent to kill and
treachery, did [then] and there wilfully,
unlawfully and feloniously attack, assault and
shoot ALFREDO NARDO, who was riding on a jeep
and who gave no provocation, thereby inflicting
upon the latter several gunshot wounds, thereby
causing his instantaneous death.
CONTRARY TO Article 248 of the Revised Penal
Code.
3) Crim Case No. CBU-9259 for frustrated murder:
That on the 1st day of June, 1985 at 11:45 o'clock
in the evening, more or less, at Mansueto Village,
Barangay Bulacao, Municipality of Talisay,
Province of Cebu, Philippines, and within the
jurisdiction of this Honorable Court, the above-
named accused conspiring, confederating and
mutually helping one another, armed with high-
powered firearms, with intent to kill and
treachery, did and there wilfully, unlawfully and
feloniously attack, assault and shoot REY BOLO
who was riding in a car and who gave no
provocation, thereby inflicting upon the latter the
following injuries to wit:
laceration, mouth due to gunshot wound,
gunshot wound (L) shoulder penetrating (L) chest;
gunshot wound (R) hand (palm); open fracture (L)
clavicle (L) scapula; contusion (L) lung;
thereby performing all the acts of execution
which would produce the crime of [m]urder as a
consequence but which, nevertheless, did not
produce it by reason of causes independent of the
will of the perpetrator, i.e. the timely medical
attendance.
IN VIOLATION of Article 248 of the Revised Penal
Code.
4) Criminal Case No. 9260 for frustrated murder:
That on the 1st day of June, 1985 at 11:45 o'clock
in the evening, more or less, at Mansueto Village,
Barangay Bulacao, Municipality of Talisay,
Province of Cebu, Philippines, and within the
jurisdiction of this Honorable Court, the above-
named accused conspiring, confederating and
mutually helping one another, armed with high-
powered firearms, with intent to kill and
treachery, did then and there wilfully, unlawfully
and feloniously attack, assault and shoot
ROGELIO PRESORES, who was riding in a car and
who gave no provocation, thereby inflicting upon
the latter the following injuries, to wit:
gunshot wound, thru and thru right chest
 thereby performing all the acts of execution
which would produce the crime of [m]urder as a
consequence but which, nevertheless, did not
produce it by reason of causes independent of the
will of the perpetrator, i.e. the timely medical
attendance.
IN VIOLATION of Article 248 of the Revised Penal
Code.
In Crim. Case No. CBU-9257, for MURDER, defined
and penalized in Art. 248 of the Revised Penal
Code, hereby sentences each said accused to
suffer the penalty of [f]ourteen (14) years, [e]ight
(8) months and [o]ne (1) day, as minimum, to
[s]eventeen (17) years, [f]our (4) months and
[o]ne (1) day, of [r]eclusion [t]emporal, as
maximum, to indemnify the heirs of deceased,
Glenn Tiempo, the sum of P50,000.00;

5) Criminal Case No. 9261 for frustrated murder: In Crim. Case No. CBU-9258, for MURDER, defined
and penalized in Art. 248 of the Revised Penal
Code, hereby sentences each said accused to
That on the 1st day of June, 1985 at 11:45 o'clock
suffer the penalty of [f]ourteen (14) years, [e]ight
in the evening, more or less, at Mansueto Village,
(8) months and [o]ne (1) day, as minimum, to
Barangay Bulacao, Municipality of Talisay,
[s]eventeen (17) years, [f]our (4) months and
Province of Cebu, Philippines, and within the
[o]ne (1) day, of [r]eclusion [t]emporal, as
jurisdiction of this Honorable Court, the above-
maximum, to indemnify the heirs of deceased,
named accused conspiring, confederating and
Alfredo Nardo, the sum of P50,000.00;
mutually helping one another, armed with high-
powered firearms, with intent to kill and
treachery, did then and there wilfully, unlawfully In Crim. Case No. CBU-9259, for FRUSTRATED
and feloniously attack, assault and shoot NELSON MURDER, defined and penalized in Art. 248 in
TIEMPO, who was riding in a car and who gave no relation to Art. 50 of the Revised Penal Code,
provocation, thereby inflicting upon the latter the hereby sentences each said accused to suffer the
following injuries, to wit: penalty of [e]ight (8) years of prision mayor, as
minimum, to [f]ourteen (14) years and [e]ight (8)
months of [re]clusion [t]emporal, as maximum, to
Gunshot wound neck penetrating wound
indemnify the victim, Rey Bolo, the sum of
perforating trachea (cricoid) thereby performing
P20,000.00;
all the acts of execution which would produce the
crime of [m]urder as a consequence but which
nevertheless, did not produce it by reason of In Crim. Case No. CBU-9260, for FRUSTRATED
causes independent of the will of the MURDER, defined and penalized in Art. 248 in
perpetrator, i.e. the timely medical attendance. relation to Art. 50 of the Revised Penal Code,
hereby sentences each said accused to suffer the
penalty of [e]ight (8) years of prision mayor, as
IN VIOLATION of Article 248 of the Revised Penal
minimum, to [f]ourteen (14) years and [e]ight
Code.
months of [r]eclusion [t]emporal, as maximum, to
indemnify the victim, Rogelio Presores, the sum
Of the four indictees in the five Informations, Teodulo Alegarbes and of P20,000.00;
Artemio Timoteo Beronga were the first to be arraigned. Upon the
arrest of the two, the Informations were amended by the public
In Crim. Case No. CBU-9261, for FRUSTRATED
prosecutor, with the conformity of the defense counsel, by
MURDER, defined and penalized in Art. 248 in
substituting the names of the two accused for the "John Does"
relation to Art. 50 of the Revised Penal Code,
appearing in the original Informations. When arraigned, said accused,
hereby sentences each said accused to suffer the
assisted by their respective lawyers, pleaded not guilty to the five
penalty of [e]ight (8) years of prision mayor, as
Informations.
minimum, to [f]ourteen (14) years and [e]ight (8)
months of [r]eclusion [t]emporal, as maximum, to
Alegarbes died in the course of trial; thus, the cases against him were indemnify the victim, Nelson Tiempo, the sum of
dismissed. Accused Cabanero remained at large. Sabalones, on the P20,000.00; and
other hand, was eventually arrested. Subsequently, he jumped bail
but was recaptured in 1988 and thereafter pleaded not guilty during
To pay the costs in all instances. The period of
his arraignment.
their preventive imprisonment shall be credited
to each accused in full.
The cases against Sabalones and Beronga were jointly tried.
Thereafter, the lower court found them guilty beyond reasonable
SO ORDERED. 4
doubt of the crimes charged. The RTC disposed as follows:

Appellants filed a notice of appeal to the Court of Appeals. Thereafter,

WHEREFORE, premises above-set forth, the Court
the CA affirmed their conviction but sentenced them to reclusion
finds accused ROLUSAPE SABALONES and
perpetua for the murders they were found guilty of. Accordingly, the
(ARTEMIO) TIMOTEO BERONGA, [g]uilty beyond
appellate court, without entering judgment, certified the case to the
reasonable doubt, as principals:
Supreme Court in accordance with Section 13, Rule 124 of the Rules
of Court. The dispositive portion of the CA Decision reads:
 WHEREFORE, the Decision of the trial court
convicting accused-appellants Rolusa[p]e
Sabalones and Artemio Timoteo Beronga for
murder in Crim. Cases Nos. CBU-9257 and CBU-
9258, and [f]rustrated [m]urder in Crim. Cases
Nos. CBU-9259, CBU-9260, and CBU-9261 is
hereby AFFIRMED; however, the penalties in the
[f]rustrated [m]urder and [m]urder cases are
hereby MODIFIED, such that both accused-
appellants are each sentenced to imprisonment
of TEN (10) YEARS of [p]rision [m]ayormedium as
minimum to SEVENTEEN (17) YEARS and FOUR (4)
MONTHS of [r]eclusion [t]emporalmedium as
maximum in each of the three [f]rustrated
[m]urder cases (Crim. Cases Nos. CBU-9259, CBU-
9260 and CBU-9261); and are each sentenced
to [r]eclusion [p]erpetua in each of the two
[m]urder cases (Crim. Cases Nos. CBU-9257 and
CBU-9258). The indemnity to the victim in each
[f]rustrated [m]urder case shall remain. In
conformity with Rule 124, Section 13 of the Rules
of Court, however, this Court refrains from
entering judgment, and hereby certifies the case
and orders that the entire record hereof be
elevated to the Supreme Court for review. 5
After the Court of Appeals certified the case to this Court, we required
appellants to file supplemental briefs. Appellants failed to comply
within the prescribed period and were deemed to have waived their
right to do so. 6Thus, in resolving this case, this Court will address
primarily the arguments raised by the appellants in their Brief before
the Court of Appeals, which assailed the RTC Decision.
The Facts
Version of the Prosecution
The solicitor general 7 quoted the following factual findings of the trial
court:
Edwin Santos, a resident of Mambaling, Cebu City
stated that on June 1, 1985 at 6:00 o'clock in the
evening, he was at the residence of Inday
Presores, sister of Rogelio Presores, located at
Rizal Ave., Cebu City to attend a wedding. He
stayed until 9:00 o'clock in the evening and
proceeded to the house of Maj. Tiempo at Basak,
Mambaling, Cebu City where a small gathering
was also taking place. (pp. 3-6, tsn, April 7, 1987)
Arriving thereat, he saw Nelson and Glenn
Tiempo as well as Rogelio Presores, Rogelio
Oliveros, Junior Villoria, Rey Bolo and Alfredo
Nardo. (p. 7, ibid.)
At about 11:00 o'clock in the evening, Stephen
Lim, who was also at the party, called their group
and requested them to push his car. When the
engine started, the former asked them to drive his
car home. (pp. 7-11, ibid.)
Together with Nelson Tiempo, who was at the
wheel, Rogelio Presores, Rogelio Oliveros and
Junior Villoria, they drove to the residence of
Stephen Lim at Mansueto Compound, Bulacao,
Talisay, Cebu. (p. 12, ibid.)
Glenn Tiempo, Rey Bolo and Alfredo Nardo also
went with them riding in an owner-type jeep,
driven by the latter, in order to bring back the
group [as] soon as the car of Mr. Lim was parked
in his home. (p. 21, ibid.)
The two vehicles traveled in convoy with the jeep
3 to 4 meters ahead of the car. When they arrived
at the gate of the house of Stephen Lim, they
were met with a sudden burst of gunfire. He
looked at the direction where the gunfire came,
and saw [the] persons [who] fired at the jeep. He
identified accused, Teodulo Alegarbes, Rolusape
Sabalones and Timoteo Beronga as the persons
who fired at the vehicle. Except for Teodulo
Alegarbes, who was naked from [the] waist up,
the gunmen wore clothes. (pp. 21-23; 13-16;
33, ibid.)
After firing at the jeep, the assailants shot the ear
they were riding[,] hitting Nelson Tiempo on the
throat and Rogelio Presores on the breast.
Despite the injury he sustained, Nelson Tiempo
was able to maneuver the car back to their
residence. (pp. 17-19, ibid.)
He immediately informed Maj. Tiempo about the
incident and the lat[t]er brought the victims to
the Cebu Doctor's Hospital. (p. 20, ibid.)
Rogelio Presores corroborated in substance the
testimony of Edwin Santos, being one of those
who were in the car driven by Nelson Tiempo to
the residence of Stephen Lim. (pp. 4-6, tsn, Aug.
14, 1987)
He further testified that when the jeep driven by
Alfredo Nardo with Rey Bolo and Glenn Tiempo as
passengers arrived at the front gate of Lim's
residence and while their car was 3 meters from
the rear end of the jeep, there was a volley of
gunfire. He glanced at the direction of the gunfire
and saw the jeep being fired at by four persons,
who were standing behind a concrete wall, 42
inches in height, and armed with long firearms.
Thenceforth, he saw Alfredo Nardo, Glenn
Tiempo and Rey Bolo f[a]ll to the ground. (pp. 6-
7, ibid.)
He recognized accused, Rolusape Sabalones, as
one of those who fired at the jeep. He also
identified in Court accused, Teodulo Alegarbes,
Timoteo Beronga and another person, whom he
recognized only through his facial appearance.
(pp. 7-8, ibid.)
When the shots were directed [at] their car[,]
they were able to bend their heads low. When the
firing stopped, he directed Nelson Tiempo to back
out from the place. As the latter was maneuvering
the car, the shooting continued and he was hit in
the breast while Nelson Tiempo, in the neck, and
the windshield of the vehicle was shattered. (p.
10, ibid.)
Arriving at the house of Maj. Tiempo, they were
brought to Cebu Doctor's Hospital. He and Nelson
Tiempo were operated on. He had incurred
hospital expenses in the sum of P5,412.69, (Exh.
"I", "K"). (pp. 11-12, ibid.)
Ladislao Diola, Jr., [m]edico-[l]egal [o]fficer of the
PC Crime Laboratory, Regional Unit 7 stationed at
Camp Sotero Cabahug, Cebu City remembered
having performed a post-mortem examination on
the dead body of Glenn Tiempo on June 2, 1985
at the Cosmopolitan Funeral Homes, Cebu City.
(p. 7, tsn, Nov. 11, 1987)
He issued the necessary Death Certificate, (Exh.
"D") and Necropsy Report, (Exh. "F") and
indicated therein that the victim's cause of death
was "[c]ardio respiratory arrest due to [s]hock
and [h]emorrhage [s]econdary to [g]unshot
wounds to the trunk." (p. 8, ibid.)
The victim sustained gunshot wounds in the right
chest and left lumbar area. (pp. 10-11, ibid.)
He explained that in gunshot wound no. 1, the
wound entrance[,] which [was] characterized by
invaginated edges and contusion collar[,] was
located in the right chest and the bullet went up
to the left clavicle hitting a bone which
incompletely fractured it causing the navigation
of the bullet to the left and to the anterior side of
the body. He recovered a slug, (Exh. "G") below
the muscles of the left clavicle. (p. 21, ibid.)
Based on the trajectory of the bullet, the assailant
could have been [o]n the right side of the victim
or in front of the victim but [o]n a lower level than
the latter.
In both gunshot wounds, he did not find any
powder burns which would indicate that the
muzzle of the gun was beyond a distance of 12
inches from the target. (p. 15, ibid.)
At the time he conducted the autopsy, he noted
that rigor mortis in its early stage had already set
in which denote[s] that death had occurred 5 to 6
hours earlier. (pp. 34-5, ibid.)
Maj. Juan Tiempo, father of the victims, Glenn
and Nelson Tiempo, testified that when he
learned about the incident in question, he
immediately summoned military soldiers and
together they proceeded to the scene. (pp. 4-6,
tsn, Nov. 12, 1988)
Arriving thereat, he saw the lifeless body of his
son, Glenn. He immediately carried him in his
arms and rushed him to the hospital but the
victim was pronounced Dead on Arrival. (pp. 6-
7, ibid.)
They buried his son, who was then barely 14 years
old, at Cebu Memorial Park and had incurred
funeral expenses (Exhs. "K", "L", "O"). (pp. 7-
8, ibid.)
His other son, Nelson, then 21 years old and a
graduate of [m]edical [t]echology, was admitted
at the Cebu Doctor's Hospital for gunshot wound
in the neck. The latter survived but could hardly
talk as a result of the injuries he sustained. He had
incurred medical and hospitalization expenses in
the sum of P21,594.22, (Exh. "H"), (pp. 8-10, ibid.)
He had also incurred expenses in connection with
the hospitalization of the injured victims, Rogelio
Presores and Rey Bolo in the amount[s] of
P5,412.69, (exh. "I") and P9,431.10, (Exh. "J"),
respectively. (p. 11, ibid.)
He further stated that he [was] familiar the
accused, Roling Sabalones, because the latter had
a criminal record in their office in connection with
the kidnapping of a certain Zabate and Macaraya.
(p. 16, ibid.)
xxx xxx xxx
Dr. Jesus P. Cerna, [m]edico-[l]egal [o]fficer of the
PC/INP, Cebu Metrodiscom, had conducted an
autopsy on the dead body of Alfredo Nardo, who
sustained two (2) gunshot wounds in the lower lip
and left intraclavicular region, upon the request
of the [c]hief of the Homicide Section of Cebu
Metrodiscom. He issued the victim's Necropsy
Report, (Exh. "F:") and Death Certificate, (Exh.
"G"). (pp. 5-8, tsn, Dec. 4, 1987; pp. 4-6, tsn, Nov.
29, 1988)
He stated that the wound of entrance in gunshot
wound no. 1 was located in the lower lip, more or
less[,] on the left side making an exit in the left
mandibular region. (pp. 9-11, tsn, Dec. 4, 1987;
pp. 6-8, tsn, Nov. 29, 1988)
In gunshot wound no. 2, the wound of entrance
was in the left intraclavicular region exiting at the
back as reflected in the sketch, (Exh. "F-2"). This
wound was fatal and [could] almost cause an
instantaneous death considering that the bullet
penetrated the thoracic cavity, lacerating the
lungs and perforating the heart before making an
exit. (pp. 11-13, tsn, Dec. 4, 1987; pp. 13-15, tsn,
Nov. 29, 1988)
He found no tattooing around the wound of
entrance in both gunshot wounds. (pp. 8-9, tsn,
Nov. 29, 1988)
He prepared and issued th[e] Necropsy Report,
(Exh. "F") and Death Certificate, (Exh. "G") of
Alfredo Nardo who was identified to him by the
latter's daughter, Anita Nardo. (pp. 26-27, ibid.)
Rey Bolo, one of the victims, testified that when
the jeep he was riding [in] together with Glenn
Tiempo and Alfredo Nardo, reached the gate of
the residence of Stephen Lim, they were suddenly
fired upon. (pp. 5-8, tsn, March 6, 1989)
He was hit in the right palm and left cheek. He
jumped out of the vehicle and ran towards the car
which was behind them but he was again shot at
[,] [and hit] in the left scapular region. He was still
able to reach the road despite the injuries he
sustained and tried to ask help from the people
who were in the vicinity but nobody dared to help
him, [they] simply disappeared from the scene,
instead: (pp. 8-9, ibid.)
He took a passenger jeepney to the city and had
himself treated at the Cebu Doctor's Hospital, and
incurred medical expenses in the sum of
P9,000.00. (p. 9, ibid.)
He was issued a Medical Certificate, (Exh. "N") by
his attending physician.
Dr. Miguel Mancao, a [p]hysician-[s]urgeon,
recalled having attended [to] the victims, Nelson
Tiempo, Rey Bolo and Rogelio Presores at the
Cebu Doctor's Hospital on June 2, 1985. (pp. 7-8,
11, 14, tsn, May 30, 1989)
Nelson Tiempo sustained gunshot wound[s] in
the neck and in the right chest but the bullet did
not penetrate the chest cavity but only the left
axilla. He was not able to recover any slugs
because the same disintegrated while the other
was thru and thru. The wound could have proved
fatal but the victim miraculously survived. As a
consequence of the injury he sustained, Nelson
Tiempo permanently lost his voice because his
trachea was shattered. His only chance of
recovery is by coaching and speech therapy. He
issued his Medical Certificate. (Exh. "O"). (pp. 8-
11, ibid.)
With regard to the patient, Rey Bolo, the latter
suffered multiple gunshot wounds in the left
shoulder penetrating the chest and fracturing the
2nd, 3rd, and 4th ribs in the process, in the right
hand fracturing the proximal right thumb and in
the mouth lacerating its soft tissues, per Medical
Certificate, (Exh. "N") which he issued. (pp. 11-
16, ibid.)
Based on the trajectory of the bullet, the gunman
could have been in front of the victim, when
gunshot would no. 1 was inflicted. (p. 30, ibid.)
With respect to the patient, Rogelio Presores, the
latter suffered [a] gunshot wound in the chest
with the wound of entrance in the right anterior
chest exiting at the back which was slightly lower
than the wound of entrance. He issued the
victim's Medical Certificate, (Exh. "M"). (pp. 34-
35, ibid.)
Based on the location of the wound, the gunman
could have been in front of the victim but [o]n a
slightly higher elevation than the latter. (pp. 35-
36, ibid.) 8
Version of the Defense
Appellants interposed denial and alibi. Their version of the facts is
summarized by the trial court9 thus:
. . . Timoteo Beronga, a cristo or bet caller in the
cockpit, testified that in the afternoon of June 1,
1985, he was in the Talisay Sports Complex
located at Tabunok, Talisay, Cebu to attend a
cock-derby.
At about 7:00 o'clock in the evening, he was
fetched by his wife and they left taking a taxicab
going to their residence in Lapulapu City. After
passing by the market place, they took a tricycle
and arrived home at 8:00 o'clock in the evening.
After taking his supper with his family, he went
home to sleep at 10:30 in the evening. The
following morning, after preparing breakfast, he
went back to sleep until 11:00 in the morning.
On February 24, 1987, while he was playing
mahjong at the corner of R.R. Landon and D.
Jakosalem Sts., Cebu City, complainant, Maj. Juan
Tiempo with some companions, arrived and after
knowing that he [was] "Timmy," [which was] his
nickname, the former immediately held him by
the neck.
