G.R. No.

79168

August 3, 1990

PEOPLE vs. ALFREDO CAGALINGAN and VICTOR ROMINA, JR. defendants-appellants. On or about 1:30 in the afternoon of June 4, 1984 at Looban, Block 14, Centro, Aparri, Cagayan, eight persons were playing bingo in the house of the spouses Alfredo and Benita Flores. Two of the players were Lory Bunabon and Veron Cagalingan. Not long after her arrival and while seated at the door of the balcony, Lory Bunabon saw the accused Jovito Cagalingan about six meters away holding a basket containing claws of crabs. Joemar Desor (the victim) approached Jovito, took hold of the basket, and jokingly asked the latter to give him the crabs so that he could roast them. Jovito refused saying that he was bringing them home for their viand. Soon thereafter, the two were laughing although each of them was grappling for the possession of the basket. In order to gain advantage over Jovito to secure the possession of the basket, Joemar held the throat of Jovito with his right hand. Jovito however was able to remove the hand of Joemar and went at the back of the latter. Veron Cagalingan, wife of Alfredo Cagalingan, saw them and shouted that Jovito was being killed by Joemar. This impelled accused Alfredo Cagalingan, who was inside the house of his parents-in-law Alfredo and Benita Flores, to jump out of the house and proceed to the scene. Holding a bolo measuring 15 inches long. Alfredo went behind Joemar and stabbed him twice on the right side of his body parallel to his navel. Jovito who was able to free himself from Joemar drew his nine-inch kitchen knife from his waist and also stabbed the victim twice. While the stabbing was being perpetrated, accused Victor Romina, Jr. jumped out of the window of his house to join the other accused. Using a nine-inch kitchen knife, he also stabbed Joemar once. The latter at the time was already immobile, lying prostrate on the ground. Mercedes Desor, mother of the victim, heard the commotion and rushed to the crime site. There, she saw his (sic) son Joemar lying prostrate on the ground with the three accused still holding the bladed weapons dripping with blood. At this juncture, Alfredo Cagalingan was heard uttering a challenge saying 'who else still is brave man companion of Joemar Desor'. Thereafter, Alfredo and Jovito Cagalingan went towards the direction of the police precinct while Victor Romina, Jr. ran eastward towards the Ryan Cinema (p. 28, tsn, May 15, 1989). Joemar was brought to the hospital and died there after. Dr. Romulo de Rivera, Municipal Health Officer of Aparri, Cagayan, conducted an autopsy on the cadaver of the victim.

CAUSE OF DEATH: shock secondary to hemorrhage due to multiple stabbed wounds. The defendant-appellant Alfredo Cagalingan, while admitting having inflicted injuries upon the deceased Joemar Desor, insisted that he acted in legitimate defense of his brother when he inflicted the mortal wounds which resulted in the death of the said Joemar Desor. The accused-appellant, Jovito Cagalingan, denied having stabbed the deceased Joemar Desor. He claimed that while he was on his way home, at about 1:00 o'clock in the afternoon of 4 June 1984, he was suddenly boxed on his right cheek by Joemar Desor. He just cried and went away because Joemar Desor was bigger than he and was the recognized "kingpin" of the neighborhood. But Joemar Desor followed and boxed him several ' times on the chest causing him to fall. When he fell, Joemar Desor went astride him and sat on his belly, and then held his neck, choking him. As a result, he lost consciousness. When he regained consciousness, he saw his brother, Alfredo Cagalingan, jumping out from the window of their house and coming to them. Alfredo then stabbed Joemar Desor with a bolo. After a while, Pat. de la Cruz of the local police arrived at the scene and he (Jovito) was brought to the police precinct. 3 The defendant-appellant Victor Romina, Jr. also denied having stabbed the deceased Joemar Desor and interposed the defense of alibi. He declared that at about 12:20 o'clock in the afternoon of 4 June 1984, he went to see a movie at the Ryan Cinema with his friend, one Ferdinand from Faire, Cagayan. At around 3:00 o'clock in the afternoon, his name was flashed on the screen of the cinema as "wanted outside". He went outside and was met by policemen who then arrested him and brought him to the police station for investigation. 4 In support of their appeal, the defendants-appellants claim that the trial court erred: (1) in not holding that the accused Alfredo Cagalingan killed the deceased Joemar Desor in defense of his relative; (2) in not holding that Jovito Cagalingan and Victor Romina, Jr. had no participation in the killing of the said Joemar Desor; and (3) in sentencing the accused Jovito Cagalingan to suffer the penalty of reclusion perpetua. 1. The appellants first claim that the trial court seriously erred in finding that unlawful agression was not present in the killing of Joemar Desor. They argue that there was unlawful aggression on the part of the deceased because the latter was strangulating Jovito Cagalingan when he was stabbed by Alfredo Cagalingan. A review of the evidence, however, fails to lend credence to the appellants' claim that there was unlawful aggression on the part of the deceased. Lory Bunabon categorically stated that the deceased Joemar Desor and the appellant Jovito Cagalingan were laughing and joking as they were grappling for the possession of the basket of crabs which Joemar Desor wanted to get from Jovito Cagalingan. For

