G.R. No. 128966 August 18, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

EDWIN DE VERA y GARCIA, RODERICK GARCIA y GALAMGAM, KENNETH FLORENDO and ELMER CASTRO,accused, EDWIN DE VERA y GARCIA, appellant. PANGANIBAN, J.: When is a lookout deemed an accomplice and when a conspirator? What is the distinction between the two? Statement of the Case These are the main questions passed upon by the Court in resolving the present appeal, which assails the March 12, 1997 Decision1 of the Regional Trial Court of Quezon City (Branch 57) in Criminal Case No. Q-92-31323, finding Appellant Edwin De Vera and Accused Roderick Garcia guilty beyond reasonable doubt of murder and sentencing them to reclusion perpetua. In an Information dated June 11, 1992, Assistant City Prosecutor Tirso M. Gavero charged with murder Appellant Edwin De Vera, together with Roderick Garcia and two other persons who were subsequently identified during the trial as Kenneth Florendo and Elmer Castro. The crime was allegedly committed as follows: That on or about the 8th day of June, 1992, in Quezon City, Philippines, the said accused, conspiring [and] confederating [with] and helping . . . two (2) other persons, did then and there wilfully, unlawfully and feloniously with intent to kill, with evident premeditation, treachery and use of superior strength, attack, assault and employ personal violence upon the person of one FREDERICK CAPULONG y DIZON, by then and there shooting him with the use of a .22 cal. with trade mark "Paspar Armas" bearing SN-29069 with five (5) pieces of caliber 22 ammo inside, hitting him between his eyes and striking him with the use of a baseball bat in the mouth, thereby inflicting upon him serious and mortal wounds which were the direct and immediate cause of his untimely death, to the damage and prejudice of the heirs of the said Frederick Capulong y Dizon.2 On July 9, 1992, Assistant City Prosecutor Enrico P. Bringas filed a Motion to Amend the Information to include the use of a .32 caliber firearm in the killing of Frederick Capulong. The trial court granted the Motion, and the Amended Information now reads as follows: That on or about the 8th day of June, 1992, in Quezon City, Philippines, the said accused, conspiring [and] confederating [with] and helping . . . two (2) other persons, did then and there wilfully, unlawfully and feloniously with intent to kill, with evident premeditation, treachery and use of superior strength, attack, assault and employ personal violence upon the person of one FREDERICK CAPULONG y DIZON, by then and there shooting him with the use of a .22 cal. with trade mark "Paspar Armas" bearing SN-29069 with five (5) pieces of caliber 22 ammo inside and a .32 cal. firearm of still undetermined make, hitting him between his eyes and striking him with the use of a baseball bat in the mouth, thereby inflicting upon him serious and mortal wounds which were the direct and immediate cause of his untimely death, to the damage and prejudice of the heirs of the said Frederick Capulong y Dizon.3

On their arraignment, Appellant Edwin De Vera4 and Roderick Garcia5 pleaded not guilty. The other two accused were at large. Trial in due course proceeded only against De Vera and Garcia. Thereafter, the trial court rendered the assailed Decision, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered finding the accused EDWIN DE VERA y GARCIA and RODERICK GARCIA y GALAMGAM guilty beyond reasonable doubt of the crime of MURDER and they are hereby accordingly sentenced to suffer reclusion perpetua, including all its accessory penalties; to indemnify the heirs of Frederick Capulong y Dizon, as follows: a) P50,000.00, as death indemnity; b) P211,670.00, as compensatory damages; c) P600,000.00, as indemnification for loss of earning capacity; d) P500,000.00, as moral damages; e) Interest at the legal rate on a) and b), hereof from the filing of the information until full payment; and, f) Costs of suit.16 Only Edwin De Vera filed a Notice of Appeal.7 The Facts Version of the Prosecution In its Brief,8 the Office of the Solicitor General presented the following narration of facts:9 As earlier stated, the prosecution presented an eyewitness in the person of Bernardino Cacao, a resident of Denver Loop Street, Filinvest II, Quezon City before he moved to No. 58 Elisa Street, Caloocan City. He was residing at Filinvest II, together with his wife and children, at the time of the incident on June 28, 1992 in the house owned by David Lim. He was then employed at a Kodak branch in Caloocan City, while his wife served as secretary of the homeowners association.1wphi1.nt About 1:30 in the afternoon of June 8, 1992, while bringing out the garbage, the witness saw a car passing by, driven by victim Frederick Capulong together with four (4) other passengers. He knew the victim by name who was a resident of the subdivision. He recognized and identified two of the passengers as Kenneth Florendo and Roderick Garcia, both familiar in the subdivision. Cacao did not at first notice anything unusual inside the car while it passed by him, but then he heard unintelligible voices coming from the car as it was cruising around Denver Loop Street, a circular road whose entrance and exit were through the same point (ibid, p. 12). His curiosity taking [the] better part of him, Cacao walked to the opposite side of the road from where he saw the car already parked. Moments later, he saw the victim dragged out of the car by Florendo and brought to a grassy place. Florendo was holding a gun (ibid, p. 13). Upon reaching the grassy spot, Florendo aimed and fired the gun at the victim, hitting him between the eyes, After the shooting, Florendo and his companions fled in different directions.

When he submitted a sworn statement to the investigating prosecutor, Cacao attached a sketch of the crime scene prepared by police officers, indicating therein his relative position at the time of the incident. While testifying in court, Cacao identified Garcia and pointed to appellant as among the companions of Florendo. Ten minutes later, or about 2:40 in the afternoon, the desk officer of the Investigation Division, Station 5, Central Police District, Quezon City received a report about the shooting incident from a security guard of the subdivision. The officer immediately dispatched a team to Filinvest II, composed of PO2 Armando Garcia, PO3 Armando Junio, and PO3 Jovencio Villacorte, to investigate and gather evidence (TSN, p. 5, September 13, 1993). A security guard guided the team to the corner of Denver and Doa Justina Streets, site of the shooting, where they discovered blood stains and damaged grass (ibid, p. 6). The guard informed them that the victim was rushed to the East Avenue Medical Center by other security guards. The policemen then found a color red sports car with plate no. NBZ 869, with engine still running and its doors opened. They recovered inside the car several class cards and a license belonging to one Ric Capulong, who was later identified as Frederick Capulong. The policemen went around the subdivision to look for possible suspects. They came upon a person wearing muddled maong pants and white t-shirt "standing and walking around" near the clubhouse of the subdivision. When asked his name, the person identified himself as Edwin de Vera, herein appellant. Explaining the mud stains on his pants, appellant declared that he was a victim of a hold-up. Suspicious [of] his conduct, the policemen brought appellant to Station 5 and turned him over to the desk officer for investigation. Another prosecution witness, SPO3 Mario Guspid, a police investigator since 1989, was assigned to investigate the shooting of Frederick Capulong. He was assisted by SPO4 Pablito Selvido, SPO2 Armando Rivera, SPO3 Jovencio Villacorte, SPO3 Rolando Gacute, SPO3 Danilo Castro and other police officers. Upon receiving his assignment, SPO3 Guspid immediately went to the East Avenue Medical Center where he saw the victim lying inside the intensive care unit receiving medical treatment. The victim was unconscious. After conferring with the victim's parents and relatives, SPO3 Guspid returned to Station 5. On his arrival, the desk officer referred appellant to him for questioning. He was told that appellant was picked up near the crime scene acting suspiciously. When appellant was asked about his participation in the shooting, he was reluctant at first to talk, but later relented after SPO3 Guspid told him that his conscience would bother him less if he would tell the truth. Without any hesitation, appellant admitted being [with the] group which perpetrated the crime, and implicated Roderick Garcia. He was then persuaded to accompany a group of policemen to the residence of Garcia, which turned out to be at Doa Justina Street, Filinvest II Subdivision. Finding Garcia at home, SPO3 Guspid informed him that he was implicated by appellant [in] the crime. He was then invited to the station to shed light [on] the incident. Garcia consented. At Station 5, SPO3 Guspid interviewed appellant and Garcia. In the course of the interview, Garcia revealed the place where he hid a .22 caliber gun, black t-shirt and black cap. According to Garcia, Florendo asked them to wear black t-shirts. With the revelation, SPO3 Guspid, SPO2 Rivera, SPO3 Gacute and SPO3 Castro, together with the suspects, went back to the subdivision and proceeded to a grassy portion near the boundary of Filinvest II and San Mateo, Rizal. The place was near a creek and about 50 meters away from the residence of Garcia

(TSN, pp. 9-14, September 30, 1993). Truly, the policemen recovered a .22 caliber revolver, black t-shirt and black cap (TSN, pp. 12-13, August 24, 1993).While there, SPO3 Guspid and SPO2 Rivera prepared a sketch of the crime scene to reflect the explanations and answers given by appellant and Garcia in response to their questions. As identifying marks, SPO3 Gacute placed his initials "OG" (acronym for his first name and family name) between the handle and cylinder of the gun, and on the neck of the t-shirt, as well as in the inner lining of the black cap. From the crime site, the policemen and the suspects returned to Station 5 where SPO3 Guspid asked them if they were willing to give their written statements, to which they assented. Consequently, they were brought to the Integrated Bar of the Philippines, Quezon City Chapter, at Malakas Street, Diliman, Quezon City. They were then introduced to Atty. Confesor Sansano, the [c]hairman of the Free Legal Aid of the IBP. Also, present at that time were appellant's relatives, including his mother and sisters, and other lawyers of the IBP. SPO3 Guspid inquired from them if they would agree to be assisted by Atty. Sansano, "a competent lawyer." They replied in the affirmative. Thereafter, the two conferred with Atty. Sansano. Atty. Sansano, a rebuttal witness of the prosecution, testified that upon arrival of the suspects [i]n his office, he requested the policemen, as a matter of policy, to step outside the building in order to assure that no pressure would be exerted on the suspects even by their mere presence (TSN, p. 6, November 6, 1996). After they left, Atty. Sansano interviewed the suspects for about twenty minutes, informing them of their rights under the constitution and inquiring from them if they indeed wanted to give voluntary statements. To the query, the suspects answered positively. They also affirmed their earlier declaration that they were willing to be assisted by the IBP (ibid, pp. 8-9). He further advised them of their right during the investigation to answer or not to answer the questions which they thought would incriminate them, but they retorted that they fully understood their right. Satisfied that they were not coerced or threatened to give their statements, Atty. Sansano requested the suspects to show their upper bodies to enable him to determine any telltale signs of torture or bodily harm. Finding no such signs, he then summoned the policemen to re-enter the building. The investigators readied two typewriters and each suspect was assigned to an investigator. He served as the lawyer of the suspects, cautioning them against answering questions that they did not understand, and to seek . . . a clarification, if needed. According to Atty. Sansano, the interrogation took place in his office, a single separate room from where his five staff members were visible. He sat between the two tables used by the investigators for typing the questions and answers, involving himself from beginning to end of the investigation until the signing of the statements. He never left the office to attend to anything else, consistent with [the] standing policy of the IBP to properly safeguard the rights of suspects during investigation. He recalled that the investigators first typed the headings of the statements, then informed the suspects before starting the investigation about their rights under the constitution, specifically, the right of the suspects to have a lawyer of their own choice; if not, the police would provide them with one who would assist them; that they could answer or refuse to answer the questions. The investigators also asked him if he was willing to serve as counsel of the suspects. They

also asked the suspects if they were willing to accept him as their counsel. They agreed expressly by saying: "Oho." SPO3 Guspid investigated Garcia while SPO4 Selvido investigated appellant. They conducted the question and answer investigation in Pilipino. The statement of appellant was marked as Exhibit O and that of Garcia was marked as Exhibit N. The statements were signed by the suspects and Atty. Sansano. For his part, SPO4 Selvido declared that SPO3 Guspid requested his help in taking the statements of the suspects (TSN, p. 4, June 29, 1993). He took the statement of appellant in the presence of Atty. Sansano. Before proceeding, he reminded appellant of the constitutional warnings, consisting of four (4) questions under the heading "Paunawa," to which the latter gave positive answers. The statement was signed by appellant and Atty. Sansano. After taking down the statement, he turned over appellant to SPO3 Guspid. Following the investigation, the policemen brought the suspects to the Philippine National Police Crime Laboratory for paraffin testing. The result: "both hands of Edwin de Vera y Garcia @ Boy/Bong gave positive results [in] the test for gunpowder nitrates while both hands of Roderick Garcia y Galamgam @ Deo gave negative result [in] the test for gunpowder nitrates." After coming from the crime laboratory, SPO3 Guspid contacted the mother of the victim to get her own statement. Next, he obtained a death certificate and prepared a referral to the Quezon City Prosecution Office which was signed by Senior Inspector Ernesto Collado, Chief of the Station Investigation Division. During the inquest, the prosecutor asked the suspects some clarificatory questions. Surveillance and follow-up operations were conducted against Florendo and his other companion, Elmer Castro. However, the two were never arrested and brought to trial. Version of the Defense Appellant claims that he had no part in the killing, and that it was Kenneth Florendo who had shot the victim. He avers that he merely accompanied to Filinvest the other accused and Florendo, who was his friend, upon the latter's request. A few hours after the shooting incident, appellant was picked up by the police, who subsequently tortured and coerced him into signing his Statement regarding the incident. The trial court summarized appellant's evidence in this wise:10 Edwin de Vera admitted that, as of June 8, 1992, he and Kenneth Florendo were already close friends for about a year, sometimes sleeping in the latter's house at No. 106 Kamias Road, Quezon City. His own residence at the time was at No. 7 Bignay Street, Project 2, Quezon City. That was also the address of Elmer Castro, his and Kenneth's friend. Edwin had slept in Kenneth's house on Kamias Road from June 6 to June 8, 1992 and went home at 7:00 am of June 8th Later at around 10:30 am, Kenneth passed by Edwin's house to invite him back to [the former's] house that morning and to bring Elmer along. Kenneth mentioned that he, his girlfriend, and Deo, who were then with him, would be going somewhere first. Deo, or Roderick Garcia, was another friend of Kenneth's.

Edwin and Elmer later went to and arrived at Kenneth's house at 11:00 am. Kenneth, his girlfriend, and Deo were already taking lunch, and invited the two to lunch. After lunch, Kenneth asked Edwin to go with him to Filinvest without telling why. It was Deo who mentioned to Edwin that Kenneth was going to see a friend. Edwin was not aware if Kenneth had also asked the others to go with him to Filinvest, but the four of them Kenneth, Edwin, Elmer, and Deo later proceeded to Filinvest [i]n Kenneth's car. Edwin sat at the back seat. The time was past 12:00 noon. Kenneth drove his car. Upon reaching Filinvest, Kenneth stopped at a house and the four of them alighted in front of the house. Edwin did not know whose house it was. Kenneth and Elmer told Edwin and Deo to wait near the car because they were going to see a friend. At that point in time, Edwin knew the person[,] whom Kenneth and Elmer went to see[,] by name, never having met him personally before then. From his conversation with Deo, Edwin found out that the house was where Deo stayed. Then, Edwin heard the voices of Kenneth and his friend and they appeared to be arguing (". . . . parang nagtatalo sila") The voices came from some twenty-two (22) meters away. Not before long, Edwin also heard a gunshot which came from where Kenneth and Elmer had gone to. He was shocked because he was not used to hearing gunfire. Frightened, he panicked and ran away from the place. His singular thought while running was to get out of Filinvest. Deo also ran away. Edwin denied that either he or Deo carried any firearm on that occasion. Edwin was arrested by the police at past 2:00 p.m. when he was already outside of Filinvest subdivision in front of Batasan. He was brought to Station 5 where four (4) persons in civilian attire tortured him by forcing him to lie down on a bench, tying his feet together and binding his hands from his back with handcuffs, and then covering his face with a piece of dirty cloth into which water was poured little by little into his face and mouth, while one of them sat on his thighs. This maltreatment lasted for about 20 or 25 minutes, because they wanted him to admit "something" and to name "my companions" but he refused to admit or to name anyone. They next took him outside to a mango tree where they repeated his ordeal for 30 minutes. At one point during the torture, a policeman untied his feet and hands and poked a gun to his temple, telling him to run as it was his chance to escape, but he did not escape because he could see that they were merely frightening him. None of the policemen told him that he could . . . get a lawyer[;] instead, one of them, whose name he [did] not know, told him that "I should listen only to them and not to anyone else." He claimed that he saw one [of] his tormentors in court, and he identified him as police officer Rivera. Guspid did not participate in his torture, because he merely took down his statement. His tormentors were not drunk or under the influence of drugs, but Guspid seemed to be under the influence of drugs when he took his statement because of his troubled appearance. Edwin was not advised to inform or call any of his relatives. Before his torture, his request to contact his relatives or lawyer was turned down. His intimidation continued (". . . . puro pananakot and ginawa nila sa akin"). After his torture at the mango tree, he was returned inside and thrown into a cell, where he remained until the following day (June 9th). During the night, an inmate named Cesar boxed him once in the upper body upon instruction of a policeman. He was not given any dinner.

