PEOPLE OF THE PHILIPPINES, plaintiffappellee, vs. DANILO SINOC y SUMAYLO, accused-appellant. The Solicitor General for plaintiff-appellee.

Hector G. Tayapad, Jr. for accused-appellant. SYNOPSIS In the morning of September 21, 1991, Isidoro Viacrusis, manager of Taganito Mining Corporation, was on his way from the company compound to Surigao City, on a company vehicle, a Mitsubishi Pajero. As Viacrusis and his driver were approaching the public cemetery of Clarer they were stopped by several armed men who identified themselves as member of the New People's Army. Upon reaching Barobo, Surigao del Norte, Viacrusis and his driver were ordered to alight and proceed to a coconut grove with their hands bound behind their back. After the two were made to lie face down on the ground, they were shot several times. Viacrusis miraculously survived, while the driver died. In an affidavit executed by Viacrusis, he was able to identify by name only one Danilo Sinoc. In the morning of September 21, 1991, a secret informant reported to the Police Station at Montkayo, Davao del Norte that the stolen (carnapped) Pajero was parked behind the apartment of a certain Paulino Overa at Poblacion, Monkayo. A police team went to the place and posted themselves in such a manner as to keep it in view. They saw a man approach the Pajero who, on seeing them, tried to run away. They stopped him and found out that the man, identified as Danilo Sinoc, had the key of the Pajero, and was acting under instructions of some companions who were waiting for him at the Star Lodge at Tagum, Davao del Norte. The police turned over Sinoc to the 459th Mobile Force, together with the Pajero. Sinoc was brought to the Public Attorneys' Office in Butuan City where he asked one of the attorneys there, Atty. Alfredo Jalad, to assist him in making an Affidavit of Confession. Atty. Jalad told Sinoc that he had the right to choose his own counsel, and to remain silent. Sinoc said he wanted to make the affidavit nonetheless, and be assisted by Jalad in doing so. Atty. Jalad then had Sinoc narrate the occurrence. Jalad asked Sinoc if the CIS had promised him anything for the affidavit he would execute. Sinoc said no. Only then did the CIS officers commence to take Sinoc's statement. Jalad read to Sinoc the contents of his statement. The statement was thereafter signed by Sinoc and by Jalad, the latter being described as "witness to signature." Since was next brought to Prosecutor Brocoy so that he might take oath on his statement. City Fiscal Brocoy told Sinoc that the statement was very

damaging. Sinoc stood by his answers, saying that they had been voluntarily given. Evidently satisfied of the voluntariness of the statement, Brocoy administered the oath to Sinoc. Sinoc's assault against the propriety of his interrogation after his warrantless arrest because it was conducted without advice to him of his constitutional rights, is pointless. It is true that the initial interrogation of Sinoc was made without his first being told of his corresponding rights. This is inconsequential, for the prosecution never attempt to prove what he might have said on that occasion. The confession made by him afterwards at the Public Attorneys' Office at Butuan City shows it to have been executed voluntarily. After carefully considering the evidence, this Court is convinced that the Trial Judge was correct in accepting the account of the execution of Sinoc's confession narrated by Atty. Jalad and City Prosecutor Brocoy, to the effect that the confession was voluntarily given after he had been duly informed of his constitutional rights. No reason whatever is discernible in the record for these Government officials to give false evidence against Sinoc, or testify otherwise than to the truth. No competent evidence exists on record to substantiate the claim that his extrajudicial confession was the result of torture and threats. He made no such claim to either Public Attorney Jalad or City Prosecutor Brocoy although there is absolutely nothing in the record to indicate any cause for him to distrust either government officer, much less believe they were in conspiracy with the police officers to concoct a case against him. SYLLABUS 1.REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT WARRANT; WHEN LAWFUL; CASE AT BAR. As regards Sinoc's claim of illegal arrest, the law provides that an arrest without warrant may be licitly effected by a peace officer, inter alia, "When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it." There is no question that the police officers in this case were aware that an offense had just been committed: i.e., that some twelve hours earlier, a "Pajero" belonging to a private company had been stolen ("carnapped") and its driver and passenger shot, the former having, died and the latter being on the verge of death. Nor is there any doubt that an informer ("asset") had reported that the stolen "Pajero" was at the Bliss Housing Project at Monkayo. It was precisely to recover the "Pajero" that a team composed of SPO1 Michael Aringo and "joint elements of 459 PNP MFC and Monkayo Police Stn led by Insptr Eden T. Ugale," went to that place and, on taking custody of the "Pajero," forthwith dispatched a radio message to "Higher

Headquarters" advising of that fact. There is no question either that when SPO1 Aringo and his companions reached the place where the "Pajero" was parked, they were told by Paulino Overa, owner of the apartment behind which the vehicle was parked, that the man who had brought the "Pajero" would be back by 12:00 noon; that the person thus described did in fact show up at about 10:00 A.M., and was immediately identified by Overo as "the one who rode on that car 'Pajero"'; just as there is no question that when the police officers accosted him, Sinoc had the key to the stolen "Pajero" and was in the act of moving toward it admittedly to take Possession of it (after having arrived by bus from Tagum together with another suspect, "Ram"). Sinoc's link to the stolen vehicle (and hence to the kidnapping and killing accompanying its asportation) was thus palpable. The foregoing circumstances left the police officers no alternative save to arrest Sinoc and take possession of the "Pajero." His arrest without warrant was justified: indeed, it was in the premises the clear duty to apprehend him; their omission to do so would have been inexcusable. 2.ID.; EVIDENCE; CONFESSION; WHEN ADMISSIBLE; CASE AT BAR. The confession made by Sinoc some time afterwards at the Public Attorneys' office at Butuan City is altogether a different matter. The record adequately shows it to have been executed voluntarily and under applicable safeguards, apart from being confirmed by, or consistent with, other evidence. Sinoc does not dispute that he was taken to the Public Attorney's Office; that he spoke to Atty, Alfredo Jalad and it was in the latter's office that his confession was prepared by the CIS investigator. Nor does he deny that he was then brought to the home of City Prosecutor Ernesto M. Brocoy who certified that the confession had been subscribed and sworn to before him and that he was satisfied that Sinoc had voluntarily executed and understood his statement. Sinoc nonetheless claims that he was under intimidation at that time and never advised of his constitutional rights. After carefully considering the evidence, this Court is convinced that the Trial Judge was correct in accepting the account of the execution of Sinoc's confession narrated by Public Attorney Alfredo Jalad and City Prosecutor Ernesto Brocoy, to the effect that the confession was voluntarily given after he had been duly informed of his constitutional rights. No reason whatever is discernible in the record for these Government officials to give false evidence against Sinoc, or testify otherwise than to the truth. In any event, the Trial Judge appears to have carefully assessed the demeanor of the witnesses for the prosecution and those for the defense, in relation to the documents on record, and on this basis and from his vantage point, found that the prosecution 's proofs were

more credible than the defense, and that their combined weight established beyond reasonable doubt the appellant's culpable participation in the crimes charged. It must additionally be pointed out that apart from Sinoc's protestations that his extrajudicial confession was the result of torture and threats, no competent evidence exists on record to substantiate that claim. He made no such claim to either Public Attorney Alfredo Jalad or City Prosecutor Ernesto Brocoy although there is absolutely nothing in the record to indicate any cause for him to distrust either government officer, much less believe they were in conspiracy with the police officers to concoct a case against him. 3.CRIMINAL LAW; ROBBERY WITH HOMICIDE; WHEN THE KIDNAPPING WAS MERELY INCIDENTAL TO THE FORCIBLE TAKING OF THE VEHICLE; CASE AT BAR. The "kidnapping" was not the principal objective; it was merely incidental to the forcible taking of the vehicle. Unfortunately, by reason or on the occasion of the seizure of the "Pajero" and (as far as the proofs demonstrate) without fore-knowledge on Sinoc's part its driver was killed, and the lone passenger seriously injured. There was thus no kidnapping as the term is understood in Article 267 of the Revised Penal Code the essential object of which is to "kidnap or detain another, or in any other manner deprive him of his liberty." The idea of "kidnapping" in this case appears to have been the result of the continuous but uninformed use of that term by the peace officers involved in the investigation, carelessly carried over into the indictments and the record of the trial, and even accepted by His Honor. The offense actually committed in Criminal Case No. 3564 where the killing of Tarcesio Guijapon accompanied the taking of the "Pajero" is that defined and penalized by Article 294 of the Criminal Code, viz.: "ART. 294. Robbery with violence against or intimidation of persons Penalties. Any person guilty of robbery with the use of violence against any person shall suffer: 1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed, or when the robbery shall have been accompanied by rape or intentional mutilation or arson. . . ." It is germane to observe that even if the intent to deprive of liberty were as important or primordial an objective as the asportation of the "Pajero," the kidnapping would be absorbed in the robbery with homicide; and that the term, "homicide," is used in the quoted article in the generic sense i.e., as also including murder, the nature of the offense not being altered by the treacherous character, or the number, of the killings in connection with the robbery. 4.ID.; ID.; CRIME IMPUTABLE UPON THE APPELLANT; EFFECTS

THEREOF; CASE AT BAR. It is this Court's view that the crime that may properly he ascribed to Sinoc in Case No. 3564 is robbery with homicide under Article 294 of the Revised Penal Code. For unfortunately for him, there is no avoiding the fact that a homicide although not agreed to or expected by him was committed on the occasion of the robbery, of the "Pajero," and he could not but have realized or anticipated the possibility of serious harm, even death, being inflicted on the person or persons in the "Pajero" targeted for robbery, since two of his companions were armed with guns, even if in his mind, to repeat, his agreement with them did not include killing. The most that can be conceded is to credit him with the mitigating circumstance of having "no intention to commit so grave a wrong as that committed." [ART. 13(3), Revised Penal. Code] Sinoc may not be held liable in Case No. 3565 for the separate offense of frustrated murder as regards Viacrusis. In this particular case, the evidence shows that he agreed only to the plan to "carnap" the "Pajero," but not to any assault or killing. Nor is it logical to convict him twice of robbery of the same property under the same circumstances. Hence, he may not be pronounced responsible for the separate offense of robbery of the same "Pajero," in addition to being declared guilty of robbery, (of that same "Pajero") with homicide under Article 294. 5.ID.; ROBBERY; FRUSTRATED MURDER; TWO CRIMES COMMITTED WHEN THE SPECIAL COMPLEX CRIME OF ROBBERY WITH VIOLENCE AGAINST OR INTIMIDATION OF PERSONS IS NOT APPLICABLE. On the other hand, the wrongful acts actually proven to have been committed by the defendants in Criminal Case No. 3565 are: (1) robbery, and (2) frustrated murder on the occasion thereof gunshot wounds having been inflicted on Isidoro Viacrusis, while bound and prostrate on the ground, utterly unable to put up any defense, the wounds being of such a nature as would have resulted in his death were it not for timely medical intervention. Obviously, these acts do not fall within the ambit of Article 294, which treats of the special complex crime of robbery with violence against or intimidation of persons, but NOT robbery with attempted or frustrated homicide (or murder), although the law does punish the crime of attempted and frustrated robbery with homicide. 6.ID.; PENALTY FOR COMPLEX CRIMES; WHEN NOT APPLICABLE; CASE AT BAR. The crimes committed do not come within the operation of Article 48 of the Criminal Code which, speaking of complex crimes, provides that when a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period." In this case, the two crimes of