He ran away but the latter chased him and kicked
the door of the house where he hid. He was able
to escape through the back door and took refuge
in Mandaue at the residence of Nito Seno, a driver
of Gen. Emilio Narcissi. (Tsn-Abangan, pp. 4-17,
October 19, 1989)
On February 27, 1987, upon the advi[c]e of his
friend, they approached Gen. Narcissi and
informed him of the incident. The latter brought
him to the Provincial Command Headquarters in
Lahug, Cebu City to confront Maj. Juan Tiempo.
After several days, he was brought by Maj.
Tiempo to the PC Headquarter[s] in Jones Ave.,
Cebu City where he was provided with a lawyer to
defend him but he was instructed that he should
assent to whatever his lawyer would ask of him.
He was introduced to Atty. Marcelo Guinto, his
lawyer, who made him sign an Affidavit, (Exh. "U")
the contents of which, co[u]ched in the dialect,
were read to him.
He also testified that before he was detained at
the CPDRC, complainant brought him inside the
shop of a certain Den Ong, where he was again
mauled after he denied having any knowledge of
the whereabouts of Roling Sabalones and the
carbine.
At the instance of Col. Medija, he was physically
examined at the Southern Islands Hospital, Cebu
City and was issued a [M]edical Certificate. (Tsn-
Formentera, pp. 3-36, Jan. 18, 1990).
Justiniano Cuizon, [a]ccount [o]fficer of the
Visayan Electric Company (VECO) South Extension
Office, who is in charge of the billing,
disconnection and reconnection of electric
current, testified that based on the entries in their
logbook, (Exh. "3") made by their checker,
Remigio Villaver, the electrical supply at the
Mansueto Compound, Bulacao, Talisay, Cebu,
particularly the Mansueto Homeowners covered
by Account No. 465-293000-0, (Exh. "4-B") was
disconnected on January 10, 1985, (Exh. "3-A") for
non-payment of electric bills from March 1984 to
January 1985 and was reconnected only on June
17, 1985 (Exh. "4", "4-A"). (Tsn-Abangan, pp. 22-
27, Jan. 31, 1990).
Remigio Villaver, a checker of VECO, whose area
of responsibility cover[ed] the towns of Talisay
and San Fernando, Cebu had kept the record of
disconnection of electrical supply of Mansueto
Subdivision in Bulacao, Talisay, Cebu and the
same showed that on January 10, 1985, (Exh. "3-
A"), a service order was issued by their office to
the Mansueto Homeowners for the permanent
disconnection of their electric lights due to non-
payment of their electric bills from March 1984
until January 1985. The actual disconnection took
place on December 29, 1984.
Witness Fredo Canete made efforts to
corroborate their testimony. (Tsn-Formentera,
pp. 3-5, Apr. 20, 1990).
Vicente Cabanero, a resident of Mansueto
Compound in Talisay, Cebu since 1957 until the
present, remembered that on June 1, 1985,
between 10:00 o'clock and 11:00 o'clock in the
evening, he heard a burst of gunfire about 15 to
20 armslength [sic] from his residence.
He did not bother to verify because he was scared
since the whole place was in total darkness. (Tsn-
Abangan, pp. 18-23, Feb. 22, 1990).
Marilyn Boc, another witness for the accused,
stated that on the date and time of the incident in
question, while she was at the wake of Junior
Sabalones, younger brother of Roling Sabalones,
who died on May 26, 1985, a sudden burst of
gunfire occurred more or less 60 meters away.
Frightened, she went inside a room to hide and
saw accused, Roling Sabalones, sound asleep.
She came to know accused, Timoteo Beronga,
only during one of the hearings of this case and
during the entire period that the body of the late
Junior Sabalones [lay] in state at his residence,
she never saw said accused.
She was requested to testify in this case by
Thelma Beronga, wife of Timoteo Beronga. (Tsn-
Abangan, pp. 9-13, February 28, 1990).
Dr. Daniel Medina, while then the [r]esident
[p]hysician of Southern Islands Hospital, Cebu City
had treated the patient, Timoteo Beronga on
March 18, 1987.
Upon examination, he found out that the patient
sustained linear abrasion, linear laceration and
hematoma in the different parts of the body.
Except for the linear laceration which he believed
to have been inflicted two or three days prior to
[the] date of examination, all the other injuries
were already healed indicating that the same
were inflicted 10 to 12 days earlier.
He issued the corresponding Medical Certificate
(Exh. "2") to the patient. (Tsn-Abangan, pp. 9-13,
May 21, 1990).
Atty. Jesus Pono, counsel for accused Beronga,
mounted the witness stand and averred that he
[was] a resident of Mansueto Compound,
Bulacao, Talisay, Cebu. As shown in the pictures,
(Exhs. "3", "4" & "5" with submarkings) his house
is enclosed by a concrete fence about 5 feet 6
inches tall. It is situated 6 meters from the
residence of accused, Roling Sabalones, which
was then being rented by Stephen Lim. Outside
the fence [are] shrubs and at the left side is a lamp
post provided with 200 watts fluorescent bulb.
On June 1, 1985 at about 7:00 o'clock in the
evening, he saw Roling Sabalones, whom he
personally [knew] because they used to be
neighbors in Talisay, Cebu, at the wake of his
brother, Federico Sabalones, Jr. or Junior
Sabalones, as mentioned repeatedly hereabout.
They even had a talk and he noticed accused to be
physically indisposed being gravely affected by
the loss of his only brother, who met a violent
death in the hands of an unknown hitman on May
26,1985.
He went home after he saw accused [lie] down on
a bamboo bench to rest.
At about 12:00 o'clock midnight, he was
awakened by a rapid burst of gunfire which
emanated near his house. He did not attempt to
go down or look outside. He [was] in no position
to tell whether or not the street light was lighted.
When he verified the following morning, he
noticed bloodstains on the ground as well as
inside the jeep which was parked 2 to 3 meters
from his fence and 50 to 70 meters from the
house where Junior Sabalones [lay] in state. He
observed that the jeep was riddled with bullets
and its windshield shattered. (Tsn-Abangan, pp.
3-16, June 6, 1990).
He admitted that he used to be a counsel of
accused, Roling Sabalones, in several cases,
among which involved the death of a certain
Garces and Macaraya, which cases were however,
dismissed by the Office of the Provincial Fiscal of
Cebu. (Tsn-Tumarao, pp. 2-3, June 13, 1990).
Doroteo Ejares, a relative of accused, testified
that when he attended the wake of Junior
Sabalones on June 1, 1985 at 8:00 o'clock in the
evening, he saw accused lying on a bamboo bench
in the yard of the house of the deceased.
At past 10:00 o'clock in the evening, accused
excused himself as he was not feeling well and
entered a room to rest while he remained by the
door and slept.
At almost 12:00 o'clock midnight, he was
awakened by a burst of gunfire which took place
more or less 20 meters away and saw the people
scamper[ing] for safety. He hid inside the room
where accused was sleeping and peeped thru the
door. Not long after, Marilyn Boc entered and in
a low voice talked about the incident.
They decided to wake up the accused to inform
him of what was happening, but the latter merely
opened his eyes and realizing that accused was
too weak, they allowed him to go back to sleep.
When he went home at past 5:00 o'clock in the
morning of June 2, 1985, he saw a jeep outside of
the compound. He did not bother to investigate
or inquire about the incident as he was in a hurry
to go home and prepare for the burial of Junior
Sabalones.
He was requested to testify in this case by his aunt
and mother of accused Rolusape Sabalones. (Tsn-
Tumarao, pp. 10-15, June 13, 1990).
Russo Sabalones, uncle of accused, Sabalones,
averred that the latter was once, one of his
undercover agents while he was then the [c]hief
of the Intelligence Service of the PC from 1966
until 1968.
As part of their intelligence tradition, an
undercover agent is not allowed to carry his real
name. In the case of his nephew and accused,
Rolusape Sabalones, the latter chose the name
"Paciano Laput" which name was recorded in
their code of names.
When he retired in 1968, the accused ceased to
be an agent and . . . likewise ceased to have the
authority to use the name Paciano Laput. (Tsn-
Abangan, p. 12, July 23, 1990).
Alfonso Allere, a distant relative of the accused,
remembered having received a call from Roling
Sabalones, one morning after the burial of the
latter's brother, asking for his advise because of
the threats [to] his life which he received thru
telephone from the group of Nabing Velez and
the group of the military.
After he had advised accused to lie low, he had
not heard of him, since then.
Godofredo Mainegro of the Public Assistance and
Complaint Action Office of the Regional Unified
Command 7, received a complaint from one
Inocencia Sabalones on March 13, 1986.
He recorded the complaint in their Complaint
Sheet, (Exh. "6") and let complainant affix her
signature.
After the document was subscribed and sworn to
before him, (Exh. "6-C"), he indorsed it to their
[c]ommanding [o]fficer, Apolinario Castano. (Tsn-
Formentera, pp. 3-10, July 24, 1990).
Ret. Col. Apolinario Castano, recalled that while
he was then with the Regional Unified Command
7, his niece, Racquel Sabalones together with her
husband Roling Sabalones, came to him for
advi[c]e because the latter was afraid of his life
brought about by the rampant killings of which his
brother and the son of Maj. Tiempo were victims.
Considering that accused's problem matter, they
approached Gen. Ecarma, the then [c]ommander
of the PC/INP, Recom 7, and the latter referred
them to his [c]hief of [s]taff, Col. Roger Denia,
who informed them that there was no case filed
against the accused. Nevertheless, the latter was
advised to be careful and consult a lawyer.
Inocencia Sabalones, mother of accused, Roling
Sabalones, narrated that on March 12, 1986 at
past 10:00 o'clock in the evening, she was roused
from sleep by a shout of a man demanding for
Roling Sabalones.
Upon hearing the name of her son, she
immediately stood up and peeped through the
door of her store and saw men in fatigue uniforms
carrying long firearms. Thenceforth, these men
boarded a vehicle and left.
On the following morning, she was again
awakened by the persistent shouts and pushing of
the gate. When she verified, the man who
introduced himself to her as Maj. Tiempo,
ordered her to open the gate. Once opened, the
men of Maj. Tiempo entered the house and
proceeded to search for Roling Sabalones, whom
Maj. Tiempo suspected to have killed his son and
shot another to near death. When she demanded
for a search warrant, she was only shown a piece
of paper but was not given the chance to read its
contents.
Racquel Sabalones, wife of accused, Rolusape
Sabalones, maintained that on June 1, 1985 at
1.00 o'clock in the afternoon, she was at the wake
of her brother-in-law, Junior Sabalones, at his
residence in Bulacao, Talisay, Cebu.
At 11:00 o'clock in the evening of the same day,
together with her 3 daughters as well as Marlyn
Sabarita, Rose Lapasaran and Gloria Mondejar,
left the place in order to sleep in an unoccupied
apartment situated 30 meters away from the
house where her deceased, brother-in-law,
Junior, was lying in state, as shown in the Sketch,
(Exh. "7" and submarkings) prepared by her. They
brought with them a flashlight because the whole
place was in total darkness.
As they were about to enter the gate leading to
her apartment she noticed a sedan car coming
towards them. She waited for the car to come
nearer as she thought that the same belong[ed]
to her friend, but the vehicle instead stopped at
the corner of the road, (Exh. "7-F") and then
proceeded to the end portion of Mansueto
Compound, (Exh. "7-G"). As it moved slowly
towards the highway, she rushed inside the
apartment.
Few minutes later, she heard a burst of gunfire
outside their gate. She immediately gathered her
children and instructed Marlyn Sabarita to use the
phone situated at the third door apartment and
call the police.
After the lull of gunfire, she went to the terrace
and saw people in civilian and in fatigue uniforms
with firearms, gathered around the place. One of
these men even asked her about the
whereabouts of her husband, whom she left
sleeping in the house of the deceased.
At 8:30 in the morning of June 2, 1985, during the
burial of Junior Sabalones, they were informed by
Pedro Cabanero that Roling Sabalones was a
suspect for the death of Nabing Velez and the son
of Maj. Tiempo.
She believed that the reason why her husband
was implicated in the killing of Nabing Velez was
because of the slapping incident involving her
father-in-law, Federico Sabalones, Sr. and Nabing
Velez which took place prior to the death of Junior
Sabalones.
After the funeral, she began to receive mysterious
calls at their residence in Sikatuna St., Cebu City
where they began staying since 1978. She also
noticed cars with tinted windows strangely
parked in front of their residence.
Frightened and cowed, they decided to seek the
advice of Col. Apolinario Castano, who after
relating to him their fears, advised her husband to
lie low and to consult a lawyer.
To allay their apprehension, accused, Roling
Sabalones, left Cebu City for Iligan, Manila and
other cities to avoid those who were after him.
When she learned about the threat made by Maj.
Tiempo on her husband, she forewarned the
latter not to return to Cebu.
Marlyn Sabarita, an illegitimate daughter of
Rolusape Sabalones, stated that in the night in
question, she was at the wake of Junior Sabalones
and saw her Papa Roling, the herein accused, lying
on the lawn of the house of the deceased.
She was already in the apartment with her Mama
Racquel when she heard a burst of gunfire. Upon
instructions of the latter, she went out to call the
police thru the phone located [in] the third
apartment occupied by a certain Jet. (Tsn-
Tumarao, pp. 3-15, Oct. 15, 1990).
Edward Gutang, [a]sst. lay-out [e]ditor and [a]sst.
[s]ports [e]ditor of Sun-Star Daily, while then a
military and police reporter had covered the
