Error in Personae (Cases)

c

plaintiff-appellee,
vs.

accused-appellant.
ï
DEATH, the punishment j j, was imposed on Silvino

Salarza Jr. for rape. We now review his conviction.
Zareen Smith, British, was 30, single, a television and stage

actress. Sometime in 1994 she came to the Philippines and chose
Boracay in Aklan and Port Barton in Palawan for her vacation
retreats. In Port Barton she met Enrico de Jesus, Filipino, 26,
caretaker of

, a resort owned by his parents. Soon
enough a mutual attraction developed between them which
ripened into an intense love affair that they would have sex almost
every night.
On 30 April 1994 Enrico brought Zareen to

in Sitio
Sabang, Bgy. Cabayugan, and introduced her to his granduncle
Rogelio Marañon and grandaunts Nenita Marañon and Maria
Ausan who collectively owned and managed the resort. Enrico
and Zareen occupied Cottage No. 1. They spent the day at the
beach where they drank and swam. They were later joined in by
Enrico's friend Silvino Salarza, Jr., a tourist guide, a press
relations officer and a fisherman.
In the evening Enrico and Zareen went to Sabang Centro together

with Silvino, Julio Morales and a certain Tonton to attend a dance.
The dance however was canceled so they proceeded to

and drank a bottle of rhum. Zareen did not
drink as she preferred red wine which was not available. At
eleven o'clock the group returned to

where Enrico
awakened his grandaunt Nenita and ask her for two (2) more
bottles of rhum, after which, they went back to the beach and
continued drinking. This time Zareen opted for a bottle of beer.
After a while Zareen said she felt tired and sleepy so she excused
herself and retired to the cottage. She was accompanied by
Enrico who left her there to sleep. Back at the beach Enrico asked
his friends to go spearfishing. Although Silvino went with them he
later returned to the beach because he could not stand the cold
and was feeling dizzy. From this point on the prosecution and the
defense presented varying versions.
According to the prosecution, at two o'clock in the morning of 1

May 1994 Zareen woke up when she felt somebody take off her
underwear. The room was dark as the resort management
switched off the lights at ten o'clock. Zareen said she did not stop
the man from removing her panties as she thought it was Enrico,
her boyfriend, and she was half-asleep. The man in turn removed
his briefs and placed himself on top of her, spread her legs,
penetrated her and executed
movements. Later,
the man softly whispered:
j j ;j .
. According to Zareen, when she heard those words, she
pushed him aside. She cried and became hysterical. She went to
the bathroom and washed herself, at the same time telling Silvino,
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. Silvino however assured her that pregnancy was out of the
question as he did not ejaculate.
Maria Ausan heard Zareen cry so she awakened Nenita. Thinking

that Enrico was forcing himself on Zareen, Nenita went near
Cottage No. 1 and pleaded, j

$
$
j jj . But she did not enter the cottage. At this
moment she noticed a lighted
approaching. It was
Enrico with Julio and Tonton coming from the beach. Enrico
hurriedly walked to the cottage. He saw Silvino coming out. At
once he assumed that Silvino must have molested Zareen. Upon
nearing Silvino, Enrico punched him even before Zareen could
narrate what happened to her. Rogelio Marañon and Julio
Morales then reported the incident at the police station and
Patrolmen Eleazar and Rodillo immediately responded.
On the other hand, Silvino claims that it was Zareen who was
flirting with him. His version is that while at

, whenever Enrico was not looking, Zareen would
whisper to him and place her arm on his shoulder. She would talk
to him about her stay in Boracay with her sister Lucila and the
men she met there. In turn, he spoke to her about his former
girlfriends. When Enrico invited him to go spearfishing he went
with the group but after a while he returned to the beach saying
he was feeling cold and dizzy having imbibed one too many. He
even stumbled and fell on the sand. As a result, he got sand all
over his body so he proceeded to the public restroom for a
shower. On the way to get his t-shirt and cigarettes he saw
Zareen lying on the hammock. She asked him for a cigarette and
insisted that he take his shower inside her cottage instead of the
public restroom which was about a hundred meters away. He
hesitated for a while but finally acceded.
After emerging from his shower he was surprised to see Zareen

on the bed. She pulled him towards her and asked him to make
love to her. She embraced him tightly and kissed him lustfully. He
was surprised with the turn of events and felt uncomfortable
because of Enrico whom he did not wish to offend, much less
betray, so he pushed her away. In her exasperation she shouted,
"'
j(" Then she rushed to the bathroom and
washed herself.
He heard the voice of Nenita Marañon coming from outside
Cottage No. 1 calling for Enrico and inquiring what was
happening, apparently thinking it was her grandnephew with
Zareen having a lover's quarrel. So Silvino answered, "@jj
j @j
jj ." He informed her that he had just
taken his shower inside. While Silvino and Nenita were talking,
Zareen was simply keeping quiet. As he went out of the cottage
he met Enrico on the way. Nenita shouted, " j j j

(" True enough Enrico boxed Silvino. Tonton and Julio
ganged up on him, beat him, poured pepper on his body and
pulled him towards the river. Fearful that they would eventually kill
him, Silvino crawled towards the coconut grove and upon
reaching the road leading to Sabang Centro he walked to the
police station to lodge his complaint. On his way, he met
Policemen Eleazar and Rodillo. Rodillo brought him to the police
station while Eleazar continued his way towards

to conduct an investigation.
But the trial court was not persuaded by Silvino's story. It

pronounced him guilty of rape and imposed upon him the
supreme penalty of death. The court threw out his declaration that
Zareen had been flirting with him earlier and was the one who
even proposed that they engage in sex that night. It found
incredible that Zareen would fall for Silvino and substitute him for
Enrico, rationalizing that Zareen was 30 years old, Enrico 26, and
Silvino already 35, and that Enrico was 5'8" tall, handsome, with a
well-shaped face and nose, while Silvino was not generously
endowed and standing only at 5'2". Besides, it argued that a
woman would not charge a person with the heinous crime of rape
if it were not true, for she would not allow the examination of her
private parts and subject herself to a public trial which are both
embarrassing if her accusation was merely fabricated. It quoted
.' &
j , where it was held that it was difficult to
believe that the complainants, who were young and unmarried,
would tell a story of defloration, allow the examination of their
private parts and thereafter permit themselves to be a subject of a
public trial if they were not motivated by an honest desire to have
the culprits apprehended and punished. Obviously the court did
not find it pertinent that Zareen was already 30, a stage and
television actress, by her admission had several boyfriends in the
past with whom she had sexual relations, and was possessed
with a vigorous appetite for sex as she was indulging in
intercourse with Enrico almost every night without benefit of
marriage.
Quite interestingly, the Information alleges that Silvino had carnal

communication with Zareen $j $

$j&
&

j $j and $j .
We do not find the facts substantiating the Information. We must

acquit.
Under Art. 335 of the Revised Penal Code, as amended by Sec.