At around noontime of the next day (June 9th), Edwin was taken out of the cell and brought to the IBP office by police officers Guspid and Selvido. Also with them were Deo Garcia and two other police officers. At the IBP office, the officers talked with one of the lawyers there, whom Edwin came to know to be Atty. Sansano only after the lawyer was introduced ("present") to him and Deo. That was the first he met and saw Atty. Sansano. Atty. Sansano informed both Edwin and Deo that they had the choice whether to talk or not. Edwin could not make any comment because "wala po ako sa sarili ko". Then, Atty. Sansano warned Edwin substantially that: "Alam n'yo ba na ang salaysay na ito ay maaring hindi ninyo sumpaan," referring to the statement taken from Edwin by officers Guspid at around past 8 p.m. until 9 p.m. on the day before (June 8, 1992) at the police station. He was not assisted by counsel, and had no relatives present. Guspid appeared to be "like drunk or tipsy," when he took down Edwin's statement that night." At the IBP office, Edwin's and Deo's statement were taken separately by Guspid and Selvido, respectively. At the time, Edwin and Deo were about six (6) meters from each other, but he could hear what was being asked of Deo. Guspid asked the questions and typed both the questions and his answers, which were given in Tagalog. All the while, Atty. Sansano was inside his office, which was about seven (7) meters away from where he and Guspid were situated. The office of Atty. Sansano was separated by a divider, so that he could not see what Atty. Sansano was doing at the time. After the questioning, he signed a paper which he was not able to read. He did not see Atty. Sansano sign the paper. xxx xxx xxx

On July 14, 1992, Edwin executed a so-called salaysay ng pagbabawi ng sinumpaang salaysay, which he swore to before Prosecutor Tobia of Quezon City, for the purpose of recanting his statements given at the precinct in the evening of June 8, 1992 and at the IBP office on June 9, 1992 on the ground that they were given under coercion, intimidation, and in violation of his constitutional rights. Ruling of the Trial Court Based on the testimony of Eyewitness Bernardino Cacao, the trial court ruled that it was indeed Kenneth Florendo who had actually shot the victim, Roderick Capulong. It convicted appellant as a principal, however, because "the scientific and forensic findings on the criminal incident directly and substantially confirmed the existence of conspiracy among the four [accused], namely, Kenneth Florendo, Elmer Castro, Edwin de Vera, and Roderick Garcia.11 The Issues Appellant submits for the consideration of this Court the following alleged errors: I THE TRIAL JUDGE ERRED IN NOT FINDING THAT PROSECUTION EYE-WITNESS BERNARDO CACAO HAD TESTIFIED TO NO CRIMINAL ACT OF APPELLANT; II THE TRIAL JUDGE ERRED IN FINDING AND CONCLUDING THAT THERE WAS A CONSPIRACY TO KILL THE VICTIM AND THAT APPELLANT WAS A CO-CONSPIRATOR;

III THE TRIAL JUDGE ERRED IN ADMITTING EXHIBIT "O", ALLEGED STATEMENT OF APPELLANT; AND IN NOT DECLARING THE SAME AS AN INADMISSIBLE EVIDENCE CONSIDERING THE BARBARIC MANNER UNDER WHICH IT WAS EXTRACTED/OBTAINED FROM THE APPELLANT WHICH VIOLATED THE LATTER'S CONSTITUTIONAL RIGHTS; IV THE TRIAL COURT ERRED IN NOT FINDING AND DECLARING THAT THE PROSECUTION HAS NOT PROVED THE APPELLANT'S GUILT BEYOND REASONABLE DOUBT AND IN NOT ACQUITTING THE APPELLANT.12 In the main, the Court will resolve three questions: (1) the sufficiency of the prosecution evidence, (2) the admissibility of appellant's extrajudicial statement, and (3) the nature of his liability. The Court's Ruling The appeal is partly meritorious. Appellant should be convicted only as an accomplice, not as a principal. First and Third Issues: Sufficiency of Prosecution Evidence and Appellant's Liability Because the first and the third questions mentioned above are interrelated, they shall be discussed jointly. Eyewitness Account In ruling that there was conspiracy between Florendo, Castro, Garcia and Appellant De Vera, the trial court relied mainly on the testimony of Eyewitness Cacao. Specifically, it based its conclusions on the following facts: appellant was seen with the other accused inside the victim's car; the victim was clearly struck with a blunt object while inside the car, and it was unlikely for Florendo to have done it all by himself; moreover, it was impossible for De Vera and Garcia to have been unaware of Florendo's dark design on Roderick. We disagree. It is axiomatic that the prosecution must establish conspiracy beyond reasonable doubt.13 In the present case, the bare testimony of Cacao fails to do so. Cacao testified that he saw Appellant De Vera in the car, where an altercation later occurred. Thereafter, he saw Florendo drag out of the vehicle an apparently disabled Capulong and shoot the victim in the head moments later. Cacao's testimony contains nothing that could inculpate appellant. Aside from the fact that he was inside the car, no other act was imputed to him. Mere presence does not amount to conspiracy.14 Indeed, the trial court based its finding of conspiracy on mere presumptions, and not on solid facts indubitably indicating a common design to commit murder. Such suppositions do not constitute proof beyond reasonable doubt. As the Court has repeatedly stated, criminal conspiracy must be founded on facts, not on mere surmises or conjectures. Clearly, Cacao's testimony does not establish appellant's culpability.

Appellant's Extrajudicial Statement Aside from the testimony of Cacao, the prosecution also presented Appellant De Vera's extrajudicial statement, which established three points. First, appellant knew of Kenneth Florendo's malevolent intention. T: Ito bang balak ni Kenneth para patayin itong si Frederick ay alam mo ba ito at pumayag kang maging kasapakat nito? S: Sinabi po niya ito sa akin. Hindi po ako pumayag. Pero noong araw na iyon ay nagkahiyaan na lamang at napilitan akong sumama.15 Second, appellant's companions were armed that day, a fact which revealed the unmistakable plan of the group. T: Ikaw ba ay mayroong dalang armas noong hapon na iyo[n]? S: Wala po akong dalang armas. Pero itong si Kenneth ay mayroong dalang dalawang baril[,] sina Deo at Elmer ay wala. Pero noong naroroon na kami sa lugar ay ibinigay ni Kenneth ang isang baril niya kay Deo at itong si Elmer ay mayroong nang dalang baseball bat. Third, he cooperated with the other accused in the commission of the crime by placing himself at a certain distance from Kenneth and the victim in order to act as a lookout. This is clear from the following portion of his statement: S: Kabarkada ko po si Kenneth at dalawang araw po akong nakitulog sa kanila at noong araw ng June 08, 1992 ay sinabihan ako ni Kenneth Gumabao na huwag raw akong uuwi, dahil [mayroon] daw po kaming lakad. Pagkaraan ng ilang oras ay dumating naman itong si Roderick Garcia @ Deo at may sinabi sa kanya itong si Kenneth at sinabi naman ito sa akin ni Deo na kaysa raw maunahan siya ni Frederick Sumulong [sic] ay uunahan na raw po niya ito. Umalis po itong si Kenneth na kasama ang kanyang nobya at itong si Deo, para ihatid ang kanyang [sic] sa hospital at bago sila umalis ay sinabihan ako ni Kenneth na sunduin ko raw itong si Elmer Castro at magbhihai [magbihis] na rin daw ako at pagdating nila ay . . . lalakad na raw po kami. Mga ilang oras pa ay sinundo ko na itong si Elmer Castro at pagdating namin sa bahay nila Kenneth ay naroroon na itong si Kenneth at Deo. Matapos magpalit ng damit itong si Kenneth ay sumakay na kami sa kanilang kotse at nagtuloy sa kanilang katabing bahay at doon ay kumain kami. Pagkatapos noon ay umalis na kami at nagtuloy sa F[i]l-Invest. P[a]gdating namin sa isang lugar doon sa medyo malayo-layo sa bahay nila Deo ay bumaba na itong si Deo at Elmer at sila ay nagpunta doon sa lugar ng pinagbarilan para kunin ang bayad sa utang ni Fred[er]ick Capulong sa tiyuhin ni Deo P[a]gkaraan ng ilang minuto ay sumunod po kami ni Kenn[e]th sa lugar at ako ay naiwan nang medyo malayo-layo sa lugar upang tingnan kung mayroong darating na tao. Samantalang si Kenneth ay lumapit kina Deo at Frederick at kasunod noon ay nagkaroon ng sagutan itong si Kenneth at Frederick at nakita kong inaawat ni Deo itong si Kenneth. Hindi nakapagpigil itong si Kenneth at nasipa niya s[i] Frederick at kasunod noon ay binunot niya ang kanyang baril na kalibre .38 at pinaputukan niya ng isang beses itong si Frederick na noong tamaan ay natumba sa lupa. Lumapit si Elmer kina Kenneth habang binabatak ni Kenneth itong si Frederick at kasunod po noon ay lumapit sa akin si Deo at sinabihan ako na tumakbo na kami. Tumakbo na po kami, pero ako po ay nahuli ng mga

security guard ng Subdivision at itong si Deo ay nahuli naman sa kanilang bahay. Itong sina Kenneth at Elmer ay hindi pa nahuhuli.16 Appellant an Accomplice, Not a Conspirator In other words, appellant's presence was not innocuous. Knowing that Florendo intended to kill the victim and that the three co-accused were carrying weapons, he had acted as a lookout to watch for passersby. He was not an innocent spectator; he was at the locus criminis in order to aid and abet the commission of the crime. These facts, however, did not make him a conspirator; at most, he was only an accomplice. The Revised penal Code provides that a conspiracy exists when "two or more persons come to an agreement concerning the commission of a felony and decide to commit it." 17 To prove conspiracy, the prosecution must establish the following three requisites: "(1) that two or more persons came to an agreement, (2) that the agreement concerned the commission of a crime, and (3) that the execution of the felony [was] decided upon."18Except in the case of the mastermind of a crime, it must also be shown that the accused performed an overt act in furtherance of the conspiracy.19 The Court has held that in most instances, direct proof of a previous agreement need not be established, for conspiracy may be deduced from the acts of the accused pointing to a joint purpose, concerted action and community of interest.20 On the other hand, the Revised Penal Code defines accomplices as "those persons who, not being included in Article 17,21 cooperate in the execution of the offense by previous or simultaneous acts."22 The Court has held that an accomplice is "one who knows the criminal design of the principal and cooperates knowingly or intentionally therewith by an act which, even if not rendered, the crime would be committed just the same."23 To hold a person liable as an accomplice, two elements must be present: (1) the "community" of criminal design; that is, knowing the criminal design of the principal by direct participation, he concurs with the latter in his purpose;" and (2) the performance of previous or simultaneous acts that are not indispensable to the commission of the crime.24 The distinction between the two concepts needs to be underscored, in view of its effect on appellant's penalty. Once conspiracy is proven, the liability is collective and not individual. The act of one of them is deemed the act of all.25 In the case of an accomplice, the liability is one degree lower than that of a principal. Conspirators and accomplices have one thing in common: they know and agree with the criminal design. Conspirators, however, know the criminal intention because they themselves have decided upon such course of action. Accomplices come to know about it after the principals have reached the decision, and only then do they agree to cooperate in its execution. Conspirators decide that a crime should be committed; accomplices merely concur in it. Accomplices do not decide whether the crime should be committed; they merely assent to the plan and cooperate in its accomplishment. Conspirators are the authors of a crime; accomplices are merely their instruments who perform acts not essential to the perpetration of the offense. Thus, in People v. Castro,26 the Court convicted Rufino Cinco, together with two others, as a principal, although he had acted merely as a lookout. The Court held that "their concerted action in going armed and together to their victim's house, and there, while one stayed as a lookout,

the other two entered and shot the mayor and his wife, leaving again together afterwards, admits no other rational explanation but conspiracy." It may be noted further that Cinco executed a Sworn Statement that the three of them, together with some others, had planned to kill the victim on the promise of a P5,000 reward. In People v. Tawat et al.,27 the lookout, Nestor Rojo, was convicted as a principal for conspiring with two others. The Court ruled that the conspiracy was shown by their conduct before, during and after the commission of the crime. The Court also noted that, upon their arrest, they disclosed that they had intended to rob the victim's store and that they did so in accordance with their plan. In that case, it was clear that all three of them, including the lookout, were the authors of the crime. In People v. Loreno,28 the Supreme Court convicted all the accused as principals because they had acted in band. In acting as a lookout, Jimmy Marantal was armed at the time like the other conspirators, and he gave his companions effective means and encouragement to commit the crime of robbery and rape. Upon the other hand in People v. Corbes,29 the Court noted that Manuel Vergel knew of the criminal design to commit a robbery, and that he cooperated with the robbers by driving the vehicle to and from the crime scene. In convicting him as an accomplice and not as a conspirator, the Court observed that he was merely approached by one of the robbers who was tasked to look for a getaway vehicle. He was not with the robbers when they resolved to commit a robbery. When his services were requested the decision to commit the crime had already been made. In People v. Tatlonghari,30 the Court was asked to resolve the responsibility of some appellants who "knowingly aid[ed] the actual killers by casting stones at the victim, and distracting his attention." The Court ruled that they were accomplices and not co-conspirators, "[i]n the absence of clear proof that the killing was in fact envisaged by them." In People v. Suarez et al.,31 Wilfredo Lara merely introduced the gang of Reyes to Suarez who intended to perpetrate the crime with the help of the said group. In ruling that he was merely an accomplice, the Court noted that there was no evidence showing that he "took part in the planning or execution of the crime, or any proof indicating that he profited from the fruits of the crime, or of acts indicative of confederacy on his part." In People v. Balili,32 the Court convicted appellant as an accomplice, holding that "in going with them, knowing their criminal intention, and in staying outside of the house with them while the others went inside the store to rob and kill, [he] effectively supplied the criminals with material and moral aid, making him guilty as an accompliance." The Court noted that there was no evidence that he "had conspired with the malefactors, nor that he actually participated in the commission of the crime." In People v. Doble,33 the Court held that Cresencio Doble did not become a conspirator when he looked for a banca that was eventually used by the robbers. Ruled the Court: "Neither would it appear that Joe Intsik wanted to draft Crescencio into his band of malefactors that would commit the robbery more than Just asking his help to look for a banca. Joe Intsik had enough men, all with arms and weapons to perpetrate the crime, the commission of which needed planning and men to execute the plan with full mutual confidence of each other, which [was] not

shown with respect to appellants by the way they were asked to look and provide for a banca just a few hours before the actual robbery." In the present case, Appellant De Vera knew that Kenneth Florendo had intended to kill Capulong at the time, and he cooperated with the latter. But he himself did not participate in the decision to kill Capulong; that decision was made by Florendo and the others. He joined them that afternoon after the decision to kill had already been agreed upon; he was there because "nagkahiyaan na." This is clear from his statement, which we quote again for the sake of clarity: T: Ito bang balak ni Kenneth para patayin itong si Frederick ay alam mo ba ito at pumayag kang maging kasapakat nito? S: Sinabi po niya ito sa akin. Hindi po ako pumayag. Pero noong araw na iyon ay nagkahiyaan na lamang at napilitan akong sumama.34 Significantly, the plan to kill could have been accomplished without him. It should be noted further that he alone was unarmed that afternoon. Florendo and Garcia had guns, and Castro had a baseball bat. In any event, the prosecution evidence has not established that appellant was part of the conspiracy to kill the victim. His participation, as culled from his own Statement, was made. after the decision to kill was already a fait accompli. Thus, in several cases, the Court has held: [L]ack of complete evidence of conspiracy, that creates the doubt whether they had acted as principals or accomplices in the perpetration of the offense, impels this Court to resolve in their favor the question, by holding . . . that they were guilty of the "milder form of responsibility," i.e., guilty as mere accomplices.35 Second Issue: Admissibility of Extrajudicial Statement Extrajudicial confessions must conform to constitutional requirements. Section 12, Article III of the Constitution, provides: (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. xxx xxx xxx

(3) Any confession or admission obtained in violation of this or section 17 hereof shall be inadmissible in evidence against him. If the confession meets these requirements, "it is subsequently tested for voluntariness, i.e., if it was given freely without coercion, intimidation, inducement, or false promises; and credibility, i.e., if it was consistent with the normal experience of mankind."36 Appellant claims that his extrajudicial statement was inadmissible, because it was not made in the presence of counsel. Although Atty. Confesor Sansano of the Quezon City IBP Legal Aid Committee purportedly assisted him and his co-accused in the execution of their extrajudicial