shooting incident which took place on June 1,
1985 at the Mansueto Compound, Bulacao,
Talisay, Cebu.
At past 1:00 o'clock dawn, together with their
newspaper photographer, Almario Bitang, they
went to the crime scene boarding the vehicle of
the Cosmopolitan Funeral Homes. Arriving
thereat, they decided not to proceed inside the
compound because of fear. The place was then
incomplete darkness.
Upon being informed that the victims were
brought to Cebu City Medical Center, they rushed
to the place and met Maj. Tiempo hugging the
dead body of his 14-year old son. His
photographer took a picture of that pathetic
scene. (Exh. "8-B").
Samson Sabalones, a retired [a]mbassador and
uncle of Rolusape Sabalones, posted a bail bond
for his nephew with Eastern Insurance Company,
when a warrant for his arrest was issued by the
Municipal Court, on March 12, 1986 because he
was bothered by the fact that the latter was being
unreasonably hunted by several groups. He even
advised the accused to appear in [c]ourt to clarify
the nature of the case filed against him.
Virgincita Pajigal, a resident of Butuan City, met
accused, Rolusape Sabalones, who introduced
himself to her as "Paciano Laput" nicknamed,
Ondo, in a massage clinic where she was working.
For less than a year, they lived together as
husband and wife without the benefit of marriage
because according to her the accused was
married but separated from his wife, whose name
was never mentioned to her. For such a short
span of time being together, her love for the
accused developed to the extent that whatever
happen[ed] to him, she [would] always be there
to defend him.
With the help of Maj. delos Santos, who advised
her to always stay close [to] the accused, she was
able to board the same vessel. She saw the latter
clad in green T-shirt, (Exh. "14") and pants,
handcuffed and guarded.
Reaching Cebu City, they took a taxicab and as the
vehicle went around the city, she was instructed
by Maj. Tiempo to place the towel, (Exh. "15")
which she found inside her bag, on the head of
the accused. They stopped at the Reclamation
Area and Maj. Tiempo pulled them out of the
vehicle but she held on tightly to Ondo, ripping his
shirt. This pulling incident happened for several
times but complainant failed to let them out of
the vehicle.
The accused was finally brought to the Provincial
Jail while she stayed in the residence of the
accused. She returned to Butuan after a week.
(Tsn-Formentera, pp. 5-33, Jan. 22, 1991).
Accused, Rolusape Sabalones, alias "Roling", in
his defense, with ancillary incidental narrations,
testified, that on June 1, 1985 at 6:00 o'clock in
the evening, he was at the wake of his only
brother, Junior Sabalones, who was killed on May
26, 1985.
He had no idea as to who was responsible for the
killing of his brother inasmuch as the latter had
plenty of enemies. He also did not exert effort to
look into the case and to place it under police
authority since he had lost faith in the capabilities
of the police. The matter was however reported
by his uncle, Ambassador Sabalones, to the
authorities.
He stayed at the wake until 10:00 o'clock in the
evening because he was not feeling well. He
retired in a small room adjacent to the sala of the
house of the deceased. Not long after, he felt
somebody waking him up but he merely opened
his eyes and went back to sleep as he was really
exhausted.
At 6:30 the following morning, he was roused by
his wife so he could prepare for the burial. He
came to know about the burst of gunfire which
took place the previous night upon the
information of his wife. He did not take the news
seriously as he was busy preparing for the burial
of his deceased brother, Jun.
The funeral started at past 8:00 o'clock in the
morning and he noticed the presence of Maj.
Eddie Ricardo and his men, who were sent by Col.
Castano purposely to provide the burial with
military security, upon the request of his wife.
He had a conversation with Maj. Ricardo who
inquired about the shooting incident which
resulted in the death of the son of Maj. Tiempo
and others in his company. Also in the course of
their conversation, he came to know that Nabing
Velez was killed earlier on that same night in
Labangon, Cebu [C]ity.
On the same occasion, Pedro Cabanero also
notified him that he was a suspect in the killing of
Nabing Velez, a radio commentator of ferocious
character, who was engaged in a protection
racket with several under his control.
He remembered that a month prior to the death
of Nabing Velez, his father, Federico Sabalones,
Sr. and the deceased while matching their fighting
cocks at the Talisay Sports Complex, had an
altercation and the latter slapped his paralytic
father and challenged him to ask one of his sons
to avenge what he had done to him. He came to
know about the incident only after a week.
He did not deny the fact that he was hurt by the
actuation of the deceased for humiliating his
father but it did not occur to him to file a case or
take any action against the deceased because he
was too busy with his business and with his work
as a bet caller in the cockpit.
He advised his father to stay in Bohol to avoid
further trouble because he knew that the latter
would frequent the cockpit[,] being a cockfight
aficionado.
Likewise, during the burial, he was informed by a
PC soldier, Roger Capuyan, that he was also a
suspect in the killing of the son of Maj. Tiempo
and even advised him to leave the place.
On the following days after the burial, his wife
started to notice cars suspiciously parked in front
of their house and [she] also received mysterious
calls.
Together with his wife, they decided to see Col.
Apolinario Castaño to seek his advise. The latter
verified from the Cebu Metrodiscom and learned
that there was no case filed against him.
In the evening of June 6, 1985, he left for Iligan
and after a month, he transferred to Ozamis and
ten to Pagadian. He likewise went to Manila
especially when he learned that his uncle, Samson
Sabalones, had arrived from abroad. The latter
posted a bond for his temporary liberty
immediately after being informed that a case was
filed against him, before the Municipal Court of
Talisay.
Despite . . . the bond put up his uncle, he did not
return to Cebu City because it came to his
knowledge that Maj. Tiempo inquired from the
bonding company as to his address.
He also stayed in Marikina in the house of his
friend and during his stay in the said place, he
registered as a voter and was issue a Voter's
Affidavit, (Exh. "19"; Exh. "R" for the prosecution)
which bore the name "Paciano Mendoza Laput"
which [was] his baptismal name. He explained
that the name[s] Mendoza and Laput [were] the
middle name and surname, respectively of his
mother. The name "Rolusape" was given to him
by his father and the same [was] not his
registered name because during the old days,
priests would not allow parents to name their
children with names not found in the Almanac;
thus, Paciano [was] his chosen name and the
same appeared in his Baptismal Certificate, (Exh.
"20") issued by the Parish of the Blessed Trinity of
Talibon, Bohol. In his Birth Certificate, it [was] the
name "Rolusape" which appeared based upon the
data supplied by his father.
He had used the name Paciano during the time
when he [was] still a secret agent under his uncle,
Gen. Russo Sabalones, when the latter was still
the [c]hief of the C-2 in 1966 until 1967 and as
such, he was issued a firearm. He likewise used
said name at the time he was employed at the
Governor's Office in Agusan and when he
registered in the Civil Service Commission to
conceal his identity to protect himself from those
who were after him.
From Marikina he proceeded to Davao and then
to Butuan City where he was made to campaign
for the candidacy of Gov. Eddie Rama. When the
latter won in the election, he was given a job at
the Provincial Capitol and later became an agent
of the PC in Butuan using the name, "Paciano
Laput."
During his stay in Butuan, he met Virgie Pajigal, a
manicurist who became his live-in partner.
On October 23, 1988 while he was at the Octagon
Cockpit in Butuan with Sgt. Tambok, he was
arrested by Capt. Ochate and was brought to the
PC Headquarter[s] in Libertad, Butuan City and
was detained. Among the papers confiscated
from him was his Identification Card No. 028-88,
(Exh. "21") issued by the PC Command bearing
the name Paciano Laput.
On October 26, 1988 he was taken from the City
Jail by Capt. Ochate and some soldiers, one of
whom was Maj. Tiempo whom he met for the first
time.
On their way to Nasipit to board a vessel bound
for Cebu City, Maj. Tiempo made him lie flat on
his belly and stepped on his back and handcuffed
him. He cried in pain because of his sprained
shoulder. A certain soldier also took his watch and
ring.
Arriving in Cebu at 7:00 o'clock in the morning, he
and Virgie Pajigal, who followed him in the boat,
were made to board a taxicab. Maj. Tiempo
alighted in certain place and talked to a certain
guy. Thereafter, they were brought to the
Reclamation Area and were forced to go down
from the vehicle but Virgie Pajigal held him
tightly. They were again pulled out of the taxi but
they resisted.
From the Capitol Building, they proceeded to
CPDRC and on their way thereto, Maj. Tiempo sat
beside him inside the taxi and boxed him on the
right cheek below the ear and pulled his cuffed
hands apart.
At the Provincial Jail, he was physically examined
by its resident physician, Dr. Dionisio Sadaya, and
was also fingerprinted and photographed, (Exh.
"21"). He was issued a Medical Certificate, (Exh.
"22").
He further stated that he [was] acquainted with
his co-accused Timoteo Beronga, known to him as
"Timmy" being also a bet caller in the cockpit.
(Tsn-Formentera, pp. 5-23, Feb. 26, 1991; Tsn-
Abangan, pp. 3-33, Feb. 27, 1991; Tsn-Abangan,
pp. 4-18, Apr. 10, 1991).
As surrebuttal witness, accused Rolusape
Sabalones denied that he bribed a certain soldier
because at the time he was arrested, his wallet as
well as his wristwatch and ring worth P2,000.00
each were confiscated and his hands tied behind
his back.
He also denied the allegation of Maj. Tiempo that
he offered the latter the amount of P1,000,000.00
to drop the case against him, the truth being that
while they were on board a vessel bound for Cebu
City, Maj. Tiempo compelled him to tell [who] the
real killers of his son [were] because he knew that
 he (Rolusape Sabalones) was not responsible. The
former also inquired from him as to the
whereabouts of the carbine.
He also rebutted complainant's testimony that
upon their arrival here in Cebu City and while on
board a taxicab, he directed the former [to] first
go around the city to locate a certain Romeo
Cabañero, whom he did not know personally. 10
Ruling of the Court of Appeals
Giving full credence to the evidence of the prosecution, the Court of
Appeals affirmed the trial court's Decision convicting appellants of
two counts of murder and three counts of frustrated murder. Like the
trial court, it appreciated the qualifying circumstance of treachery and
rejected appellants' defense of alibi.
The Court of Appeals, however, ruled that the penalties imposed by
the trial court were erroneous. Hence, for each count of murder, it
sentenced appellants to reclusion perpetua. For each count of
frustrated murder, it imposed the following penalty: ten years (10)
of prision mayor (medium), as minimum, to seventeen years (17)
years and four (4) months of reclusion temporal (medium), as
maximum. Sustaining the trial court, the Court of Appeals awarded
indemnity of P20,000 to each of the victims of frustrated murder.
However, it was silent on the indemnity of P50,000 awarded by the
trial court to the heirs of each of the two deceased.
Having imposed reclusion perpetua on the appellants, the Court of
Appeals, as earlier noted, refrained from entering judgment and
certified the case to the Supreme Court for review, in conformity with
Section 13, Rule 124 of the Rules of Court.
Hence, this appeal before this Court. 11
The Issues
In his Brief, 12 Appellant Sabalones raised the following errors
allegedly committed by the trial court:
I
The court a quo erred in finding that accused
Sabalones and his friends left the house where his
brother Sabalones Junior was lying in state and
"went to their grisly destination amidst the dark
and positioned themselves in defense of his turf
against the invasion of a revengeful gang of the
supporters of Nabing Velez.
II
The court a quo erred in finding that accused
Sabalones and his two co-accused were identified
as among the four gunmen who fired at the
victims.
III
The court a quo erred in overlooking or
disregarding physical evidence that would have
contradicted the testimony of prosecution
witnesses Edwin Santos and Rogelio Presores that
the gunmen were shooting at them from a
standing position.
IV
The court a quo erred in holding that the instant
case is "one of aberratio ictus", which is not a
defense, and that the "defense of alibi"
interposed by the accused may not be
considered.
V
The court a quo erred in not finding that the
evidence of the prosecution has not overcome
the constitutional presumption of innocence in
favor of the accused.
VI
The court a quo erred in not acquitting the
accused on ground of reasonable doubt.
In a Manifestation dated December 20, 1995, Appellant Beronga,
through counsel, adopted as his own the Brief of Sabalones. 13
The foregoing assignment of errors shall be reformulated by the Court
into these three issues or topics: (1) credibility of the witnesses and
sufficiency of the prosecution evidence, (2) defense of denial and
alibi, and (3) characterization of the crimes committed and the
penalty therefor.
The Court's Ruling
The appeal is devoid of merit.
First Issue:
Credibility of Witnesses and
Sufficiency of Evidence
Well-entrenched is the tenet that this Court will not interfere with the
trial court's assessment of the credibility of the witnesses, absent any
indication or showing that the trial court has overlooked some