11, RA 7659, rape is committed by having carnal knowledge of a
woman under any of the following circumstances: (a) by using
force or intimidation; (b) when the woman is deprived of reason or
otherwise unconscious; and, (c) when the woman is under twelve
(12) years of age or is demented. The facts of this case do not by
any means show the existence of any of these circumstances;
thus we cannot see how the trial court have convicted and, worse,
sentenced the accused to die.
)j, the complaining witness was not below twelve (12) years of
age at the time of the alleged commission of the offense. She was
already thirty (30) years old. Neither was she demented.
' , the Information avers use of force but the evidence

negates any use of force, nay, not even intimidation, in the
commission of the offense charged. In fact, as discussed
hereunder, the sexual advances of the accused were done $j
of the complaining witness although she claimed she
thought that the man who laid with her was her boyfriend Enrico.
Here it may be argued that consent to the sexual act was given by
Zareen only because of her erroneous belief that the man on top
of her was Enrico, thus implying that had she known it was
someone else she would have resisted.
The explanation is not persuasive. The evidence shows that this

mistake was purely a subjective configuration of Zareen's mind ²
an assumption entirely contrived by her. Our impression is that
Silvino had nothing to do with the formulation of this belief; he did
nothing to mislead or deceive Zareen into thinking that he was
Enrico. In fact, Silvino precisely, and confidently, told her,

j j ;j . . It is thus obvious that
whatever mistake there was could only be attributable to Zareen
² and her inexcusable imprudence ² and to nobody else.
Clearly, the fault was hers. She had the opportunity to ascertain
the identity of the man but she preferred to remain passive and
allow things to happen as they did. Silvino never used force on
her and was even most possibly encouraged by the fact that
when he pulled down her panties %* ; when her
legs were being parted %* ; and, when he finally
mounted her %* . Where then was force?
@j, Zareen was not deprived of reason or otherwise

unconscious when the accused had intercourse with her. Her
lame excuse was that she was half-asleep. However she admitted
that in the early morning of 1 May 1994 she $ to find
someone removing her underwear. Thuswise it cannot be said
that she was deprived of reason or unconscious. She knew,
hence was conscious, when her panties were being pulled down;
she knew, hence was conscious, when her legs were being
parted to prepare for the sexual act; she knew, hence was
conscious, when the man was pulling down his briefs to prepare
himself likewise for the copulation; she knew, hence was
conscious, when the man mounted her and lusted after her virtue.
Her justification was that she never objected to the sexual act
from the start because she thought that the man was her
boyfriend with whom she was having sex almost every night for
the past three (3) weeks as they were getting married and wanted
already to have a baby. In other words, her urge could not wait for
the more appropriate time.
The prosecution would have the accused convicted of rape under

its hypothesis that the complaining witness was half-asleep,
unconscious, when the sexual assault took place. Obviously, it
had in mind the doctrine enunciated in 1929 in . j ,

and later in 1935 in .
%
. These cases however
do not apply because the offended parties there were
unquestionably&

² and not just
&
as in the
instant case ² when the act was perpetrated. Consequently,
there was no opportunity for them to either object or give their
consent as they were in deep slumber at the time of the coition. It
was only some time after they woke up that they realized that the
men having sex with them were not their husbands they thought
them to be. In convicting the accused, this Court held, as the trial
courts did, that the crime of rape had already been consummated
even %& the offended parties woke up from their sleep. In

%
it was found that ²
. . . when Consorcia, the offended party, awoke the appellant

had already introduced his organ into her genitals and in fact
he was already having sexual intercourse with her. We
mention this fact on account of a certain doubt arising from
the offended party's testimony during the direct examination
relative to this detail, but in the attempt of the attorney for the
defense to clarify this point during his cross-examination,
&&

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. . . when the offended party awoke, the crime of rape
committed by the appellant was already consummated,
having had carnal knowledge with the offended party while
she was unconscious for being asleep. @&&

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. (emphasis supplied).
The import of this pronouncement is that it was no longer

relevant, much less significant, that after waking up the offended
party continued to have sex with the man she thought was her
husband. Her "consent" to the act was %+ to the rape, or
after the crime was already committed; the fact that the consent
² even if only implied ² was given on the belief that the man
was her spouse, was inconsequential. In the case of Zareen, her
"consent" was given j to the carnal act, j.., the act was done
because of her passivity, if not consent.
The record abounds with indicia to discredit the theory of the

prosecution that Zareen was dead drunk when the alleged rape
took placed. Having consumed only a small quantity of rhum
during the day, according to her, and a bottle of beer in the
evening on a normal pace, she could not have been so drunk as
to be deprived of reason or otherwise rendered unconscious.
When she returned to her cottage she immediately fell asleep as
she was tired and remained so for some time. When she was
supposedly molested at around two-thirty the following morning
she must have already been, as we believe she was, in full
possession of her mental and physical faculties. Whatever
intoxicating effect the rhum and beer might have had on her
would have already worn off.
Zareen herself claimed that she woke up when she felt someone
removing her panties. This means she was& j when
somebody approached her bed, removed her panties, spread her
legs "although not far apart but just enough to get her underwear
off," and then proceeded to perform coital movements with her.
Her testimony that she knew that the "intruder" removed his own
briefs; that his penis was already erect; that no effort to foreplay
was made before penetrating her in his first attempt; that the man
did not kiss her nor touch her breasts; that she did not even guide
his penis into the trough of her ferminity; and, that he "pushed-
and-pulled" on top of her for approximately less than a minute, all
validate our conviction that she was fully conscious ² not asleep
nor even half-asleep ² of what was being done to her from the
beginning. She was also aware that there was no light as the gas
lamp inside the cottage was not lighted and the electricity was
already shut off.
Most significantly, Zareen was acutely aware of the manner by

which Silvino identified himself ² "
j j ;j "
² because she testified that " . . . j$
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j& $
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& ." To repeat,
all these details vividly recalled and recounted by her ineluctably
indicate that she was awake all the time and capable of
comprehending the nature of the sexual act and of exercising her
own free will as to yield to or resist a Lothario's libido.
Zareen had known Enrico for three (3) weeks and since then had
been making love with him almost every night. It strains credulity
and understanding that she could have mistaken Silvino for
Enrico. Their constant lovemaking and togetherness would have
already made her familiar with the physical attributes of Enrico
and accustomed to his fornicating peculiarities. Zareen even
asserted that Enrico was not inclined to sexual intercourse when
drunk and would usually indulge in foreplay before actual
copulation. These oddities are cues which reasonably engender
suspicion that the man she was having carnal communication with
was not her lover but someone else. She had the moral
responsibility not only to herself but to society itself to ascertain
first the identity of her "ravisher" before yielding completely to him.
It can hardly be said that she was not imprudent, reckless and
irresponsible in giving in to her own sexual impulses. Moreover,
being almost a stranger in the place, Zareen should have been
leery of her surroundings especially at night. In this regard, she
should not have left her cottage door unlocked as much as she
did leave pregnable and unshielded the portals of her
womanhood.
In . ,

-, the accused boxed his victim into
unconsciousness. When the victim regained her consciousness
she felt the flaccid penis of her ravisher still inside her vagina and
that thereafter he removed his sexual organ. He then warned her
not to divulge what had happened or else she and her family
would be killed. Force, which was used to knock the victim into
unconsciousness, was employed before the act was done to
ensure its consummation. In . j the complaining
witness was

and when she woke up the organ of
the accused was already inside her genitalia. In .

%
the victim was&
when the accused had
carnal communication with her, such that when she woke up the
crime of rape was already consummated. The same was true in
. .! In . .
, the rapist's organ was
already in the vagina of the offended party when she woke up, so
she pushed him away and screamed. But the accused pulled out
his revolver and threatened to kill her if she made any further
outcry. She fainted, and the accused continued having sex with
her. In fine, in all these cases raped was already consummated
before the offended parties could even exercise their volition to
grant or deny access to erotic j.
Under the circumstances we cannot help entertaining serious

doubts on the culpability of the accused. Rape is a charge easy to
make, hard to prove and harder to defend by the party accused,
though innocent. Experience has shown that unfounded charges
of rape have frequently been proferred by women actuated by
some sinister, ulterior or undisclosed motive. Convictions for such
crime should not be sustained without clear and convincing proof
of guilt. On more than one occasion it has been pointed out that in
crimes against chastity the testimony of the injured woman should
not be received with precipitate credulity. When the conviction
depends on any vital point upon her uncorroborated testimony, it
should not be accepted unless her sincerity and candor are free
from suspicion. A little insight into human nature is of utmost
value in judging matters of this kind.
But even from the narration of Zareen, the elements of the crime
of rape are, regretfully, miserably wanting. There was no force nor
intimidation; Zareen was not deprived of reason nor otherwise
unconscious; and, she was not below twelve nor demented.
WHEREFORE, the decision appealed from is REVERSED and