"carnapping" and frustrated murder did not result from "a single act." Nor was either offense a "necessary means for committing the other." The shooting of the victim was not necessary to commit the "carnapping"; indeed at the time the victim was shot, the "carnapping" had already been consummated. And, of course, the "carnapping" which, according to the evidence, was the conspirators' principal objective, was not necessary to perpetrate the shooting. It follows then that the malefactors' felonious acts in Criminal Case No. 3565 cannot be regarded as juridically fused into a "complex crime" under Article 48. They should be considered separate offenses, separately punishable. DECISION NARVASA, C.J p: In a decision handed down on October 7, 1993, by Branch 30 of the Regional Trial Court of Surigao City, Danilo Sinoc was found guilty beyond reasonable doubt in two cases jointly tried: 1 one, of the special complex crime of kidnapping with murder (under Article 267 in relation to Articles 248 2 and 48 3 of the Revised Penal Code) in Criminal Case No. 3564; and the other, of the complex crime of kidnapping with frustrated murder (under Articles 267, 248, 4 and 48 of the same Code) in Criminal Case No. 3565. In each case, the penalty of reclusion perpetua was imposed on him. 5 The amended informations under which Sinoc was tried and convicted, both dated January 23, 1992, included five (5) other accused, namely: Vicente Salon @ "Dodong," Benjamin Espinosa @ "Benji," Jaime Jornales @ "James," Victorino Delegencia @ Jun-Gren," and one Roger Doe @ "Ram" (at large). 6 However, only Sinoc and Vicente Salon were arraigned, on July 14, 1992, the other accused being then at large, as they still appear to be to this day. Assisted by their respective counsel, both Sinoc and Salon entered pleas of not guilty and were thereafter jointly tried. The joint trial resulted in Salon's acquittal in both cases. The Court agreed with him that "none of the witnesses presented by the prosecution remotely implicate . . . (him in) the crimes charged," and that "(i)ndeed, the only piece of evidence pointing to . . . (him [Salon]) as the mastermind is contained in the affidavit of confession of accused Danilo Sinoc;" hence, conspiracy not having been proved, the case against Salon "has to be dismissed." Only Sinoc, therefore, is concerned in the appeal at bar. Respecting the essential facts constituting the corpus delicti, there appears to be no serious dispute. It appears that on September 20, 1991, at about 6 o'clock in the morning, Isidoro Viacrusis, manager of Taganito Mining Corporation, was motoring from the company compound (at Taganito, Claver, Surigao del Norte) to Surigao City. He was riding on a company

vehicle, a Mitsubishi Pajero (with Plate No. DFX-397), driven by Tarcisio Guijapon. As Viacrusis and Guijapon were approaching the public cemetery of Claver, they were stopped by several armed men. The latter, identifying themselves as members of the New People's Army (NPA), boarded the Pajero and ordered Guijapon to proceed. When they reached Barobo, Surigao del Norte, the armed men ordered Viacrusis and Guijapon to alight, led them, their hands bound behind their back to a coconut grove some six meters from the road, and after making them lie face down on the ground, shot them several times. Viacrusis miraculously survived. The driver, Guijapon, was not as lucky; he died on the spot. These facts are set forth in, among others, a sworn statement given to the police by Sinoc, infra and an affidavit executed and sworn to by Viacrusis on October 17, 1991, about a month later. 7 In that affidavit, Viacrusis described the armed men who had kidnapped and shot him and Guijapon. The only malefactor he was able to identify by name, however, was Danilo Sinoc who, he said, had "curly hair, (was) known as 'Colot' (Danilo Sinoc), (and was known to) driver Tarcing . . ." Two prosecution witnesses gave germane testimony at the trial of the consolidated cases: Marlyn Legaspi, a resident of San Vicente, Barobo, Surigao del Sur; and Barangay Captain Terencio Jamero, also of Barangay San Vicente. Marlyn testified that she was startled by the sound of gunshots that morning of September 20, 1991. She ran towards the direction of the gunfire and as she neared the place, heard the moaning of a man. She moved quickly to the highway and saw a blue "Pajero" parked at the barangay road, its engine idling; and moments later, she saw the same vehicle running fast towards San Francisco, Agusan del Sur. She lost no time in reporting the incident to Barangay Councilor Terencio Jamero. Jamero testified that on receiving Marlyn's report, he and another Councilor, Alberto Saliling, at once proceeded to the place indicated. There they came upon the slain driver, and Isidoro Viacrusis, lying on the ground, sorely wounded, crying out for help. With the assistance of policemen of Barobo, they brought Viacrusis to the Agusan del Sur Provincial Hospital at Patin-ay. Timely medical attention enabled Viacrusis to recover from his grievous wounds. The evidence of the prosecution further establishes that in the morning of the following day, September 21, 1991, at about 7 o'clock, a secret informant (known as a "civilian asset") named Boyet reported to the police Station at Monkayo, Davao del Norte that the stolen ("carnapped") "Pajero" was parked behind the apartment of a certain Paulino Overa at the Bliss Housing Project at Poblacion, Monkayo. On instructions of the

Station Commander, a police team 8 went to the place. They saw the "Pajero" and, their initial inquiries having yielded the information that the man who had brought it there would return that morning, posted themselves in such a manner as to keep it in view. Some three hours later, at about 10:30 o'clock, they saw a man approach the "Pajero" who, on seeing them, tried to run away. They stopped him. They found out that the man, identified as Danilo Sinoc of Surigao del Norte, 9 had the key of the "Pajero," and was acting under instructions of certain companions who were waiting for him at the Star Lodge at Tagum, Davao del Norte. Riding on the recovered "Pajero," the police officers brought Sinoc to the Star Lodge only to discover that his companions were no longer there. They later turned over Sinoc to the 459(th) Mobile Force, together with the "Pajero." Four months afterwards, in the afternoon of January 21, 1993, SPO1 Roger A. Basadre and two other officers (of the CIS) brought Danilo Sinoc to the Public Attorney's Office at Curato Street, Butuan City. They asked one of the attorneys there, Atty. Alfredo Jalad, for permission to take Sinoc's statement in writing in his office. Sinoc asked Jalad to assist him because he wished to make an "affidavit of confession." Atty. Jalad told Sinoc that he had the right to choose his own counsel, and to remain silent. Sinoc said he wanted to make the affidavit nonetheless, and be assisted by Jalad in doing so. The latter then had Sinoc narrate the occurrence in question in "Cebuano/Visayan," a dialect with which Sinoc was familiar. That done, Jalad asked Sinoc if the CIS had promised him anything for the affidavit he would execute. Sinoc said no. Only then did the CIS officers commence to take Sinoc's statement, typing their questions and Sinoc's answers as well as the initial appraisal of his constitutional rights on a typewriter in Atty. Jalad's Office. LexLib In his sworn statement, 10 Sinoc declared that he knew the victims, Isidoro Viacrusis and Tarcisio Guijapon because he was "formerly working at Taganito Mining Company" (TAMICO); that in June, 1991, he learned that Benjamin Espinosa (@ Benji), Jaime Jornales (@ James), Victorino Delegencia (@ Jun-Gren), and a certain "Ram" had been monitoring the activities of TAMICO Manager Viacrusis whom they planned to kidnap and rob of his "Pajero," and make it appear to be an act of the NPA; that the criminal undertaking was planned by a certain Vicente Salon (@ Dodong), who made available the needed funds and two (2) hand guns; that in September, 1991, at a meeting of the group at the boarding house of "JunGren" to which he (Sinoc) was invited was offered P20,000.00 to join in the "kidnapping and carnapping" operation; that he agreed "because of

poverty;" that in the morning of September 20, 1991, at about 6:30 o'clock, he, "Ram" and Benjamin Espinosa stopped the "Pajero" driven by Tarcisio Guijapon in which Viacrusis was riding, brandishing two .38 caliber revolvers, and a piece of wood shaped like a rifle; that they boarded the vehicle, identifying themselves as NPA (soldiers of the New People's Army) and had the driver proceed towards Surigao City; that at the bridge of Tres de Mayor, they had the "Pajero" stop to pick up two other companions, "James" (Jaime Jornales) and Jun-gren" (Victor Delegencia); that "Ram" took over the wheel and drove towards Butuan City; that at San Vicente, Barobo, "Ram" turned into a feeder road and stopped about seven (7) meters from the highway; that there, Viacrusis and Guijapon, whose hands had been tied behind their back, were made to get down; that "James" Jornales shot Viacrusis four times after which "Jun-gren" Delegencia, Jr. fired at Guijapon four times, too; that when Sinoc remonstrated at the shootings, he was told it was on Dodong Salon's orders; that the malefactors then proceeded to the "Bliss" Housing Project at Monkayo where they left the "Pajero," this being the place where the mastermind, Vicente Salon, was supposed to get the vehicle and pay Sinoc the promised sum of P20,000.00; that they then all went to Tagum; that on the following day, Sinoc was instructed by Jun-gren and James to return to Monkayo with the key of the "Pajero" and deliver it to "Ram," and that when he arrived at the place at about 9 o'clock in the morning, he was apprehended by soldiers and brought to the "459(th) PNP Mobile Company." During the entire period of Sinoc's interrogation, which commenced at about 3:00 P.M., Atty. Jalad remained seated beside him; and at its conclusion, Jalad read to Sinoc the contents of his statement from beginning to end. The statement was thereafter signed by Sinoc and by Jalad, the latter being described as "witness to signature." 11 Sinoc was next brought to the home of Butuan City Prosecutor Ernesto M. Brocoy so that he might take oath on his statement. This was at about 7:00 P.M. After going over the statement, City Fiscal Brocoy told Sinoc that is was "very damaging," briefly discussing the contents thereof in Cebuano. The latter stood by his answers, however, averring that they had been voluntarily given. Evidently satisfied of the authenticity and voluntariness of the statement, Brocoy administered the oath to Sinoc, and signed the certification typed at the left hand margin of page 4 thereof, reading: "SUBSCRIBED AND SWORN to before me this 21st day of January 1992, at Butuan City, Philippines. I hereby certify that I personally examined the herein affiant and that I am satisfied that he voluntarily executed and understood his statement." He also initialed every page of the statement.