material facts or gravely abused its discretion, 14 especially where, as
in this case, such assessment is affirmed by the Court of Appeals. "As
this Court has reiterated often enough, the matter of assigning values
to declarations at the witness stand is best and most competently
performed or carried out by a trial judge who, unlike appellate
magistrates, can weigh such testimony in light of the accused's
behavior, demeanor, conduct and attitude at the trial." 15 Giving
credence to the testimonies of the prosecution witnesses, the trial
court concluded:
Stripped of unnecessary verbiage, this Court,
given the evidence, finds that there is more
realism in the conclusion based on a keener and
realistic appraisal of events, circumstances and
 evidentiary facts on record, that the gun slaying
and violent deaths of Glenn Tiempo and Alfredo
Nardo, and the near fatal injuries of Nelson
Tiempo, Rey Bolo and Rogelio Presores, resulted
from the felonious and wanton acts of the herein
accused for mistaking said victims for the persons
[who were] objects of their wrath. 16
We stress that "factual findings of the lower courts, the trial court and
the Court of Appeals are, as a general rule, binding and conclusive
upon the Supreme Court." 17 We find nothing in the instant case to
justify a reversal or modification of the findings of the trial court and
the Court of Appeals that appellants committed two counts of murder
and three counts of frustrated murder.
Edwin Santos, a survivor of the assault, positively pointed to and
identified the appellants as the authors of the crime. His categorical
and straightforward testimony is quoted hereunder: 18
COURT:
Q You stated there was a gun
fired. What happened next?
WITNESS:
A There was a rapid fire in
succession.
Q When you heard this rapid
firing, what did you do?
A I tried to look from where
the firing came from.
Q After that, what did you
find?
A I saw persons firing towards
us.
Q Where were these persons
situated when they were
firing towards you?
A Near the foot of the electric
post and close to the
cemented wall.
Q This electric post, was that
lighted at that moment?
A Yes, sir, it was lighted.
Q How far were these persons
firing, to the place where you
were?
A From here to there (The
witness indicating the
distance by pointing to a
place inside the courtroom,
indicating a distance of about
6 to 7 meters, making the
witness stand as the point of
reference).
Q Were you able to know how
many persons fired towards
you?
A I only saw 3 to 4 persons.
Q How long did these persons
fire the guns at you?
A Until we went home. The
persons were still firing, until
we went home.
Q You stated that you saw
these persons who were
firing at you. Do you know
these persons?
A I can identify [them] when I
[see] them.
Q Try to look around this
courtroom, if these persons
you saw who were firing at
you are present in the
courtroom[.]
A Yes, sir.
Q Can you point to these
persons?
A Yes, sir.
Q Point at them.
COURT INTERPRETER:
The Court directed the
witness to go down from the
witness stand and [point] at
them, Beronga and
Alegarbes.
FISCAL GABIANA:
I would like to make it of
record that on the bench of
prisoner, only the two
accused were seated.
COURT:
 Make it of record that only
two prisoners were present.
Q Now, Mr. Santos, aside
from these two accused you
identified as among those
who fired [at] you on that
evening, were there other
persons that you saw on that
particular occasion who fired
at you?
A Yes, sir, there were[;] if I can
see them, I can identify them.
Corroborating the foregoing, Rogelio Presores, another survivor, also
pointed to Timoteo Beronga, Teodulo Alegarbes and Roling Sabalones
as the perpetrators of the crime. His testimony proceeded in this
manner: 19
Q When you arrived at the
residence of Stephen Lim, can
you remember of any unusual
incident that took place?
A Yes, sir.
Q What was that?
A When the jeep arrived, the
car was following.
Q What happened next?
A When the jeep was near the
gate, the car was following.
Q The car was following the
jeep, at what distance?
A 3 to 4 meters.
Q While the car was following
the jeep at that distance of 3
to 4 meters, what happened?
A All of a sudden, we heard
the burst of gunfire.
Q From what direction was
the gunfire?
A Through the direction of the
jeep.
Q After hearing the gunfire,
what happened?
A We looked at the jeep.
Q What did you see?
A We saw Alfredo Nardo and
Glenn Tiempo and Rey Bolo
f[a]ll to the ground. There
were only 3.
Q Who was driving the jeep at
that time?
A Alfredo Nardo.
Q What happened after that?
A So, I looked, whence the
burst of gunfire came from.
Q What did you see from that
gunfire?
A I saw 4 persons standing at
the back of the fence.
Q What were those 4 persons
doing when they were
standing at the back of the
fence?
A They were bringing long
firearms.
Q Did you recognize these
persons?
A I can clearly recognize one
and the 3 persons[.] I can
identify them, if I can see
them again.
Q If you are shown these
persons, can you recognize
them? Can you name these
persons?
A No, sir. Only their facial
appearance.
Q What about the 3 persons?
A That's why the 3 persons, I
do not know them. I can
recognize only their facial
appearance.
Q What about one person?
A Yes, sir.
Q What is the name of the
person?
 A Roling Sabalones.
Q If Roling Sabalones is inside
the courtroom, can you
recognize Roling Sabalones?
A Yes, sir, he is around.
Q Can you point to Roling
Sabalones?
A Yes, he is there (The witness
pointing to the person who
answered the name of Roling
Sabalones).
Q I would like [you] again to
please look around and see, if
those persons whom you
know through their faces, if
they are here around?
A The two of them (The
witness pointing to the 2
persons, who, when asked,
answered that his name [was]
Teofilo Beronga and the other
[was] Alegarbes).
Indeed, we have carefully waded through the voluminous records of
this case and the testimonies of all the fifty-nine witnesses, and we
find that the prosecution has presented the required quantum of
proof to establish that appellants are indeed guilty as charged.
Appellants' arguments, as we shall now discuss, fail to rebut this
conclusion.
Positive Identification
Appellants allege that the two witnesses could not have properly
identified the appellants because, after the first burst of shooting,
they both crouched down, such that they could not have seen the
faces of their assailants. This contention does not persuade. Both
eyewitnesses testified that the firing was not continuous; thus, during
a lull in the firing, they raised their heads and managed a peek at the
perpetrators. Edwin Santos testified as follows:
Atty. Albino, counsel for
accused Beronga:
Q You mean to say that when
you bent you heard the
successive shots, [and] you
again raised your head. Is that
correct?
A There, were times that the
shots were not in succession
and continuous and that was
the time I raised my head
again. 20
Like Santos, Rogelio Presores also stooped down when the firing
started, but he raised his head during a break in the gunfire:
Atty. Albino:
Q So, what did you do when
you first heard that one shot?
A So, after the first shot, we
looked towards the direction
we were facing and when we
heard the second shot, that
was the time we stooped
down. 21
He further testified:
Atty. Acido: [Counsel for
Appellant Sabalones]
Q And you said you stooped
down inside the car when you
heard the first firing to the
jeep. Is that what you want
the Court to understand[?]
Presores:
A Yes, sir.
Q So, you never saw who fired
the successive shots to the
car as you said you stooped
down inside the car?
A The bursts of gunfire
stopped for a while and that
was the time I reared of [sic]
my head.
Q And that was the first time
you saw them?
A Yes, sir. 22
The records clearly show that two vehicles proceeded to the house of
Stephen Lim on that fateful day. The first was the jeep where Alfredo
Nardo, Glenn Tiempo and Rey Bolo were riding. About three to four
meters behind was the second car carrying Nelson Tiempo, Guillermo
Viloria, Rogelio Oliveros and the two prosecution witnesses — Edwin
Santos and Rogelio Presores. 23 As stated earlier, said witnesses
attested to the fact that after the first volley of shots directed at the
jeep, they both looked at the direction where the shots were coming
from, and they saw their friends in the jeep falling to the ground, as
well as the faces of the perpetrators. 24 It was only then that a rapid
succession of gunshots were directed at them, upon which they
started crouching to avoid being hit.
Hence, they were able to see and identify the appellants, having had
a good look at them after the initial burst of shots. We stress that the
normal reaction of a person is to direct his sights towards the source
of a startling shout or occurrence. As held in People v. Dolar, 25 "the
most natural reaction for victims of criminal violence is to strive to see
the looks and faces of their assailants and to observe the manner in
which the crime is committed.
In bolstering their claim that it was impossible for the witnesses to
have identified them, appellants further aver that the crime scene
was dark, there being no light in the lampposts at the time. To prove
that the service wire to the street lamps at the Mansueto Compound
was disconnected as early as December 1984 and reconnected only
on June 27, 1985, they presented the testimonies of Vicente
Cabanero, 26 Remigio Villaver, 27 Fredo Canete 28 and Edward
Gutang. 29 The trial court, however, did not lend weight to said
testimonies, preferring to believe the statement of other prosecution
witnesses that the place was lighted during that time.
The Court of Appeals sustained said findings by citing the testimonies
of defense witnesses. Fredo Canete of the Visayan Electric Company
(VECO), for instance, admitted that it was so easy to connect and
disconnect the lights. He testified thus:
Atty. Kintanar:
Q Now, as a cutter, what
instruments do you usually
use in cutting the electrical
connection of a certain place?
Canete:
A Pliers and screw driver.
Q Does it need . . . very
sophisticated instruments to
disconnect the lights?
A No, these are the only
instruments we use.
Q Ordinary pliers and
ordinary screw driver?
A Yes, sir.
Q And does [one] need to be
an expert in electronic [sic] in
order to conduct the
disconnection?
A No, sir.
Q In other words, Mr. Canete,
any ordinary electrician can
cut it?
A That is if they are connected
with the Visayan Electric
Company.
Q What I mean is that, can the
cutting be done by any
ordinary electrician?
A Yes, sir. 30
Said witness even admitted that he could not recall if he did in fact
cut the electrical connection of the Mansueto Compound. 31 The
Court of Appeals further noted that "none of the above witnesses
were at the crime scene at or about the exact time that the ambush
occurred. Thus, none was in a position to state with absolute certainty
that there was allegedly no light to illuminate the gunmen when they
rained bullets on the victims. 32
Even assuming arguendo that the lampposts were not functioning at
the time, the headlights of the jeep and the car were more than
sufficient to illuminate the crime scene. 33 The Court has previously
held that the light from the stars or the moon, an oven, or a wick lamp
or gasera can give ample illumination to enable a person to identify
or recognize another. 34 In the same vein, the headlights of a car or a
jeep are sufficient to enable eyewitnesses to identify appellants at the
distance of 4 to 10 meters.
Extrajudicial Statement
of Beronga
Appellants insist that Beronga's extrajudicial statement was obtained
through violence and intimidation. Citing theres inter alios acta rule,
they also argue that the said statement is inadmissible against
Sabalones. Specifically, they challenge the trial court's reliance on the
following portions of Beronga's statement:
Q After Roling knew that
Na[b]ing Velez was killed,
have you observed [if] Roling
and his companions prepared
themselves for any
eventuality?
A It did not take long after we
knew that Na[b]ing was
killed, somebody called up by
telephone looking for Roling,
and this was answered by
Roling but we did not know
what they were conversing
about and then Roling went
back to the house of Junior
after answering the phone.
And after more than two
hours, we heard the sound of
engines of vehicles arriving,
and then Meo, the man who
was told by Roling to guard,
shouted saying: "They are
already here[;]" after that,
Roling came out carrying a
carbine accompanied by
Tsupe, and not long after we
heard gunshots and because
of that we ran towards the
house where the wake was.
But before the gun-shots, I
 heard Pedring Sabalones
father of Roling saying: "You
clarify, [t]hat you watch out
for mistake[n] in identity,"
and after that shout,
gunshots followed. [sic] Then
after the gun-shots Roling
went back inside still carrying
the carbine and shouted:
"GATHER THE EMPTY SHELLS
AND MEO[,] YOU BRING A
FLASHLIGHT," and then I was
called by Meo to help him
gather the empty shells of the
carbine and also our third
companion to gather the
empty shells.
Beronga's statement was made afterthe termination of the
conspiracy; thus, it should not be admitted and used against
Sabalones.
The well-settled rule is that the extrajudicial confession of an accused
is binding only upon himself and is nor admissible as evidence against
his co-accused, it being mere hearsay evidence as far as the other
accused are concerned. 41 But this rule admits of exception. It does
not apply when the confession, as in this case, is used as
circumstantial evidence to show the probability of participation of the
co-accused in the killing of the victims 42 or when the confession of
the co-accused is corroborated by other evidence. 43
Beronga's extrajudicial statement is, in fact, corroborated by the
testimony of Prosecution Witness Jennifer Binghoy. Pertinent
portions of said testimony are reproduced hereunder:

Q While you were at the wake

These arguments have no merit. In the first place, it is well to stress
of Jun Sabalones and the
that appellants were convicted based primarily on the positive
group were sitting with Roling
identification of the two survivors, Edwin Santos and Rogelio
Sabalones, what were they
Presores, and not only on the extrajudicial statement, which merely
doing?
corroborates the eyewitness testimonies. Thus, said arguments have
no relevance to this case. As the Court held in People vs.
Tidula: 35 "Any allegation of violation of rights during custodial A They were gathered in one
investigation is relevant and material only to cases in which an table and they were
extrajudicial admission or confession extracted from the accused conversing with each other.
becomes the basis of their conviction."
xxx xxx xxx
In any case, we sustain the trial court's holding, as affirmed by the
Court of Appeals, that the extrajudicial statement of Beronga was Q On that same date, time
executed in compliance with the constitutional and place, at about 10:00 [i]n
requirements. 36 "Extrajudicial confessions, especially those which the evening, can you
are adverse to the declarant's interests are presumed voluntary, and remember if there was
in the absence of conclusive evidence showing that the declarant's unusual incident that took
consent in executing the same has been vitiated, such confession shall place?
be upheld." 37
A I heard over the radio at the
The exhaustive testimony of Sgt. Miasco, who undertook the Sabalones Family that a
investigation, shows that the appellant was apprised of his certain Nabing Velez was
constitutional rights to remain silent and to have competent and shot.
independent counsel of his own choice. 38 Said witness also stated
that Beronga was assisted by Atty. Marcelo Guinto during the Q That [a] certain Nabing
custodial investigation. 39 In fact, Atty. Guinto also took the witness Velez was shot? What else . . .
stand and confirmed that Appellant Beronga was informed of his transpired?
rights, and that the investigation was proper, legal and not
objectionable. Indeed, other than appellants' bare allegations, there
was no showing that Beronga's statement was obtained by force or A I observed that their
duress. 40 reactions were so queer, — as
if they were running.
Equally unavailing is appellants' reliance on the res inter alios
acta rule under Section 30, Rule 130 of the Rules of Court, which xxx xxx xxx
provides:
Q In that evening of June 1,
The act or declaration of a conspirator relating to 1985, when you went there at
the conspiracy and during its existence, may be the house of Jun Sabalones,
given in evidence against the co-conspirator after have you seen an armalite?
the conspiracy is shown by evidence other than
such act or declaration. A Yes, sir.

Appellants assert that the admission referred to in the above Q Where aid you see this
provision is considered to be against a co-conspirator only when it is armalite?
given during the existence of the conspiracy. They argue that
 A At the table where they
were conversing.
Q How many armalites or
guns [did you see] that
evening in that place?
A Two (2).
xxx xxx xxx
Q This armalite that you saw,
— how far was this in relation
to the groups of Sabalones?
A There (The witness
indicating a distance of about
4 to 5 meters).
ATTY. KINTANAR:
Q When you looked . . .
through the window and saw
there were two vehicles and
there were bursts of gunfire,
what happened after that?
A I did not proceed to look . .
. through the window
because I stooped down.
Q When you stooped down,
what happened?
A After the burst of gunfire, I
again opened the window.
Q And when again you
opened the window, what
happened?
A I saw two persons going
towards the jeep.
Q What transpired next after
[you saw] those 2 persons?
A When they arrived there,
they nodded their head[s].
Q After that, what happened?
A So, they went back to the
direction where they came
from, going to the house of
Sabalones.
Q While they were going to
the direction of the house of
Sabalones, what transpired?
A I saw 5 to 6 persons coming
from the highway and looking
to the jeep, and before they
reached the jeep, somebody
shouted that "it's ours".
Q Who shouted?
A The voice was very familiar
to me.
Q Whose voice?
A The voice of Roling
Sabalones.
Q What else have you noticed
during the commotion
[when] wives were advising
their husbands to go home?
A They were really in chaos. 44
A careful reading of her testimony buttresses the finding of the trial
court that Rolusape Sabalones and his friends were gathered at one
table, conversing in whispers with each other, that there were two
rifles on top of the table, and that they became panicky after hearing
of the death of Nabing Velez on the radio. Hence, the observation of
the trial court that "they went to their grisly destination amidst the
dark and positioned themselves in defense of his turf against the
invasion of a revengeful gang of supporters of the recently slain
Nabing Velez." 45
Alleged Inconsistencies
Appellants also allege that the prosecution account had
inconsistencies relating to the number of shots heard, the interval
between gunshots and the victims' positions when they were killed.
These, however, are minor and inconsequential flaws which
strengthen, rather than impair, the credibility of said eyewitnesses.
Such harmless errors are indicative of truth, not falsehood, and do not
cast serious doubt on the veracity and reliability of complainant's
testimony. 46
Appellants further claim that the relative positions of the gunmen, as
testified to by the eyewitnesses, were incompatible with the wounds
sustained by the victims. They cite the testimony of Dr. Ladislao Diola,
who conducted the autopsy on Glenn Tiempo. He declared that the
victim must necessarily be on a higher level than the assailant, in the
light of the path of the bullet from the entrance wound to where the
slug was extracted. This finding, according to appellant, negates the
prosecution's account that the appellants were standing side by side
behind a wall when they fired at the victims. If standing, appellants
must have been on a level higher than that of the occupants of the
vehicles; if beside each other, they could not have inflicted wounds
which were supposed to have come from opposite angles.
We are not persuaded. The defense presumes that the victims were
sitting still when they were fired upon, and that they froze in the same
position during and after the shooting. This has no testimonial
foundation. On the contrary, it was shown that the victims ducked
and hid themselves, albeit in vain, when the firing began. After the
first volley, they crouched and tried to take cover from the hail of
bullets. It would have been unnatural for them to remain upright and
still in their seat. Hence, it is not difficult to imagine that the
trajectories of the bullet wounds varied as the victims shifted their
positions. We agree with the following explanation of the Court of
Appeals:
The locations of the entry wounds can readily be
explained, . . . Glenn Tiempo, after looking in the
direction of the explosion, turned his body
around; and since the ambushers were between
the jeep and the car, he received a bullet in his
right chest (wound no. 1) which traveled to the
left. As to wound No. 2, it can be explained by the
spot where Major Tiempo found his fallen son.
Atty. Kintanar:
Q: Upon being informed by
these occupants who were
ambushed and [you] were
able to return the car, what
did you do?
Major Tiempo:
A: I immediately got soldiers
and we immediately
proceeded to the area or to
the place where my fallen son
was located and when we
reached . . . the place, I saw
my fallen son [in] a kneeling
position where both knees
[were] touching the ground
and the toes also and the
forehead was touching
towards the ground. (TSN,
Feb. 12, 1988, p. 6)
In such position the second bullet necessarily
traveled upwards in relation to the body, and thus
the entry wound should be lower than the exit
wound. There is no showing that both wounds
were inflicted at the same time. 47
In any event, the witnesses saw that the appellants were the gunmen
who were standing side by side firing at them. They could have been
in a different position and in another hiding place when they first
fired, but this is not important. They were present at the crime scene,
and they were shooting their rifles at the victims.
Aberratio Ictus
Appellants likewise accuse the trial court of engaging in "conjecture"
in ruling that there was aberratio ictus in this case. This allegation
does not advance the cause of the appellants. It must be stressed that
the trial court relied on the concept of aberratio ictus to explain why
the appellants staged the ambush, not to prove that appellants did in
fact commit the crimes. Even assuming that the trial court did err in
explaining the motive of the appellants, this does not detract from its
findings, as affirmed by the Court of Appeals and sustained by this
Court in the discussion above, that the guilt of the appellants was
proven beyond reasonable doubt.
In any event, the trial court was not engaging in conjecture in so
ruling. The conclusion of the trial court and the Court of Appeals that
the appellants killed the wrong persons was based on the extrajudicial
statement of Appellant Beronga and the testimony of Jennifer
Binghoy. These pieces of evidence sufficiently show that appellants
believed that they were suspected of having killed the recently slain
Nabing Velez, and that they expected his group to retaliate against
them. Hence, upon the arrival of the victims' vehicles which they
mistook to be carrying the avenging men of Nabing Velez, appellants
opened fire. Nonetheless, the fact that they were mistaken does not
diminish their culpability. The Court has held that "mistake in the
identity of the victim carries the same gravity as when the accused
zeroes in on his intended
victim." 48
Be that as it may, the observation of the solicitor general on this
point is well-taken. The case is better characterized as
error personae or mistake in the identity of the victims, rather
than aberratio ictus which means mistake in the blow, characterized
by aiming at one but hitting the other due to imprecision in the
blow.
Second Issue:
Denial and Alibi
Appellants decry the lower courts' disregard of their defense of alibi.
We disagree. As constantly enunciated by this Court, the established
doctrine requires the accused to prove not only that he was at some
other place at the time of the commission of the crime, but that it was
physically impossible for him at the time to have been present at
the locus criminis or its immediate vicinity. 49 This the appellants
miserably failed to do.
Appellant Beronga testified that, at the time of the incident, he was
in his residence in Lapulapu City, which was not shown to be so
remote and inaccessible that it precluded his presence in Mansueto
Subdivision. The alibi of Sabalones is even more unworthy of belief;
he sought to establish that he was a mere 20-25 meters away from
the scene of the crime. He was allegedly in the house of his brother
who was lying in state, which was so near the ambush site that some
of the defense witnesses even testified that they were terrified by the
gunfire. Clearly, appellants failed to establish the requisites of alibi.
Furthermore, the defense of alibi cannot overcome the positive
identification of the appellants. 50 As aptly held by this Court in People
v. Nescio: 51
Alibi is not credible when the accused-appellant is
only a short distance from the scene of the crime.
The defense of alibi is further offset by the
positive identification made by the prosecution
witnesses. Alibi, to reiterate a well-settled
doctrine, is accepted only upon the clearest proof
that the accused-appellant was not or could not
have been at the crime scene when it was
committed.
Flight
Appellants further object to the finding that Sabalones, after the
incident, "made himself scarce from the place of commission. He left
for Manila, thence Mindanao on the supposition that he want[ed] to
escape from the wrath of Maj. Tiempo and his men for the death of
Glenn Tiempo and the near fatal shooting of the other son or from
the supporters of Nabing Velez. . . . On his supposedly borrowed
freedom, he jumped bail and hid himself deeper into Mindanao,
under a cloak of an assumed name. Why, did his conscience bother
him for comfort?" 52
Appellants rationalized that Sabalones was forced to jump bail in
order to escape two groups, who were allegedly out to get him, one
of Nabing Velez and the other of Major Tiempo. Their ratiocination is
futile. It is well-established that "the flight of an accused is competent
evidence to indicate his guilt, and flight, when unexplained, is a
circumstance from which an inference of guilt may be drawn." 53 It
must be stressed, nonetheless, that appellants were not convicted
based on legal inference alone but on the overwhelming evidence
presented against them.
Third Issue:
Crime and Punishment
We agree with the appellate court that accused-appellants are guilty
of murder for the deaths of Glenn Tiempo end Alfredo Nardo. The
allegation of treachery as charged in the Information was duly proven
by the prosecution. "Treachery is committed when two conditions
concur, namely, that the means, methods, and forms of execution
employed gave the person attacked no opportunity to defend himself
or to retaliate; and that such means, methods and forms of execution
were deliberately and consciously adopted by the accused without
danger to his person." 54These requisites were evidently present
when the accused, swiftly and unexpectedly, fired at the victims who
were inside their vehicles and were in no position and without any
means to defend themselves.
The appellate court also correctly convicted them of frustrated
murder for the injuries sustained by Nelson Tiempo, Rey Bolo and
Rogelio Presores. As evidenced by the medical certificates and the
testimony of Dr. Miguel Mancao who attended to the victims, Nelson
Tiempo sustained a neck wound which completely shattered his
trachea and rendered him voiceless, as well as a wound on the right
chest which penetrated his axilla but not his chest cavity. 55Rey Bolo
sustained three injuries which affected his clavicle, ribs and
lungs. 56 Rogelio Presores, on the other hand, sustained an injury to
his lungs from a bullet wound which entered his right chest and exited
through his back. 57
The wounds sustained by these survivors would have caused their
death had it not been for the timely medical intervention. Hence, we
sustain the ruling of the Court of Appeals that appellants are guilty of
three counts of frustrated murder.
We also uphold the Court of Appeals' modification of the penalty for
murder, but not its computation of the sentence for frustrated
murder.
For each of the two counts of murder, the trial court imposed the
penalty of fourteen (14) years, eight (8) months and one (1) day
of reclusion temporal (medium), as minimum, to seventeen (17)
years, four (4) months and one (1) day of reclusion
temporal (maximum), as maximum. This is incorrect. Under Article
248 of the Ravised Penal Code, the imposable penalty is reclusion
temporal, in its maximum period, to death. There being no
aggravating or mitigating circumstance, aside from the qualifying
circumstance of treachery, the appellate court correctly
imposed reclusion perpetua for murder.
The Court of Appeals, however, erred in computing the penalty for
each of the three counts of frustrated murder. It sentenced appellants
to imprisonment of ten years of prision mayor (medium) as minimum
to seventeen years and four months of reclusion temporal (medium)
as maximum. It modified the trial court's computation of eight (8)
years of prision mayor (minimum), as minimum, to fourteen (14)
years and eight (8) months of reclusion temporal(minimum) as
maximum.
Under Article 50 of the Revised Penal Code, the penalty for a
frustrated felony is the "next lower in degree than that prescribed by
law for the consummated felony . . . ." The imposable penalty for
frustrated murder, therefore, is prision mayor in its maximum period
to reclusion temporal in its medium period. 58 Because there are no
aggravating or mitigating circumstance as the Court of Appeals itself
held, 59 the penalty prescribed by law should be imposed in its
medium period. With the application of the Indeterminate Sentence
Law, the penalty for frustrated murder should be 8 years of prision
mayor (minimum), as minimum, to 14 years and 8 months of reclusion
temporal (minimum) as maximum.
Although the Court of Appeals was silent on this point, the trial court
correctly ordered the payment of P50,000 as indemnity to the heirs
of each of the two murdered victims. In light of current jurisprudence,
this amount is awarded without need of proof other than the fact of
the victim's death. 60 The trial court and the CA, however, erred in
awarding indemnity of P20,000 each to Nelson Tiempo, Rogelio
Presores and Rey Bolo. There is no basis, statutory or jurisprudential,
for the award of a fixed amount to victims of frustrated murder.
Hence, they are entitled only to the amounts of actual expenses duly
proven during the trial.
Thus, Nelson Tiempo, who was treated for a gunshot wound on the
neck which shattered his trachea, should be awarded indemnity of
P21,594.22 for his medical expenses. This is evidenced by a statement
of account from Cebu Doctor's Hospital. 61
Rogelio Presores, who was likewise treated for gunshot wound in the
same hospital, presented a statement of account amounting to
P5,412.69 for his hospitalization. 62 Hence, he is likewise entitled to
indemnity in the said amount.
Rey Bolo, on the other hand, incurred an expense of P9,431.10 for the
treatment of his gunshot wounds, as evidenced by a statement of
account from the same hospital. 63 This amount should be awarded to
him as indemnity.
WHEREFORE, the appeal is DENIED and the assailed Decision is
AFFIRMED. However, the penalties are hereby MODIFIED as follows:
1) In Crim. Case No. CBU-9257, for MURDER, the accused-appellants
are each hereby sentenced to reclusion perpetua and to indemnify,
jointly and severally, the heirs of the deceased, Glenn Tiempo, in the
sum of P50,000;
2) In Crim. Case No. CBU-9258, for MURDER, the accused-appellants
are each hereby sentenced to reclusion perpetua and to indemnify,
jointly and severally, the heirs of the deceased, Alfredo Nardo, in the
sum of P50,000;