SET ASIDE and accused-appellant SILVINO SALARZA JR. is
ACQUITTED of the crime charged; consequently, he is ordered
immediately RELEASED from confinement unless held for some
other lawful cause. Costs &j j.
SO ORDERED.
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ï dissenting:
After reading the well-crafted j

of our colleague, Mr.
Justice Bellosillo, the appealed decision and the transcripts
of the stenographic notes of the witnesses, I am more than
convinced that accused-appellant should not be allowed to
go scot-free. He should be convicted of rape. I beg then to
dissent.
The core issues in this case are: (a) whether accused

Silverio Salazar, Jr. had carnal knowledge of complainant,
Zareen Smith; and (b) whether he did so under
circumstances which made him liable for rape.
Zareen testified that accused had carnal knowledge of her

while she was half-sleep and in the belief, in all good faith,
that it was her boyfriend Enrico de Jesus (Ricky) who
penetrated her. When she found out that it was the accused,
she immediately pushed him aside and confronted the
accused: "Why? Why did you do it to me? You have ruined
everything. You know that Ricky and I are trying to have a
baby of our own, what will happen now? I might get
impregnated by what you did to me." Then crying
hysterically, she went to the bathroom to wash, with Nenita
Marañon, caretakers of Mary's Cottage, having heard her
cries.
The trial court gave full faith to her story, holding:
The testimony of the complaining witness herein is very

credible. It is natural, simple, straightforward,
convincing and consistent with human nature and the
run of things in this world. It has all the earmarks of
truth and verity. (OR, 71).
Its summary of Zareen's testimony and explanation as to its

credibility are as follows:
The alleged victim and the vital witness presented by

the prosecution to prove the heinous crime of Rape
charged in this case, Miss Zareen Smith, who is a
British stage and TV actress, positively identified and
pointed to the accused Silverio Salarza, Jr.
j
Jun as
the person who "very quickly penetrated" her or had
sexual intercourse with her without her consent and
against her will which happened at about 2:00 o'clock in
the early morning of May 1, 1994 in Cottage no. 1, at
Sabang, Cabayugan, Puerto Princesa City at the time
she was half asleep and/or half awoke as she was
drank after taking liquor and tired and was merely
asleep for about two (2) hours earlier. Someone was
removing her underwear and she was half asleep and
the room was dark, and so, she assumed he was her
boyfriend, Ricky de Jesus. Very quickly the accused
Jun Salarza was on top of her and penetrated her or
had sexual intercourse with her which happened fast
when she was still half asleep. The accused made in-
and-out movements on top of her after he entered his
penis into her vagina and then told her: "Zareen, it's not
Ricky, it's Jun, I love you". These words were uttered by
the accused as if he wanted to wake her up. Upon
hearing these words, the victim Zareen pushed the
accused off her immediately and ran to the bathroom a
few meters away to wash herself. While washing at the
bathroom, she was screaming at the accused in a loud
voice, saying: "Why Jun did you do this to me, you
ruined everything. You know Ricky and I wanted to
have a baby, why did you do this to me, why? why?"
Then the accused Salarza came to the door of the
bathroom and tried to pacify her. He wanted her to be
calm because she was hysterical. The accused Jun
Salarza then told her? "It's alright I did not finish". The
victim Zareen was crying as she was washing herself
and she told him that her boyfriend would kill her to
which the accused answered that he knows.
The rape victim reported this incident to the policeman
at the Police Sub-Station in Sabang, Cabayugan and
had herself medically examined by Dr. Jesselito De
Lara at the Sabang medical clinic with the help of Ricky
de Jesus and his lola, Nenita Marañon. Then she
formalized a complaint against the accused (Exhibits
"B", "B-1", "B-2" and "B-3") and executed a sworn
statement in support thereof (Exhibits "D", "D-1", and
"D-3").
The alleged rape incident was duly reported to the

nearest policemen and accordingly entered in the
blotter of the police sub-station of Sabang, Cabayugan,
this City. The British victim with the help of her friends
in the locality, lost no time in taking appropriate action
against the accused after her womanhood and honor
were violated and transgressed which is but a natural
reaction of any aggrieved party who has a legitimate
gripe to address against a felon.
It is notably significant that the complaining witness,

Zareen Smith made loud cries, shouts and screams
immediately after the accused sexually abused her.
She angrily rebuked and scolded and sharply
reprimandad the accused for his unwarranted act in
entering his penis into her private organ. These are
proofs enough that show the disapproves, rejects,
disagrees, resents, abhors and did not like what the
accused did to her. She looks decent enough to be
sexually assaulted. (j., 69-70)
On the other hand, the trial court found incredulous the

defense of the accused that he had no carnal knowledge of
Zareen because, despite Zareen's flirtatious ways, he was
not provoked; and despite her vigorous efforts to excite his
penis, it did not "harden;" hence, he was unable to insert his
penis into Zareen's private parts. For one, accused's own
witness, PO2 Rosauro Rodillo, testified that accused
admitted having had sex with Zareen. On cross-examination
Rodillo declared:
PROSECUTOR SENA:
Q Is it not a fact that when you confronted

Jun Salarza that he had raped the victim
Zareen Smith he admitted he used Zareen
Smith only he justified it that Zareen Smith
loves him also?
A Yes, Sir.
COURT:
Q What did the accused admit to you?
A That he had sex with Zareen Smith

because Zareen Smith loves him, Your
Honor. (TSN, 8 June 1994, 22-23)
For another, and more specifically as to accused's claim that

he was not sufficiently stimulated to achieve an erection, the
trial court, which had the singular advantage of observing
accused's deportment and manner of testifying and taking
full use of all aids to arrive at a more accurate assessment of
his credibility, declared:
The version of the accused on this score is unnatural,

abnormal and contrary to human nature and
experience. Only inanimate objects do not react. The
accused looks normal and not otherwise as a human
person. The court saw and observed him to be so. With
his young age and status it is unlikely that his penis will
not erect or harden if held and played by a woman
younger than him but single like him, especially a
foreigners. (j. 71).
The trial court must have borne in mind the fact that on two
previous occasions, accused had carnal knowledge of two
foreigners of the opposite sex at the same Mary's Cottage
where Zareen claimed to have been raped by accused. On
questions by the trial court, accused volunteered the
information that he had sex with two foreigners, thus:
COURT:
xxx xxx xxx
Q As caretaker of the cottage, have you had

even one sexual intercourse with tourist, not
necessarily Zareen Smith?
A I have, Your Honor.
Q How many foreigners?
A Two times, Your Honor.
Q Both foreigners?
A Yes, Sir.
Q White?
A Yes, Sir.
Q Americans?
A No, Sir.
Q What are they?

A They are from Netherlands, Your Honor.
(TSN, 9 June 1994, 29-30).
Notably, accused likewise failed to convincingly refute the

testimony of Enrico that at one time the accused went inside
a cottage where a female foreigner was sleeping; although
no rape happened, the latter cried and reported the incident
to her sister. (TSN, 2 June 1994, 31-32).
The trial court correctly took note of these previous incidents,

for under Section 34 of Rule 130 of the Rules of Court, they
can be received "
j&j j , . . .
. . .