12 While under detention at the Provincial Jail, awaiting trial, Sinoc wrote two (2) letters to the Trial Judge dated June and July, 1992, in both of which he asked that he be transferred to the City Jail because he had heard that Vicente Salon, who had been arrested on the strength of his sworn statement, had made plans to kill him. He sent the Judge a third letter dated August 11, 1993, consisting of four (4) pages which is described by His Honor as "substantially a repetition of the contents of his affidavit of confession." All the letters were handwritten in block letters in the Cebuano dialect. 13 Sinoc proffered the defense of alibi. His claim, as summarized by his counsel, was that "on September 19, 1991, he was in Sibagat, Agusan del Sur together with his wife and prepared on that early morning to sell tableya (native chocolate) in Tagum, Davao del Norte. On the same day they reached Tagum and they sold tableya and on the same day there were not able to sell the tableya; on September 20, 1991 they were again selling tableya in Tagum, Davao del Norte. It was while in Tagum that . . . (they met) a certain Darves, they did not know exactly the name, he offered to them the money to accompany the said driver of Darves who is name(d) Ram. He was offered . . . money to accompany this Ram in prior (sic) to allegedly get the Pajero vehicle from Moncayo together with Ram, and while in Moncayo he was first apprehended by the police and detained at Moncayo, first . . . (by) the 459 Mobile Force of . . . Monkayo and on January 14, 1992 to January 24, 1992 he was detained by the CIS authorities in Butuan City." Elaborating, Sinoc testified that he saw Darves with three companions at "a certain restaurant in Tagum;" that Darves introduced himself, and offered to give him P1,000.00 if he would accompany his driver to get a vehicle at Moncayo; that he agreed, and at 6 o'clock in the morning of September 21, 1991 he went to the Star Lodge where Darves was staying; that there, he was introduced to the latter's driver, Ram, given P1,000.00, and told to go with Ram; and that he went out of the Star Lodge, gave his wife P800.00, and then went with Ram to Moncayo on board a bus. In Moncayo, they went to where the Pajero was parked. Sinoc went towards the vehicle. Ram lagged behind, having paused to buy some cigarettes. When Sinoc reached the Pajero, five persons suddenly pointed guns at him, searched him, and found on him the key to the "Pajero" which Darves had given to him. The five persons, who were led by Sgt. Michael Aringgo of the PNP, brought him to the Moncayo police station where they investigated him without informing him of his constitutional rights. In the afternoon of that day, September 21, 1991, he was surrendered to

the 459th Mobile Force Company which detained him until January 14, 1992. On this date he was taken by CIS personnel and brought to the CIS Compound at Butuan City, at which place he was confined up to January 24, 1992, and subjected to the interrogation without being informed that he had a right to remain silent. He was told, however, that he had the right to counsel, but although he told the investigators that his lawyer was Atty. Gavino Samontina, they never called the latter. The investigators wished him to sign an affidavit. When he refused, they maltreated him by repeatedly submerging his head in a toilet bowl full of excrement, as well as by trying him on a bed, raising the bed on one end so that his feet were up and his head down, and keeping him in the position for hours. On January 20, 1992, his wife and Efren Dak-ang came to see him at the CIS Compound. He talked to them and revealed what was being done to him while under investigation. On January 21, 1992, after having been interrogated the whole night, he finally agreed to sign the affidavit because the CIS officers told him, "(W)e will kill you or salvage you." In fact, the night before, police officers had brought him to an uninhabited place near the bridge and with guns pointed at his head, commanded him to run. He refused, of course. So, in the afternoon of that day, at around 4 o'clock, he was brought to the office of Public Attorney Jalad, where the police investigators" hurriedly typed" his affidavit and made him sign it. He denied that Atty. Jalad informed him of his constitutional rights. He asserted that when he told Jalad he had his own lawyer, Jalad merely remarked, "Never mind, all attorneys are just the same as long as it is attorney." He was next brought to Fiscal Brocoy who, without talking to him, "right away signed that document" (his confession). Sinoc also explained how he had come to write the letter of August 11, 1992 to the Judge some seven months after his confession. That letter it will be recalled and as is evident from a comparison of both documents was described by the latter as "substantially a repetition of the contents of his affidavit of confession," supra. 14 He said: "(T)here were persons who visited me while at the Provincial Jail and told me to accept the crime . . . because if I will not accept the crime, my wife and children (and) my parents, they will liquidate all of them.. . . ." Sinoc's wife, Jovita, testified for the defense, and sought to corroborate his testimony. She affirmed that she had seen her husband at the CIS on September 20, 1992, at about 8:30 in the evening and he had told her then to "keep . . . silent not to tell anybody that he will be accompan(ied) by the CIS." Efren Dak-ang also gave corroborating testimony.

For some undisclosed reason, the surviving victim, Isidoro Viacrusis, did not testify; this, despite the fiscal's assurances to the Trial Judge that he was "very interested" in giving evidence. Obviously because of Viacrusis' failure to testify, his affidavit of October 17, 1991 was not formally offered, being obviously hearsay, although it is attached to the record. Be this as it may, the Trial Court was satisfied that the evidence actually presented by the Government sufficed to establish Sinoc's guilt beyond reasonable doubt of the two felonies with which he stood charged. Sinoc has taken an appeal to this Court and ascribes to the Trial Court the following errors: (1) convicting him of the offenses charged although conspiracy had not been independently proven to exist among him and other persons named in the indictment; (2) not rejecting the evidence obtained after he had been "arrested without any warrant of arrest," and (3) not rejecting his confession after he had been illegally arrested and had thereafter been "under custodial investigation . . . without a counsel of choice" from September 21, 1991 to January 20, 1992, first by the Moncayo 459th Mobile Force, and later by the C.I.S., Butuan City. As regards Sinoc's claim of illegal arrest, the law provides that an arrest without warrant may be licitly effected by a peace officer, inter alia. "When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it." 15 There is no question that the police officers in this case were aware that an offense had just been committed; i.e., that some twelve hours earlier, a "Pajero" belonging to a private company had been stolen ("carnapped") and its driver and passenger shot, the former having died and the latter being on the verge of death. Nor is there any doubt that an informer ("asset") had reported that the stolen "Pajero" was at the Bliss Housing Project at Monkayo. It was precisely to recover the "Pajero" that a team composed of SPO1 Michael Aringo and "joint elements of 459 PNP MFC and Moncayo Police Stn led by Insptr Eden T. Ugale," went to that place and, on taking custody of the "Pajero," forthwith dispatched a radio message to "Higher Headquarters" advising of that fact. 16 There is no question either that when SPO1 Aringo and his companions reached the place where the "Pajero" was parked, they were told by Paulino Overa, owner of the apartment behind which the vehicle was parked, that the man who had brought the "Pajero" would be back by 12:00 noon; that the person thus described did in fact show up at about 10:00 A.M., and was immediately identified by Overa as "the one who rode on that car 'Pajero;'" 17 just as there is no question that when the police officers accosted him, Sinoc had the key to the stolen "Pajero" and was in

the act of moving toward it admittedly to take possession of it (after having arrived by bus from Tagum together with another suspect, "Ram"). Sinoc's link to the stolen vehicle (and hence to the kidnapping and killing accompanying its asportation) was thus palpable. The foregoing circumstances left the police officers no alternative save to arrest Sinoc and take possession of the "Pajero." His arrest without warrant was justified; indeed, it was in the premises the officers' clear duty to apprehend him; their omission to do so would have been inexcusable. Sinoc's assault against the propriety of his interrogation after his warrantless arrest, because conducted without advice to him of his constitutional rights, is pointless. It is true that, as candidly admitted by the arresting officers, their initial interrogation of Sinoc was made without his first being told of his corresponding rights. This is inconsequential for the prosecution never attempted to prove what he might have said on that occasion. The confession made by him some time afterwards at the Public Attorneys' Office at Butuan City is altogether a different matter, however. The record adequately shows it to have been executed voluntarily and under applicable safeguards, apart from being confirmed by, consistent with, other evidence. Sinoc does not dispute that he was taken to the Public Attorney's Office; that he spoke to Atty. Alfredo Jalad and it was in the latter's office that his confession was prepared by the CIS investigator. Nor does he deny that he was then brought to the home of City Prosecutor Ernesto M. Brocoy who certified that the confession had been subscribed and sworn to before him and that he was satisfied that Sinoc had voluntarily executed and understood his statement. Sinoc nonetheless claims that he was under intimidation at that time and never advised of his constitutional rights. After carefully considering the evidence, this Court is convinced that the Trial Judge was correct in accepting the account of the execution of Sinoc's confession (Exhs. K, K-1 to K-5) narrated by Public Atty. Alfredo Jalad and City Prosecutor Ernesto Brocoy, to the effect that the confession was voluntarily given after he had been duly informed of his constitutional rights. No reason whatever is discernible in the record for these Government officials to give false evidence against Sinoc, or testify otherwise than to the truth. Sinoc's confession of January 21, 1992 is confirmed by the letter he admittedly wrote to the Trial Judge more than a year later, on August 11, 1993, 18 the contents of which are, as observed by the Trial Judge, substantially identical with those of the confession. In said letter, in which