unlawful aggression to be present, there must be a real danger to life or personal safety. 6 Here, there was no danger to the life of Jovito Cagalingan as they (Jovito and Joemar) were in a frolicsome mood. Besides, it would appear that the deceased was unarmed at the time and sustained five (5) stab wounds in different parts of his body , 7 which indicates that the act (stabbing) was not in defense of a relative but a determined effort to kill the deceased. 2. We also find no merit in the claims of the appellants Jovito Cagalingan and Victor Romina, Jr. that they did not participate in the commission of the crime. Lory Bunabon positively Identified the said appellants as among those who stabbed the deceased Joemar Desor. 10 Lory Bunabon could not have been mistaken in her Identification of the appellants (Jovito and Victor) as perpetrators of the crime because she was near them and the protagonists were her immediate neighbors in the community. As for the alibi of Victor Romina, Jr. that he was inside the Ryan Cinema at the time of the commission of the crime, suffice it to state that the said moviehouse is only about 100 to 150 meters away from the scene of the crime and the said appellant has not shown that it was physically impossible for him to be at the scene of the crime at the time it was committed. Besides, his alibi cannot prevail over his positive Identification by Lory Bunabon. 3. Finally, the appellants claim that the penalty of reclusion perpetua, imposed by the trial court upon the appellants Jovito Cagalingan and Victor Romina, Jr. is excessive. Appellants argue that with the elimination of the death penalty in the 1987 Constitution, the penalty for Murder was accordingly reduced. The contention is without merit. This issue had been laid to rest in the case of People vs. Muoz, 12 where the Court ruled that Article III, Section 19(1) of the 1987 Constitution does not change the periods of the penalty prescribed by Article 248 of the Revised Penal Code except that it prohibits the imposition of the death penalty and reduces it to reclusion perpetua. The Court therein further ruled that the range of the medium and minimum penalties for murder remains unchanged. We find however, that Jovito Cagalingan and Victor Romina, Jr. are only accomplices in the crime since their participations therein were not absolutely indispensable in the commission of the crime. Lory Bunabon declared that Jovito Cagalingan stabbed the deceased Joemar Desor after Alfredo Cagalingan had stabbed the deceased at the back, while Victor Romina, Jr. stabbed the said deceased while the latter was already lying prostrate on the ground. 13 While the acts of Jovito Cagalingan and Victor Romina, Jr. show a community of design with the principal, Alfredo Cagalingan, who inflicted the fatal wound, and they (Jovito and Victor) cooperated in hastening the victim's death, the said appellants' acts were not absolutely

indispensable in the commission of the crime. A person who assaults a victim already fatally wounded by another is only regarded as an accomplice. 14 The penalty for appellants Jovito Cagalingan and Victor Romina, Jr. as accomplices must be modified. They are hereby sentenced to suffer an indeterminate penalty of from eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, and eight (8) months of reclusion temporal, as maximum. With the modification above indicated, the judgment appealed from is hereby AFFIRMED in all other respects, with costs against the appellants.