%j. . .
j." With those incidents as
premises, relevant as they are in legal contemplation, the
conclusion is inevitable that the accused is a woman
molester, with a lechery partial to Caucasians. His
description of himself then as a "fisherman and public
relation officer and a tourist guide at the Mary's Cottage,"
(TSN, 9 June 1994, 3) was nothing but a camouflage to
conceal a satyr on the prowl.
There is, as well, no doubt in my mind that accused

intentionally proceeded to Mary's Cottage to molest Zareen.
If he merely wanted to go to the public restroom to wash off
the sand on his body, he could have done so without
passing by Mary's Cottage, as the communal restroom. That
was more than one hundred meters away from Mary's
Cottage. Moreover, it was not necessary for him to wash off
the sand at the public restroom, he could have simply
returned to the sea nearby. He went to Mary's Cottage
because he knew Zareen was there, Ricky having gone back
to the beach without her.
Zareen's unhesitating admission of nightly sex with her

boyfriend Ricky and sexual congress with her previous
boyfriends should not have been taken against her, as the
j
impliedly suggests; in fact, they were even
earmarks of her truthfulness. She could have easily hidden
those facts, there being no necessity for their revelation. It
would then be irrelevant and thus impermissible to consider
Zareen's behaviour and conclude that she was sexually
indiscriminate as the defense would make her out to be.
Clearly, a distinction may be drawn between one who is
sexually active, but monogamous, on one hand, and who
engages in indiscriminate promiscuity, on the other. But
even assuming otherwise, it must not be forgotten that even
prostitutes may be a victim of rape (People v. Rivera, 242
SCRA 26, 37 [1995]), and the victim's unchaste character is
neither a defense nor a mitigating circumstance in rape
cases (RAMON C. AQUINO, The Revised Penal Code, vol.
3 [1988], 405-406).
With equal strength, it must not be overlooked that the

character assassination employed by accused against
Zareen is simply contrived and an afterthought. The accused
forgot that his main thesis was that he was under the
influence of liquor (@

) or, as testified to by his witness
PO2 Rodillo, the, accused, was drunk, thus:
COURT:
Q When you met Jun Salarza on the beach,

Jun Salarza went on his own way and
proceeded to Mary's Cottage?
A No, your Honor.
Q What happened?
A We detained him temporarily to rest and

that because $
, Your Honor.
Q In your station?
A Yes, Your Honor.
Q So, because he was drunk you detained

him not because of the reported rape?
A For both reasons, Your Honor. (TSN, 8

June 1994, 21).
If indeed the accused was drunk, it would have been

impossible for him to observed vividly, must less accurately
recall what transpired.
Finally, Zareen's conduct immediately after discovering that

the man who penetrated her was not Ricky, but the accused,
further strengthened the credibility of her story that she was
penetrated by the accused. She shouted at and confronted
the accused, ran to the bathroom to wash, cried and became
hysterical. Her cries were in fact heard by Nenita Marañon,
caretaker of the Mary's Cottage, although Nenita was staying
at a place which 500 meters from Mary's Cottage (TSN, 1
June 1994, 8-9); she reported the incident to the police
authorities and submitted herself to an investigation. Then
she voluntarily submitted herself to a physical and medical
examination by a physician who examined her private parts.
These speak eloquently of her sincerity in obtaining justice
and seeking redress for a wrong, and of the absence of any
ulterior motive on her part.
Having thus shown that accused consummated his carnal

knowledge of Zareen, the issue that remains to be resolved
is whether that act constituted rape under the second
circumstance of Article 335 of the Revised Penal Code. This
Article pertinently provides as follows:
Art. 335. !
$
j j. ² Rape is
committed by having carnal knowledge of a woman
under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or

otherwise unconscious; and
3. When the woman is under twelve years of

age or is demented.
The trial court held as it did because Zareen was half-asleep

and believed in good faith that the accused was her
boyfriend Ricky. The trial court did not use the word
j, it only ruled that she was "half-asleep or
subconscious (j )" in one instance (Decision, p. 17; OR, 68)
or "half-asleep and semi-conscious" in another instance (j.,
21; j., 72).
When a woman is "deprived of reason" or is "unconscious,"

she is deemed to have "no will," as distinguished from the
first circumstance where force or intimidation is used, in
which case her will "is nullified or destroyed," or that it was
committed against her will (AQUINO, . j., 393).
Deprivation of reason need not be complete, as mere mental

abnormality or deficiency is enough. ( ., 393-394) The crux
of the matter then is the construction and interpretation of
the word "unconscious." I submit that since both "being
deprived of reason" and "unconsciousness" are founded on
absence of will to give consent intelligently and freely, the
term "unconsciousness," then, should not be tested by a
mere physical standard, j.., whether one is awake or
asleep, conscious or alert. Rather, the inquiry should
likewise determine whether the victim was fully informed of
all considerations so as to make a free and informed
decision regarding the grant of consent. It is only through
this two-tiered test that a holistic appraisal of consent may
be had.
In our jurisprudence, carnal knowledge of a sleeping woman

is rape (People v. Dayo, 51 Phil. 102 [1927]; People v.
Corcino, 53 Phil. 234 [1929]; .
%
, 61 Phil.
900 [1935] and . , 322 Phil. 757 [1996]),
because in that state the woman is completely unconscious,
both physically and mentally. Sleep, being the naturally or
artificially induced state of suspension of sensory and motor
activity (People v. Conde,
, at 767), obviously deprives
a woman of the ability to consent. However, to repeat, since
it is "absence or lack of will" which is the primordial factor in
the second circumstance of rape, then I submit that to
construe the term "unconsciousness" exclusively in light of
physical considerations would be unduly restrictive and fail
to heed the gravamen of the offense, j.., lack of consent.
The j
makes much of Zareen's testimony that she
was aware that someone pulled off her underwear and
spread her legs, then concludes that she must have been
& jand could not have been mistaken as to her
partner's identity. However, to take this at face value would
not serve the ends of justice. Plainly, despite Zareen's
awareness of$
was being done to her, the question of
$was doing it to her was a totally different matter. Her
accession to the$
was premised on the belief, in good
faith, that it was her boyfriend$lay with her in bed. Her
failure to ascertain the identity of her partner was a mistake
in good faith for which she should not be faulted; neither
should it result in the acquittal of accused-appellant.
In Zareen's case, she was still "half-asleep" or drowsy when
she was penetrated by the accused, having been awakened
when he removed her underwear and mounted her, which
she acceded to believing, in good faith, that it was her
boyfriend Ricky, with whom she had nightly intercourse.
When this belief turned out to be erroneous when accused
announced, in the midst of the act, that he was not Ricky,
but Jun (the accused), that was the only time that Zareen
became fully aware of the totality of circumstances ²
critically, that of her partner's identity ² at which time she
intelligently and freely exercised her will by immediately and
unequivocally rejecting the accused.
I submit that an inquiry into whether or not Zareen was half-

asleep does not suffice as regards the determination of an
intelligent grant of consent; hence it may be said that in a
sense, the grant of consent was likewise not free. Clearly, it
is only when a woman is fully informed that consent may be
intelligently given ² which was absent in the instant case.
Further, given that Zareen was newly awakened and still
drowsy; that it was 2:30 a.m.; that she was in her cottage;
and that she had known only Ricky for the last three weeks,
it was then not unreasonable for her to presume that the
man who lay with her that night was no one else but Ricky.
However, should there by any further debate on the issue of

Zareen's physical condition and consequences thereof, j..,
she was "awake" thus fully conscious, I assert that Zareen's
failure to detect that it was not Ricky who lay with her that
night, was not only not unreasonable, but perfectly
understandable, in light of human nature and as recognized
by the medical profession. "Consciousness" has been
described by medical practitioners as denoting a state of
awareness of one's self and one's environment; conversely,
whether a person is disoriented is measured by one's degree
of alertness and awareness of the environment, considering
the circumstances of time, place and person.
What matters for purposes of this opinion is that the medical

profession recognizes a spectrum of impaired or depressed
consciousness and orientation in persons who are
nevertheless deemed "awake." The terms used in this
regard are obtundity, somnolence and stupor. While we
wish not to dabble in areas where we admittedly do not
possess the requisite expertise, at bottom, given the
circumstances of time and place, Zareen was clearly, in
layman's language: disoriented, drowsy or confused, thus
cannot be held culpable for her failure to immediately
recognize that it was not Ricky, nor her failure to ascertain
Jun's identity, not even her assumption that it was Ricky who
lay with her:
This orientation as to person, place, and time depends

on the ongoing sensory impression. 2

$
&
&j

j
j $
$
$"!
& j j
j j
%
j until all the pieces of the puzzle
suddenly fell into place? . . . (emphasis supplied)
Returning to the legal front, what is material here is that any

semblance of consent given was clearly and painfully a
mistake in good faith, as Zareen was not fully aware of the
totality of the circumstances, thus rendering her, for all legal
intents and purposes, unconscious and unable to give
consent freely and intelligently. All told, this instance of
reverse j
, clearly a material factor in the
grant of consent by the victim, resulted in total absence of
consent which accused-appellant should be held criminally
liable for as charged.
On a final note, however, the penalty therefor should %