he narrates in no little detail the same story contained in his confession, he apologizes for "bothering you again at this time" (obviously referring to his prior letters to the Judge of June and July 1992), and gives his reasons for writing the latest letter; to ask for the Judge's assistance and take account of his allegation that his agreement with his co-accused was only to stop the "Pajero," that it was poverty that impelled him to join the plotters (Vicente Salon, et al.); to see that Tarcisio Guijapon and Viacrusis be given justice; and to plead that the Judge take pity on him, and not give him too heavy a penalty. The confession is also consistent with Sinoc's testimony at his trial in which he admitted that he had indeed traveled from Tagum to Moncayo where he was arrested; and that he has made the trip, together with his co-accused, "Ram," precisely to get the stolen "Pajero" the key of which he had on his person at the time. It contains details (e.g., the use of two (2) hand guns and a wooden rifle, the bringing of the Pajero from the scene of the killing to Monkayo, the identities of the individual malefactors who shot the victims) which it is improbable to think were conjured out of thin air by the police investigators or deduced from other evidence. The confession is consistent too, with the other proofs, particularly the testimony of Marlyn Legaspi and Barangay Councilor Jamero as regards the time and place of the shooting of the hapless victims. lexlib In any event, the Trial Judge appears to have carefully assessed the demeanor of the witnesses for the prosecution and those for the defense, in relation to the documents on record, and on this basis and from his vantage point, found that the prosecution's proofs were more credible than the defense, and that their combined weight established beyond reasonable doubt the appellant's culpable participation in the crimes charged. It must additionally be pointed out that apart from Sinoc's protestations that his extrajudicial confession was the result of torture and threats, no competent evidence exists on record to substantiate that claim. He made no such claim to either Public Attorney Alfredo Jalad or City Prosecutor Ernesto Brocoy although there is absolutely nothing in the record to indicate any cause for him to distrust either government officer, much less believe they were in conspiracy with the police officers to concoct a case against him. In fact, although he professes to have disclosed his supposed maltreatment to his wife when she visited him at the place of his detention, the latter made no mention of it in her testimony, nor did she ever attempt to have him medically examined to confirm such a revelation, if it had been made. Moreover, the counsel he said, who wanted to represent him during his interrogation at Public Attorney Jalad's office,

Atty. Gavino Samontina, was never presented to confirm his statement. While the evidence does show that Sinoc became embroiled in a criminal conspiracy 19 he agreed (out of poverty, he says) to join in an crime being planned by certain men named by him and decided to commit it with them the agreement, as far as he was concerned, was to waylay Viacrusis, the Manager of the Tagum Mining Company, and rob him of his "Pajero," for which his share would be P20,000.00; but it did not include the shooting of Viacrusis or any one else. In fact, he raised a protest when Viacrusis and Guijapon were shot. In other words, as far as Sinoc understood it, and as far as may in fact be deduced from the evidence, the plan was not much to capture Viacrusis and deprive him of liberty, even less to assassinate him, but to steal his "Pajero" by violent means. The "kidnapping" was not the principal objective; it was merely incidental to the forcible taking of the vehicle. Unfortunately, by reason or on the occasion of the seizure of the "Pajero" and (as far as the proofs demonstrate) without fore-knowledge on Sinoc's part its driver was killed, and the lone passenger seriously injured. cda There was thus no kidnapping as the term is understood in Article 267 of the Revised Penal Code the essential object of which is to "kidnap or detain another, or in any other manner deprive him of his liberty." The idea of "kidnapping" in this case appears to have been the result of the continuous but uninformed use of that term by the peace officers involved in the investigation, carelessly carried over into the indictments and the record of the trial, and even accepted by His Honor. 20 The offense actually committed in Criminal Case No. 3564 where the killing of Tarcesio Guijapon accompanied the taking of the "Pajero" is that defined and penalized by Article 294 of the Criminal Code, 21 viz.: "ART. 294.Robbery with violence against or intimidation of persons Penalties. Any person guilty of robbery with the use of violence against any person shall suffer: 1.The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed, or when the robbery shall have been accompanied by rape or intentional mutilation or arson. xxx xxx xxx It is germane to observe that even if the intent to deprive of liberty were as

important or primordial an objective as the asportation of the "Pajero," the kidnapping would be absorbed in the robbery with homicide; 22 and that the term, "homicide," is used in the quoted article in the generic sense i.e., as also including murder, the nature of the offense not being altered by the treacherous character, or the number, of the killings in connection with the robbery. 23 On the other hand, the wrongful acts actually proven to have been committed by the defendants in Criminal Case No. 3565 are: (1) robbery, of course, as above described, and (2) frustrated murder on the occasion thereof gunshot wounds having been inflicted on Isidoro Viacrusis, while bound and prostrate on the ground, utterly unable to put up any defense, the wounds being of such a nature as would have resulted in his death were it not for timely medical intervention. Obviously, these acts do not fall within the ambit of Article 294, which treats of the special complex crime of robbery with violence against or intimidation of persons, but NOT robbery with attempted or frustrated homicide (or murder), although the law does not punish the crime of attempted and frustrated robbery with homicide. 24 Neither do the crimes come within the operation of Article 48 of the Criminal Code which, speaking of complex crimes, provides that when "a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period." In this case, the two crimes of "carnapping" and frustrated murder did not result from "a single act." Nor was either offense a "necessary means for committing the other." The shooting of the victim was not necessary to commit the "carnapping;" indeed at the time the victim was shot, the "carnapping" had already been consummated. And, of course, the "carnapping" which, according to the evidence, was the conspirators' principal objective, was not necessary to perpetrate the shooting. It follows then that the malefactors' felonious acts in Criminal Case No. 3565 cannot be regarded as juridically fused into a "complex crime" under Article 48. They should be considered separate offenses, separately punishable. Now Sinoc admittedly entered into a conspiracy with his co-accused; but he insists that as far as he was concerned, the conspiracy was to "carnap" the "Pajero," and did not include any killing or assault against persons. His theory is that the slaying of the driver and passenger might conceivably have been contemplated from the outset by one or some or all his co-

conspirators; but Sinoc himself never had that intention. Indeed, he says he had no inkling that the shooting would take place; had no opportunity to prevent it, and could only remonstrate about it after it was done; and he invokes the doctrine that conspirators may only be held accountable for the acts embraced in the criminal agreement; and as regards felonious acts not included, only the author thereof would be liable. 25 Sinoc's disclaimers notwithstanding, it is this Court's view that the crime that may properly be ascribed to him in Case No. 3564 is robbery with homicide under Article 294 of the Revised Penal Code. For unfortunately for him, there is no avoiding the fact that a homicide although not agreed to or expected by him was committed on the occasion of the robbery of the "Pajero," and he could not but have realized or anticipated the possibility of serious harm, even death, being inflicted on the person or persons in the "Pajero" targeted for robbery, since two of his companions were armed with guns, even if in his mind, to repeat, his agreement did not include killing. 26 The most that can be conceded is to credit him with the mitigating circumstance of having "no intention to commit so grave a wrong as that committed." 27 Sinoc may not be held liable in Case No. 3565 for the separate offense of frustrated murder as regards Viacrusis, for the reasons already mentioned; in this particular case, the evidence shows that he agreed only to the plan to "carnap" the "Pajero," but not to any assault or killing. 28 Nor it is logical to convict him twice of robbery of the same property under the same circumstances. Hence, he may not be pronounced responsible for the separate offense of robbery of the same "Pajero," in addition to being declared guilty of robbery ( of that same "Pajero") with homicide under Article 294. cdtai The penalty imposable on Sinoc is that provided in Article 294 of the Penal Code, which is reclusion perpetua to death. Appreciating in his favor the mitigating circumstance of lack of intention to commit so grave a wrong as that done, the penalty that should be applied to him is reclusion perpetua. WHEREFORE, in Criminal Case No. 3564, appellant Danilo Sinoc, being guilty beyond reasonable doubt of the offense of robbery with homicide defined and punished by Article 294 of the Revised Penal Code, is sentenced to reclusion perpetua. Criminal Case No. 3565 is DISMISSED as to him. SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiffappellee, vs. DAVID SALVATIERRA y EGUIA, accused-appellant. The Solicitor General for plaintiff-appellee. Conchu, Tancinco & Associates for accused-appellant. SYNOPSIS For the fatal stabbing of Charlie Fernandez, the Regional Trial Court of Manila, meted accused David Salvatierra for the crime of Murder the penalty of reclusion perpetua and payment of the amount of P30,183.00 as actual damages and P50,000.00 as indemnity to the heirs of the victims. Consequently thereto, herein accused appealed his case to the Supreme Court assailing that the lower court erred in not finding that the arrest, investigation and detention of the accused-appellant for the offense charged in the instant case violate of his constitutional rights and for giving weight and credence to the vague and ambiguous testimony of the prosecution witness. The Supreme Court held that while his argument were valid, appellant's claim that the case against him should be dismissed for violation of his constitutional rights must fail. Appellant is estopped from questioning the legality of his arrest considering that he never raised this before entering his plea. Consequently, any irregularity attendant to his arrest, if any, had been cured by his voluntary submission to the jurisdiction of the trial court when he entered his plea and participated in the trial. Anent the issue of the prosecution's witness credibility, the Court ruled that if ever there were inconsistencies, there were collateral matters, which are too trivial and minor to effect the evidentiary value of her testimony. In view thereof, the Court affirmed the questioned decision in toto. SYLLABUS 1.REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST; QUESTION ON THE LEGALITY THEREOF MUST BE MADE BEFORE AN ACCUSED ENTERS HIS PLEA; EFFECT OF FAILURE. Appellant is estopped from questioning the legality of his arrest considering that he never raised this before entering his plea. Any objection involving a warrant of arrest or the procedure in the acquisition of jurisdiction over the person of an accused must be made before he enters his plea, otherwise, the objection is deemed waived. This is the first time that appellant is raising this issue as he did not even move for the quashal of the information before the trial court on the ground of illegal arrest. Consequently, any irregularity attendant to his arrest, if any, had been cured by his voluntary submission to the jurisdiction of the trial court when he entered his plea and participated during the trial. Verily, the illegal arrest of appellant is not a sufficient cause for setting aside a