G.R. No. 134298. August 26, 1999] RAMON C. TAN, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. Complainant Rosita Lim is the proprietor of Bueno Metal Industries, located at 301 Jose Abad Santos St., Tondo, Manila, engaged in the business of manufacturing propellers or spare parts for boats. Manuelito Mendez was one of the employees working for her. Sometime in February 1991, Manuelito Mendez left the employ of the company. Complainant Lim noticed that some of the welding rods, propellers and boat spare parts, such as bronze and stainless propellers and brass screws were missing. She conducted an inventory and discovered that propellers and stocks valued at P48,000.00, more or less, were missing. Complainant Rosita Lim informed Victor Sy, uncle of Manuelito Mendez, of the loss. Subsequently, Manuelito Mendez was arrested in the Visayas and he admitted that he and his companion Gaudencio Dayop stole from the complainants warehouse some boat spare parts such as bronze and stainless propellers and brass screws. Manuelito Mendez asked for complainants forgiveness. He pointed to petitioner Ramon C. Tan as the one who bought the stolen items and who paid the amount of P13,000.00, in cash to Mendez and Dayop, and they split the amount with one another. Complainant did not file a case against Manuelito Mendez and Gaudencio Dayop. On relation of complainant Lim, an Assistant City Prosecutor of Manila filed with the Regional Trial Court, Manila, Branch 19, an information against petitioner charging him with violation of Presidential Decree No. 1612 (Anti-Fencing Law) committed as follows: That on or about the last week of February 1991, in the City of Manila, Philippines, the said accused, did then and there wilfully, unlawfully and feloniously knowingly receive, keep, acquire and possess several spare parts and items for fishing boats

all valued at P48,130.00 belonging to Rosita Lim, which he knew or should have known to have been derived from the proceeds of the crime of theft. Upon arraignment on November 23, 1992, petitioner Ramon C. Tan pleaded not guilty to the crime charged and waived pre-trial. To prove the accusation, the prosecution presented the testimonies of complainant Rosita Lim, Victor Sy and the confessed thief, Manuelito Mendez. RAMON TAN, the accused, in exculpation, stated that he is a businessman engaged in selling hardware (marine spare parts). He denied having bought the stolen spare parts worth P48,000.00 for he never talked nor met Manuelito Mendez, the confessed thief. That further the two (2) receipts presented by Mrs. Lim are not under her name and the other two (2) are under the name of William Tan, the husband, all in all amounting to P18,000.00. Besides, the incident was not reported to the police. He likewise denied having talked to Manuelito Mendez over the phone on the day of the delivery of the stolen items and could not have accepted the said items personally for everytime (sic) goods are delivered to his store, the same are being accepted by his staff. It is not possible for him to be at his office at about 7:00 to 8:00 oclock in the morning, because he usually reported to his office at 9:00 oclock. In connection with this case, he executed a counter-affidavit (Exhibits 2 and 2-a).[1] On August 5, 1996, the trial court rendered decision finding Ramon Tan guilty beyong reasonable doubt of violating the Anti-fencing law of 1979 (PD 1612) and sentences him to suffer the penalty of imprisonment of SIX (6) YEARS and ONE (1) DAY to TEN (10) YEARS of prision mayor and to indemnify Rosita Lim the value of the stolen merchandise purchased by him in the sum of P18,000.00. Petitioner appealed to the Court of Appeals. After due proceedings, on January 29, 1998, the Court of Appeals rendered decision finding no error in the judgment appealed from, and affirming the same in toto. In due time, petitioner filed with the Court of Appeals a motion for reconsideration; however, on June 16, 1998, the Court of Appeals denied the motion. Hence, this petition. The issue raised is whether or not the prosecution has successfully established the elements of fencing as against petitioner.[2] We resolve the issue in favor of petitioner. Fencing, as defined in Section 2 of P.D. No. 1612 is the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft.[3]