, as erroneously ruled by the trial court. Under Article
335 of the Revised Penal Code, as amended by R.A. No.
7659, death is imposable only under any of the following
circumstances, none of which obtain here:
When the crime of rape is committed with the use of a

deadly weapon or by two or more persons, the penalty
shall be j
to death.
When by reason or on the occasion of the rape, the

victim has become insane, the penalty shall be death.
When the rape is attempted or frustrated and a

homicide is committed by reason or on the occasion
thereof, the penalty shall be j
to
death.
When by reason or on the occasion of the rape, a

homicide is committed, the penalty shall be death.
The penalty shall also be imposed if the crime of rape is

committed, with any of the following attendant
circumstances:
1. When the victim is under eighteen (18)

years old and the offender is a parent,
ascendant, step-parent, guardian, relative by
consanguinity or affinity within the third civil
degree, or the common-law-spouse of the
parent of the victim.
2. When the victim is under the custody of the

police or military authorities.
3. When the rape is committed in full view of

the husband, parent, any of the children or
other relatives within the third degree or
consanguinity.
4. When the victim is a religious or a child

below seven (7) years old.
5. When the offender knows that he is

afflicted with Acquired Immune Deficiency
Syndrome (AIDS) disease.
6. When committed by any member of the

Armed Forces of the Philippines or the
Philippine National Police or any law
enforcement agency.
7. When by reason or on the occasion of the

rape, the victim has suffered permanent
physical mutilation. (As amended by Sec. 11,
RA 7659.)
WHEREFORE, I vote to affirm the decision, subject to the

modification of the penalty which should be reduced from

to j
.
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plaintiff-appellee,
vs.
&
c&'
()*+ accused-
appellant.
&ï ,
Before us on automatic review is a joint decision of the Regional

Trial Court of the Eleventh Judicial Region stationed in Davao City
(Branch 15), finding accused-appellants guilty of frustrated
homicide in Criminal Case No. 35,459-96, and sentencing each of
them to a prison term of two years, four months, twenty-one days
to eight years and one day. The two accused appellants were
also found guilty of murder in Criminal Case No. 36,460-96, and
were sentenced to suffer the death penalty.
The relevant facts are summarized in the People's Brief as

follows:
At about 9:00 in the evening of January 27, 1996, the

neighborhood of Barrio Malagamot, Panacan, Davao City
was awakened by a commotion. Irene Lantapon was among
those who went out to check what was happening. She saw
accused Armando Gemoya and Candelario Aliazar running
towards their house (TSN, June 11, 1996, p. 20, November
5, 1996, p.65).
After about half an hour, Gemoya and Aliazar came back

with Ronilo and Rolly Tionko, the former's uncles and the
latter's in-laws. They were armed with pipe, wood and an
improvised bow and arrow locally called "indian pana." It was
like a sling shot with an arrow made of nail with feathers in
the end. Addressing a group of people who were huddled
together, Ronilo Tionko stopped and demanded an
explanation for what happened to his brother-in-law. They
replied that nothing happened to him and advised them to go
home. Accused ignored them and proceeded to the house of
the Alferezes, which was along the road in front of the
school, when they saw Wilfredo Alferez standing by the road
waiting for a taxi (j%j, June 11, 1996, p. 5, 16, 20-21;
November 4, 1996, p. 57; November 5, 1996, pp. 66-67;
November 6, 1996, pp. 79-81).
The quartet rushed to him. Ronilo Tionko beat him with a

cylindrical wood, Rolly Tionko with a pipe of the same size
while Aliazar held his arms behind him. Once Gemoya had
aimed his "indian pana," they stepped aside to ensure that
they would not be hit. Wilfredo Alferez was hit directly on his
left chest. Slumped to the ground, Edgardo Jimenez rushed
to his aid. His daughter Rosalie, who had just come from
school, tried to pull him away. Irene Lantapon yelled at her to
run as Gemoya was about to shoot his "indian pana" again.
Before she could do so, she was hit in her left ear. Then the
four scampered away (j%j0, June 11, 1996, pp. 6-7, 21-24;
June 13, 1996, pp. 34-36; November 4, 1996, pp. 57-58;
November 1996, pp. 66-67; November 6, 1996, pp. 79-81).
Rosalie Jimenez and Wilfredo Alferez were rushed to the

hospital. After minor treatment, she was declared out of
danger. Wilfredo Alferez was not as lucky. He was
pronounced dead on arrival (j%j0, June 11, 1996, pp. 8-9;
June 13, 1996, pp. 36, 41; November 6, 1996, p. 81).
Two separate Informations were filed against four suspects,

namely, the herein two accused-appellants and two others who
have remained at large, to wit:
Criminal Case No. 36,459-96

That on or about January 27, 1996, in the City of Davao,
Philippines, and within the jurisdiction of this Honorable
Court, the accused, conspiring together and mutually helping
one another, with intent to kill, hit with the use of an "Indian
Pana", one Rosalie Jimenez. The accused performed all the
acts of execution which could produce the crime of
Homicide, as a consequence but which did not produce it by
reason of a timely medical intervention, a cause which is
independent of the will of the perpetrators.
Contrary to law.
Criminal Case No.36,460-96
That on or about January 27, 1996 in the City of Davao,

Court, the accused, conspiring together and mutually helping
one another, with intent to kill, treachery and abuse of
superior strength, wilfully, unlawfully and feloniously
attacked, assaulted and hit with an "Indian Pana" one
Wilfredo Alferez which caused his subsequent death.
Contrary to law.
(pp. 7-8. Rollo.)
On May 28, 1996 and August 28, 1996, Armando Gemoya and
Ronilo Tionko, respectively, entered their pleas of "not guilty", and
the two criminal cases were thereafter jointly tried, following
which, judgment was rendered disposing:
WHEREFORE, the prosecution having proven the guilt of

the accused beyond reasonable doubt in the two cases,
judgment is rendered as follows:
1. Criminal Case No. 36,459-96 ² the penalty of two years,

four months, twenty-one days to eight years and one day is
imposed on accused Armando Gemoya and Ronilo Tionko
for frustrated homicide with respect to victim Rosalie
Jimenez.
2. Criminal Case No. 36,460-96 ² the death penalty is

imposed on accused Armando Gemoya and Ronilo Tionko
for the murder of Wilfredo Alferez.
(p. 27, .)
In their individual and separate briefs, the following errors are

assigned:
Accused-appellant Ronilo Tionko:
THE LOWER COURT ERRED IN FINDING ACCUSED-

APPELLANT RONILO TIONKO GUILTY IN CRIMINAL
CASE NO. 36,459-96 FOR FRUSTRATED HOMICIDE,
WITH RESPECT TO VICTIM ROSALIE JIMENEZ AND,
ALSO, IN FINDING HIM GUILTY IN CRIMINAL CASE NO.
36,460-96 FOR THE MURDER OF WILFREDO ALFEREZ
AS THE SET OF FACTS OBTAINING IN THE CASE AT
BAR IS CAPABLE OF TWO OR MORE EXPLANATION.
Accused-appellant Armando Gemoya:
I.
THE TRIAL COURT SERIOUSLY ERRED IN CONVICTING