valid judgment rendered upon a sufficient complaint and where the trial was free from error. 2.ID.; EVIDENCE; TESTIMONY; CREDIBILITY; NOT AFFECTED BY MINOR DISCREPANCIES. Minor discrepancies in the testimony of a witness even enhances her credibility, as these minor discrepancies could also indicate that the response given by the witness was honest and unrehearsed. In fact, when an unlettered person like Milagros testifies, inconsistencies in her testimony may be disregarded without impairing her credibility. 3.ID.; ID.; ALIBI, AS A DEFENSE, REQUIRES CREDIBLE AND TANGIBLE PROOF OF PHYSICAL IMPOSSIBILITY FOR THE ACCUSED TO BE AT THE SCENE OF THE CRIME. It is elementary that for alibi to prosper, credible and tangible proof of physical impossibility for the accused to be at the scene of the crime is indispensable. Even if the testimony of appellant's wife that the distance between the crime scene and their house was about twenty minutes' walk away, still, it was not impossible for appellant to be in the crime scene and return home for merienda not only by walking but by means of transportation like pedicabs and jeepneys which abounded in the area. 4.CRIMINAL LAW; QUALIFYING CIRCUMSTANCES; TREACHERY; DEFINED; PRESENT IN CASE AT BAR. Contrary to appellant's claim, treachery attended the killing of Charlie Fernandez. Appellant's claim that there was no treachery because two of the three assailants ''did nothing" and that "the stabbing of the victim could probably be attributed to a whim or impulse and not a planned and deliberate act" is too preposterous for comfort. Treachery is present when the offender adopts means, methods or forms in the execution of a felony, which insure its commission without risk to himself arising from the defense which the offended party might make. The fact that the victim and the malefactors were facing each other during the assault does not negate the presence of treachery. Even a frontal attack can be treacherous when it is sudden and unexpected and the victim is unarmed. Neither may the presence of "defense wounds" on the body of the victim rule out treachery, Charlie's act of parrying with his bare hands the first thrust inflicted by appellant was an instinctive reaction to an attack. After all, the law recognizes man's natural instinct to protect himself from impending danger. DECISION KAPUNAN, J p: For the fatal stabbing of Charlie Fernandez y De Guzman, the Regional Trial Court of Manila, Branch XLIX, 1 meted accused David Salvatierra y Eguia the penalty of reclusion perpetua and the payment of the amounts of

P30,183.25 as actual damages and P50,000.00 as indemnity to the heirs of the victim, plus the costs of suit (Criminal Case No. 90-88985). At around 4:30 in the afternoon of August 17, 1990, Charlie Fernandez, a vendor of "palamig" was walking along M. de la Fuente Street, 2 going towards the direction of Quiapo at the opposite side of the street. 3 Suddenly, three (3) persons met him. One of them was appellant David Salvatierra, who lunged a pointed instrument at Charlie. The latter was able to parry the thrust but appellant swung the instrument anew hitting Charlie at the left breast. Thereafter, all three persons scampered away. 4 Charlie still managed to walk home to tell his father about the incident but suddenly collapsed. 5 He was taken immediately to the hospital where he was operated on. The assault was witnessed by Milagros Martinez, an ambulant vendor of fish and salted eggs who stopped by to rest at the right side of J. Fajardo St. in Sampaloc, Manila near the Trabajo Market. Milagros told the incident only to her daughter. 6 She did not immediately report the incident to the police authorities because she was afraid. Charlie's father, Marciano Fernandez, reported the crime to the police at Station No. 4 at about 5:40 that afternoon. Since the victim could not be interviewed as he was then undergoing operation, the police and Marciano Fernandez proceeded to the crime scene to get information about the incident but their effort was fruitless as no one in the area would volunteer to identify the culprits. 7 A relative of the victim informed the police that appellant was one of the suspects in the crime. 8 The next day or on August 18, 1990, 20-year-old Charlie expired. His death was caused by hemorrhage secondary to the stab wound on the anterior chest wall. 9 The medical report prepared by Dr. Sergio Alteza, Jr., medicolegal officer of the U.S.T. Hospital, showed that Charlie sustained, aside from the stab wound on the chest, another stab wound on the left forearm and an incised wound on the left wrist. 10 Marciano Fernandez went back to Police Station No. 4 to inform the authorities that his son had died. He was advised to report the matter to the Homicide Section of the Western Police District (WPD) 11 where an "advance information" was prepared indicating that four (4) unidentified persons perpetrated the crime. 12 On November 15, 1990 at about 4:35 in the afternoon, Police Station No. 4 received a complaint that appellant was creating a commotion along Miguelin Street, Sampaloc, Manila. He was thereby taken in custody by Pat. Celso Tan and two other policemen who later found out that appellant was a suspect in the killing of Charlie Fernandez. 13 Later that day, appellant was turned over to the WPD.

Milagros Martinez learned about the apprehension of appellant from her children. Later, she was approached by Marciano Fernandez who persuaded her to testify on what she witnessed on August 17, 1990. Upon being informed that appellant was transferred to the WPD, the two proceeded to said station where Milagros executed a sworn statement implicating appellant to the crime. 14 In a police line-up, Milagros pinpointed appellant as the person who stabbed Charlie. Thereafter, Pat. Amores prepared a booking sheet and arrest order which appellant signed. 15 On November 19, 1990, appellant was charged with murder in an information which reads as follows: That on or about August 17, 1990 in the City of Manila, Philippines, the said accused, conspiring and confederating with three others whose true names, identities and present whereabouts are still unknown and helping one another, did then and there wilfully, unlawfully and feloniously with intent to kill and with treachery and evident premeditation, attack, assault and use personal violence upon one CHARLIE FERNANDEZ Y DE GUZMAN, by then and there stabbing the latter twice with a bladed weapon on the chest, thereby inflicting upon him mortal stab wounds which were direct and immediate cause of his death thereafter. Contrary to law. 16 At his arraignment, appellant pleaded not guilty to the crime charge. 17 Appellant put up the defense of alibi alleging that at 4:30 in the afternoon of August 17, 1990, he was having merienda with his wife and children at their home in 459 Miguelin Street, Sampaloc, Manila and could not possibly be near the Trabajo Market. 18 Appellant further testified that in the afternoon of November 15, 1990, he had an altercation with a woman in their neighborhood who caused his arrest for the crime of malicious mischief. He was detained for a few hours at Police Station No. 4. Later, police from WPD arrived and picked him up and brought him to the Homicide Section where he was investigated, interrogated and detained for the stabbing of one Charlie Fernandez on August 17, 1990. 19 After two (2) days, he was brought out of his cell where a man and two (2) women were made " to view" him. One of the women was the mother of the victim while the other one was someone he was not acquainted with. The latter was the witness against him who

pointed to him as the killer of Charlie in the police line-up. 20 Two days later, he was made to sign a document the contents of which he was not allowed to read. When he insisted on reading the document, his head was hit with a key and he was forced to sign it. The document was the booking and information sheet. 21 In this appeal, he makes the following assignment of errors: I.THE COURT A QUO GRAVELY ERRED IN NOT FINDING THAT THE ARREST, INVESTIGATION AND DETENTION OF THE ACCUSED-APPELLANT FOR THE OFFENSE CHARGED IN THE INSTANT CASE WAS VIOLATIVE OF HIS CONSTITUTIONAL RIGHTS. 22 II.THE COURT A QUO ERRED IN FINDING THAT TREACHERY ATTENDED THE KILLING OF THE DECEASED CHARLIE FERNANDEZ. 23 III.THE COURT A QUO GRAVELY ERRED IN ACCEPTING AT FACE VALUE THE VAGUE AND AMBIGUOUS TESTIMONY OF MILAGROS MARTINEZ AND UTILIZING SUCH INCONCLUSIVE TESTIMONY AS THE BASIS FOR CONVICTING THE ACCUSED-APPELLANT OF THE CRIME OF MURDER. 24 Anent the first error, appellant claims that his constitutional right against warrantless arrests was violated because "(t)here is nothing on record to show that (his) arrest . . . for the minor offense of malicious mischief was effected by virtue of a warrant." 25 Indeed, appellant's arrest on suspicion that he was involved in the killing of Charlie Fernandez was made almost three (3) months after the commission of the crime on August 17, 1990 and only after he had been taken in police custody for a minor offense. As such, because no warrant had been obtained during the 3-month intervening period between the commission of the crime and his apprehension, his arrest would have ordinarily been rendered unconstitutional and illegal inasmuch as even warrantless arrests made within shorter periods like ten (10) days 26 are illegal. The element of immediacy between the time of the commission of the offense and the time of the arrest had not been complied with. It should be stressed that Section 5(b) of Rule 113 of the Rules of Court has excluded situations under the old rule which allowed a warrantless arrest provided that the offense "has in fact been committed." 27 While these arguments may be valid, appellant's claim that the case

against him should be dismissed for violation of his constitutional rights, must fail. Appellant is estopped from questioning the legality of his arrest considering that he never raised this before entering his plea. Any objection involving a warrant of arrest or the procedure in the acquisition of jurisdiction over the person of an accused must be made before he enters his plea, otherwise, the objection is deemed waived. 28 This is the first time that appellant is raising this issue as he did not even move for the quashal of the information before the trial court on the ground of illegal arrest. 29 Consequently, any irregularity attendant to his arrest, if any, had been cured by his voluntary submission to the jurisdiction of the trial court when he entered his plea and participated during the trial. 30 Verily, the illegal arrest of appellant is not a sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint and where the trial was free from error. 31 Neither may appellant successfully asset that the case should be dismissed because during custodial investigation and the police line-up he was deprived of his constitutional right to counsel. To bolster his assertion, appellant quotes, People v. Campos 32 and People v. Vasquez, 33 where the Court in effect held that during custodial investigation, an accused should be assisted by counsel. Those cases, however, should be distinguished from the case at bar because in the former, the extrajudicial confessions of the accused during custodial investigation were the only bases for conviction, unlike in this case where there are other pieces of evidence by which the culpability of the appellant may be founded. Moreover, in People v. Lamsing, 34 the Court categorically stated as follows: Finally, although it is not assigned as error, accused-appellant complains that he was made to join a police lineup where he was identified by three persons, including Elizabeth De los Santos, without the assistance of counsel. It was settled in Gamboa v. Cruz (G.R. No. 56291, June 27, 1988, 162 SCRA 642, 651), however, that the right to counsel guaranteed in Art. III, Section 12(1) of the Constitution does not extend to police lineups because they are not part of custodial investigations. The reason for this is that at that point, the process has not yet shifted from the investigatory to the accusatory. The accused's right to counsel attaches only from the time that adversary judicial proceedings are taken against

him. 35 (Emphasis supplied.) lexlib In the same vein, appellant may not validly claim that dismissal of the case against him should be a matter of course because he signed the booking and information sheet without the assistance of counsel. Granting that affixing the signature of an accused is covered by the constitutional mandate requiring assistance of counsel to an accused during custodial investigation, this piece of evidence may be disregarded without the least diluting the prosecution's case against appellant. The booking and information sheet is not the only incriminatory evidence against appellant. What needs scrutiny is the testimony of eyewitness Milagros Martinez. In assailing the testimony of Milagros, appellant points out that it is flawed by inconsistencies on material matters such as while she testified that she did not know the identity of the other assailants, she could delineate appellant's features his curly hair, mustache and piercing ("nanlilisik") eyes. 36 On the very material point of identification of appellant as the perpetrator of the crime, she testified as follows: FISCAL PERALTA: Did you come to know the name of that person whom you said (was) the victim of that stabbing? WITNESS: A certain Charlie, sir. FISCAL PERALTA: What about that person whom you identified a while ago as the one who stabbed the victim Charlie? When did you come to know the name David Salvatierra? WITNESS: When I went to the Homicide Section and there was a police lineup made by the police officers there consisting of eight (8) persons and I was made to point to that person who stabbed the victim and I pointed to that person, sir. FISCAL PERALTA: Could you recall, Madam Witness, when was that police lineup conducted? WITNESS: November 17, 1990, sir.