Statements, appellant asserts that the lawyer was in his office, not with them, at the time. Appellant adds that he was tortured. Appellant's claims must be rejected. Atty. Sansano testified that he did not leave them at any time. Q: You were involved in the interrogation from the very start? A: Yes, from the beginning to the end of the interview until the boys signed their statements. Q: Did you recall having at any time left your office to attend to some official matters? A: I never left the office to attend to anything. Q: Is that the usual manner by which you assist persons referred to you by the police insofar as custodial investigation is concerned? A: It is our policy that when we assist [in] that capacity, we [want] to see to it that the rights of the accused or suspects are properly [protected] during the course of the entire interrogation.37 In fact, Atty. Sansano even checked to see if there were torture marks on Appellant De Vera, and Garcia and interviewed the two to make sure that they understood what they were doing. Q: What was your purpose in asking the police officers to leave the room? A: My purpose in asking the police officers to step out of the building was to assure myself that no pressure could be exerted on the two boys by the presence of the police officers during my personal interview. Before we allow any police officers to take the statements of people brought before us[,] we see to it [that] we interview the persons personally out of hearing and sight of any police officer. Q: After the police officers left the room, completely left the room[,] you were able to interview the two accused namely Mr. de Vera and Mr. Garcia? A: Yes, I spent about 15 to 20 minutes interviewing the boys. Q: What was the nature of your initial interview with these two accused? A: I asked the boys Roderick and Edwin if it [was] true that they [were] going to give their own statements to the police? Q: And what did they say? A: They said yes, sir. Q: What was your reaction to that? A: Routinely[,] I informed them about their rights under the constitution. xxx xxx xxx

Q: Having obtained their answers, what next transpired? A: After telling them the statements they may give to the police could be used against them for a [sic] in any court of the Phil., I was satisfied that nobody coerced them, that they were never

threatened by anybody much less by the police officers to give these statements. Casually I asked the two boys to raise their upper clothes. xxx xxx xxx

Q: What was your purpose in requiring these persons to show you or remove their upper clothing? A: I wanted to assure myself that there were no telltale signs of torture or bodily harm committed on the[m] prior to their [being brought] to the office. In spite of their [personal] assurances . . . , verbal assurance that they were never hurt.38 The right to counsel is enshrined in the Constitution in order to address, among others, the use of duress and undue influence in the execution of extrajudicial confessions. 39 In the present case, the Court is satisfied that Atty. Sansano sufficiently fulfilled the objective of this constitutional mandate. Moreover, appellant's allegations of torture must be disregarded for being unsubstantiated. To hold otherwise is to statements at the mere facilitate the retraction of solemnly made statements of the mere allegation of torture, without any proof whatsoever. When an extrajudicial statement satisfies the requirements of the Constitution, it constitutes evidence of a high order, because of the strong presumption that no person of normal mind would deliberately and knowingly confess to a crime unless prompted by truth and conscience.40 The defense has the burden of proving that it was extracted by means of force, duress or promise of reward.41 Appellant failed to overcome the overwhelming prosecution evidence to the contrary. Sec. 3, Rule 133 of the Rules of Court, provides that "[a]n extrajudicial confession made by an accused shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti." In the present case, the prosecution presented other evidence to prove the two elements of corpus delicti: (a) a certain result has been proven for example, a man has died; and (b) some person is criminally responsible.42 It is indubitable that a crime has been committed, and that the other pieces of prosecution evidence clearly show that appellant had conspired with the other accused to commit the crime. He himself does not deny that he was at the crime scene. In fact, he was seen by the prosecution eyewitness in the company of the gunman. Furthermore, Atty. Sansano and the police officers testified to the voluntariness of his confession. It must be stressed that the aforementioned rule merely requires that there should be some other evidence "tending to show the commission of the crime apart from the confession."43 Criminal and Civil Liability In ruling that the crime committed was murder, the trial court found that the killing was attended by treachery, evident premeditation and abuse of superior strength. One of these was enough to qualify the crime as murder; the two others constituted generic aggravating circumstances. The lower court explained that the evidence established evident premeditation, for Florendo's group acted with deliberate forethought and tenacious persistence in the accomplishment of the criminal design. Treachery was also proven, because the attack was planned and performed in such a way as to guarantee the execution of the criminal design without risk to the group. There was also abuse of superior strength, because the attackers took advantage of their superiority in numbers and weapons.

We disagree with the court a quo in appreciating two generic aggravating circumstances, because treachery absorbs abuse of superior strength.44 Hence, there is only one generic aggravating circumstance, not two. Notwithstanding the presence of a generic aggravating circumstance, we cannot impose the death penalty, because the crime was committed before the effectivity of the Death Penalty Law. In the present case, the penalty of appellant as an accomplice is one degree lower than that of a principal, which in murder cases is reclusion temporal in its maximum period to death. He is also entitled to the benefits of the Indeterminate Sentence Law. We sustain the trial court's grant of P50,000 as indemnity ex delicto, which may be awarded without need of proof other than the commission of the crime. The award of P211,670 as compensatory damages was duly supported by evidence. Based on the evidence presented, moral damages is also warranted, but only in the amount of P50,000, not P500,000 as fixed by the trial court. Furthermore, we affirm the payment of interest. 45 However, the grant of P600,000 for loss of earning capacity lacks factual basis. Such indemnification partakes of the nature of actual damages, which must be duly proven.46 In this case, the trial court merely presumed the amount of Capulong's earnings. Since the prosecution did not present evidence of the current income of the deceased, the indemnity for lost earnings must be rejected. WHEREFORE, the appeal is hereby partially GRANTED. Appellant De Vera is CONVICTED as an accomplice, not as a principal, in the crime of murder. He is sentenced to an indeterminate prison term of 8 years and 1 day of prision mayor as minimum, to 14 years 8 months and 1 day of reclusion temporal as maximum. We AFFIRM the awards of: (a) P50,000 indemnity ex delicto, (b) P211,670 as compensatory damages and (c) interest of six percent per annum on these two amounts. The award of moral damages is however REDUCED to P50,000 and the award for the loss of earning capacity is DELETED. No pronouncement as to costs. SO ORDERED. Melo, Purisima and Gonzaga-Reyes, JJ., concur. Vitug, J., please see separate opinion. G.R. No. 130889 June 6, 2002 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NORBERTO LORENO, FELIX LEAL, SERAFIN RASCON, JOHN EDWARD LEYSA, and LARRY MOQUERIO,accused. JOHN EDWARD LEYSA, accused-appellant. QUISUMBING, J.: On appeal is the decision1 dated February 3, 1997 of the Regional Trial Court of Iloilo City, Branch 38, in Criminal Case No. 35871, finding appellants John Edward Leysa and Norberto Loreno guilty of murder and sentencing them to suffer the penalty of reclusion perpetua, and to pay the heirs of Igmedio Larupay jointly and solidarily the amount of P48,100 as actual damages and P50,000 as civil indemnity, and to pay the costs. The Information filed against Norberto Loreno, Felix Leal, Serafin Rascon, John Edward Leysa and Larry Moquerio reads as follows:

That on or about December 26, 1990, in the Municipality of Lambunao, Province of Iloilo, Philippines, and within the jurisdiction of this Court, the above-named accused, conspiring, confederating and mutually helping one another, armed with guns of different make, with treachery and evident premeditation and with a decided purpose to kill, did then and there wilfully, unlawfully and feloniously attack and shoot one Igmedio Larupay with the weapons they were then provided inflicting upon the latter gunshot wound on the vital part of his body which caused his death. CONTRARY TO LAW.2 During their arraignment, all the accused pleaded not guilty. Thereafter, trial ensued. The prosecution presented as witnesses Armando Castor, a CVO member; Dr. Eusebio Magbanua, the Rural Health physician who conducted the necropsy on deceased Igmedio Larupay; Sgt. Isidro Palma, who arrested the accused; Pat. Carlos Pagayon, who identified the police blotter entries; and Marina Larupay, wife of the victim, who testified on the expenses and damages she incurred as a result of her husbands death. ARMANDO CASTOR, testified that he was a member of the Civilian Volunteer Organization (CVO) in charge of peace and order in Lambunao, Iloilo City. On December 25, 1990, he and several others were sent by Sgt. Isidro Palma to patrol the area of Barangay San Gregorio where a dance was to be held to celebrate the eve of the barangay fiesta. Sgt. Palma was the Philippine Army detachment commander at Barangay Tranghawan, Lambunao, Iloilo City.3 At about 1:30 A.M. on December 26, 1990, while witness Armando Castor and his companions were about half a kilometer away from the dance floor, he heard a shot coming from the direction of the place where the dance was being held. He and his companions proceeded to the place and there they were informed by one Boding Lesada that it was Serafin Rascon who fired the shot. When they saw Serafin Rascon sitting near the entrance of the dance floor, they approached him. Castors group leader, Igmedio Larupay confiscated Serafin Rascons firearm. On their way back to their detachment at Barangay Tranghawan, Rascon prevailed over Igmedio Larupay to return to the dance hall and to settle the matter among themselves. Rascon and Larupay walked abreast with Castor behind them, about one arm length from Rascon. Upon reaching the dance hail, Castor saw Norberto Loreno and John Edward Leysa. Behind the two were Felix Leal and Larry Moquerio. Loreno was armed with a pistolized .12 gauge short firearm while Leal had a .20 caliber short firearm. Leysa and Moquerio also had short firearms but Castor did not recognize their make. According to Castor, he saw both Loreno and Leysa raise their firearms and shoot at them. Castor dropped to the ground as the shots were fired. He fired back but did not hit anyone. He noticed Igmedio Larupay lying dead on the ground with his face up. He then retrieved Larupays .22 caliber magnum revolver and other personal belongings. DR. EUSEBIO MAGBANUA testified that he conducted the necropsy on the body of the victim, Igmedio Larupay, and found a single gunshot wound, left mid-infra clovecular, 1 1/4 inch by 1 1/4 inch in circumference. There was no exit wound. He described the cause of death of Igmedio Larupay as cardio-respiratory arrest secondary to a gunshot wound.4 The suspects were arrested by the local CVO and Sgt. Palma.5 In their testimonies, accused NORBERTO LORENO,6 FELIX LEAL,7 SERAFIN RASCON,8 and LARRY MOQUERIO9admitted they were in the dance hall when they heard a gunshot. They

then heard from the people around that Igmedio Larupay was shot. They denied they were together at the dance, had firearms, and participated in the shooting. Appellant JOHN EDWARD LEYSA in his testimony denied he was in the dance hall when the incident happened. According to him, at around 5:00 P.M., December 25, 1990, he went to Barangay Walang to attend the wake of his aunt. He was there until December 26, 1990. Barangay Walang is about one kilometer away from Barangay San Gregorio.10 On February 3, 1997, the trial court rendered its decision finding Norberto Loreno and John Edward Leysa guilty of murder. Its dispositive portion reads: WHEREFORE, the court finds the accused, Norberto Loreno and John Edward Leysa, guilty beyond reasonable doubt for the crime of Murder penalized under Article 248 of the Revised Penal Code and hereby sentence each of them to suffer a penalty of Reclusion Perpetua. Further, both accused, jointly and solidarily, are ordered to pay the heirs of Igmedio Larupay the sum of P48,100.00 as actual damages and a civil indemnity of P50,000.00 by reason of the death of Igmedio Larupay. However, for failure of the prosecution to prove their guilt, accused, Felix Leal, Larry Moquerio and Serafin Rascon, are hereby acquitted for the crime charged. In view of herein conviction, the property bond of accused, Norberto Loreno and John Edward Leysa, are cancelled. No bail is available to both accused pending the finality of this judgment. Both shall remain in detention. Since accused, Felix Leal, Larry Moquerio and Serafin Rascon, are acquitted of the crime charged, their respective property bonds are automatically cancelled. The Clerk of Court is ordered to return the property bonds to their bondsmen duly receipted. Cost against the accused, Norberto Loreno and John Edward Leysa. SO ORDERED.11 Both Loreno and Leysa appealed their convictions. However, Norberto Loreno died on July 24, 1997. Hence, this appeal now concerns only appellant Leysa. In his Brief, appellant alleges the following errors: I. THE LOWER COURT ERRED IN GIVING CREDENCE TO THE LONE TESTIMONY OF ARMANDO CASTOR. II. THE LOWER COURT ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT JOHN EDWARD LEYSA. Simply, the issues concern is the credibility of the witness for the prosecution and the sufficiency of the evidence to convict appellant beyond reasonable doubt. Appellant argues that the testimony of Armando Castor, the lone eyewitness, should not be given credence since he did not actually see who shot the victim. He also assails Armandos credibility because he did not report the crime to authorities promptly. Appellant points out that the victim suffered only one gunshot wound and that the other witnesses testified that they only heard one shot. But witness Armando Castor claimed that both Norberto Loreno and appellant fired their guns at the victim. Further, appellant asserts that Norberto Loreno admitted sole

responsibility for the crime and exonerated appellant of any liability in a statement executed on March 25, 1997.12 For the appellee, the Office of the Solicitor General (OSG) argues that the lone eyewitness was credible and his testimony should be accorded full faith and credit. The OSG also claims that the affidavit executed by Norberto Loreno that became the basis for a motion for new trial filed on May 27, 1997,13 was not admissible in favor of appellant. The well-settled rule is that when the issue is one of credibility of witnesses, the appellate court will generally not disturb the findings of the trial court14 since the latter is in a better position to decide this issue.15 However, this rule is not absolute. It is subject to exceptions. One concerns a situation where the judge who penned the decision did not personally hear the evidence for the prosecution.16 In the present case, Judge David Alfeche, Jr., theponente, only inherited this case from Judge Amelita K. Del Rosario who conducted the trial and heard the witnesses testify. Another exception to the general rule is where substantial facts and circumstances have been overlooked which, if properly considered, would justify a different conclusion or alter the result of the case.17 In this case, we find that based on the evidence on record, the trial court misapprehended certain facts and failed to consider significant portions of the testimony of the witnesses. We shall now detail these misapprehended or neglected facts adduced during the trial that are, in our view, favorable to appellants cause. First, the trial court failed to consider Armando Castors testimony that he did not actually see who shot the victim. According to Armando: Q: You did not actually see them fire?

A: No, sir. I did not actually see as to who of them hit the victim because I was already on the ground face down.18 This at once creates an ambiguity and causes a doubt as to who really killed the victim. This doubt is exacerbated by the physical evidence19 showing that the victim suffered only one gunshot wound. This physical evidence reveals that only one shot resulted in the death of Igmedio Larupay. This evidence contradicts the testimony of Armando Castor to the effect that both Loreno and Leysa fired their guns. Moreover, the prosecution failed to show that spent bullets were found near the crime scene that would indicate that more than one shot were fired at the victim. It follows that only one gun and one gunman firing at the victim killed him with one bullet. Who this gunman is - whether it is appellant Leysa or his co-accused Norberto Loreno has not been ascertained. Nor could it now be determined, beyond a shadow of a doubt. Where the physical evidence on record runs counter to the testimonial evidence, the physical evidence, being paramount, prevails.20 We are unable to give credence to the testimony of Armando Castor that he saw both Loreno and Leysa fire their respective weapons when he himself said he was already face down on the ground when the two were about to fire. Patently, we are persuaded that he did not really see who shot the victim. As the evidence now stands, we are left to surmise whether Norberto Loreno or appellant Leysa fired the bullet that caused the death of the victim, Igmedio Larupay. Unfortunately, nothing on record could help us ascertain who of the two is legally responsible for Larupays death. For while in theory, conspiracy could tie both men to the crime, we find that the trial courts finding of

conspiracy is not supported by the evidence on record. Conspiracy must be proved. It cannot be surmised that conspiracy existed just because Norberto Loreno and appellant Leysa were both seen raising their arms and aiming at the victim. Conspiracy as a basis for conviction of appellant should be proved in the same manner as the criminal act.21 Althought direct proof is not essential,22 conspiracy must be shown to exist as clearly as the commission of the offense itself. It is a fundamental rule that a charge of conspiracy must be proven, just like any other criminal accusation, "independently and beyond reasonable doubt."23 Mere simultaneous aiming by appellant and his co-accused at the victim with their firearms does not by itself demonstrate concurrence of will or unity of action or purpose that could be a basis for their collective responsibility.24 The evidence of the prosecution only proves with certainty that appellant Leysa was present when the victim was killed. It does not prove beyond doubt who killed him. There is paucity of evidence that indicate, beyond a scintilla of a doubt, that appellant and Norberto Loreno shared a common design and a unity of purpose in killing Igmedio so as to make both responsible by reason of a conspiracy. There is even doubt whether both did fire at the victim. For the victim was hit only once; he suffered only one bullet wound. Accordingly, acquittal of John Edward Leysa is in order. His responsibility for the death of Igmedio Larupay has not been proven beyond reasonable doubt. WHEREFORE, the assailed decision of the Regional Trial Court of Iloilo City, Branch 38, in Criminal Case No. 35871, is hereby REVERSED and SET ASIDE. Appellant JOHN EDWARD LEYSA is ACQUITTED for insufficiency of evidence to prove his guilt beyond reasonable doubt. The Director of Prisons is ordered to release appellant JOHN EDWARD LEYSA, unless there are other lawful reasons for his confinement, and to furnish the Court, within 10 days from notice, proof of compliance with this order. SO ORDERED. 3) Go-Tan vs. Tan - GR No. 168852 [Principle of conspiracy applied to violence against women under RA 9262] G.R. No. 168852 September 30, 2008