GEMOYA OF THE CRIME OF MURDER.
II.
THE TRIAL COURT SERIOUSLY ERRED IN FAILING TO

APPRECIATE THE MITIGATING CIRCUMSTANCE OF
VOLUNTARY SURRENDER IN FAVOR OF GEMOYA.
III.
THE TRIAL COURT SERIOUSLY ERRED IN CONVICTING

GEMOYA OF THE CRIME OF FRUSTRATED HOMICIDE
FOR THE WOUNDING OF ROSALIE JIMENEZ.
IV.
THE TRIAL COURT SERIOUSLY ERRED IN IMPOSING

THE DEATH PENALTY OF GEMOYA.
After reviewing the evidence on record we find no compelling

reason to depart from the factual findings of the trial court that
accused-appellants, in conspiracy with one another, committed
the crime of murder qualified by abuse of superior strength. In
0

j (G.R. No. 125539, July 27, 1999) we reiterated
the ruling on this matter, thus:
Of primordial consideration in appellate matters is the legal

principle that the assessment of the credibility of witnesses
and their testimony is a matter best undertaken by the trial
court because of its unique opportunity to observe the
witnesses firsthand and to note their demeanor, conduct,
and attitude under grilling examination. We generally uphold
and respect this appraisal since as an appellate court, we do
not deal with live witnesses but only with the cold pages of a
written record.
(p. 15)
Accused-appellant Gemoya claims that the uniform narration of

facts by prosecution witnesses is not supported by the
documentary and the expert's testimony of the NBI Medico Legal
Officer who conducted the autopsy examination on the victim
Wilfredo Alferez. Dr. Ricardo M. Rodaje affirmed that he found no
other injury on Wilfredo aside from the puncture wound on his
chest which was the sole cause of death (TSN, July 3 1996,
p.46).
We are not persuaded by this argument.
It must be borne in mind that accused-appellant Gemoya has not

denied having executed the fatal act, which caused the death of
Wilfredo Alferez. He admittedly discharged the weapon ("indian
pana") which hit a vital organ of the victim, causing his
instantaneous death. His only lame excuse is that, to defend
himself, he used the sling shot ("indian pana"), which he grabbed
from "somebody", against the victim in the course of a tumultuous
affray allegedly instigated by the victim himself.
When an accused admits having killed the victim, the burden of

proving his innocence is shifted to him. We ruled in 0

(231 SCRA 701 [1994]) that "by invoking self-defense,
the accused admit killing Alfaro. The burden of proof is thus
shifted to them. Their duty now is to establish by clear and
convincing evidence the lawful justification for the killing."
Accused-appellant Gemoya can no longer invoke the
constitutional right of being presumed innocent of the crime
charged. As far as he is concerned, the crime of murder in the
case at bar is established once the prosecution, establishes any
of the qualifying circumstances with proof beyond reasonable
doubt. This is because the fact of death and the cause thereof are
already established by the admission. The intent to kill is likewise
presumed from the fact of death, unless the accused proves by
convincing evidence that any of the justifying circumstances in
Article 11 or any of the exempting circumstances in Article 12,
both of the Revised Penal Code, is present.
As we have earlier observed, however, we find no cogent reason

to disregard the trial court's factual findings on this score. We find
nothing upon review of the record, which would convince us that
accused-appellant Gemoya and his cohorts were not the
assailants in this case. The theory of self-defense has not been
duly established.
The fact that accused-appellant shot the victims with an "indian

pana" cannot be negated by supposed inconsistencies between
the testimony of the eyewitnesses and the findings of the medico-
legal officer who conducted the autopsy examination. It matters
not if Wilfredo suffered no injury other than the fatal puncture
wound. His death was caused by that puncture wound, and the
fact that there were four assailants who ganged upon the said
victim is incontestable. These established realities make accused-
appellants criminally liable for murder, qualified by abuse of
superior strength.
Abuse of superior strength is considered whenever there is a

notorious inequality of forces between the victim and the
aggressor, assessing a superiority of strength notoriously
advantageous for the aggressor which is selected or taken
advantage of in the commission of the crime ( 0
,
j , 234 SCRA 233 [1994]). When four armed assailants,
two of whom are accused-appellants in this case, gang up on one
unarmed victim, it can only be said that excessive force was
purposely sought and employed.
Although only accused-appellant Gemoya may have inflicted the

fatal wound upon the victim in this case, accused-appellant
Tionko is also liable for the crime of murder since evidently, the
concerted acts of the two accused appellants, and their two other
companions, to obtain a common criminal objective signify
conspiracy among them. Ronilo Tionko beat Wilfredo with a
cylindrical wooden cane or "batuta", and Rolly Tionko with a pipe,
while Gemoya, after his companions had step aside to give him a
clear shot, released his dart-missile at Wilfredo. A conspiracy
exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it
( 0@
%
, 229 SCRA 188, 1994).
Conspiracy need not be proved by direct evidence of a prior

agreement to commit the crime. It may he deduced either from
the mode and manner in which the offense was committed or
from the accused themselves pointing to a community of interest
or concerted
j 4 0
, 269 SCRA 587 [1997]).
Herein accused-appellants and their companions ganging up
upon a single common victim until one of them is able to inflict the
fatal wound is clearly indicative of a common design to assail and
disable their victim-. Conspiracy can be inferred and proved by
the totality of the acts of the accused when said acts point to a
joint purpose and design ( 0,

, 235 SCRA 19
[1994]).
With or without himself inflicting injuries upon victim Wilfredo,

accused appellant Ronilo Tionko is equally liable for the crime of
murder in the case at bar as accused appellant Gemoya. He
cannot escape criminal liability under the circumstances even
though the autopsy report indicated no other injuries except the
punctured wound on the victim's chest. A conspirator, no matter
how minimal his participation in the crime, is as guilty as the
principal perpetrator of the crime ( 05
274 SCRA 310
[1977]). Holding the victim to render him immobile to enable his
companions to consummate their dastardly act ( 0
.j

, 267 SCRA 29 [1997]) or standing guard or lending
moral support to the actual perpetrator is criminally responsible to
the same extent as the one who inflicted the fatal blow (
0.j
-, 271 SCRA 504 [1997]).
As regards their second victim, Rosalie Jimenez, however, we

agree with accused-appellants that the trial court erred in
convicting them of frustrated homicide. As correctly pointed out in
the People's brief, the testimony of Jerry Lantapon and Irene
Lantapon concurred to the effect that the hitting of Rosalie was
accidental as the second "indian pana" was intended for Wilfredo.
The intent to kill Rosalie which is essential if accused appellants
were to be held liable for frustrated homicide is therefore, absent.
The two accused-appellants herein are liable for the crime

resulting from Gemoya's act of releasing the second "indian
pana", which accidentally hit Rosalie. Although Rosalie may not
have been their intended victim,