FISCAL PERALTA: Now, the incident happened on August 17, 1990. Why is it that it was only November 17, 1990 that you identified the assailant David Salvatierra? WITNESS: Because he was not yet arrested and I was also afraid, sir. xxx xxx xxx FISCAL PERALTA: Now, that person whom you said you saw stabbed the victim together with two (2) other companions and the person whom you pointed to in the police lineup conducted by the police on November 17, 1990, if you see him again, can you still identify him? WITNESS: Yes, sir. FISCAL PERALTA: Will you please look around the courtroom and point to him? COURT: Fiscal, what are you asking this witness? FISCAL PERALTA: The one who was pointed to by the witness in the police station during the police lineup because she already identified the accused as the one who stabbed, Your Honor. FISCAL PERALTA: (to the Witness) Will you please point to him? WITNESS: That person, sir. INTERPRETER: Witness pointed to a persons (sic) who, when asked, stated his name as David Salvatierra. 37 Even on cross-examination, she remained steadfast on the issue of identification of appellant. Thus:

ATTY. CORTES: What pecularities (sic) did these companions of Salvatierra have that could possibly help you identify them when you see them again? WITNESS: When those persons will be showed (sic) to me, I could remember their faces, sir. I just do not know how to describe their appearances but whenever they will be showed (sic) to me, I could possibly identify them, because of my low educational attainment. ATTY. CORTES: Not even their noses, you could not describe? WITNESS: I could not tell you, sir, but I fully remember him. INTERPRETER: Witness is pointing to the Accused. WITNESS: (continuing) Because he has a moustache and he has a curly hair and at that time, sir, his eyes were fiercing (sic) 'nanlilisik.' 38 From this testimony, it is clear that although Milagros did not know appellant's name, she remembered his features and recognized him as the perpetrator of the crime. Indeed, she could not have failed to identify him because she was only eight (8) meters away when the assault occurred. Visibility was not a problem because while there were some pedestrians in the area, traffic was light and could not have obstructed Milagros' view. Furthermore, it was 4:30 in the afternoon when the day was still bright. Aside from the said "inconsistency" regarding the identity of the perpetrators of the crime, appellant points to other "inconsistencies" in her testimony such as: (a) she first testified that the three persons "met" the victim in the sense that, as appellant puts it in his brief, "the three (3) persons and the victim were walking towards each other until they met," but later she said that they were only standing on that occasion; (b) she claimed that she "never told anyone" about the incident and yet Marciano Fernandez was able to locate her, (c) although no one knew the identity of the assailant, Milagros went to Police Station No. 4 upon appellant's apprehension, to identify him; (d) Marciano Fernandez asked her to testify on November 16, 1990 and they went to the police the following day;

while on the other hand, the police, through Pat. Amores, testified that Milagros and Fernandez went to the police station as early as November 15, 1990; and (e) it was impossible for Milagros to have remembered the features of appellant considering the lapse of time between the commission of the crime and appellant's arrest because, contrary to the trial court's finding, she was not so startled by the incident that she continued vending after its occurrence. 39 Obviously geared at derailing the eyewitness' credibility, such "inconsistencies," however, are collateral matters which are too trivial and minor to affect the credibility of Milagros and the evidentiary value of her testimony. 40 Minor discrepancies in the testimony of a witness even enhances her credibility, as these minor discrepancies could also indicate that the response given by the witness was honest and unrehearsed. 41 In fact, when an unlettered person like Milagros testifies, inconsistencies in her testimony may be disregarded without impairing her credibility. cdtai The evidence actually shows that Milagros Martinez, an ambulant fish vendor who finished only Grade 3, was witness to the crime. She never told anybody about what she saw except to her daughter. How she was tracked down by Marciano Fernandez to testify intrigues appellant indeed. But this was a marketplace where people were at least familiar to each other since they were selling their wares regularly in said place and where word got around easily. It was, therefore, not highly improbable that word spread around pointing to Martinez as a possible witness. Martinez did not report the crime to the police immediately because she was afraid. Appellant was a known tough guy in the area. He was a member of the "Bahala Na Gang" and said to belong to a family of killers. 42 The trial court correctly observed that witnesses to a horrendous crime do not involve themselves by reporting the commission of such crimes because of the attendant and consequent peril to their lives and those of their loved ones. Unless the victims are relatives or close friends of such witnesses, the latter ordinarily keep mum about such incidents and attend to their usual business 43 just as what Milagros exactly did in this case. In crimes such as this, the police, as part of their investigatory work certainly had leads and knew more or less who the suspects were. All what was necessary was a credible witness to confirm their suspicions. Thus, when appellant was arrested, Milagros Martinez was persuaded by Marciano Fernandez to confirm if appellant was indeed the killer. cdasia Only sufficient proof of a sinister motive could have discredited Milagros

as a credible eyewitness. This the defense failed to provide. Its insinuations that Marciano Fernandez colluded with Milagros to pin down appellant as the killer of Charlie is bereft of factual foundation and, therefore, they serve no purpose. Having failed to prove such ill motive certainly demolished appellant's protestations on the credibility of the prosecution's sole eyewitness. Her testimony is thus entitled to full faith and credit 44 more so because Milagros was even presented by the defense as a hostile witness to prove that she "was not around during the incident. 45 Unfortunately, aside from a repetition of her story for the prosecution, the defense elicited no more than the added information that she did not inform the parents of the victim on what she saw because she and her children were afraid of the accused who belonged to a "family of killers." 46 Contrary to appellant's claim, treachery attended the killing of Charlie Fernandez. Appellant's claim that there was no treachery because two of the three assailants "did nothing" and that "the stabbing of the victim could probably be attributed to a whim or impulse and not a planned and deliberate act" 47 is too preposterous for comfort. Treachery is present when the offender adopts means, methods or forms in the execution of a felony, which insure its commission without risk to himself arising from the defense which the offended party might make. 48 The prosecution proved beyond reasonable doubt that all these elements were present in the case at bar. They were sufficiently proven by the testimony of Milagros Martinez whose credibility the defense failed to destroy. Appellants and his two (2) companions suddenly appeared, surrounded the victim and appellant stabbed him at least two times. The victim was unarmed. He did not provoke nor attack the assailants. He was alone walking on a street with people around. He had no inkling whatsoever that an assailant and his cohorts were lurking and about to assault him. The fact that the victim and the malefactors were facing each other during the assault does not negate the presence of treachery. Even a frontal attack can be treacherous when it is sudden and unexpected and the victim is unarmed. 49 Neither may the presence of "defense wounds" on the body of the victim rule out treachery, Charlie's act of parrying with his bare hands the first thrust inflicted by appellant was an instinctive reaction to an attack. After all, the law recognizes man's natural instinct to protect himself from impending danger. 50 The trial court correctly disregarded appellant's alibi. It is elementary that for alibi to prosper, credible and tangible proof of physical impossibility for the accused to be at the scene of the crime is indispensable. 51 Even if

the testimony of appellant's wife that the distance between the crime scene and their house was about twenty minutes' walk away, still, it was not impossible for appellant to be in the crime scene and return home for merienda not only by walking but by means of transportation like pedicabs and jeepneys which abounded in the area. 52 The killing of Charlie Fernandez, being qualified by treachery, constituted murder as defined and penalized by Article 248 of the Revised Penal Code punishable by reclusion perpetua in the absence of any aggravating or mitigating circumstances. 53 The proper imposable penalty being an indivisible one, appellant shall not benefit from the provisions of the Indeterminate Sentence Law. 54 The trial court also correctly imposed actual damages of P30,183.25, which amount was duly proven 55 and not contested by the defense, apart from the civil indemnity of P50,000.00. WHEREFORE, the decision of the trial court convicting appellant David Salvatierra of the crime of murder for the killing of Charlie Fernandez is hereby AFFIRMED in toto. Costs de oficio. SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AARON FLORES @ "RONITO", SULPECIO SILPAO y ORTEGA @ "SULPING" and EDGAR VILLERAN y MAGBANUA, accusedappellants. DECISION YNARES-SANTIAGO, J p: Sgt. Wennie Tampioc, Detachment Commander of the 7th Infantry Brigade detailed at Barangay Tabu, Ilog, Negros Occidental, and three (3) members of the local Citizen Armed Force Geographical Unit (CAFGU) under his supervision, namely, Aaron Flores alias "Ronito", Sulpecio Silpao y Ortega alias "Sulping" and Edgar Villeran y Magbanua, were charged before the Regional Trial Court of Kabankalan, Negros Occidental, Branch 61, with Kidnapping and Serious Illegal Detention. The information charged as follows: That on or about the 29th day of September, 1992, in the Municipality of Ilog, Province of Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, armed with high powered firearms conspiring, confederating and helping one another, by means of force, violence and intimidation, did then and there, willfully, unlawfully and feloniously take, kidnap, detain and keep under guard one SAMSON SAYAM y GEPANAO from Km 117, Hda. Shangrella (sic), Brgy. Tabu, of the above-named municipality, and bring the latter to their detachment at Brgy. Tabu, under restraint and against his will, without proper authority thereof, thereby depriving said victim of his civil liberty since then up to the present. CONTRARY TO LAW. 1 All the four accused pleaded "Not Guilty" when arraigned. Trial ensued and, based on the testimonial evidence presented, the trial court found the following antecedent facts to be undisputed. On the night of September 29, 1992, the victim, Samson Sayam, was drinking beer at the store owned by Terry Cabrillos located at Barangay Tabu, Ilog, Negros Occidental. Sgt. Wennie Tampioc, Aaron Flores, Sulpecio Silpao and Edgar Villeran were at the same store drinking beer. Sayam joined the four accused at their table. Sometime later, all the accused and the victim left the store and walked towards the direction of the military