Robbery is the taking of personal property belonging to another, with intent to gain, by means of violence against or intimidation of any person, or using force upon things.[4] The crime of theft is committed if the taking is without violence against or intimidation of persons nor force upon things.[5] The law on fencing does not require the accused to have participated in the criminal design to commit, or to have been in any wise involved in the commission of, the crime of robbery or theft.[6]

Before the enactment of P. D. No. 1612 in 1979, the fence could only be prosecuted as an accessory after the fact of robbery or theft, as the term is defined in Article 19 of the Revised Penal Code, but the penalty was light as it was two (2) degrees lower than that prescribed for the principal.[7] P. D. No. 1612 was enacted to impose heavy penalties on persons who profit by the effects of the crimes of robbery and theft. Evidently, the accessory in the crimes of robbery and theft could be prosecuted as such under the Revised Penal Code or under P.D. No. 1612. However, in the latter case, the accused ceases to be a mere accessory but becomes a principal in the crime of fencing. Otherwise stated, the crimes of robbery and theft, on the one hand, and fencing, on the other, are separate and distinct offenses.[8] The State may thus choose to prosecute him either under the Revised Penal Code or P. D. No. 1612, although the preference for the latter would seem inevitable considering that fencing is malum prohibitum, and P. D. No. 1612 creates a presumption of fencing[9] and prescribes a higher penalty based on the value of the property.[10] In Dizon-Pamintuan vs. People of the Philippines, we set out the essential elements of the crime of fencing as follows: 1. A crime of robbery or theft has been committed; 2. The accused, who is not a principal or accomplice in the commission of the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the said crime; 3. The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and 4. There is on the part of the accused, intent to gain for himself or for another.[11]

Consequently, the prosecution must prove the guilt of the accused by establishing the existence of all the elements of the crime charged. [12] Short of evidence establishing beyond reasonable doubt the existence of the essential elements of fencing, there can be no conviction for such offense.[13] It is an ancient principle of our penal system that no one shall be found guilty of crime except upon proof beyond reasonable doubt (Perez vs. Sandiganbayan, 180 SCRA 9).[14] Complainant Rosita Lim testified that she lost certain items and Manuelito Mendez confessed that he stole those items and sold them to the accused. However, Rosita Lim never reported the theft or even loss to the police As complainant Rosita Lim reported no loss, we cannot hold for certain that there was committed a crime of theft. Thus, the first element of the crime of fencing is absent, that is, a crime of robbery or theft has been committed. What is more, there was no showing at all that the accused knew or should have known that the very stolen articles were the ones sold to him. Without petitioner knowing that he acquired stolen articles, he can not be guilty of fencing.

G.R. No. L-12990 January 21, 1918 THE UNITED STATES, plaintiff-appellee, vs. LAZARO JAVIER, ET AL., defendantsappellants.

Doroteo Natividad on the afternoon of October 22, 1915, fastened his carabao valued at P150 in his corral situated in the barrio of Trapiche municipality of Tanauan, Province of Batangas. On the following morning when he went to look after the animal, he found the gate to the corral open and that the carabao had disappeared. He reported the matter to the Constabulary, and a patrol of the