, acting in
conspiracy with one another as we have earlier discussed, are
liable for the consequences of their felonious act (see: Paragraph
1, Article 4, Revised Penal Code). Mistake in the identity of the
victim, which may either be (a) "j
" (mistake of the
person), or 4%6
%
jj " (mistake in the blow), is neither
exempting nor mitigating ( 0
, 54 Phil. 605 [1930]).
Accused-appellants, therefore, cannot escape the criminal liability
resulting from the injury suffered by Rosalie.
As for the penalty, even though it appears on record that Rosalie

received medical treatment immediately after her injury, there is
no evidence regarding the extent of incapacity said injury caused
her. Accordingly, accused-appellants may only be held liable for
the crime of slight physical injury under Paragraph 2 of Article 266
of the Revised Penal Code, which provides:
ARTICLE 266. ' jj

j *j

. ²
The crime of slight physical injuries shall be punished:
1. By
when the offender has inflicted physical
injuries which shall incapacitate the offended party for labor
from one to nine days, or shall require medical attention
during the same period.
2. By
or a fine not exceeding 200 pesos and
censure when the offender has caused physical injuries
which do not prevent the offended party from engaging in his
habitual work nor require medical attendance;
3. By
in its minimum period or a fine not
exceeding 50 pesos when the offender shall ill-treat another
by deed without causing injury.
Since there is no showing that victim Rosalie Jimenez was

incapacitated from carrying out her habitual work after the injury,
both accused-appellants in this case are sentenced to the penalty
of
or a fine of P200.00 and censure for the crime of
slight physical injury.
As to the imposition of the death penalty upon both accused-

appellants in this case, we agree with the Solicitor General and
accused-appellant Gemoya that the trial court seriously erred in
not considering the mitigating circumstance of voluntary surrender
in favor of accused-appellant Gemoya. The trial court likewise
erred in imposing the maximum in the range of penalty for
murder.
Under Article 248 of the Revised Penal Code, the crime of murder
is punished by j
to death. Where there are no
aggravating and no mitigating circumstances attendant in the
commission of the crime the medium penalty shall be imposed.
For the crime of murder, the medium as well as the minimum
penalty are the same because the lower range penalty j

is an indivisible penalty.
Applying the rule to the case at bar where there is the mitigating
circumstance of voluntary surrender and the absence of any
aggravating circumstances other than those already absorbed in
the circumstances which qualified the killing to murder ( 0
, 279 SCRA 129 [1997l), the minimum penalty of j

should be imposed.
Finally, as correctly pointed out in the People's brief. when death
occurs as a result of a crime, the heirs of the deceased are
entitled to the amount of as P50,000.00 indemnity for the death of
the victim without need of any evidence or proof of damage
( 0

, G.R. No. 126932, November 19, 1999;
0
7
, 271 SCRA 689 [1997]). Thus, civil
indemnity in the amount of P50,000.00 for the death of Wilfredo
Alferez will have to be awarded in favor of his heirs. Accused-
appellants being convicted as co-principals for the crime of
murder, the two shall be held solidarily liable for the civil
indemnity.
º, accused-appellants are found guilty beyond

reasonable doubt of: (a) slight physical injury in Criminal Case No.
35,459-96 and each sentenced to a determinate prison term of
thirty (30) days of
; and (b) murder in Criminal Case
No. 36,460-96 and accordingly each sentenced to j

, and ordered to solidarily pay civil indemnity in the
amount of Fifty Thousand Pesos (P50,000.00) to the heirs of
Wilfredo Alferez for the latter's death, the two prison terms to be
served concurrently with one another. No special pronouncement
is made as to costs.

.
j000, j 3j1

-

j%
8j%j jj

,
-

#
'
j

.9 00 concur.
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plaintiff-appellee,
vs.
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accused-
appellants.

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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.
@

These are the principles relied upon by the Court in resolving this
appeal from the Court of Appeals (CA) Decision dated 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, 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,
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:

Honorable Court, the above-named accused
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, j..
the timely medical attendance.
IN VIOLATION of Article 248 of the Revised Penal

Code.
4) Criminal Case No. 9260 for frustrated murder:

to kill and treachery, did then and there wilfully,
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, j..
the timely medical attendance.

Code.
5) Criminal Case No. 9261 for frustrated murder:

to kill and treachery, did then and there wilfully,
NELSON TIEMPO, who was riding in a car and who
gave no provocation, thereby inflicting upon the latter
the following injuries, to wit:
Gunshot wound neck penetrating wound perforating

trachea (cricoid) 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,j.. the timely medical attendance.

Code.
Of the four indictees in the five Informations, Teodulo Alegarbes

and Artemio Timoteo Beronga were the first to be arraigned.
Upon the arrest of the two, the Informations were amended by the
public prosecutor, with the conformity of the defense counsel, by
substituting the names of the two accused for the "John Does"
appearing in the original Informations. When arraigned, said
accused, assisted by their respective lawyers, pleaded not guilty
to the five Informations.
Alegarbes died in the course of trial; thus, the cases against him
were dismissed. Accused Cabanero remained at large.
Sabalones, on the other hand, was eventually arrested.
Subsequently, he jumped bail but was recaptured in 1988 and
thereafter pleaded not guilty during his arraignment.
The cases against Sabalones and Beronga were jointly tried.

Thereafter, the lower court found them guilty beyond reasonable
doubt of the crimes charged. The RTC disposed as follows:
WHEREFORE, premises above-set forth, the Court

finds accused ROLUSAPE SABALONES and
(ARTEMIO) TIMOTEO BERONGA, [g]uilty beyond
reasonable doubt, as principals:
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 :; j
:;
, as maximum, to indemnify the heirs of
deceased, Glenn Tiempo, the sum of P50,000.00;
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 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 :; j
:;
, as maximum, to indemnify the heirs of
deceased, Alfredo Nardo, the sum of P50,000.00;
In Crim. Case No. CBU-9259, for FRUSTRATED

MURDER, defined and penalized in Art. 248 in relation
to Art. 50 of the Revised Penal Code, hereby sentences
each said accused to suffer the penalty of [e]ight (8)
years ofjj
, as minimum, to [f]ourteen (14)
years and [e]ight (8) months of :; j :;
, as
maximum, to indemnify the victim, Rey Bolo, the sum of
P20,000.00;

years ofjj
years and [e]ight months of :; j :;
, as
maximum, to indemnify the victim, Rogelio Presores,
the sum of P20,000.00;

years ofjj
years and [e]ight (8) months of :; j :;
, as
maximum, to indemnify the victim, Nelson Tiempo, the
sum of P20,000.00; and
To pay the costs in all instances. The period of their

preventive imprisonment shall be credited to each
accused in full.
SO ORDERED.
Appellants filed a notice of appeal to the Court of Appeals.

Thereafter, the CA affirmed their conviction but sentenced them to
j
for the murders they were found guilty of.
Accordingly, the appellate court, without entering judgment,
certified the case to the 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
:;jj :;
medium as minimum to SEVENTEEN
(17) YEARS and FOUR (4) MONTHS of :; j
:;
medium 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 :; j :;
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.
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. Thus, 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.
@)

3j & j
The solicitor general 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, j%j.)
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, j%j.)
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,
j%j.)
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, j%j.)
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, j%j.)
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,j%j.)
He immediately informed Maj. Tiempo about the

incident and the lat[t]er brought the victims to the Cebu
Doctor's Hospital. (p. 20, j%j.)
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, j%j.)
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, j%j.)
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, j%j.)
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, j%j.)
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, j%j.)
The victim sustained gunshot wounds in the right chest

and left lumbar area. (pp. 10-11, j%j.)
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,j%j.)
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, j%j.)
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, j%j.)
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, j%j.)
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,j%j.)
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, j%j.)
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, j%j.)
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, j%j.)
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, j%j.)
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, j%j.)
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, j%j.)
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, j%j.)
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, j%j.)
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, j%j.)
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, j%j.)
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, j%j.)
3j &.&
Appellants interposed denial and alibi. Their version of the facts is

summarized by the trial court 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 wasj 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 [j ] 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,

j
"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. !
j &&5

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 j
. For each
count of frustrated murder, it imposed the following penalty: ten
years (10) ofjj
(medium), as minimum, to seventeen
years (17) years and four (4) months of j

(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 j
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.
@
In his Brief, Appellant Sabalones raised the following errors allegedly committed by the trial
court:
The court
+ 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
+ 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
+ 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
+ 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.
The court
+ 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
+ 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.
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.
@ j
The appeal is devoid of merit.
)j :
j%j j&!j

'&&j j &j
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,
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." 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.
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." 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:
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:
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.
jj j&j
j
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. !
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.
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 [j ] my
head.
Q And that was the first time you saw them?
A Yes, sir.
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 ² Edwin Santos and Rogelio Presores.
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. 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 0
.
, "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, Remigio Villaver, Fredo Canete and

Edward Gutang. 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 & 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 [j ] 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. !
Said witness even admitted that he could not recall if he did in fact
cut the electrical connection of the Mansueto Compound. 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.
Even assuming
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. The Court has previously held that the
light from the stars or the moon, an oven, or a wick lamp or

can give ample illumination to enable

a person to identify or recognize another. 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.