SHARICA MARI L. GO-TAN, Petitioner, vs. SPOUSES PERFECTO C. TAN and JUANITA L. TAN, Respondents.* DECISION AUSTRIA-MARTINEZ, J.: Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the Resolution1 dated March 7, 2005 of the Regional Trial Court (RTC), Branch 94, Quezon City in Civil Case No. Q-05-54536 and the RTC Resolution2 dated July 11, 2005 which denied petitioner's Verified Motion for Reconsideration. The factual background of the case:

On April 18, 1999, Sharica Mari L. Go-Tan (petitioner) and Steven L. Tan (Steven) were married.3 Out of this union, two female children were born, Kyra Danielle 4 and Kristen Denise.5 On January 12, 2005, barely six years into the marriage, petitioner filed a Petition with Prayer for the Issuance of a Temporary Protective Order (TPO)6 against Steven and her parents-in-law, Spouses Perfecto C. Tan and Juanita L. Tan (respondents) before the RTC. She alleged that Steven, in conspiracy with respondents, were causing verbal, psychological and economic abuses upon her in violation of Section 5, paragraphs (e)(2)(3)(4), (h)(5), and (i)7 of Republic Act (R.A.) No. 9262,8 otherwise known as the "Anti-Violence Against Women and Their Children Act of 2004." On January 25, 2005, the RTC issued an Order/Notice9 granting petitioner's prayer for a TPO. On February 7, 2005, respondents filed a Motion to Dismiss with Opposition to the Issuance of Permanent Protection Order Ad Cautelam and Comment on the Petition,10 contending that the RTC lacked jurisdiction over their persons since, as parents-in-law of the petitioner, they were not covered by R.A. No. 9262. On February 28, 2005, petitioner filed a Comment on Opposition11 to respondents' Motion to Dismiss arguing that respondents were covered by R.A. No. 9262 under a liberal interpretation thereof aimed at promoting the protection and safety of victims of violence. On March 7, 2005, the RTC issued a Resolution12 dismissing the case as to respondents on the ground that, being the parents-in-law of the petitioner, they were not included/covered as respondents under R.A. No. 9262 under the well-known rule of law "expressio unius est exclusio alterius."13 On March 16, 2005, petitioner filed her Verified Motion for Reconsideration14 contending that the doctrine of necessary implication should be applied in the broader interests of substantial justice and due process. On April 8, 2005, respondents filed their Comment on the Verified Motion for Reconsideration 15 arguing that petitioner's liberal construction unduly broadened the provisions of R.A. No. 9262 since the relationship between the offender and the alleged victim was an essential condition for the application of R.A. No. 9262. On July 11, 2005, the RTC issued a Resolution16 denying petitioner's Verified Motion for Reconsideration. The RTC reasoned that to include respondents under the coverage of R.A. No. 9262 would be a strained interpretation of the provisions of the law. Hence, the present petition on a pure question of law, to wit: WHETHER OR NOT RESPONDENTS-SPOUSES PERFECTO & JUANITA, PARENTS-IN-LAW OF SHARICA, MAY BE INCLUDED IN THE PETITION FOR THE ISSUANCE OF A PROTECTIVE ORDER, IN ACCORDANCE WITH REPUBLIC ACT NO. 9262, OTHERWISE KNOWN AS THE "ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT OF 2004".17 Petitioner contends that R.A. No. 9262 must be understood in the light of the provisions of Section 47 of R.A. No. 9262 which explicitly provides for the suppletory application of the Revised Penal Code (RPC) and, accordingly, the provision on "conspiracy" under Article 8 of the RPC can be suppletorily applied to R.A. No. 9262; that Steven and respondents had

community of design and purpose in tormenting her by giving her insufficient financial support; harassing and pressuring her to be ejected from the family home; and in repeatedly abusing her verbally, emotionally, mentally and physically; that respondents should be included as indispensable or necessary parties for complete resolution of the case. On the other hand, respondents submit that they are not covered by R.A. No. 9262 since Section 3 thereof explicitly provides that the offender should be related to the victim only by marriage, a former marriage, or a dating or sexual relationship; that allegations on the conspiracy of respondents require a factual determination which cannot be done by this Court in a petition for review; that respondents cannot be characterized as indispensable or necessary parties, since their presence in the case is not only unnecessary but altogether illegal, considering the non-inclusion of in-laws as offenders under Section 3 of R.A. No. 9262. The Court rules in favor of the petitioner. Section 3 of R.A. No. 9262 defines ''[v]iolence against women and their children'' as "any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty." While the said provision provides that the offender be related or connected to the victim by marriage, former marriage, or a sexual or dating relationship, it does not preclude the application of the principle of conspiracy under the RPC. Indeed, Section 47 of R.A. No. 9262 expressly provides for the suppletory application of the RPC, thus: SEC. 47. Suppletory Application. - For purposes of this Act, the Revised Penal Code and other applicable laws, shall have suppletory application. (Emphasis supplied) Parenthetically, Article 10 of the RPC provides: ART. 10. Offenses not subject to the provisions of this Code. Offenses which are or in the future may be punishable under special laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws, unless the latter should specially provide the contrary. (Emphasis supplied) Hence, legal principles developed from the Penal Code may be applied in a supplementary capacity to crimes punished under special laws, such as R.A. No. 9262, in which the special law is silent on a particular matter. Thus, in People v. Moreno,18 the Court applied suppletorily the provision on subsidiary penalty under Article 39 of the RPC to cases of violations of Act No. 3992, otherwise known as the "Revised Motor Vehicle Law," noting that the special law did not contain any provision that the defendant could be sentenced with subsidiary imprisonment in case of insolvency. In People v. Li Wai Cheung,19 the Court applied suppletorily the rules on the service of sentences provided in Article 70 of the RPC in favor of the accused who was found guilty of

multiple violations of R.A. No. 6425, otherwise known as the "Dangerous Drugs Act of 1972," considering the lack of similar rules under the special law. In People v. Chowdury,20 the Court applied suppletorily Articles 17, 18 and 19 of the RPC to define the words "principal," "accomplices" and "accessories" under R.A. No. 8042, otherwise known as the "Migrant Workers and Overseas Filipinos Act of 1995," because said words were not defined therein, although the special law referred to the same terms in enumerating the persons liable for the crime of illegal recruitment. In Yu v. People,21 the Court applied suppletorily the provisions on subsidiary imprisonment under Article 39 of the RPC to Batas Pambansa (B.P.) Blg. 22, otherwise known as the "Bouncing Checks Law," noting the absence of an express provision on subsidiary imprisonment in said special law. Most recently, in Ladonga v. People,22 the Court applied suppletorily the principle of conspiracy under Article 8 of the RPC to B.P. Blg. 22 in the absence of a contrary provision therein. With more reason, therefore, the principle of conspiracy under Article 8 of the RPC may be applied suppletorily to R.A. No. 9262 because of the express provision of Section 47 that the RPC shall be supplementary to said law. Thus, general provisions of the RPC, which by their nature, are necessarily applicable, may be applied suppletorily. Thus, the principle of conspiracy may be applied to R.A. No. 9262. For once conspiracy or action in concert to achieve a criminal design is shown, the act of one is the act of all the conspirators, and the precise extent or modality of participation of each of them becomes secondary, since all the conspirators are principals.23 It must be further noted that Section 5 of R.A. No. 9262 expressly recognizes that the acts of violence against women and their children may be committed by an offender through another, thus: SEC. 5. Acts of Violence Against Women and Their Children. - The crime of violence against women and their children is committed through any of the following acts: xxx (h) Engaging in purposeful, knowing, or reckless conduct, personally or through another, thatalarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to, the following acts: (1) Stalking or following the woman or her child in public or private places; (2) Peering in the window or lingering outside the residence of the woman or her child; (3) Entering or remaining in the dwelling or on the property of the woman or her child against her/his will; (4) Destroying the property and personal belongings or inflicting harm to animals or pets of the woman or her child; and (5) Engaging in any form of harassment or violence; x x x. (Emphasis supplied)

In addition, the protection order that may be issued for the purpose of preventing further acts of violence against the woman or her child may include individuals other than the offending husband, thus: SEC. 8. Protection Orders. x x x The protection orders that may be issued under this Act shall include any, some or all of the following reliefs: (a) Prohibition of the respondent from threatening to commit or committing, personally or through another, any of the acts mentioned in Section 5 of this Act; 1avvphi1.net (b) Prohibition of the respondent from harassing, annoying, telephoning, contacting or otherwise communicating with the petitioner, directly or indirectly; x x x (Emphasis supplied) Finally, Section 4 of R.A. No. 9262 calls for a liberal construction of the law, thus: SEC. 4. Construction. - This Act shall be liberally construed to promote the protection and safety of victims of violence against women and their children. (Emphasis supplied) It bears mention that the intent of the statute is the law24 and that this intent must be effectuated by the courts. In the present case, the express language of R.A. No. 9262 reflects the intent of the legislature for liberal construction as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit - the protection and safety of victims of violence against women and children. Thus, contrary to the RTC's pronouncement, the maxim "expressio unios est exclusio alterius" finds no application here. It must be remembered that this maxim is only an "ancillary rule of statutory construction." It is not of universal application. Neither is it conclusive. It should be applied only as a means of discovering legislative intent which is not otherwise manifest and should not be permitted to defeat the plainly indicated purpose of the legislature.25 The Court notes that petitioner unnecessarily argues at great length on the attendance of circumstances evidencing the conspiracy or connivance of Steven and respondents to cause verbal, psychological and economic abuses upon her. However, conspiracy is an evidentiary matter which should be threshed out in a full-blown trial on the merits and cannot be determined in the present petition since this Court is not a trier of facts.26 It is thus premature for petitioner to argue evidentiary matters since this controversy is centered only on the determination of whether respondents may be included in a petition under R.A. No. 9262. The presence or absence of conspiracy can be best passed upon after a trial on the merits. Considering the Court's ruling that the principle of conspiracy may be applied suppletorily to R.A. No. 9262, the Court will no longer delve on whether respondents may be considered indispensable or necessary parties. To do so would be an exercise in superfluity. WHEREFORE, the instant petition is GRANTED. The assailed Resolutions dated March 7, 2005 and July 11, 2005 of the Regional Trial Court, Branch 94, Quezon City in Civil Case No. Q-05-54536 are hereby PARTLY REVERSED and SET ASIDE insofar as the dismissal of the petition against respondents is concerned. SO ORDERED.

4) People vs. Manabit - GR No. 72744-45 [Doctrine of Quasi-responsibility] G.R. Nos. 72744-45 April 18, 1997 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO alias Tony MANAMBIT, JAIME alias Jimmy MANAMBIT, FELICIANO alias Choy A. RANA, BENJAMIN alias Ben LACBAY, RAMON MAMURI and MAURICIO LLAMES, accused, JIMMY MANAMBIT, MAURICIO LLAMES and RAMON MAMURI, accused-appellants.

PANGANIBAN, J.: In the strong belief that vengeance must be sought in accordance with the Old Testament dictum of an "eye for an eye," the Manambit and the Samonte families engaged in what may loosely be called "war of attrition." Members of the two clans died or were seriously hurt one after the other in retributions with no one appearing to he gaining advantage. With this prevailing environment of animosity, these appealed criminal cases were prosecuted and are now before this Court. Motive having been established, the main issue that needs to be tackled is whether proof beyond reasonable doubt has been established to affirm the conviction of appellants. Appellants challenge the Decision dated October 4, 1985 of the Regional Trial Court of Laguna, Branch XXVI stationed at Santa Cruz, 1 disposing the consolidated Criminal Cases Nos. SC2209 and SC-2210, as follows; 2 WHEREFORE, the Court finds the accused JIMMY MANAMBIT guilty beyond reasonable doubt, as PRINCIPAL, in Criminal Case No. SC-2209, for MURDER, and, there being no mitigating circumstances, hereby sentences him to DEATH, by electric chair, and to pay the costs. In the same criminal case, the guilt of the accused MAURICIO LLAMES and RAMON MAMURI, as accomplices, have likewise been proven beyond reasonable doubt, and, there being no mitigating circumstances, the Court hereby sentences each to an indeterminate penalty of ten (10) years and one (1) day, as MINIMUM, to fourteen (14) years, ten (10) months and twenty-one (21) days, as MAXIMUM, with the accessory penalties provided by law, and to pay the costs. In Criminal Case No. SC-2210, for FRUSTRATED MURDER, the Court finds the accused JIMMY MANAMBIT guilty beyond reasonable doubt, as Principal, and hereby sentences him to an indeterminate penalty of ten (10) years, as MINIMUM, to seventeen (17) years and four (4) months, as MAXIMUM, with the accessory penalties provided by law, and to pay the costs. In the same criminal case, the guilt of the accused MAURICIO LLAMES and RAMON MAMURI, as accomplices, have likewise been proven beyond reasonable doubt, and they are hereby sentenced each to suffer an indeterminate penalty of four (4) years and two (2) months as MINIMUM, to ten (10) years as MAXIMUM, with the accessory penalties provided by law, and to pay the costs.

They are all sentenced further to pay jointly and severally the heirs of the deceased victim. Reynaldo Baldemora, P50,000.00 as actual and compensatory damages and P100,000.00 as moral damages; and, similarly, to pay jointly and severally the surviving victim. Hector Samonte, P200,000.00 as actual and compensatory damages and the further amount of P500,000.00 as moral damages; without subsidiary imprisonment in case of insolvency, in both instances. The accused ANTONIO (TONY) MANAMBIT, BENJAMIN LACBAY and FELICIANO (CHOY) A RANA are hereby ACQUITTED of both charges on ground of reasonable doubt, and the aboveentitled cases against them are hereby DISMISSED, with costs de oficio. After the promulgation of the Decision, the trial court issued an order directing the clerk of court to forward to this Court the original records and voluminous transcripts of stenographic notes of the consolidated cases in view of the imposition of the death penalty upon Jimmy Manambit. 3 Jimmy Manambit, nevertheless, filed his notice of appeal. 4 He is presently detained at the New Bilibid Prisons in Muntinlupa, Metro Manila. 5 Mauricio Llames and Ramon Mamuri filed a joint notice of appeal 6 band a petition for bail. 7 On October 15, 1985, the trial court granted the petition for bail, requiring from each of them bailbonds of P15,000.00 in Criminal Case No. SC-2209 and P10,000.00 in Criminal Case No. SC-2210 8 which they forthwith filed. 9 Since they had earlier been committed to the New Bilibid Prisons in Muntinlupa, Metro Manila, their release from custody was ordered upon approval of their bailbonds. 10 Appellant Jimmy Manambit's counsel of record and his new counsel failed to file a brief seasonably. 11 Hence, the Court appointed a counsel de oficio 12 for him in the person of Atty. Renaro L. Cayetano. 13 The Informations that were filed against the six (6) accused read: 14 Criminal Case No. SC-2209: That on or about August 29, 1978, in the Municipality of Pagsanjan, Province of Laguna, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above named accused, conspiring, confederating and mutually helping one another, with intent to kill, by means of treachery and by taking advantage of superior strength being then armed with unlicensed firearms, did then and there, willfully, unlawfully and feloniously, attack and shot at the back Reynaldo Baldemora who was then riding on a motorcycle driven by Hector Samonte and as a result thereof said Reynaldo Baldemora sustained a gunshot wound at the back causing the latter's death, to the damage and prejudice of the heirs of said Reynaldo Baldemora. Criminal Case No. SC-2210: That on or about August 29, 1978, in the Municipality of Pagsanjan, Province of Laguna, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above named accused, conspiring, confederating and mutually helping one another, with intent to kill, and by means of treachery and by taking advantage of superior strength being then armed with unlicensed firearms, did then and there, wilfully, unlawfully and feloniously, attach (sic) and shot (sic) Hector Samonte who was then driving a motorcycle towards the direction of Lumban, Laguna, coming from Pagsanjan, Laguna, and as a result thereof Hector Samonte sustained gunshot wounds at the left lumbar