3) In Crim. Case No. CBU-9259, for FRUSTRATED MURDER, the

accused-appellants are each hereby sentenced to suffer the penalty
of 8 years of prision mayor (minimum), as minimum, to 14 years and
8 months of reclusion temporal (minimum) as maximum; and to
jointly and severally pay the victim, Rey Bolo, in the sum of P9,431.10
as actual damages;

4) In Crim Case No. CBU-9260, for FRUSTRATED MURDER, the

accused-appellants are hereby sentenced to suffer the penalty of 8
years of prision mayor (minimum), as minimum, to 14 years and 8
months of reclusion temporal (minimum) as maximum; and to jointly
and severally indemnify the victim, Rogelio Presores, in the sum of
P5,412.69 for actual damages;

5) In Crim. Case No. CBU-9261 for FRUSTRATED MURDER, the

accused-appellants are hereby sentenced to suffer the penalty of 8
years of prision mayor (minimum), as minimum, to 14 years and 8
months of reclusion temporal (minimum) as maximum; and to jointly
and severally indemnify the victim, Nelson Tiempo, in the sum of
P21,594.22 as actual damages.

Let copies of this Decision be furnished the Secretary of Interior and

Local Government and the Secretary of Justice so that Accused
Eufemio Cabanero may be brought to justice.

Costs against appellants.

SO ORDERED.
G.R. No. 166326 | January 25, 2006
ESMERALDO RIVERA, ISMAEL RIVERA, EDGARDO
RIVERA, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
CALLEJO, SR., J.:
This is a petition for review of the Decision1 of the Court of Appeals
(CA) in CA-G.R. CR No. 27215 affirming, with modification, the
Decision2 of the Regional Trial Court (RTC) of Cavite, Branch 90, in
Criminal Case No. 6962-99, entitled People of the Philippines. v.
Esmeraldo Rivera, et al.
On April 12, 1999, an Information was filed in the RTC of Imus, Cavite,
charging Esmeraldo, Ismael and Edgardo, all surnamed Rivera, of
attempted murder. The accusatory portion of the Information reads:
That on or about the 3rd day of May 1998, in the Municipality of
Dasmariñas, Province of Cavite, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually helping one another, with
intent to kill, with treachery and evident premeditation, did then and
there, wilfully, unlawfully, and feloniously attack, assault and hit with
a piece of hollow block, one RUBEN RODIL who thereby sustained a
non-mortal injury on his head and on the different parts of his body,
the accused thus commenced the commission of the felony directly
by overt acts, but failed to perform all the acts of execution which
would produce the crime of Murder by reason of some causes other
than their own spontaneous desistance, that is, the said Ruben Rodil
was able to ran (sic) away and the timely response of the policemen,
to his damage and prejudice.
CONTRARY TO LAW.3
mobile car arrived, Esmeraldo, Ismael and Edgardo fled to their
house.
Ruben was brought to the hospital. His attending physician, Dr.
Lamberto Cagingin, Jr., signed a medical certificate in which he
declared that Ruben sustained lacerated wounds on the parietal area,
cerebral concussion or contusion, hematoma on the left upper
buttocks, multiple abrasions on the left shoulder and hematoma
periorbital left.4 The doctor declared that the lacerated wound in the
parietal area was slight and superficial and would heal from one to
seven days.5 The doctor prescribed medicine for Ruben’s back pain,
which he had to take for one month.6
Esmeraldo testified that at around 1:00 p.m. on May 3, 1998, Ruben
arrived at his house and banged the gate. Ruben challenged him and
his brothers to come out and fight. When he went out of the house
and talked to Ruben, the latter punched him. They wrestled with each
other. He fell to the ground. Edgardo arrived and pushed Ruben aside.
His wife arrived, and he was pulled away and brought to their house.
For his part, Ismael testified that he tried to pacify Ruben and his
brother Esmeraldo, but Ruben grabbed him by the hair. He managed
to free himself from Ruben and the latter fled. He went home
afterwards. He did not see his brother Edgardo at the scene.
Edgardo declared that at about 1:00 p.m. on May 3, 1998, he was
throwing garbage in front of their house. Ruben arrived and he went
inside the house to avoid a confrontation. Ruben banged the gate and
ordered him to get out of their house and even threatened to shoot
him. His brother Esmeraldo went out of their house and asked Ruben
what the problem was. A fist fight ensued. Edgardo rushed out of the
house and pushed Ruben aside. Ruben fell to the ground. When he
stood up, he pulled at Edgardo’s shirt and hair, and, in the process,
Ruben’s head hit the lamp post.7
On August 30, 2002, the trial court rendered judgment finding all the
accused guilty beyond reasonable doubt of frustrated murder. The
dispositive portion of the decision reads:

Ruben Rodil testified that he used to work as a taxi driver. He stopped

WHEREFORE, premises considered, all the accused are found GUILTY
driving in April 1998 after a would-be rapist threatened his life. He
beyond reasonable doubt and are sentenced to an imprisonment of
was even given a citation as a Bayaning Pilipino by the television
six (6) years and one (1) day to eight (8) years of prision mayor as the
network ABS-CBN for saving the would-be victim. His wife eked out a
prosecution has proved beyond reasonable doubt the culpability of
living as a manicurist. They and their three children resided in
the accused. Likewise, the accused are to pay, jointly and severally,
Barangay San Isidro Labrador II, Dasmariñas, Cavite, near the house
civil indemnity to the private complainant in the amount
of Esmeraldo Rivera and his brothers Ismael and Edgardo.
of P30,000.00.