Constabulary under the leadership of sergeant Presa, now deceased, on the 20th of November following, encountered the accused Lazaro Javier, Apolinario Mendoza, and Placido de Chavez leading the carabao. When the ladrones saw the Constabulary, that scattered in all directions. On the following day, the Constabulary found this carabao tied in front of the house of one Pedro Monterola in the barrio of Santa Clara, municipality of San Pablo. The carabao was identified by Doroteo Natividad as the one which had been taken from his corral on the night of October 22, 1915, and by the Constabulary as the one seen in the possession of the accused. As corroborative of such evidence, we have the well-known legal principle, which as applied to cases of this character is that, although the persons who unlawfully took a certain carabao are not recognized at the time, and their identity remains entirely unknown, nevertheless, if the stolen animal is found in the possession of the accused shortly after the commission of the crime and they make no satisfactory explanation of such possession they may be properly convicted of the crime. (See U. S. vs. Divino [1911], 18 Phil., 425.) In the present instance, the attempt of the accused to insinuate that one of the Constabulary soldiers testified against them falsely because of enmity is hardly believable. The foregoing statement of the facts and the law disposes of all but one assignment of error, namely, that the lower court erred in admitting Exhibit B of the prosecution as evidence. Exhibit B is the sworn statement of sergeant Presa, now deceased, whose signature was identified, before the justice of the peace of the municipality of Santo Tomas, Province of Batangas. Appellant's argument is predicated on the provision of the Philippine Bill of Rights which says, "That in all criminal prosecutions the accused shall enjoy the right . . . to meet the witnesses face to face," and the provision of the Code of Criminal Procedure, section 15 (5), which says that "In all criminal prosecutions the defendant shall be entitled: . . . to be confronted at the trial by and to cross-examine the witnesses against him." With reference to the clause of the Bill of Rights, which we have quoted, Justice Day said in a case of the Philippine origin (Dowdell vs. U. S. [1911], 221 U. S., 325) that it "intends to secure the accused in the right to be tried, so far as facts provable by witnesses are concerned, by only such witnesses as meet him face to face at the trial, who give their testimony in his presence, and give to the accused an opportunity of crossexamination. It was intended to prevent the conviction of the accused upon deposition or ex parte affidavits, and particularly to preserve the right of the accused to test the recollection of the witness in the exercise of the right of crossexamination." In other words, confrontation is essential because cross-examination is essential. With such a resolution of this question, we could, as has been done in other cases, further find this to be reversible error and remand the case for a new trial. We are convinced, however, that this would gain the accused nothing except delay for the testimony of the owner of the carabao and of the two Constabulary soldiers,

rebutted by no reasonable evidence on behalf of the accused, is deemed sufficient to prove guilt beyond a reasonable doubt. The facts come under article 518, No. 3, in connection with article 520, as amended, of the Penal Code. Accordingly the defendants and appellants are each sentenced to four years, two months, and one day of presidio correccional, with the accessory penalties provided by law, and to pay one-third part of costs of both instances; the carabao shall be returned to Doroteo Natividad, if this has not already been done. So ordered.

G.R. No. 84163

October 19, 1989

LITO VINO, petitioner, vs. THE PEOPLE OF THE PHILIPPINES and THE COURT OF APPEALS, respondents.

At about 7:00 o'clock in the evening of March 21, 1985, Roberto Tejada left their house at Burgos Street, Poblacion, Balungao, Pangasinan to go to the house of Isidro Salazar to watch television. At around 11:00 P.M., while Ernesto, the father of Roberto, was resting, he heard two gunshots. Thereafter, he heard Roberto cry out in a loud voice saying that he had been shot. He saw Roberto ten (10) meters away so he switched on the lights of their house. Aside from Ernesto and his wife, his children Ermalyn and Julius were also in the house. They went down to meet Roberto who was crying and they called for help from the neighbors. The neighbor responded by turning on their lights and the street lights and coming down from their houses. After meeting Roberto, Ernesto and Julius saw Lito Vino and Jessie Salazar riding a bicycle coming from the south. Vino was the one driving the bicycle while Salazar was carrying an armalite. Upon reaching Ernesto's house, they stopped to watch Roberto. Salazar pointed his armalite at Ernesto and his companions. Thereafter, the two left. Roberto was brought to the Sacred Heart Hospital of Urdaneta. PC/Col. Bernardo Cacananta took his ante-mortem statement. In the said statement which the victim signed with his own blood, Jessie Salazar was Identified as his assailant. The autopsy report of his body shows the followingGunshot wound CAUSE OF DEATH - Tension Hemathorax 1