detachment headquarters. After the accused left the store with Samson Sayam, witnesses heard a single gunshot followed by rapid firing coming from the direction of the detachment headquarters. 2 That was the last time Samson Sayam was seen, and despite diligent efforts of Sayam's mother and relatives, he has not been found. It was the prosecution's contention that on that fateful evening, all four accused hatched a conspiracy to kidnap the victim and thereafter detain him at the detachment headquarters. They allegedly succeeded in their plot and, the prosecution avers, to this day the accused have not released Samson Sayam. All the accused, however, vehemently denied committing the acts charged. The trial court held that the testimonial evidence failed to prove beyond reasonable doubt the existence of a conspiracy among the four accused. More specifically, the prosecution failed to show an apparent common design by and among the accused to kidnap and detain Samson Sayam against his will. Thus, the trial court proceeded to determine the individual liabilities of the four accused based on the degree of their participation in the commission of the offense charged. The trial court gave credence to the prosecution's evidence that Samson Sayam was seen being forcibly dragged out of the store and pulled towards the direction of the detachment headquarters by accused Aaron Flores, Sulpecio Silpao and Edgar Villeran. Since Samson Sayam had not been seen nor heard from since then, the trial court held that the three accused were responsible for the former's disappearance. As regards Wennie Tampioc, the trial court found that he left the store ahead of the three (3) co-accused and, thus, had nothing to do with the disappearance of Samson Sayam. Notably, none of the prosecution witnesses specifically or categorically mentioned Tampioc as among those who actively participated in bringing Samson Sayam by force to their headquarters. Unlike his co-accused who are natives of the place of the incident, Wennie Tampioc was newly assigned as Detachment Commander and did not know Samson Sayam, such that no ill-motive was attributed to him by the trial court. Likewise, the testimonies of prosecution witnesses Nelson Golez, on the one hand, and that of Carlos Manlangit, on the other hand, conflict as to the kind of firearm allegedly carried by Tampioc. While Golez stated that he was armed with an Armalite rifle, 3 Manlangit testified that Tampioc was armed with a short firearm. 4 More importantly, the trial court found that the identity of Sgt. Tampioc as one of the perpetrators of the crime was doubtful, because notwithstanding the fact that Nelson Golez knew Wennie Tampioc even before September 29, 1992, 5 the original complaint filed before the

Municipal Circuit Trial court of Ilog Candoni, dated October 21, 1992, which was based on the affidavits of Golez and Carlito Manlingit, did not mention Wennie Tampioc as one of the respondents. The said affidavits merely mentioned an "unidentified member of the 7th IB, Philippine Army, assigned at Brgy. Tabu, detachment." At the time of the execution of the affidavits, the witnesses could have known that Wennie Tampioc was a sergeant, and that he was a commander of the detachment. Finally, the straightforward and emphatic manner in which Wennie Tampioc testified inspired belief in the trial court's mind. 6 On December 8, 1993, the trial court rendered the assailed judgment, the dispositive of which states: WHEREFORE, premises considered, this Court finds the accused Aaron Flores, Edgar Villeran and Sulpecio Silpao GUILTY beyond reasonable doubt of the crime of kidnapping and serious illegal detention as defined and penalized in Article 267 of the Revised Penal Code and are each sentenced to suffer the penalty of Reclusion Perpetua; and there being no proof that Samson Sayam is dead, they are ordered to pay him jointly and severally, or in the alternative, his heirs the sum of Fifty Thousand (P50,000.00) Pesos as damages, without subsidiary imprisonment in case of insolvency and to pay the costs of this suit. The accused Wennie Tampioc is ACQUITTED on grounds of reasonable doubt. The bail bonds of the said accused are ordered cancelled and the convicted accused ordered confined pending appeal if they so file an appeal, in accordance with Administrative Circular No. 292, dated January 20, 1992 of the Supreme Court. SO ORDERED. 7 Two (2) separate appeals were brought before us. Accused-appellant Sulpecio Silpao raised the following errors: I.THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT SULPECIO SILPAO OF THE CRIME OF KIDNAPPING AND SERIOUS ILLEGAL DETENTION, UNDER ARTICLE 267, REVISED PENAL CODE. ETHSAI

II.THE TRIAL COURT ERRED IN HOLDING THE ACCUSED-APPELLANT CAFGU SULPECIO SILPAO, AS AMONG THOSE WHO FORCIBLY BROUGHT SAMSON SAYAM TO THEIR HEADQUARTERS IN THE EVENING OF 29 SEPTEMBER 1992 AND RESPONSIBLE FOR SAMSON SAYAM'S DISAPPEARANCE. III.THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT CAFGU SULPECIO SILPAO GUILTY BEYOND REASONABLE DOUBT OF THE OFFENSE CHARGED. On the other hand, accused-appellants Aaron Flores and Edgar Villeran interposed a joint appeal based on the sole error that: THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANTS AARON FLORES AND EDGAR VILLERAN GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF KIDNAPPING AND SERIOUS ILLEGAL DETENTION BASED ON CIRCUMSTANTIAL AND INSUFFICIENT EVIDENCE. After a thorough review of the facts and evidence adduced before the trial court, we find that accused-appellants should be acquitted of the offense charged against them. The crime of Kidnapping and Serious Illegal Detention is defined and penalized under Article 267 of the Revised Penal Code, as amended by Republic Act No. 7659. The elements of the offense are: 1.That the offender is a private individual. 2.That he kidnaps or detains another, or in any other manner deprives the latter of his liberty. 3.That the act of detention or kidnapping must be illegal. 4.That in the commission of the offense, any of the following circumstances are present: (a)That the kidnapping or detention lasts for more than 3 days; (b)That it is committed simulating public authority;

(c)That any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or (d)That the person kidnapped is a minor, female or public officer. 8 Clearly, accused-appellants cannot be charged with or convicted of the crime of Kidnapping and Serious Illegal Detention, since the first element of the said crime is that the offender must be a private individual. In the case at bar, accused-appellants were members of the local CAFGU at the time the alleged crime was committed. The CAFGU was created pursuant to Executive Order No. 264 for the purpose of complementing the operations of the regular force formations in a locality. 9 It was composed of civilian volunteers who were tasked to maintain peace and order in their localities, as well as to respond to threats to national security. As such, they were provided with weapons, and given the authority to detain or order detention of individuals. 10 The Solicitor General recognizes the error of charging and convicting accused-appellants of Kidnapping and Serious Illegal Detention for the reason that the appellants are not private individuals, but public officers. As such, the Solicitor General submits that, under the facts alleged, accused-appellants can only be liable for the crime of Arbitrary Detention, defined and penalized in Article 124 of the Revised Penal Code. The prosecution maintains that inasmuch as all the other elements of Arbitrary Detention were alleged in the criminal information filed against the accused-appellants, they may still be convicted of said crime. Arbitrary detention is committed by any public officer or employee who, without legal grounds, detains a person. 11 Since it is settled that accusedappellants are public officers, the question that remains to be resolved is whether or not the evidence adduced before the trial court proved that Samson Sayam was arbitrarily detained by accused-appellants. As far back as the case of U.S. v. Cabanag, 12 it was held that in the crime of illegal or arbitrary detention, it is essential that there is actual confinement or restriction of the person of the offended party. The deprivation of liberty must be proved, 13 just as the intent of the accused to deprive the victim of his liberty must also be established by indubitable proof. 14 In the more recent case of People v. Fajardo, 15 this Court reiterated the ruling in U.S. v. Cabanag, i.e., there must be uncontroverted

proof of both intent to deprive the victim of his liberty, as well as actual confinement or restriction. Detention is defined as the actual confinement of a person in an enclosure, or in any manner detaining and depriving him of his liberty. 16 A careful review of the records of the instant case shows no evidence sufficient to prove that Samson Sayam was detained arbitrarily by accused-appellants. While the prosecution witnesses testified that accused-appellants were seen walking with Samson Sayam toward the direction of the detachment headquarters, there is no shred of evidence that he was actually confined there or anywhere else. The fact that Samson Sayam has not been seen or heard from since he was last seen with accused-appellants does not prove that he was detained and deprived of his liberty. The prosecution, however, argues that Samson Sayam was deprived of his liberty when accused-appellants forced him to go with them when they left the store of Jerry Cabrillos and brought him to the detachment headquarters. We assayed the testimonies of the prosecution's main witnesses, namely, Carlito Manlangit and his son Jerry Manlangit. Carlito Manlangit's testimony was offered to prove that Samson Sayam was forcibly taken from the store and that the latter tried his best to free himself from his abductors. And yet, all that Carlito testified to was that he saw Samson Sayam crossing the street alone from the store of a certain Moleng; that the four accused, who were armed, followed Sayam and asked for his residence certificate; that the four accused apprehended Samson Sayam and brought him to the detachment headquarters; and that he went home after he saw Samson Sayam talking to the accused. 17 It is readily apparent that Carlito Manlangit's testimony failed to prove the stated purpose thereof, i.e., that Samson Sayam was taken forcibly to the detachment headquarters. To be sure, the witness did not state that Samson Sayam was pulled, dragged, or coerced to go with accusedappellants. Neither did he say that Samson Sayam was taken at gunpoint. There is also no relevant testimony to the effect that Samson Sayam tried his best to free himself from the clutches of accused-appellants. For if that were the truth, the reactions of Carlito Manlangit do not conform to human experience. If he really witnessed Samson Sayam being apprehended, forcibly taken, and trying to free himself, it cannot be logically explained why Carlito Manlangit just went home, 18 instead of doing anything to help Samson Sayam. He admitted that he did not immediately report the incident to the authorities. 19 More telling is the absence of testimony to the effect that Samson Sayam was being taken to the detachment headquarters against his will, that he was protesting his apprehension, or that he was asking for help, considering that there were