At noon of May 2, 1998, Ruben went to a nearby store to buy food.

Edgardo mocked him for being jobless and dependent on his wife for
support. Ruben resented the rebuke and hurled invectives at
Edgardo. A heated exchange of words ensued.
At about 7:30 p.m. the next day, a Sunday, Ruben went to the store
to buy food and to look for his wife. His three-year-old daughter was
with him. Momentarily, Esmeraldo and his two brothers, Ismael and
Edgardo, emerged from their house and ganged up on Ruben.
Esmeraldo and Ismael mauled Ruben with fist blows and he fell to the
ground. In that helpless position, Edgardo hit Ruben three times with
a hollow block on the parietal area. Esmeraldo and Ismael continued
mauling Ruben. People who saw the incident shouted: "Awatin sila!
Awatin sila!" Ruben felt dizzy but managed to stand up. Ismael threw
a stone at him, hitting him at the back. When policemen on board a
SO ORDERED.8
The trial court gave no credence to the collective testimonies of the
accused and their witnesses. The accused appealed to the CA, which
rendered judgment on June 8, 2004 affirming, with modification, the
appealed decision. The dispositive portion of the CA decision reads:
WHEREFORE, the Decision of the Regional Trial Court of Imus, Cavite,
Branch 90, is MODIFIED in that the appellants are convicted of
ATTEMPTED MURDER and sentenced to an indeterminate penalty of
2 years of prision correccional as minimum to 6 years and 1 day
of prision mayor as maximum. In all other respects, the decision
appealed from is AFFIRMED.
SO ORDERED.9
The accused, now petitioners, filed the instant petition for review
on certiorari, alleging that the CA erred in affirming the RTC decision.
They insist that the prosecution failed to prove that they had the
intention to kill Ruben when they mauled and hit him with a hollow
block. Petitioners aver that, based on the testimony of Dr. Cagingin,
Ruben sustained only a superficial wound in the parietal area; hence,
they should be held criminally liable for physical injuries only. Even if
petitioners had the intent to kill Ruben, the prosecution failed to
prove treachery; hence, they should be held guilty only of attempted
homicide.
On the other hand, the CA held that the prosecution was able to prove
petitioners’ intent to kill Ruben:
On the first assigned error, intent to kill may be deduced from the
nature of the wound inflicted and the kind of weapon used. Intent to
kill was established by victim Ruben Rodil in his testimony as follows:
Q: And while you were being boxed by Esmeraldo and Bong, what
happened next?
A: When I was already lying [down] xxx, Dagol Rivera showed up with
a piece of hollow block xxx and hit me thrice on the head, Sir.
Q: And what about the two (2), what were they doing when you were
hit with a hollow block by Dagol?
A: I was already lying on the ground and they kept on boxing me while
Dagol was hitting, Sir.
As earlier stated by Dr. Cagingin, appellants could have killed the
victim had the hollow block directly hit his head, and had the police
not promptly intervened so that the brothers scampered away. When
a wound is not sufficient to cause death, but intent to kill is evident,
the crime is attempted. Intent to kill was shown by the fact that the
(3) brothers helped each other maul the defenseless victim, and even
after he had already fallen to the ground; that one of them even
picked up a cement hollow block and proceeded to hit the victim on
the head with it three times; and that it was only the arrival of the
policemen that made the appellants desist from their concerted act
of trying to kill Ruben Rodil.10
The Office of the Solicitor General (OSG), for its part, asserts that the
decision of the CA is correct, thus:
The evidence and testimonies of the prosecution witnesses defeat the
presumption of innocence raised by petitioners. The crime has been
clearly established with petitioners as the perpetrators. Their intent
to kill is very evident and was established beyond reasonable doubt.
Eyewitnesses to the crime, Alicia Vera Cruz and Lucita Villejo clearly
and categorically declared that the victim Ruben Rodil was walking
along St. Peter Avenue when he was suddenly boxed by Esmeraldo
"Baby" Rivera. They further narrated that, soon thereafter, his two
brothers Ismael and Edgardo "Dagul" Rivera, coming from St. Peter II,
ganged up on the victim. Both Alicia Vera Cruz and Lucita Villejo
recounted that they saw Edgardo "Dagul" Rivera pick up a hollow
block and hit Ruben Rodil with it three (3) times. A careful review of
their testimonies revealed the suddenness and unexpectedness of
the attack of petitioners. In this case, the victim did not even have the
slightest warning of the danger that lay ahead as he was carrying his
three-year old daughter. He was caught off-guard by the assault of
Esmeraldo "Baby" Rivera and the simultaneous attack of the two
other petitioners. It was also established that the victim was hit by
Edgardo "Dagul" Rivera, while he was lying on the ground and being
mauled by the other petitioners. Petitioners could have killed the
victim had he not managed to escape and had the police not promptly
intervened.
Petitioners also draw attention to the fact that the injury sustained by
the victim was superficial and, thus, not life threatening. The nature
of the injury does not negate the intent to kill. The Court of Appeals
held:
As earlier stated by Dr. Cagingin, appellants could have killed the
victim had the hollow block directly hit his head, and had the police
not promptly intervened so that the brothers scampered away. When
a wound is not sufficient to cause death, but intent to kill is evident,
the crime is attempted. Intent to kill was shown by the fact that the
three (3) brothers helped each other maul the defenseless victim, and
even after he had already fallen to the ground; that one of them
picked up a cement hollow block and proceeded to hit the victim on
the head with it three times; and that it was only the arrival of the
policemen that made the appellants desist from their concerted act
of trying to kill Ruben Rodil.11
The petition is denied for lack of merit.
An essential element of murder and homicide, whether in their
consummated, frustrated or attempted stage, is intent of the
offenders to kill the victim immediately before or simultaneously with
the infliction of injuries. Intent to kill is a specific intent which the
prosecution must prove by direct or circumstantial evidence, while
general criminal intent is presumed from the commission of a felony
by dolo.
In People v. Delim,12 the Court declared that evidence to prove intent
to kill in crimes against persons may consist, inter alia, in the means
used by the malefactors, the nature, location and number of wounds
sustained by the victim, the conduct of the malefactors before, at the
time, or immediately after the killing of the victim, the circumstances
under which the crime was committed and the motives of the
accused. If the victim dies as a result of a deliberate act of the
malefactors, intent to kill is presumed.
In the present case, the prosecution mustered the requisite quantum
of evidence to prove the intent of petitioners to kill Ruben. Esmeraldo
and Ismael pummeled the victim with fist blows. Even as Ruben fell to
the ground, unable to defend himself against the sudden and
sustained assault of petitioners, Edgardo hit him three times with a
hollow block. Edgardo tried to hit Ruben on the head, missed, but still
managed to hit the victim only in the parietal area, resulting in a
lacerated wound and cerebral contusions.
That the head wounds sustained by the victim were merely superficial
and could not have produced his death does not negate petitioners’
criminal liability for attempted murder. Even if Edgardo did not hit the
victim squarely on the head, petitioners are still criminally liable for
attempted murder.
The last paragraph of Article 6 of the Revised Penal Code defines an
attempt to commit a felony, thus:
There is an attempt when the offender commences the commission
of a felony directly by overt acts, and does not perform all the acts of
execution which should produce the felony by reason of some cause
or accident other than his own spontaneous desistance.
The essential elements of an attempted felony are as follows:
1. The offender commences the commission of the felony
directly by overt acts;
2. He does not perform all the acts of execution which
should produce the felony;
3. The offender’s act be not stopped by his own
spontaneous desistance;
4. The non-performance of all acts of execution was due to
cause or accident other than his spontaneous desistance.13
The first requisite of an attempted felony consists of two elements,
namely:
(1) That there be external acts;
(2) Such external acts have direct connection with the crime
intended to be committed.14
The Court in People v. Lizada15 elaborated on the concept of an overt
or external act, thus:
An overt or external act is defined as some physical activity or deed,
indicating the intention to commit a particular crime, more than a
mere planning or preparation, which if carried out to its complete
termination following its natural course, without being frustrated by
external obstacles nor by the spontaneous desistance of the
perpetrator, will logically and necessarily ripen into a concrete
offense. The raison d’etre for the law requiring a direct overt act is
that, in a majority of cases, the conduct of the accused consisting
merely of acts of preparation has never ceased to be equivocal; and
this is necessarily so, irrespective of his declared intent. It is that
quality of being equivocal that must be lacking before the act
becomes one which may be said to be a commencement of the
commission of the crime, or an overt act or before any fragment of
the crime itself has been committed, and this is so for the reason that
so long as the equivocal quality remains, no one can say with certainty
what the intent of the accused is. It is necessary that the overt act
should have been the ultimate step towards the consummation of the
design. It is sufficient if it was the "first or some subsequent step in a
direct movement towards the commission of the offense after the
preparations are made." The act done need not constitute the last
proximate one for completion. It is necessary, however, that the
attempt must have a causal relation to the intended crime. In the
words of Viada, the overt acts must have an immediate and necessary
relation to the offense.16
life. He had no chance to defend himself and retaliate. He was
overwhelmed by the synchronized assault of the three siblings. The
essence of treachery is the sudden and unexpected attack on the
victim.17 Even if the attack is frontal but is sudden and unexpected,
giving no opportunity for the victim to repel it or defend himself,
there would be treachery.18 Obviously, petitioners assaulted the
victim because of the altercation between him and petitioner Edgardo
Rivera a day before. There being conspiracy by and among
petitioners, treachery is considered against all of them. 19
The appellate court sentenced petitioners to suffer an indeterminate
penalty of two (2) years of prision correccionalin its minimum period,
as minimum, to six years and one day of prision mayor in its maximum
period, as maximum. This is erroneous. Under Article 248 of the
Revised Penal Code, as amended by Republic Act No. 7659, the
penalty for murder is reclusion perpetua to death. Since petitioners
are guilty only of attempted murder, the penalty should be reduced
by two degrees, conformably to Article 51 of the Revised Penal Code.
Under paragraph 2 of Article 61, in relation to Article 71 of the Revised
Penal Code, such a penalty is prision mayor. In the absence of any
modifying circumstance in the commission of the felony (other than
the qualifying circumstance of treachery), the maximum of the
indeterminate penalty shall be taken from the medium period
of prision mayor which has a range of from eight (8) years and one (1)
day to ten (10) years. To determine the minimum of the
indeterminate penalty, the penalty of prision mayor should be
reduced by one degree, prision correccional, which has a range of six
(6) months and one (1) day to six (6) years.
Hence, petitioners should be sentenced to suffer an indeterminate
penalty of from two (2) years of prision correccional in its minimum
period, as minimum, to nine (9) years and four (4) months of prision
mayor in its medium period, as maximum.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of
merit. The Decision of the Court of Appeals is AFFIRMED WITH THE
MODIFICATION that petitioners are sentenced to suffer an
indeterminate penalty of from two (2) years of prision correccional in
its minimum period, as minimum, to nine (9) years and four (4)
months of prision mayor in its medium period, as maximum. No costs.
SO ORDERED.

In the case at bar, petitioners, who acted in concert, commenced the

felony of murder by mauling the victim and hitting him three times
with a hollow block; they narrowly missed hitting the middle portion
of his head. If Edgardo had done so, Ruben would surely have died.

We reject petitioners’ contention that the prosecution failed to prove

treachery in the commission of the felony. Petitioners attacked the
victim in a sudden and unexpected manner as Ruben was walking with
his three-year-old daughter, impervious of the imminent peril to his