Lito Vino and Sgt. Jesus Salazar were charged with murder in a complaint filed by PC Sgt. Ernesto N. Ordono in the Municipal Trial Court of Balungao, Pangasinan. However, on March 22, 1985, the municipal court indorsed the case of Salazar to the Judge Advocate General's Office (JAGO) inasmuch as he was a member of the military, while the case against Vino was given due course by the issuance of a warrant for his arrest. Ultimately, the case was indorsed to the fiscal's office who then filed an information charging Vino of the crime of murder in the Regional Trial Court of Rosales, Pangasinan. Upon arraignment, the accused Vino entered a plea of not guilty. Trial then commenced with the presentation of evidence for the prosecution. Instead of presenting evidence in his own behalf, the accused filed a motion to dismiss for insufficiency of evidence to which the prosecutor filed an answer. On January 21, 1986, 2 a decision was rendered by the trial court finding Vino guilty as an accessory to the crime of murder and imposing on him the indeterminate penalty of imprisonment of 4 Years and 2 months of prision correccional as minimum to 8 years of prision mayor as maximum. He was also ordered to indemnify the heirs of the victim in the sum of P10,000.00 being a mere accessory to the crime and to pay the costs. The motion for reconsideration filed by the accused having been denied, he interposed an appeal to the Court of Appeals. In due course, a Decision was rendered affirming the judgment of the lower court. Hence, the herein petition for review wherein the following grounds are invoked: 1. THAT AN ACCUSED CAN NOT BE CONVICTED AS AN ACCESSORY OF THE CRIME OF MURDER FOR HAVING AIDED IN THE ESCAPE OF THE PRINCIPAL IF SAID ACCUSED IS BEING CHARGED SOLELY IN THE INFORMATION AS PRINCIPAL FOR THE SIMPLE REASON THAT THE CRIME PROVED IS NOT INCLUDED IN THE CRIME CHARGED. 2. THAT "AIDING THE ESCAPE OF THE PRINCIPAL" TO BE CONSIDERED SUFFICIENT IN LAW TO CONVICT AN ACCUSED UNDER ARTICLE 19, PARAGRAPH 3 OF THE REVISED PENAL CODE MUST BE DONE IN SUCH A WAY AS TO DECEIVE THE VIGILANCE OF THE LAW ENFORCEMENT AGENCIES OF THE STATE AND THAT THE "ESCaPE" MUST BE ACTUAL; 3. THE CONVICTION OF AN ACCESSORY PENDING THE TRIAL OF THE PRINCIPAL VIOLATES PROCEDURAL ORDERLINESS. 4 During the pendency of the appeal in the Court of Appeals, the case against Salazar in the JAGO was remanded to the civil court as he was discharged from the military service. He was later charged with murder in the same Regional Trial Court of Rosales, Pangasinan in Criminal Case No. 2027-A. In a supplemental pleading dated

November 14, 1988, petitioner informed this Court that Jessie Salazar was acquitted by the trial court in a decision that was rendered on August 29, 1988. The respondents were required to comment on the petition. The comment was submitted by the Solicitor General in behalf of respondents. On January 18, 1989, the Court resolved to deny the petition for failure of petitioner to sufficiently show that respondent court had committed any reversible error in its questioned judgment. Hence, the present motion for reconsideration to which the respondents were again required to comment. The required comment having been submitted, the motion is now due for resolution. The first issue that arises is that inasmuch as the petitioner was charged in the information as a principal for the crime of murder, can he thereafter be convicted as an accessory? The answer is in the affirmative. Petitioner was charged as a principal in the commission of the crime of murder. Under Article 16 of the Revised Penal Code, the two other categories of the persons responsible for the commission of the same offense are the accomplice and the accessory. There is no doubt that the crime of murder had been committed and that the evidence tended to show that Jessie Salazar was the assailant. That the petitioner was present during its commission or must have known its commission is the only logical conclusion considering that immediately thereafter, he was seen driving a bicycle with Salazar holding an armalite, and they were together when they left shortly thereafter. At least two witnesses, Ernesto and Julius Tejada, attested to these facts. It is thus clear that petitioner actively assisted Salazar in his escape. Petitioner's liability is that of an accessory. This is not a case of a variance between the offense charged and the offense proved or established by the evidence, and the offense as charged is included in or necessarily includes the offense proved, in which case the defendant shall be convicted of the offense proved included in that which is charged, or of the offense charged included in that which is proved. 5 In the same light, this is not an instance where after trial has begun, it appears that there was a mistake in charging the proper offense, and the defendant cannot be convicted of the offense charged, or of any other offense necessarily included therein, in which case the defendant must not be discharged if there appears to be a good cause to detain him in custody, so that he can be charged and made to answer for the proper offense. 6 In this case, the correct offense of murder was charged in the information. The commission of the said crime was established by the evidence. There is no variance as to the offense committed. The variance is in the participation or complicity of the petitioner. While the petitioner was being held responsible as a principal in the information, the evidence adduced, however, showed that his participation is merely that of an accessory. The greater responsibility necessarily includes the