*j j
'

&,
Appellants insist that Beronga's extrajudicial statement was

obtained through violence and intimidation. Citing thej
j

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. [j ] 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.
These arguments have no merit. In the first place, it is well to

stress that appellants were convicted based primarily on the
positive identification of the two survivors, Edwin Santos and
Rogelio Presores, and not only on the extrajudicial statement,
which merely corroborates the eyewitness testimonies. Thus, said
arguments have no relevance to this case. As the Court held in
0@j
: "Any allegation of violation of rights during custodial investigation is
relevant and material only to cases in which an extrajudicial admission or confession extracted from the
accused becomes the basis of their conviction."
In any case, we sustain the trial court's holding, as affirmed by the

Court of Appeals, that the extrajudicial statement of Beronga was
executed in compliance with the constitutional requirements.
"Extrajudicial confessions, especially those which are adverse to the declarant's interests are presumed
voluntary, and in the absence of conclusive evidence showing that the declarant's consent in executing

the same has been vitiated, such confession shall be upheld."
The exhaustive testimony of Sgt. Miasco, who undertook the

investigation, shows that the appellant was apprised of his
constitutional rights to remain silent and to have competent and
independent counsel of his own choice. Said witness also stated that Beronga

was assisted by Atty. Marcelo Guinto during the custodial investigation. In fact, Atty. Guinto also took
the witness stand and confirmed that Appellant Beronga was informed of his 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 duress.
Equally unavailing is appellants' reliance on the j

j

rule under Section 30, Rule 130 of the Rules of Court, which
provides:
The act or declaration of a conspirator relating to the

conspiracy and during its existence, may be given in
evidence against the co-conspirator after the
conspiracy is shown by evidence other than such act or
declaration.
Appellants assert that the admission referred to in the above

provision is considered to be against a co-conspirator only when it
is given j the existence of the conspiracy. They argue that
Beronga's statement was made
& the 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. 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 or when the confession of the

co-accused is corroborated by other evidence.
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 of Jun

Sabalones and the group were sitting with
Roling Sabalones, what were they doing?
A They were gathered in one table and they

were conversing with each other.
xxx xxx xxx
Q On that same date, time and place, at

about 10:00 [i]n the evening, can you
remember if there was unusual incident that
took place?
A I heard over the radio at the Sabalones
Family that a certain Nabing Velez was shot.
Q That [a] certain Nabing Velez was shot?

What else . . . transpired?
A %
j
j $
+<
j&$ j .
xxx xxx xxx
Q In that evening of June 1, 1985, when you

went there at the house of Jun Sabalones,
have you seen an armalite?
A Yes, sir.
Q Where aid you see this armalite?
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, ² 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.
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."
5 j j
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.
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, j%
; 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)
jj %

j

$
j
j %

$ % $
j$ 0@j
$j
%$ $j & j

j.
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.
5%
j
Appellants likewise accuse the trial court of engaging in

"conjecture" in ruling that there was
%
jj 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
%
jj to
j why the appellants staged the ambush,
not to 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."
Be that as it may, the observation of the solicitor general on this

point is well-taken. The case is better characterized as error

or mistake in the identity of the victims, rather than
%
jj which means mistake in the blow, characterized by
aiming at one but hitting the other due to imprecision in the blow.
' :
. j

5 j%j
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 jj j or its immediate vicinity.
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. !As aptly held by this Court in 0/ j:
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.
) j
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?"
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." It must be stressed, nonetheless, that appellants were not convicted
based on legal inference alone but on the overwhelming evidence presented against them.
@j :
j
j
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." These 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. Rey Bolo sustained three injuries which affected his clavicle, ribs and lungs.
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.
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
j
(medium), as minimum, to seventeen (17)
years, four (4) months and one (1) day of j

(maximum), as maximum. This is incorrect. Under Article 248 of
the Ravised Penal Code, the imposable penalty is j

, 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
j
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 ofjj

(medium) as minimum to seventeen years and four months of
j
(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
j
(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 j
in its medium period. Because there are no

aggravating or mitigating circumstance as the Court of Appeals itself held, 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 ofjj
(minimum), as minimum, to 14 years and
8 months of j
(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. ! 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.
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. 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. 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 j
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 j
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 jj
(minimum), as minimum, to 14
years and 8 months of j
(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 jj
8 months of j
(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 jj
8 months of j
(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.

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c 

DEATH, the punishment j j, was imposed on Silvino

Zareen Smith, British, was 30, single, a television and stage

On 30 April 1994 Enrico brought Zareen to 

In the evening Enrico and Zareen went to Sabang Centro together

According to the prosecution, at two o'clock in the morning of 1

Maria Ausan heard Zareen cry so she awakened Nenita. Thinking

After emerging from his shower he was surprised to see Zareen

But the trial court was not persuaded by Silvino's story. It

Quite interestingly, the Information alleges that Silvino had carnal

We do not find the facts substantiating the Information. We must

Under Art. 335 of the Revised Penal Code, as amended by Sec.

'  , the Information avers use of force but the evidence

The explanation is not persuasive. The evidence shows that this

@j, Zareen was not deprived of reason or otherwise

The prosecution would have the accused convicted of rape under

. . . when Consorcia, the offended party, awoke the appellant

The import of this pronouncement is that it was no longer

The record abounds with indicia to discredit the theory of the

Most significantly, Zareen was acutely aware of the manner by

Under the circumstances we cannot help entertaining serious

WHEREFORE, the decision appealed from is REVERSED and

After reading the well-crafted j

The core issues in this case are: (a) whether accused

Zareen testified that accused had carnal knowledge of her

The trial court gave full faith to her story, holding:

The testimony of the complaining witness herein is very

Its summary of Zareen's testimony and explanation as to its

The alleged victim and the vital witness presented by

The alleged rape incident was duly reported to the

It is notably significant that the complaining witness,

On the other hand, the trial court found incredulous the

Q Is it not a fact that when you confronted

Q What did the accused admit to you?

A That he had sex with Zareen Smith

For another, and more specifically as to accused's claim that

The version of the accused on this score is unnatural,

xxx xxx xxx

Q As caretaker of the cottage, have you had

A I have, Your Honor.

Q How many foreigners?

A Two times, Your Honor.

Q What are they?

Notably, accused likewise failed to convincingly refute the

The trial court correctly took note of these previous incidents,

There is, as well, no doubt in my mind that accused

Zareen's unhesitating admission of nightly sex with her

With equal strength, it must not be overlooked that the

Q When you met Jun Salarza on the beach,

A No, your Honor.

A We detained him temporarily to rest and

A Yes, Your Honor.

Q So, because he was drunk you detained

A For both reasons, Your Honor. (TSN, 8

If indeed the accused was drunk, it would have been

Finally, Zareen's conduct immediately after discovering that

Having thus shown that accused consummated his carnal

1. By using force or intimidation;

2. When the woman is deprived of reason or

3. When the woman is under twelve years of

The trial court held as it did because Zareen was half-asleep

When a woman is "deprived of reason" or is "unconscious,"

c

DEATH, the punishment j j, was imposed on Silvino

On 30 April 1994 Enrico brought Zareen to

' , the Information avers use of force but the evidence

@j, Zareen was not deprived of reason or otherwise

After reading the well-crafted j

(p. 27, .)

ARTICLE 266. ' jj

º, accused-appellants are found guilty beyond