region and right arm, which ordinarily would have caused his death, thus, the accused have performed all the acts of execution which would have produced the crime murder, but nevertheless was not produced by reason of causes independent of the will of the accused, that was the timely medical assistance rendered to said Hector Samonte which prevented his death. To the damage and prejudice of said Hector Samonte. All the accused pleaded not guilty to the crimes charged during arraignment. The Facts Evidence for the Prosecution At the joint trial of the two cases, the prosecution sought to prove the following facts: Prior to the incident in question. Hector Samonte, then around 36 years old, was a gravel and sand concessionaire with the Bureau of Mines. He also took charge of a coconut plantation for his brothers and sisters. Hector testified that at around 7 o'clock in the morning of August 29, 1978, in the company of Reynaldo Baldemora, he left his home in Rizal St., Lumban, Laguna. He drove a 70 cc. motorcycle with Reynaldo sitting behind him. They were bound for Magdalena to see a certain Cesar, a friend of Reynaldo. On their way to said place, they passed by the house of Tony Manambit in Barrio Maytalang Uno in Lumban. Hector saw Tony looking out from the window and making hand signals to Ramon Mamuri who was in the bahay pulungan nearby. Like Hector, Reynaldo saw Tony making gestures to Ramon. Hector and Reynaldo arrived in Magdalena at around 9 o'clock in the morning. They stayed in the place until about 1 o'clock in the afternoon. On their way back, Reynaldo drove the motorcycle. Upon reaching Buenavista, Hector noticed that Reynaldo could not drive the motorcycle properly, so he took over the driving. Approaching the Rapids Hotel in Pagsanjan, Hector remembered the suspicious signals of Tony to Ramon. He stopped the motorcycle, waiting for a vehicle going to Lumban with which they could travel along. He wanted company in traveling because "the group of Tony Manambit and Jimmy Manambit" were "bad men." Hence, Hector and Reynaldo traveled with a red car closely behind them. Upon reaching the Ala-ala Memorial Park, Hector saw Ramon seated along the edge of the highway. Choy Rana, who was ten (10) meters away from Ramon, was standing and making hand signals while facing the coconut plantation. Ramon and Choy were on the right side of the road to Lumban between the Ala-ala Memorial Park and the old Pagsanjan municipal cemetery. Looking at the direction Choy had made signals to, Hector saw four (4) armed men near the new municipal cemetery around nine (9) meters from the edge of the cemented road. Hector first saw Antonio Manambit (Tony), then Mauricio Llames, followed by Ben Lacbay and then Jimmy Manambit. As the four men stood up with firearms raised. Hector veered the motorcycle to the center of the road to Lumban because the "red" car was about to overtake him. He blocked the way of the car that was traveling on his right side. Just then he heard shots coming from the direction of the four armed men. Feeling that he had been hit, he accelerated the motorcycle but lost control of it. He fell on the left side of the road while Reynaldo fell on the right side. As he fell down, Hector saw Tony Manambit firing at them while Jimmy, Mauricio and Ben ran towards the river to a pathway to Maytalang, Lumban. Reynaldo crawled to the right some five

(5) meters away from Hector. Seeing a gun near Reynaldo, Hector crawled towards it and took it with his right hand. But because he could not raise his right arm, he transferred the gun to his left hand. He aimed the gun at Tony, but the latter moved away, so he returned to the left side of the road. A passing dump truck took him to the hospital. 15 Pat. Rustico Liwanag testified that he had gone to the scene of the crime near the boundary of Lumban and Pagsanjan with Pat. Alberto Baldemeca upon instructions of Pfc. 16 Benjamin Gaza. He took a jeepney bearing Atty. Zenon Samonte. When they arrived at their destination, PC 17 Sgt. Ramos was already there with some five (5) companions. Liwanag saw Reynaldo lying on the side of the road. With the permission of Sgt. Ramos, Liwanag loaded Reynaldo into the jeepney where Baldemeca held the latter. They brought Reynaldo to the Laguna Provincial Hospital. 18 While in the jeepney, Liwanag heard Baldemeca ask Reynaldo who the assailants were; Reynaldo answered that "he recognized only Tony Manambit" although the latter had other companions. 19According to Baldemeca himself, Reynaldo's reply was, "Sina antonio Manambit." 20 Liwanag learned that Hector was also in the hospital, so he told Baldemeca to stay with Reynaldo while he investigated Hector. Upon seeing the bloodied victim, Liwanag asked him who had shot him. Hector said that "he recognized Tony Manambit, Jimmy Manambit, Mauricio Llames, Ben Lacbay and Choy Rana." 21 Liwanag reduced in writing Hector's statement identifying the first four persons as the ones who had shot him and Rana as the one who had signaled to the assailants. 22 Because Hector's right arm was broken, Liwanag dipped the former's thumb in a bloody portion of his body and affixed the bloodstained thumbmark two times on the written document, 23 the contents of which Hector did not know. 24 One of the responding police officers, Pat. Antonio Abillo, testified that he had gone to the crime scene where he saw Hector's motorcycle and a car belonging to Fernando Gabatan blocking the road ("nakabara sa karsada"). 25Abillo asked the persons milling around who were responsible for the shooting but no one would tell him. 26 He made a sketch of the scene, 27 indicating the positions of the motorcycle and Gabatan's Toyota Corona car with plate number HG-719; the location of a tamarind tree where twenty (20) pieces of empty M16 shells were recovered, and the positions of the following items which were recovered near the motorcycle; a caliber .38 paltik, one carton containing 141 carbine ammunitions, 2 short carbine magazines, 1 long carbine magazine and 5 pieces of 12-gauge ammunition. According to M/Sgt. 28 Reynero Galarosa of the Criminal Investigation Service, aside from the 20 empty armalite shells which were recovered "in front of the Pagsanjan cemetery," the following items were turned over to them by the police; "12 slugs of armalite (bullets), one empty shell of caliber .45 (bullet) and one pistol .38 caliber, serial No. 351527 home made, one pistol, .45 home made Serial No. 167608, 5 live bullets of 12 gauge gun, 13-a Ammo, for caliber 30, carbine, 2 magazine(s) for carbine and one raincoat." 29 Patrolman Virgilio Brecinio made another sketch of the crime scene, 30 indicating that the green and white motorcycle was unregistered and that the Toyota car was blue. Several photographs were taken of the premises and the objects found there. 31 Hector's brother, Atty. Zenon Samonte, was supervising the construction of his house in Lumban when, at about ten minutes before 2 o'clock in the afternoon, one Villa Mercado told him that Hector had been shot at the cemetery of Pagsanjan. Zenon ran towards the municipal hall and hailed a passenger jeepney along the way. With his cousin, Teodoro Bacsafra, Zenon

boarded the jeepney. At the municipal hall, Zenon talked to Pat. Gaza who pointed him out to Pat. Rustico Liwanag. With Pat. Alberto Baldemeca, a certain Abadier and the driver, Zenon and Bacsafra proceeded to the place of the reported shooting incident, accompanied by Liwanag who had first dropped by his house to get his long firearm. Upon reaching the place, Zenon found that his brother was no longer around. Zenon berated PC Sgt. Ramos for just standing in front of Reynaldo instead of chasing the culprits. 32 They loaded Reynaldo into the jeepney where Zenon sat on the right side. Baldemeca, who was cuddling the head of Reynaldo, asked the latter in Tagalog who had shot him. According to Zenon, Reynaldo answered, "Magkapatid ni jimmy at Tony Manambit at iba." 33 At the hospital, after finding that his brother Hector was being attended to by a lady physician and two nurses, Zenon looked for a doctor to attend to Reynaldo. After going to Sta. Cruz to buy blood, he looked for an ambulance to transport the victims to Manila. After failing to get the ambulance of the "Hydrau" Construction Company at Lumban, Zenon went to Dr. Malaya to borrow an ambulance. He learned that it was about to be used by Fernando Gabatan, another victim in the shooting incident. It was only after the latter had granted him permission to use the ambulance that Zenon returned to the hospital. There, Zenon asked Hector who the perpetrators of the ambush were. Hector said that "he was able to recognize Antonio Manambit and Jimmy Manambit." 34 In the course of their conversation, Hector also named Ben Lacbay, Mauricio Llames and Ochoy Rana. 35 When Zenon approached Reynaldo, the latter told him to call his wife as he was about to die ("Attorney, tawagin mo ang asawa ko mamamatay ako"). To his question on whether he recognized who had shot him, Reynaldo answered that he "recognized the brothers Antonio and Jimmy Manambit and the rest" who were from Maytalang. Zenon immediately sent someone to fetch Reynaldo's wife. 36 However, when Rosita Baldemora arrived at the hospital at around 4:30 in the afternoon, her husband had been taken to the operating room. Dr. Dario Mag-iba assisted Dr. Alabastro in performing exploratory laparotomy on Reynaldo. Before wheeling him into the operating room, the doctors found that Reynaldo's blood pressure of 100 over 60 at 2:15 p.m. had gone down to "60 palpatory" at 3:30 p.m.. rendering him "hardly" able to communicate. In fact, at 3:00 p.m., his blood pressure was zero and therefore there was "no sign of life." Still, they proceeded with the operation. They found that Reynaldo had sustained one gunshot wound at the midlumbar region. The bullet which had entered Reynaldo's body from the back exited at the hypogastric region or the area below the navel, perforating his small intestines and lacerating the mesentery and the descending colon. Aside from that sole gunshot wound, Reynaldo also had a lacerated left ankle. 37 Twenty-eight-yearold Reynaldo died at 7:05 p.m. 38 His wife, who had gone home at around that time, received the news later by telephone. 39 Hector was taken to the Makati Medical Center where he was attended by Dr. Constantino Nuez, a medico-legal officer of the National Bureau of Investigation, among other doctors. Dr. Nuez found that Hector had sustained one gunshot wound on the left lumbar region. The bullet penetrated the intestine, completely transected the ileum, and exited at the left inguinal region. Without medical attendance, this wound would have caused Hector's death. Another wound shattered and comminutedly fractured the bones of Hector's upper right arm. 40 Evidence for the Accused

It was more than nine (9) months after the incident or on June 7, 1979, when the two aforequoted informations were filed. Later the accused, one by one, either surrendered or were arrested. At the trial, the defense interposed alibi and denial as defense, weaving them into the following version of the incident. After lunch on that fateful day, Antonio Manambit, allegedly one of the four gunmen, was at the house of Ka Maring Villegas in Maytalang. He was playing a card game called bukol or entrectiatro when he and his co-players heard successive shots. Ten minutes later, Rolly Alcantara arrived and told them that the exchange of shots had happened near the Pagsanjan cemetery. A few minutes later, Antonio left and went to the road where several people had converged looking at the direction of the place where the shooting had transpired. He learned that he was being implicated in the crimes only a little less than a year later. He surrendered to one Col. Sierra in Lucena City on July 15, 1980. 41 Antonio's alibi was corroborated by Margarita Sakay who had been among those playing cards within him. Margarita affirmed that Antonio left Ka Maring's house after they heard the shots. 42 Benjamin Lacbay, supposedly another gunman, was at the shop of Monark International in Caliraya, Lumban, Laguna, repairing the truck he was driving for the company, when the incident occurred. He started fixing the truck at about 1 o'clock in the afternoon and finished at around 4:00 p.m. 43 His alibi was supported by Danilo Badillo, former personnel administrative officer of said company, and Arturo Beltran, another former company driver. Feliciano Rana (also called "Ochoy" or "Choy"), who had reportedly made hand signals to his companions, was at the military detachment in Maytalang around 600 meters away from the cemetery, when the shooting occurred. He was then with Moring Llames, Francisco Lisma, Tosing Lacbay and Francisco Villanueva. Sgt. Ramos called him as he passed by the detachment. After entrusting to a helper the truck he was driving in delivering gravel and sand, he joined Sgt. Ramos who asked him to buy drinks as they already had food. After hearing gunshots, the military men left the area, with Sgt. Ramos dropping by first at the house of "Ate Minda" to make a telephone call. Afraid that he might get involved in the shooting, Rana stayed at the detachment. When Sgt. Ramos had left for the cemetery, people began milling around the detachment and on the highway. Rana was in front of the detachment when Sgt. Ramos returned with the news that Hector Samonte had been one of the victims in the shooting incident. 44 Sgt. Francisco Ramos, Sgt. Antonio Romilla and Guillermo Estrosa, another member of the Philippine Constabulary, corroborated Rana's story. Further corroborating Rana's alibi was his fellow accused Mauricio Llames, who was said to have been another one of the gunmen. He asserted that he, too, was at the military detachment, where he heard arrived ahead of Rana, when the shooting incident happened. He was there because it was his habit to converse with the constables when he had no work to do. After the incident, he stayed on at the detachment until around 4 o'clock in the afternoon, making inquiries about the said incident from people gathered around the detachment and on the street. It was about a year later that he learned of his implication in the crimes. By that time, he had gone to Manila to work. In July 1980, he surrendered to the Regional Command of Gen. Andres Ramos upon learning that an ASSO had been issued for his arrest in connection with the killing of one Judge Sobejana. 45 Ramon Mamuri, who was supposedly seated along the edge of the highway where the incident occurred, must have been 19 years old 46 at the time. He was repairing the roof of their house

along the path to the PC detachment in Maytalang between 8 o'clock in the morning and half past 4 o'clock in the afternoon on August 29, 1978. He was arrested almost a year later or in July 1980. 47 The person who could corroborate his story, Supre Villanueva, who had been with him as he repaired their house, died in 1980. Appellant Jaime Manambit, nicknamed "Jimmy," who was said to have been one of the four armed men, was around 23 years old on that fateful day. He said that he was in Nicolas Air Base from July 1978 until 1980. He was residing there because his wife was working with AVSECOM. 48 On August 29, 1978, he was at the chaplain's quarters arranging pieces of furniture. The chaplain, Fr. Rufino Oarga, was his mother-in-law's brother. He stayed in the quarters until lunchtime and went home thereafter as his two children had no companion at home. Fr. Oarga's testimony supported Jimmy's alibi. According to Fr. Oarga, in July 1978, when he learned of the troubles in Lumban involving the Manambit family, he advised Jimmy to stay with his wife who was then residing at Nichols Air Base. Thus, between 1 and 2 o'clock in the afternoon of August 29, 1978, Fr. Oarga supervised Jimmy as the latter fixed the table and chairs at the chapel of Nichols Air Base "particularly the whole afternoon." 49 To buttress their claim that the accused were not the perpetrators of the crimes, the defense presented 61-years-old Arturo de la Cruz, a mason who worked in the cemetery. At around 1 o'clock in the afternoon of August 29, 1978, Arturo was walking towards the cemetery when he heard a shot. He saw a masked man standing on an elevated place on the shoulder of the road by the tamarind tree. Because of the mask (kumpa), only his eyes were visible. He ran towards the direction of the Ala-ala Memorial Park. As he heard successive shots, Arturo dropped to the ground ("dumapa ako"). He had no way of knowing whether the masked man had a companion because he scampered in fear. 50 Testifying for the defense, Fernando Gabatan stated that he was seated on the front passenger seat of his car, talking to his driver as they crossed the border of Pagsanjan, when suddenly he heard shots muffled by the car's airconditioner. Stray bullets shattered the windshield in front of him. Thinking that he was the object of the assault, his driver pushed him down. The driver tried to stop the car but it did so only around a hundred meters away from the boundary of the two towns. Both of them rushed to the rice field nearby for cover. Later, Gabatan and his driver found out that the car had three flat tires and the bullet which had hit its rear back seat ricocheted to the engine. His driver was hit at the back by either a bullet or a shrapnel. When PC men arrived, they asked him whether he had seen the assailants but Gabatan told them that he had not because when the shooting occurred, he was busy talking with his driver. There was a second volley of gunshots when the PC men fired at the direction of the cemetery. 51 The Assignment of Errors To secure his acquittal, Appellant Jimmy raises the following assignment of errors: I. First: The trial court erred in finding that accused-appellant Jimmy Manambit's guilt was proven beyond reasonable doubt, in view of the fact that:
52