other people within hearing and seeing distance. Most damaging is Carlito Manlangit's statement that he did not see Samson Sayam in the detachment headquarters with any or all of the accused. 20 In fine, Carlito Manlangit's testimony failed to prove that Samson Sayam was arbitrarily detained or deprived of his liberty. Jerry Manlangit, son of Carlito, also testified for the prosecution. According to him, he and Samson Sayam went to Barangay Tabu to have a sack of palay milled on September 29, 1992. At around six in the evening, while on their way home, they passed by the store of Terry Cabrillos to buy kerosene. There, he saw the four accused drinking beer. Samson Sayam told him to go home because he had to show his residence certificate and barangay clearance to accused-appellant Aaron Flores. Jerry Manlangit then proceeded to his residence in Hacienda Shangrila, located about half a kilometer away from the center of Barangay Tabu. Later, he told his father that Samson Sayam stayed behind and asked him to fetch Samson. He also testified that he heard gunshots coming from the direction of the detachment headquarters. 21 The testimony of Jerry Manlangit does not prove any of the elements of the crime of arbitrary detention. Neither does it support nor corroborate the testimony of his father, Carlito, for they dealt on a different set of facts. Jerry Manlangit did not see any of accused-appellant apprehend or detain Samson Sayam. He did not even see if accused-appellant Flores really inspected the residence certificate and barangay clearance of Samson Sayam. The rest of his testimony comprised of hearsay evidence, 22 which has no probative value. 23 In summary, Jerry Manlangit's testimony failed to establish that accused-appellants were guilty of arbitrary detention. The prosecution also presented the testimony of Nelson Golez, who identified the four accused as the persons with Samson Sayam, drinking inside the store of Terry Cabrillos. He also stated that following a heated argument, the accused and Samson Sayam left the store and went towards the direction of the detachment headquarters. He said that the accused were "holding and pulling" Samson Sayam "towards the road." Ten minutes later, Nelson Golez heard a single gunshot followed by rapid firing. 24 On cross-examination, however, Nelson Golez did not affirm his earlier statement that the accused and Samson Sayam were engaged in a heated argument. Rather, he said he did not hear them arguing as they were leaving the store. Although Nelson Golez attested that Samson Sayam was protesting while the accused were dragging him, he did not do anything to help Samson Sayam, who happened to be his cousin. 25 Again, no conclusion of guilt can be inferred from Nelson Golez's

testimony. First of all, he was unsure of his assertion that there was an argument. The mere fact that Samson Sayam was being dragged towards the road does not constitute arbitrary detention. There is no showing that Samson Sayam was completely deprived of his liberty such that he could not free himself from the grip of the accused, if he was indeed being held against his will. The incident transpired in a public place, where there were people milling about, many of whom were his friends. It is puzzling that Samson Sayam did not cry out for help. Nobody bothered to report the incident, if indeed it happened, to the barangay authorities. No one else came forward to corroborate the testimony of Nelson Golez. The testimony of Nelson Golez, by itself, lacks credibility. He wavered on material points, even as the prosecution failed to substantiate by direct or corroborative evidence the bare testimony of Nelson Golez. It is basic and elemental that in criminal prosecutions, before the accused may be convicted of a crime, his guilt must be proven beyond reasonable doubt. Although the findings of fact made by trial courts are generally not disturbed on appeal, if there are substantial facts which were overlooked but which may alter the results of the case in favor of the accused, such facts should be taken into account by the appellate court. 26 And where it appears that the trial court erred in the appreciation of the evidence on record or the lack of it, the factual findings of the trial court may be reversed. 27 After thoroughly reviewing the records of this case and weighing the testimonial evidence on the scale of creditworthiness and materiality, this Court finds the evidence of the prosecution grossly insufficient to sustain a conviction. Again, the fact of detention, whether illegal or arbitrary, was not clearly established by credible evidence. There was no showing that Samson Sayam was locked up, restrained of his freedom, or prevented from communicating with anyone. Likewise, there was no proof that there was actual intent on the part of accused-appellants to arbitrarily deprive Samson Sayam of his liberty. It is necessary that there must be a purposeful or knowing action by accused-appellants to restrain the victim by or with force, because taking coupled with intent completes the crime of illegal or arbitrary detention. 28 The prosecution, however, maintains that the evidence, even though circumstantial, sufficiently establishes the guilt of the accused-appellants. It cites the following circumstances: 1.On September 29, 1992, at about 6:00 o'clock in the evening, accused-appellants, together with their companions Sergeant Tampioc and fellow CAFGU

Sulpecio Silpao, were seen with Samson at the store of Terry Cabrillos. Accused-appellants were having a drinking spree. Later, they were seen engaged in a heated argument. 2.Thereafter, Samson was forcibly brought out of the store by accused-appellants by holding and pulling him towards the road. From another angle, another prosecution witness saw accusedappellants on the road arresting Samson. 3.Accused-appellants brought Samson towards the direction of the detachment of Brgy. Tabu. 4.Ten (10) minutes later, a gunshot was heard coming from the direction of the detachment followed by rapid firing. 5.After the incident, Samson was never seen again or heard from. 29 As already discussed, the above-enumerated circumstances were not established by clear and convincing evidence. And even if these acts were proven to be true, the combination of all these circumstances would still not be able to produce a conviction beyond reasonable doubt. To our mind, the totality of these circumstantial evidence do not constitute an unbroken chain pointing to the fair and reasonable conclusion that the accused-appellants are guilty of the crime charged. For circumstantial evidence to be sufficient to support a conviction, all the circumstances must be consistent with the hypothesis that the accusedappellants are guilty, and inconsistent with the possibility that they are innocent. 30 Thus: SECTION 4. Circumstantial evidence, when sufficient. Circumstantial evidence is sufficient for conviction if: a)There is more than one circumstance; b)The facts from which the inferences are derived are proven; and

c)The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. 31 The rule is clear that there must be at least two proven circumstances which in complete sequence leads to no other logical conclusion than that of the guilt of the accused. 32 It is admitted that Samson Sayam was seen drinking with accused-appellants on that fateful night. However, the circumstances that there was a heated argument among them, and that the accused-appellants held and pulled Samson Sayam to the road and brought him towards the direction of the detachment headquarters was not sufficiently proven by material or relevant testimony. Moreover, the circumstance that gunshots were heard on that night have no relevancy to the case. Even if it were, it cannot be concluded that the gunshots came from the direction of the detachment headquarters. The witnesses who testified that they heard the gunshots were at least half a kilometer away from the center of the barangay, while the detachment headquarters itself was also some distance from the barangay. At night, especially in the rural areas when all is quiet, loud sounds such as gunshots reverberate and would seem to come from every direction. An ordinary person a kilometer away cannot, with certainty, point to the exact location where the gunshots would be coming from. That would otherwise be attributing expertise on such matters to the prosecution witnesses. That Samson Sayam was never seen or heard from again cannot be the basis for the trial court to render judgment convicting the accusedappellants. In fact, it has no bearing in this case because it is not one of the elements of the crime of arbitrary detention. Consequently, only one relevant circumstance was proved, i.e., that accused-appellants were the last persons seen with Samson Sayam. However, said circumstance does not necessarily prove that they feloniously abducted him, then arbitrarily detained him. 33 Moreover, mere suspicion that the disappearance of Samson Sayam was a result of accused-appellants' alleged criminal acts and intentions is insufficient to convict them. Proof beyond reasonable doubt is the required quantum of evidence. 34 An uncorroborated circumstantial evidence is certainly not sufficient for conviction when the evidence itself is in serious doubt. 35 The prosecution was not able to prove a possible motive why accused-appellants would arbitrarily detain Samson Sayam. In sum, there is no unbroken chain of circumstances leading to the

conclusion that accused-appellants are guilty. Since the pieces of circumstantial evidence do not fulfill the test of moral certainty that is sufficient to support a judgment or conviction, the Court must acquit the accused. 36 In the recent case of People v. Comesario, 37 we had occasion to rule that: Accused-appellant's conviction by the trial court hinged on circumstantial evidence. To validly invoke circumstantial evidence, it must be shown that there is more than one circumstance and the facts from which the inferences are derived are proven. The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. The circumstances must constitute an unbroken chain of events that can lead reasonably to the conclusion pointing to the accused to the exclusion of all others as the author of the crime. Logically, it is where the evidence is purely circumstantial that there should be an even greater need than usual to apply with vigor the rule that the prosecution cannot depend on the weakness of the defense and that any conviction must rest on nothing less than a moral certainty of guilt of the accused. Like a tapestry made of strands which create a pattern when interwoven, a judgment of conviction based on circumstantial evidence can be upheld only if the circumstances proved constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as the guilty person. Accused-appellants enjoy the presumption of innocence until the contrary is proved. In the case at bar, the pieces of testimonial evidence relied on by the prosecution and the trial court to support a conviction have failed to overcome the constitutional precept of the presumed innocence of accused-appellants. Among other grounds, not only is there a lot of room for reasonable doubt in regard to their guilt, there is a virtual dearth of convincing evidence to prove that a crime had been committed. There is no need even to assess the evidence of the defense, for the prosecution bears the onus to distinctly and indubitably prove that a crime had been committed by accused-appellants. 38 It is incumbent upon the

prosecution to establish its case with that degree of proof which leads to no other conclusion but conviction in an unprejudiced mind. The evidence for the prosecution must stand or fall on its own merits for it cannot be allowed to draw strength from the weakness of the evidence for the defense. 39 Clearly, the prosecution in this case has failed to prove the guilt of accused-appellants beyond reasonable doubt. In similar cases, this Court has often and consistently ruled that it is better to acquit a guilty person than to convict an innocent one. 40 WHEREFORE, the assailed decision is REVERSED and SET ASIDE. Accusedappellants are ACQUITTED. Unless being held or detained for some lawful reason, accused-appellants are ORDERED RELEASED immediately. The Director of Prisons is DIRECTED to inform this Court, within five (5) days from notice, of the date and time when accused-appellants are released pursuant to this Decision. SO ORDERED.