lesser. An accused can be validly convicted as an accomplice or accessory under an information charging him as a principal. At the onset, the prosecution should have charged the petitioner as an accessory right then and there. The degree of responsibility of petitioner was apparent from the evidence. At any rate, this lapse did not violate the substantial rights of petitioner. The next issue that must be resolved is whether or not the trial of an accessory can proceed without awaiting the result of the separate charge against the principal. The answer is also in the affirmative. The corresponding responsibilities of the principal, accomplice and accessory are distinct from each other. As long as the commission of the offense can be duly established in evidence the determination of the liability of the accomplice or accessory can proceed independently of that of the principal.

The third question is this-considering that the alleged principal in this case was acquitted can the conviction of the petitioner as an accessory be maintained? In the present case, the commission of the crime of murder and the responsibility of the petitioner as an accessory was established. By the same token there is no doubt that the commission of the same offense had been proven in the separate case against Salazar who was charged as principal. However, he was acquitted on the ground of reasonable doubt by the same judge who convicted Vino as an accessory. The trial court held that the identity of the assailant was not clearly established. It observed that only Julius Tejada identified Salazar carrying a rifle while riding on the bicycle driven by Vino, which testimony is uncorroborated, and that two other witnesses, Ernesto Tejada and Renato Parvian who were listed in the information, who can corroborate the testimony of Julius Tejada, were not presented by the prosecution. The trial court also did not give due credit to the dying declaration of the victim pinpointing Salazar as his assailant on the ground that it was not shown the victim revealed the identity of Salazar to his father and brother who came to his aid immediately after the shooting. The court a quo also deplored the failure of the prosecution and law enforcement agencies to subject to ballistic examinations the bullet slug recovered from the body of the victim and the two empty armalite bullet empty shells recovered at the crime scene and to compare it with samples taken from the service rifle of Salazar. Thus, the trial court made the following observation: There appears to be a miscarriage of justice in this case due to the ineptitude of the law enforcement agencies to gather material and important evidence and the

seeming lack of concern of the public prosecutor to direct the production of such evidence for the successful prosecution of the case. 9 Hence, in said case, the acquittal of the accused Salazar is predicated on the failure of the prosecution to adduce the quantum of evidence required to generate a conviction as he was not positively identified as the person who was seen holding a rifle escaping aboard the bicycle of Vino. Although in this case involving Vino the evidence tended to show that the assailant was Salazar, as two witnesses saw him with a rifle aboard the bicycle driven by Vino, in the separate trial of the case of Salazar, as above discussed, he was acquitted as the trial court was not persuaded that he was positively identified to be the man with the gun riding on the bicycle driven by Vino. In the trial of the case against Vino, wherein he did not even adduce evidence in his defense, his liability as such an accessory was established beyond reasonable doubt in that he assisted in the escape of the assailant from the scene of the crime. The identity of the assailant is of no material significance for the purpose of the prosecution of the accessory. Even if the assailant can not be identified the responsibility of Vino as an accessory is indubitable. WHEREFORE, the motion for reconsideration is denied and this denial is FINAL.