(A) The prosecution witnesses were biased and partial and their testimonies were flimsy unreliable and contradictory. (B) The identity of accused-appellant Jimmy Manambit as a participant in the shooting incident was not conclusively shown. (C) The three other accused, particularly Antonio Manambit, were acquitted based on the same evidence which the trial court used to convict accused-appellant Jimmy Manambit. (D) The trial judge who rendered the decision was not able to fully appreciate the demeanor and bias of the prosecution witnesses, as he was a mere replacement of another trial judge who initially heard the case. II. Second: Considering the weakness and unreliability of the prosecution's evidence, the trial court erred in not giving credence to accused-appellant Jimmy Manambit's testimony and alibi. (A) The direct testimony of accused-appellant Jimmy Manambit that he was at the Villamor (Nichols) Airbase at the date and time that the shooting incident took place deserved full credence since the prosecution failed to contradict the same. (B) The testimony of Fr. Oarga is credible despite his relationship with accused-appellant Jimmy Manambit's mother-in-law. (C) There is no cogent reason to believe and give credence to the alibi of the other accused and to reject accused-appellant Jimmy Manambit's alibi. Appellants Llames and Mamuri did not file any brief. The Solicitor General prays for affirmation of guilt but asks that the penalty imposed in Criminal Case No. SC-2209 be reduced to reclusion perpetua, instead of death, "pursuant to Section 19 (i), Article III of the 1987 Constitution." From the submissions of the parties, the Court believes that the resolution of this appeal hinges on the following matters: 1. Motive in relation to credibility and sufficiency of evidence, 2. Identification of the appellants as the assailants, 3. Relative weight of the defense of alibi, 4. Effect of the change of judges during trial, and 5. Liability of the two remaining appellants. The Court's Ruling The appeal is meritorious. In a nutshell: Because of the history of family feud, the motive of the prosecution witnesses (to inculpate the appellants) taints their credibility. In turn, the motive of the accused (to commit the crime) is diminished in evidentiary value by the insufficiency of the evidence against them. The insufficiency is brought to light by: the lone-unidentified-gunman theory (of the lower court itself)

and the physical evidence tending to support it, contradictory testimonies as to who were really present at the crime scene, and the res gestae statements of the deceased Reynaldo Baldemora that failed to name the appellants as having been among the assailants. In this light, the defense of alibi assumes relative importance. We shall elaborate on these in the following pages. Motive in Relation to Credibility and Sufficiency of Evidence In convicting Jimmy Manambit, Mauricio Llames and Ramon Mamuri; and in acquitting Antonio Manambit, Benjamin Lacbay and Feliciano A. Rana, the trial court did not take into account the pervading animosity between the Manambit and Samonte families when the incident occurred. History of the Family Feud The feud between the families began when Andres Manambit the father of the two accused brothers in this case in his capacity as a barangay captain, led occupants of lands that were being claimed by the Samontes in questioning the latter's ownership thereof. Thereafter, Andres Manambit was shot by Mario Ablao who was allegedly related to the Samontes. Hector was also implicated in the crime. The incident bred another bloody event when Judge Sobejana, who had allegedly seen Atty. Zenon Samonte and Mayor Bruno Ablao signal Mario Ablao to shoot Andres Manambit, and who had vowed to testify on the matter, was gunned down. 53 Even the death of the mother of Appellant Jimmy appears to be an offshoot of that animosity Hector Samonte, the victim in this case, had been convicted of killing her and sentenced to die before a firing squad by a military tribunal. The death of the Manambit parents led to more bloodshed. Dr. Samonte, Hector's brother, was shot at a bank. Tony and Jimmy Manambit were accused of the crime but they were acquitted. Atty. Zenon Samonte, another brother of Hector, was also shot and the Manambits were again implicated therefor. 54 The other accused in this case provided motives why the Samontes would inculpate them in the crimes. Rana traced his involvement to the land dispute between his father and the Samontes. 55 According to Mauricio Llames, he was named a defendant in these cases because his 13year-old son testified against the Samontes after a grenade had been lobbed at the jeep of Andres Manambit. 56 Upon learning of the incident herein involved, Benjamin Lacbay remarked that he would surely by implicated because a Samonte was hurt. Lacbay testified in the 1976 bombing of the Manambit jeep which had killed appellant's mother and hurt her children. Thereafter, he was charged with the Manambits for the shooting of Dr. Samonte although, when the case was referred to JAGO, his name was removed from the list of defendants. 57 As regards Mamuri, he believed that he was charged in these cases because his father used to be the driver of Andres Manambit as all those who were close to the Manambits had been charged by the Samontes. 58 Motive of Prosecution Witnesses and Their Tainted Credibility The trial court would have been properly guided in determining the culpability of the accused had it taken into account the prevailing highly charged situation. It should have remembered that, considering the feud between the families, any statement imputed by one family member

against a member of the other family was suspect, coming as it would from a "polluted source." The rule as to motive and how it affects the witness' credibility is: "(a)bsent evidence to show any reason or motive why witnesses for the prosecution should have testified falsely, the logical conclusion is that no improper motive existed and that their testimony is worthy of full faith and credit." 59 On the other hand, if for any motive there is a possibility that a witness might have been prompted to testify falsely, courts should be on guard in assessing the witness' credibility. Even if the testimony of Zenon Samonte as to the participation of Appellant Jimmy in the crimes corroborated that of his brother Hector, the evidentiary weight of the latter's testimony is nevertheless questionable. Hector's hatred for Appellant Jimmy and his family was duly established. Thus, in correctly rejecting the prosecution's claim that Hector's declaration as written by Pat. Liwanag was part of the res gestae, the trial court said: 60 Samonte's declaration is no more proof of an old grudge than would be a statement to the same effect made a month before the shooting incident or a month afterwards. His answers, then, to Liwanag's questions are to be equated with the running feud between his family and the Manambits. The Court is not unmindful of the rule that the assignment of value and weight to the testimony of a witness is best left to the discretion of the trial court. But an exception to that rule shall be applied in this case where certain facts of substance and value, if considered, may affect the result. 61 In view of its disregard of the declaration of Hector to Liwanag, the trial court apparently based its conclusions regarding Appellant Jimmy's complicity solely on the court testimony of Hector. Admittedly, the sole positive testimony of credible eyewitness, which satisfies the court as to the guilt of the accused beyond reasonable doubt, is sufficient to convict. 62 However, Hector can hardly be considered a credible eyewitness as far as the identity of Appellant Jimmy is concerned. His open animosity toward Appellant Jimmy, which the trial court itself noted, can never make him the source of credible evidence to prove beyond reasonable doubt the culpability of the said appellant. Motive of the Accused and the Insufficiency of Evidence Against Them Admittedly, evidence of motive for the commission of the crime assumes importance where the identification of the accused proceeds from an unreliable source and the testimony is inconclusive and not free from doubt. 63However, mere proof of motive, no matter how strong, is not sufficient to support a conviction if there is no other reliable evidence from which it may reasonably be deduced that the accused was the male-factor. 64 In the cases at bench, the running feud between the Samontes and the Manambits might have provided a strong motive for Appellant Jimmy to commit the crime. However, it was not sufficiently proven, other than through the clearly biased testimonies of Hector and Zenon, that such motive had in fact impelled Appellant Jimmy to shoot Hector and Reynaldo Baldemora. Moreover, granting that indeed Appellant Jimmy had a motive to retaliate against the Samontes, such motive may not influence this Court's perspective. While it might have furnished the reason for the crimes, by the same token, a publicly known strong motive could have also been an equally strong deterrent against commission of the crime. Inevitably, the finger of suspicion would have surely and readily pointed to Appellant Jimmy as a culprit. What needs proper

attention therefore is whether or not, by the rules of criminal law and procedure, Appellant Jimmy was properly identified as one of the perpetrators of the crimes. The Identification of the Appellants as the Assailants The Lone-Unidentified-Gunman Theory and the Physical Evidence Tending to Support It In acquitting Tony Manambit, Benjamin Lacbay and Choy Rana, the trial court posited the following theory as to the real assailant contrary to the allegations of Hector: 65 The evidence on record does not indicate that Hector Samonte sustained multiple gunshot wounds, despite the intense and simultaneous firing of shots aimed at him and Baldemora by the four accused, who were armed with long firearms. Neither does it indicate that Samonte's motorcycle was hit and damaged. This brings into focus the number of assailants who were actually at the scene. The Court is called upon in the exercise of its duty to protect the innocent and punish the guilty. The discovery by the authorities of twenty spent/empty shells from an M-16 rifle near a tamarind tree on a grassy, elevated portion of the ground near the municipal cemetery, has not, likewise escaped the attention of the Court. The shells were found immediately after the shooting incident on August 29, 1978. The presence of another gunman, whose identity was not, however, established by the prosecution, at the place of their discovery cannot be discounted. (Emphasis supplied.) The trial court then considered the findings of Dr. Nuez that based on the gunshot would of Hector, "the one who inflicted this would must have been on an upper or elevated place behind the victim, and this considering, moreover, the downward trajectory of the bullet" and because there was no evidence of closer-range firing, the assailant must have been more than 36 inches away from Hector. The trial court also repeated the findings of Dr. Mag-iba that only one gunshot would had caused Reynaldo's death. It added: 66 Dr. Mag-iba's testimony lends credence to the testimony of Dr. Nuez, who treated Hector Samonte, that the shots came from behind. The testimonies of the two attending physicians tend to show the actual number of assailants at the place of the shooting incident, considering not only the location of the wounds but also their number and extent. To say that four men participated in the attack by intensely and simultaneously firing their long firearms at a distance of ten to fifteen meters only from the intended victims, who were in the opposite direction, their right side exposed to the attackers, would be dwelling in the realm of improbabilities. Indeed, if we are to believe the version of Hector Samonte, then he and his companion at the time would not have suffered three gunshot wounds only, which, according to the attending physicians, were inflicted by an assailant behind them. The more plausible theory is that there were only two gunmen at the edge of the highway, which is a level terrain, and that the two served as decoys who fired at random at the speeding motorcycle; that there was a hitman behind a tamarind tree on an elevated portion of the ground who held his fire upon seeing Gabatan's car trying to overtake Samonte's motorcycle, but realizing that his intended victim might escape or elude him when the latter managed to speed past the tamarind tree where he was hidden, he opened fire. In a portion of his testimony,

Hector Samonte declared that he tried to prevent a trailing red car from passing through, which would lay him and his company open or exposed to gunfire from the armed men who were by that time nine meters from the edge of the highway and ten to fifteen (sic) away from him and Baldemora. Continuing with his testimony. Samonte declared that he veered his motorcycle to the center of the highway, but the red car carrying Gabatan and driven by Abel Abarquez squeezed through, and that was the time he heard shots and felt that he (Samonte) was hit. If Gabatan's car was caught in the line of fire intended for Hector Samonte and Reynaldo Baldemora, it was a freak of fate that he and his companion were drawn into the vortex of that fateful incident on August 29, 1978. (Emphasis supplied.) However, in clear contradiction of its view that only two persons served as "decoys" with a lone unidentifiedgunman inflicting the desired result of the ambuscade, the trial court convicted appellant as a principal and Llames and Mamuri as accomplices. It held: 67 To recapitulate, the inculpatory facts and circumstances in the above-entitled cases are consistent with the guilt of the accused Jimmy Manambit, Mauricio Llames and Ramon Mamuri, whose concurrence of wills with an unidentified gunman who was standing on an elevated portion of the ground near a tamarind tree, was established. Their close proximity or propinquity to each other in a given place and time justifies the imputation of scheming and execution of the plan to waylay the victims on August 29, 1978, at about 2:00 o'clock (sic) in the afternoon near the municipal cemetery of Pagsanjan. Here, we have what the law or jurisprudence refers to as quasi-collective responsibility, wherein one of them is a principal and the others as (sic) accomplices. The extent of participation of the accused Mauricio Llames and Ramon Mamuri, being not sufficiently disclosed, their liability is considered as that of accomplices. "The principal element of every punishable complicity consists in the concurrence of the will of the accomplice with the will of the principal or author of the crime, and the accomplice cooperates by previous or simultaneous acts in the execution of the crime by the principal". (People v. Tamayo, 44 Phil. 49) Accused Llames and Mamuri knew the principal's purpose, but their participation was to a certain poin (sic) in the criminal design (Citing People v. Aplegido, et al., 76 Phil. 571) (Emphasis supplied.) Conflicting Testimonies as to Who Were Really Present at the Crime Scene Clearly then, the trial court could not with certainty point to who-shot-whom in the incident. It could not even decisively specify the participation of each accused. What is more bothersome is that Appellant Jimmy was not properly identified. The question of identification should have been given more attention. The fan that Hector and Reynaldo were shot does not necessarily mean that the Manambits were the ones responsible. The prosecution, with due regard to the existing acrimony between the Samontes and Manambits, cannot discount the likelihood that Hector might have been prompted to accuse the Manambit brothers as the ones responsible. The previous circumstance of Antonio waving to Ramon Mamuri might have created a suspicion of evil design in the mind of Hector. The latter's prejudice against Antonio whom he referred to as a "bad man" so many times in his testimony might have further enchanced his premonition of a dire event when he and Reynaldo returned from Magdalena. These antecedents, however, should not have weakened the adherence of the

court a quo to the principle that the guilt of an accused must be proven beyond reasonable doubt. A conviction in criminal cases must rest on nothing less than a moral certainty of guilt.

68

The court a quo, however, disregarded contradictions between the testimony of Hector Samonte, the sole prosecution eyewitness, and the testimonies of other prosecution witnesses as to whom were really present at the crime scene. Hector testified: 69 Q You mentioned that you started driving the motorcycle slowly towards Lumban. Now, will you tell us what happened after you have started the engine of the motorcycle? A. Upon reaching Ala-ala Memorial Park I saw and I noticed Ramon Mamuri sitting along the roadside along the edge of the highway and then while I was driving the motorcycle I saw Choy Rana standing and making signs or signal while he was facing at the coconut plantation. xxx xxx xxx Q Upon seeing those two persons that you mentioned, Mamuri and Choy Rana, what did you do if you did anything? A. When I saw Choy Rana making a signal I look (sic) at the place where he was then making the signal and saw four (4) armed men who stood up. xxx xxx xxx Q Will you tell us or describe to us the relative position of those four armed men that you said stood up? A. I saw first Antonio Manambit and next to him is Llames and next to Llames is Lacbay and the other is Jimmy Manambit on the other hand. xxx xxx xxx Q. After you saw Tony Manambit, Mauricio Llames, Ben Lacbay and Jimmy Manambit stood up, what did you do if you did anything? A. I suddenly veered my motorcycle at the middle of the road going towards Lumban. Q. Will you tell the Court why did you veer your motorcycle towards the center of the road going to Lumban? A. Because I saw their firearms were aimed at me or pointed at me. Q. Were you able to veer your motorcycle towards the center of the road going to Lumban? A. Yes, sir. Q. Then what happened after that? A. I just heard shots. Q. Did you come to know from what direction did those shots come from? A. The shots came from the place near where I saw the four armed men. Q. Then what happened after you heard those shots?

A. I sped (sic) the motorcycle but I felt that I was hit. xxx xxx xxx Q. After you lost control of the motorcycle, what happened? A. My companion and I fell, sir. xxx xxx xxx Q. You mentioned that you fell on the left side of the road going to Lumban. In relation to the position where you fell, how far was Reynaldo Baldemora from you? A. When I fell, I saw Reynaldo Baldemora crawling towards the right side of the road going to the direction of Lumban. xxx xxx xxx Q. After you saw Reynaldo Baldemora stopped crawling more or less five meters away from you, what did you do? A. When I saw him at his position I saw a gun near him so what I did then was to crawl going near him. Q. Why did you crawl towards Reynaldo Baldemora? A. In order to get the gun near him so that if something may happen I will be using the same gun to defend myself, sir. Q. Before you crawl (sic) towards Reynaldo Baldemora, do (sic) you know where the four (4) accused Tony Manambit, Jimmy Manambit. Ben Lacbay and Mauricio Llames were? A. Yes, sir. When I fell I look (sic) at them and I saw Tony Manambit at the side of the road firing at us while the three (3) were running away. (Emphasis supplied.) The testimony of Pat. Liwanag, however, shows that as narrated to him, Hector saw not only four armed men but other men who were present whom he was not able to recognize; Hector even failed to mention the name of Ramon Mamuri contrary to his direct testimony. Liwanag said: 70 FISCAL questioning: Q Upon seeing Hector Samonte with those (sic) blood, what did you do if you did anything? A I asked him as to who shot him? xxx xxx xxx Q What was the answer of Hector Samonte? A He said that he recognized Tony Manambit, Jimmy Manambit, Mauricio Llames, Ben Lacbay and Choy Rana. ATTY. MANIKAD:

May I manifest that in the answer of the witness he did not mention Llames. The interpreter merely added the name Llames. INTERPRETER: No, in my interpretation I mentioned only four but I missed the fifth one which he also mentioned. ATTY. MANIKAD: He was the one who asked . . . . xxx xxx xxx FISCAL Q Was that the only question you asked him? A Hector Samonte further told me that there were others but he was not able to recognized (sic) who they were. xxx xxx xxx A I also asked him whether he recognized others and he told (sic) or answered that he was not able to recognize the others. The discrepancy in the testimony as to the presence and identification of Ramon Mamuri in particular became even more apparent when Hector narrated what he had told Pat. Liwanag regarding the identity of the perpetrators of the crime. Thus: 71 FISCAL questioning Hector Q What happened after Rustico Liwanag went near you? A Pat. Liwanag asked me who shot at me. Q What was your answer? A I told him, Tony Manambit, Jimmy Manambit, Llames and Ben Lacbay. Q Was that the only question asked of you by Rustico Liwanag? A There were still other questions asked of me by Pat. Rustico Liwanag and he further asked me who are still others who I saw, I answered that the question of him. (sic) Q What was your answer to that question? A I told him that it was Choy Rana who first made the signal to the four armed me (sic) with long firearms. Zenon Samonte's testimony, from his recollection of what his brother told him right after the shooting, was marked by unresponsive answers to the fiscal's questions as to the names of the persons responsible. 72 Again, Ramon Mamuri did not figure in his testimony. FISCAL questioning Zenon Q At the place where your brother Hector was confined, what did you do?

A I asked my brother if he recognize (sic) the people who perpetrated the crime. Q Were you able to get any information from your brother regarding the perpetrators of the crime? A He recognized the perpetrators (sic). Q Will you tell us who were the persons recognized by your brother? A He said that he was able to recognize Antonio Manambit and Jimmy Manambit. xxx xxx xxx Q After having been informed by Hector Samonte that the persons or the perpetrators were Tony and Jimmy Manambit, what else happened? A He also mentioned other names who he saw as one of the members of the perpetrators (sic). Q Will you tell the court what was that other names (sic) that was mentioned by your brother Hector? A He mentioned Ben Lacbay, sir. Q After your brother Hector Samonte mentioned the name Ben Lacbay, did you still have any conversation with your brother? A He told me Mauricio Llames. He also mentioned Ochoy Rana. Q Was (sic) there any other persons mentioned aside from those that you have already mentioned? A He knew the other persons by face but he could not remember the names. We could not give much worth to such conflicting allegations. They are not sufficient to put Jimmy Manambit at the scene of the crime. We wonder how the trial court could have convicted Jimmy Manambit and acquitted Tony based on the same allegations by prosecution witnesses that the court a quo had disregarded because the physical evidence had put the true assassin near the tamarind tree. Evidence to be believed must not only proceed from the mouth of a credible witness but it must also be credible in itself, such that common experience and observation of mankind lead to the inference of its probability under the circumstances. Sometimes, we have no test of the truth of human testimony, except its conformity to our knowledge, observation and experience. 73 The error in the appreciation of the prosecution's evidence with respect to the proof of the identity of the offenders is a crucial question that calls for corrective appellate action. Courts must not lose sight of the fact that in every criminal prosecution, the identity of the offender or offenders must be established by proof beyond reasonable doubt. 74 The prosecution having failed to meet this quantum of proof as to appellant's identity, the latter's culpability may not be upheld. Probative Value of the Res Gestae Statements of the Deceased Reynaldo Baldemora

What further militate against conviction of Appellant Jimmy are the presented parts of res gestae 75 statements of deceased Reynaldo. Immediately after the wounded Reynaldo Baldemora was taken on board the jeepney, Pat. Alberto Baldemeca asked him who were responsible for the assault. Pat. Baldemeca testified thus: 76 Q After Reynaldo Baldemora was laoded (sic) on the jeep what happened next? A I asked Rey Baldemora, sir. Q What did you ask Rey Baldemora? A I asked Rey Baldemora who shot him. xxx xxx xxx Q What was the answer given by Rey Baldemora? A Sina Antonio Manambit. Q Did you come to know who were "sina" mentioned by Rey Baldemora? xxx xxx xxx A They were six but he did not know the other five companions, sir. Pat. Rustico Liwanag, who was on board the same jeepney bearing the wounded Reynaldo, corroborated Baldemeca's testimony. In answer to the question of whether or not he had heard the conversation between Reynaldo and Baldemeca, Liwanag said: 77 A What I heard from the answer of Reynaldo Baldemora to the question propounded by Pat Alberto Beldemeca (sic) was that he recognized only Tony Manambit as one of the persons who shot him although he (had) other companions but whom he does not know any of the others (sic)." (Emphasis supplied.) On the other hand, Atty. Zenon Samonte, who had been on the same jeepney and who had also admitted having heard Reynaldo identify the assailants, testified as follows: 78 Q Now, after Baldemora was placed inside the jeep, what happened? WITNESS Along the way, I remember he was asked by Pat. Albert Baldemeca who shot him. FISCAL Q Did you hear any answer from Baldemora insofar as that question of Baldemeca is concerned? ATTY. MANICAD (sic) Hearsay, objection, your Honor.

COURT Answer. WITNESS He answered the question of Pat. Baldemeca in Tagalog. FISCAL Q What was his answer? A Magkapatid ni Jimmy at Tony Manambit, and others. (emphasis supplied ). Clearly the, Zenon Samonte included Appellant Jimmy among the ambushers as allegedly seen by Reynaldo, contradicting in the process the testimonies of two prosecution eyewitnesses Pat. Baldemeca and Pat. Liwanag who had also heard what was to be Reynaldo's dying declaration. Biased against Manambit, Zenon was expected to implicate the two brothers. Where eyewitnesses contradict themselves on a vital question, the element of reasonable doubt is injected and cannot be lightly disregarded. 79 Moreover, an inconsistency regarding the identity of an assailant is not just a lapse of memory on a trivial point but a glaring inconsistency on a material factor which affects the witness' credibility. 80 With more reason, Zenon Samonte's inclusion of appellant as one of the killers must be received with extreme caution considering that, aside from the fact that he was a member of a family with whom Appellant Jimmy's family was at odds, he was not an eyewitness. He only heard about the identity of the assailants from Reynaldo. If indeed Appellant Jimmy was in the vicinity of the crime scene when it occurred, this fact would not have been lost on Reynaldo. The prosecution did not dispute that Reynaldo had at one time been in the employ of Manambit's father as a laborer. 81 Antonio Manambit even testified that Reynaldo had been known to him since their elementary school days. It is therefore undeniable that Reynaldo was familiar with Appellant Jimmy and his family. Reynaldo could have easily pinpointed him as having been in the company of his brother Antonio when the shooting happened. The prosecution also established that Pat. Alberto Baldemeca had taken Reynaldo's dying declaration. 82 The production of this vital piece of evidence as to the identity of the culprits would have corroborated and elevated the probative value of Hector's testimony. However, in spite of the opportunity afforded to the prosecution, this evidence was not produced. Thus, the fair presumption that evidence withheld for a sinister motive would, if produced, thwart the evil or fraudulent purpose of the one in possession thereof, 83 stands. The Relative Weight of the Defense of Alibi In confirming Appellant Jimmy's culpability, the trial court discredited his alibi. Thus: 84 What is surprising about the testimony of Fr. Oarga is that he did not inform the wife of the accused, who is his niece, that the accused was working with him in the chaplain's quarter as early as July, 1978, up to September of the same year when he (Fr. Oarga) was transferred to Clark Airbase in Pampanga. What was Fr. Oarga's intention in not telling his niece that her husband was with him in the chaplain's quarter during that period? It is unthinkable that during that stretch of three months the accused and his wife

did not meet each other, more so when the evidence of the accused shows that his wife was working during that time at the AVSECOM, which is within the same airbase. And how about the testimony of the accused that he and his family live in a house owned by a certain Sgt. Arroyo? The testimony of Fr. Oarga raises a lot of conjectures; it is loose and vague. It is, moreover, biased. It leaves open to serious doubt the defense of alibi interposed by the accused. "Where testimony in support of an alibi comes from a near relative, its value is necessarily reduced". (People v. Escares, April 29, 1954, No. L-5562) Sgt. Arroyo, the owner of the house where the accused and his family lived or stayed, should have been presented to corroborate the testimony of the accused. "A defense of alibi cannot be taken seriously where it is not only uncorroborated, but could, clearly. if true, have been corroborated by certain persons who were not called upon to testify in support of it". (People v. Mendova, January 31, 1957, No. L-7030). The alibi of Jimmy Manambit may be weak but the rule that "alibi must be satisfactory proven was never intended to change the burden of proof in criminal cases; otherwise, we will see the absurdity of an accused being put in a more difficult position where the prosecution's evidence is vague and weak than where it is strong." 85 As one contradiction between prosecution witnesses' testimonies is followed by another-in relation to the equally contradictory fact presented by the bullets found near the tamarind tree which tends to support the trial court's theory of an unidentified assassin the weakness of the prosecution's case is revealed and the appellants' defense of alibi is put into focus. The weakness of the prosecution evidence on Appellant Jimmy's identification as an assailant would have eliminated discussion of his defense of alibi. It should be pointed out, however, that when the identification of the accused as the author of the crime charged is conclusive or unreliable, alibi assumes importance. It acquires commensurate strength when the case for the prosecution is equally infirm. 86 Alibi is not always undeserving of credit, for there are time when the accused has no other possible defense for what could really be the truth as to his whereabouts at the crucial time, and such defense may in fact tilt the scales of justice in his favor. 87 Neither may the fact that a witness to the alibi is a relative affect the probative value of his testimony. Family relationship does not by itself render a witness' testimony inadmissible or devoid of evidentiary weight. 88 In these appealed cases, moreover, we find no factual basis for the aforequoted doubts of the trial court 89 in dismissing Fr. Oarga's testimony that Appellant Jimmy was at his quarters in Nichols Air Base. The defense raised by Appellant Jimmy might have been weak but he cannot be convicted on this score alone. To warrant conviction, the prosecution must be strong and convincing even if the defense itself is weak. 90 In doubt as to who were really responsible, this Court cannot rest easy in convicting Jimmy Manambit based on the trial court's finding that his alibi is flimsy. Flimsiness of defense does not excuse the prosecution from proving Jimmy's guilt beyond reasonable doubt. "While the defense of alibi frequently deserves little consideration because it is easily fabricated, it is not always false and without merit and when coupled with the improbabilities and uncertainties of the prosecution evidence, the defense of alibi deserves merit (People vs. Delmendo, 109 SCRA 350). Indeed, we must 'emphasize the fact that courts should not at once look with disfavor at the defense of alibi. . . . . . When an accused puts up the defense of alibi, the court should not at

once have a mental prejudice against him. For, taken in the light of all the evidence on record, it may be sufficient to acquit him . . . . . .' (People vs. Tabayoyong, 104 SCRA 753, citing People vs. Villacorte, et al., 55 SCRA 640, 655). It would be worthwhile to add that 'every circumstance against guilt and in favor of innocence must be considered. Suspicion . . . should not sway judgment' against the accused (People vs. Clores, 125 SCRA 67). THE ACCUSED NEED NOT PROVE HIS INNOCENCE BECAUSE THAT IS PRESUMED (Section 19, Article IV, 1973 Constitution)" 91 The Court, however, is unable to sustain Appellant Jimmy's argument that the trial court erred in giving credence to the alibi of the other accused while rejecting that of the appellant. Courts are not required to accept or reject the whole testimony of a particular witness in toto. 92 Or for that matter, to grant wholesale acquittal on the sole basis of similar defenses. Appellant Jimmy contends that the other accused, particularly Antonio Manambit, were acquitted based on the same evidence which the trial court used to convict him. What spelled the difference between them were the different treatments given by the trial court to their respective defenses of alibi. We hold however that it is not the weakness of alibi that shall warrant conviction, but rather the prosecution's quantum of evidence proving commission of the offense beyond reasonable doubt. Effect of Change of Judges During Trial Appellant Jimmy argues that the trial judge who rendered the Decision was not able to appreciate fully the demeanor of the prosecution witnesses as they testified, because he was a mere replacement for another judge who had initially heard the cases. As a rule, the fact that the judge who had heard the evidence did not himself prepare, sign and promulgate a decision does not necessarily constitute a compelling reason to jettison his findings and conclusions. 93 However, this rule is not without exceptions. A judge's assessment of the credibility of the witnesses must be received with caution if he neither personally heard the testimonies of the witnesses nor obsened their deportment and manner of testifying. 94 In People vs. Pido, 95 this Court departed from the rule that appellate courts shall generally not disturb the factual findings of the trial court by taking into account two special considerations. Firstly, it was another judge who had heard and received the whole testimony on direct examination of the complainant and the major portion of her testimony on cross- examination. The judge who decided the case did not then have sufficient basis to form an opinion as to the complainant's deportment and manner of testifying. Secondly, the trial court ignored or overlooked substantial facts and circumstances which would have affected the result of the case. These two considerations obtain in the cases at bench. Firstly, it was Judge Antonio Malaya who had heard the testimonies of the main prosecution witnesses: Hector Samonte, Pat. Liwanag, Pat. Baldemeca and Atty. Samonte. Then Judge Maximiano C. Asuncion heard the rest of the testimonies of both prosecution and defense witnesses and eventually rendered the questioned Decision. Secondly, the latter judge appeared to have overlooked vital contradictory evidence on the identification of the accused which would have been evident to him had he heard the testimonies of said principal witnesses. We note that the trial judge made conclusions that were not in accord with the evidence in hand. Thus, as earlier stated, the trial judge found as plausible the theory that aside from the unidentified gunman behind the tamarind tree, there were only two gunmen on the edge of the

highway. 96 He found appellant to be one of them and accordingly held him responsible as a principal. 97 Because he found Ramon Mamuri to be only an accomplice as he did not have a firearm, 98 he concluded that the other gunman on the edge of the highway could have been Mauricio Llames. However, the trial judge found him guilty only as an accomplice on the basis of the same evidence that found appellant guilty as a principal. These lapses in the Decision could have been avoided had the trial judge been able to ascertain the truth or falsity of the testimonies of the witnesses by exercising his prerogative to propound clarificatory questions to resolve conflicting testimonies. In criminal law, the quantum of evidence for conviction of an accused is that which produces moral certainty in an unprejudiced mind that the accused is guilty beyond reasonable doubt. But, if the evidence is susceptible of two interpretations, one consistent with the innocence of the accused and the other consistent with his guilt, the accused must be acquitted. After a judicious evaluation of the evidence in these cases, the Court cannot assert with moral certainty that Appellant Jimmy is guilty of the crimes charged. Liability of the Two Remaining Appellants Appeal in criminal cases is governed by Rule 122 of the Rules of Court: Sec. 3. How appeal taken. (c) The appeal to the Supreme Court in cases where the penalty imposed is life imprisonment, or where a lesser penalty is imposed but involving offenses committed on the same occasion or arising out of the same occurrence that gave rise to the more serious offense for which the penalty of death or life imprisonment is imposed shall be by filing a notice of appeal in accordance with paragraph (a) of this Section. In view of this, we cannot ignore the appeal interposed by Appellants Llames and Mamuri in spite of their failure to file their briefs or to inform this Court of the name of their counsel who could have been required to file one. Inasmuch as this Court has jurisdiction to pass judgment on the two appellants on the basis of their joint notice of appeal, 99 and consistent with the rule that the entire controversy should be settled in a single proceeding leaving no root or branch to bear the seeds of future litigation, we shall discuss their culpability as well. Indeed, the Supreme Court is clothed with ample authority to review mattes, even those not raised on appeal, if it finds that their consideration is necessary in arriving at a just disposition of the case. 100 It is a matter of justice that the two other appellants be exonerated of the charges. This we do because an appeal in a criminal action opens the whole case for review and this includes the review of the penalty and indemnity. Every circumstance in favor of the accused shall be considered. 101 The conflicting testimonies of the prosecution witnesses base the conviction of Mamuri only on the bare allegations of Hector. But as stated, Hector's testimony, being tainted with bias, cannot be given credence. Therefore, we cannot convict Mamuri on the basis of his assertion as weighed against the glaring omission of his name from what was allegedly confessed to Zenon and Liwanag. What further supports his acquittal is the same reasoning the trial court used in convicting him. The trial court convicted him because his defense of alibi was weak. The trial court reasoned: 102

The accused Ramon Mamuri claims that he could not be at the place and time of the shooting incident on August 29, 1978, because at that time he was repairing the roof of his house from 8:00 o'clock in the morning until 4:00 o'clock in the afternoon. He further claims that one Supre Villanueva (now deceased) was with him at that time. His house is situated at barrio Maytalang Uno in Lumban, which is more or less 700 meters away from the municipal cemetery of Pagsanjan, where the shooting incident occurred. He was arrested by the PC only in 1979, although the incident happened on August 29, 1978. From his testimony it could be gleaned that he did (sic) even hear a single shot coming in (sic) the direction of the cemetery of Pagsanjan, which accounts for the fact that he did not even stir in his place. Having been arrested, he did not ask why or what the reason behind his arrest was. He has not given any statement to the authorities from the time he was arrested up to the present. The Court is aware of the facility with which a defense of alibi can be concocted and fabricated, although there are cases in which it maybe (sic) entertained when it is predicated upon substantial and reliable evidence which can engender in the mind of the Court reasonable doubt as to the guilt of the accused. "The defense of alibi has repeatedly been referred to as one easily fabricated, inherently weak, and not to be seriously considered if there is credible evidence of the presence of the accused at the time and place of the commission of the crime, or of his participation therein." (People vs. Aguipo, July 31, 1958, No. L-12123; People vs Briz, August 22, 1958, No. L-11063). Mamuri was positively identified by Hector Samonte who declared that he saw the former along the highway which adjoins the cemetery of Pagsanjan. The weather was clear, and there could be no mistake on Samonte's part as to the identity of the accused. There was no sufficient explanation on Mamuri's part as to his presence in a place far removed from his house in barrio Maytalang Uno in Lumban, which, he avers, was more or less 700 meters away. Neither was there any affirmative showing from Mamuri's testimony that Hector Samonte was biased against him. This reason for conviction is made untenable by the admission of the trial court that the participation of Mamuri "was not sufficiently disclosed." This wavering disquisition only made it clear that the trial court itself did not in clear conscience convict Mamuri. Even Hector in his testimony averred that Ramon had not done anything that would have facilitated the commission of the crime. The most that he can be faulted with is that he was with Choy Rana when the latter made hand signals to allegedly four (4) armed men, but even then he was not committing a crime. The cooperation in the commission of a crime, which results in fixing upon the guilty agent the responsibility of an accomplice, requires acts, either prior to or simultaneous with the commission of the crime, that constitute an aid to and prosecution of the person or persons guilty of the actual commission of the crime; that is, perpetration of acts of moral or physical aid given immediately or by indirect means in such a way as to make it clearly appear that the principal and the accomplices acted upon a common agreement for the purpose of affecting some criminal act, although the means employed by each might have been distinct and separate. 103 With respect to Llames, he was found guilty as an accomplice for the following reasons: 104

As to the version of the accused Mauricio Llames, there is much to be desired, considering his opening statement that after the shooting incident on August 29, 1978, he left for Manila where he engaged in driving, painting and the like. When he came home from Manila one day, he came to know that he was one of the accused, having received a subpoena in connection with the incident in question, yet he did not bother much to surrender or to give any exculpatory statement to the authorities. He claimed that he did not surrender because he might be incarcerated and his family might not eat. The truth is, he went into hiding, avoiding contact with the police authorities. He surrendered only when an ASSO was issued. In a nutshell, the version of the accused Mauricio Llames betrays a guilty conscience. If in truth he was not involved in the shooting incident in question, he should have made a clean breast of the accusation against him. Instead, he fled and hid. "The wicked fleeth, but the innocent is as brave as the lion." Apparent is the inconsistency of the trial court. If it truly believed that there was an unidentified assassin hiding near the tamarind tree, thus weakening the case against the four accused (who allegedly fired shots), then why of all the four accused was it Llames who was convicted together with Jimmy and only as an accomplice? The trial court must have considered Hector as a witness to have been so bereft of credibility that even Antonio Manambit whose name had been consistently repeated by Liwanag and Zenon was acquitted. It follows that the trial court had no factual consistency in its conviction of Llames. The liability of Llames as an accomplice is also a big question to this Court. If the trial court wanted to insinuate that Llames had acted only as a decoy for Jimmy Manambit, then this finding directly contradicts its basis for conviction which was the testimony of Hector who accused Llames of having been one of the four armed men who had shot at Hector and Reynaldo. These obvious hesitations and directly conflicting grounds for conviction cannot escape our attention. Epilogue In sum, we hold that the prosecution failed to prove the guilt of appellants beyond reasonable doubt. It has not provided this Court with moral certainty of their culpability. While the ambush and the resulting death of Reynaldo Baldemora and the near-death of Hector Samonte were duly proven, the identity of the malefactors was not satisfactory shown. The trial court itself was hesitant and appeared not completely convinced of its own verdict. While it posited the theory of an unidentified gunman "behind a tamarind tree" and effectively debunked the prosecution's thesis of four armed men, it nonetheless convicted Jimmy Manambit as principal, Mauricio Llames who (like Jimmy) the prosecution theorized as one of the four armed men as an accomplice, and Ramon Mamuri as another accomplice, simply because it was unable to pinpoint their exact participation. The medico-legal evidence showing that Baldemora was shot from behind directly contradicts and negates the prosecution's claim that four armed men fired at said victim from the front, right. The trial court's acquittal of the three original accused, particularly of Antonio Manambit who had been consistently named as a principal by the prosecution, and its conviction of three others on the basis of its varying treatments of their respective alibis completely overlook the prosecution's hodgepodge of theories and faulty and flimsy presentation of facts. Worse, it placed on the accused the burden of showing their innocence; rather than on the prosecution, that of proving their guilt. All these inconsistencies and inadequacies taken in light of the pervading bloody family feud between the Samontes and the Manambits, and the admitted bias of the Samonte brothers against the Manambit

brothers create sufficient doubts in the Court's mind. We find the prosecution's case thoroughly wanting in consistency, logic, cogency, credibility and reliability. All in all, the presumption of innocence in favor of the accused has not been overturned by the prosecution. Indeed, this is one case that time has apparently forgotten. The case was begun in 1979 when the informations for murder and frustrated murder were filed. Appellant Jimmy Manambit has been under detention while this case was pending for nearly two decades. 105 Justice is now long overdue. It is time to give him back his freedom. WHEREFORE, the appeal is GRANTED. The assailed Decision in consolidated Criminal Cases Nos. SC-2209 and SC-2210 is REVERSED and SET ASIDE. Appellant Jaime "Jimmy" Manambit as principal. Mauricio Llames and Ramon Mamuri as accomplices, are ACQUITTED of the crimes of murder and frustrated murder, their guilt not having been proven beyond reasonable doubt. The bails posted by Appellants Llames and Mamuri are cancelled and ordered released. Unless convicted for any other crime of detained for some lawful reason. Appellant Jimmy Manambit is ORDERED RELEASED immediately. SO ORDERED. 5) Rubrico vs. Arroyo - GR No. 183871 [Principle of Command Responsibility] LOURDES D. RUBRICO, JEAN RUBRICO APRUEBO, and MARY JOY RUBRICO CARBONEL, Petitioners, vs. GLORIA MACAPAGAL-ARROYO, GEN. HERMOGENES ESPERON, P/DIR. GEN. AVELINO RAZON, MAJ. DARWIN SY a.k.a. DARWIN REYES, JIMMY SANTANA, RUBEN ALFARO, CAPT. ANGELO CUARESMA, a certain JONATHAN, P/SUPT. EDGAR B. ROQUERO, ARSENIO C. GOMEZ, and OFFICE OF THE OMBUDSMAN, Respondents. DECISION VELASCO, JR., J.: In this petition for review under Rule 45 of the Rules of Court in relation to Section 19 1 of the Rule on the Writ of Amparo2 (Amparo Rule), Lourdes D. Rubrico, Jean Rubrico Apruebo, and Mary Joy Rubrico Carbonel assail and seek to set aside the Decision3 of the Court of Appeals (CA) dated July 31, 2008 in CA-G.R. SP No. 00003, a petition commenced under the Amparo Rule. The petition for the writ of amparo dated October 25, 2007 was originally filed before this Court. After issuing the desired writ and directing the respondents to file a verified written return, the Court referred the petition to the CA for summary hearing and appropriate action. The petition and its attachments contained, in substance, the following allegations: 1. On April 3, 2007, armed men belonging to the 301st Air Intelligence and Security Squadron (AISS, for short) based in Fernando Air Base in Lipa City abducted Lourdes D. Rubrico (Lourdes), then attending a Lenten pabasa in Bagong Bayan, Dasmarias, Cavite, and brought to, and detained at, the air base without charges. Following a week of relentless interrogation conducted alternately by hooded individuals - and what amounts to verbal abuse and mental

harassment, Lourdes, chair of the Ugnayan ng Maralita para sa Gawa Adhikan, was released at Dasmarias, Cavite, her hometown, but only after being made to sign a statement that she would be a military asset. After Lourdes release, the harassment, coming in the form of being tailed on at least two occasions at different places, i.e., Dasmarias, Cavite and Baclaran in Pasay City, by motorcycle-riding men in bonnets, continued; 2. During the time Lourdes was missing, P/Sr. Insp. Arsenio Gomez (P/Insp. Gomez), then substation commander of Bagong Bayan, Dasmarias, Cavite, kept sending text messages to Lourdes daughter, Mary Joy R. Carbonel (Mary Joy), bringing her to beaches and asking her questions about Karapatan, an alliance of human rights organizations. He, however, failed to make an investigation even after Lourdes disappearance had been made known to him; 3. A week after Lourdes release, another daughter, Jean R. Apruebo (Jean), was constrained to leave their house because of the presence of men watching them; 4. Lourdes has filed with the Office of the Ombudsman a criminal complaint for kidnapping and arbitrary detention and administrative complaint for gross abuse of authority and grave misconduct against Capt. Angelo Cuaresma (Cuaresma), Ruben Alfaro (Alfaro), Jimmy Santana (Santana) and a certain Jonathan, c/o Headquarters 301st AISS, Fernando Air Base and Maj. Sy/Reyes with address at No. 09 Amsterdam Ext., Merville Subd., Paraaque City, but nothing has happened; and the threats and harassment incidents have been reported to the Dasmarias municipal and Cavite provincial police stations, but nothing eventful resulted from their respective investigations. Two of the four witnesses to Lourdes abduction went into hiding after being visited by government agents in civilian clothes; and 5. Karapatan conducted an investigation on the incidents. The investigation would indicate that men belonging to the Armed Forces of the Philippines (AFP), namely Capt. Cuaresma of the Philippine Air Force (PAF), Alfaro, Santana, Jonathan and Maj. Darwin Sy/Reyes, led the abduction of Lourdes; that unknown to the abductors, Lourdes was able to pilfer a "mission order" which was addressed to CA Ruben Alfaro and signed by Capt. Cuaresma of the PAF. The petition prayed that a writ of amparo issue, ordering the individual respondents to desist from performing any threatening act against the security of the petitioners and for the Office of the Ombudsman (OMB) to immediately file an information for kidnapping qualified with the aggravating circumstance of gender of the offended party. It also prayed for damages and for respondents to produce documents submitted to any of them on the case of Lourdes. Before the CA, respondents President Gloria Macapagal-Arroyo, Gen. Hermogenes Esperon, then Armed Forces of the Philippines (AFP) Chief of Staff, Police Director-General (P/Dir. Gen.) Avelino Razon, then Philippine National Police (PNP) Chief, Police Superintendent (P/Supt.) Roquero of the Cavite Police Provincial Office, Police Inspector (P/Insp.) Gomez, now retired, and the OMB (answering respondents, collectively) filed, through the Office of the Solicitor General (OSG), a joint return on the writ specifically denying the material inculpatory averments against them. The OSG also denied the allegations against the following impleaded persons, namely: Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes, for lack of knowledge or information sufficient to form a belief as to the allegations truth. And by way of general

affirmative defenses, answering respondents interposed the following defenses: (1) the President may not be sued during her incumbency; and (2) the petition is incomplete, as it fails to indicate the matters required by Sec. 5(d) and (e) of the Amparo Rule.4 Attached to the return were the affidavits of the following, among other public officials, containing their respective affirmative defenses and/or statements of what they had undertaken or committed to undertake regarding the claimed disappearance of Lourdes and the harassments made to bear on her and her daughters: 1. Gen. Esperon attested that, pursuant to a directive of then Secretary of National Defense (SND) Gilberto C. Teodoro, Jr., he ordered the Commanding General of the PAF, with information to all concerned units, to conduct an investigation to establish the circumstances behind the disappearance and the reappearance of Lourdes insofar as the involvement of alleged personnel/unit is concerned. The Provost Marshall General and the Office of the Judge Advocate General (JAGO), AFP, also undertook a parallel action. Gen. Esperon manifested his resolve to provide the CA with material results of the investigation; to continue with the probe on the alleged abduction of Lourdes and to bring those responsible, including military personnel, to the bar of justice when warranted by the findings and the competent evidence that may be gathered in the investigation process by those mandated to look into the matter;5 2. P/Dir. Gen. Razon - stated that an investigation he immediately ordered upon receiving a copy of the petition is on-going vis--vis Lourdes abduction, and that a background verification with the PNP Personnel Accounting and Information System disclosed that the names Santana, Alfaro, Cuaresma and one Jonathan do not appear in the police personnel records, although the PNP files carry the name of Darwin Reyes Y. Muga. Per the initial investigation report of the Dasmarias municipal police station, P/Dir. Gen. Razon disclosed, Lourdes was abducted by six armed men in the afternoon of April 3, 2007 and dragged aboard a Toyota Revo with plate number XRR 428, which plate was issued for a Mitsubishi van to AK Cottage Industry with address at 9 Amsterdam St., Merville Subd., Paraaque City. The person residing in the apartment on that given address is one Darius/Erwin See @ Darius Reyes allegedly working, per the latters house helper, in Camp Aguinaldo. P/Dir. Gen. Razon, however, bemoaned the fact that Mrs. Rubrico never contacted nor coordinated with the local police or other investigating units of the PNP after her release, although she is in the best position to establish the identity of her abductors and/or provide positive description through composite sketching. Nonetheless, he manifested that the PNP is ready to assist and protect the petitioners and the key witnesses from threats, harassments and intimidation from whatever source and, at the same time, to assist the Court in the implementation of its orders.61avvphi1 3. P/Supt. Roquero stated conducting, upon receipt of Lourdes complaint, an investigation and submitting the corresponding report to the PNP Calabarzon, observing that neither Lourdes nor her relatives provided the police with relevant information; 4. P/Insp. Gomez alleged that Lourdes, her kin and witnesses refused to cooperate with the investigating Cavite PNP; and

5. Overall Deputy Ombudsman Orlando Casimiro - alleged that cases for violation of Articles 267 and 124, or kidnapping and arbitrary detention, respectively, have been filed with, and are under preliminary investigation by the OMB against those believed to be involved in Lourdes kidnapping; that upon receipt of the petition for a writ of amparo, proper coordination was made with the Office of the Deputy Ombudsman for the Military and other Law Enforcement Offices (MOLEO) where the subject criminal and administrative complaints were filed. Commenting on the return, petitioners pointed out that the return was no more than a general denial of averments in the petition. They, thus, pleaded to be allowed to present evidence ex parte against the President, Santana, Alfaro, Capt. Cuaresma, Darwin Sy, and Jonathan. And with leave of court, they also asked to serve notice of the petition through publication, owing to their failure to secure the current address of the latter five and thus submit, as the CA required, proof of service of the petition on them. The hearing started on November 13, 2007.7 In that setting, petitioners counsel prayed for the issuance of a temporary protection order (TPO) against the answering respondents on the basis of the allegations in the petition. At the hearing of November 20, 2007, the CA granted petitioners motion that the petition and writ be served by the courts process server on Darwin Sy/Reyes, Santana, Alfaro, Capt. Cuaresma, and Jonathan. The legal skirmishes that followed over the propriety of excluding President Arroyo from the petition, petitioners motions for service by publication, and the issuance of a TPO are not of decisive pertinence in this recital. The bottom line is that, by separate resolutions, the CA dropped the President as respondent in the case; denied the motion for a TPO for the courts want of authority to issue it in the tenor sought by petitioners; and effectively denied the motion for notice by publication owing to petitioners failure to submit the affidavit required under Sec. 17, Rule 14 of the Rules of Court.8 After due proceedings, the CA rendered, on July 31, 2008, its partial judgment, subject of this review, disposing of the petition but only insofar as the answering respondents were concerned. The fallo of the CA decision reads as follows: WHEREFORE, premises considered, partial judgment is hereby rendered DISMISSING the instant petition with respect to respondent Gen. Hermogenes Esperon, P/Dir. Gen. Avelino Razon, Supt. Edgar B. Roquero, P/Sr. Insp. Arsenio C. Gomez (ret.) and the Office of the Ombudsman. Nevertheless, in order that petitioners complaint will not end up as another unsolved case, the heads of the Armed Forces of the Philippines and the Philippine National Police are directed to ensure that the investigations already commenced are diligently pursued to bring the perpetrators to justice. The Chief of Staff of the Armed Forces of the Philippines and P/Dir. Gen. Avelino Razon are directed to regularly update petitioners and this Court on the status of their investigation. SO ORDERED. In this recourse, petitioners formulate the issue for resolution in the following wise: WHETHER OR NOT the [CA] committed reversible error in dismissing [their] Petition and dropping President Gloria Macapagal Arroyo as party respondent.

Petitioners first take issue on the Presidents purported lack of immunity from suit during her term of office. The 1987 Constitution, so they claim, has removed such immunity heretofore enjoyed by the chief executive under the 1935 and 1973 Constitutions. Petitioners are mistaken. The presidential immunity from suit remains preserved under our system of government, albeit not expressly reserved in the present constitution. Addressing a concern of his co-members in the 1986 Constitutional Commission on the absence of an express provision on the matter, Fr. Joaquin Bernas, S.J. observed that it was already understood in jurisprudence that the President may not be sued during his or her tenure. 9 The Court subsequently made it abundantly clear in David v. Macapagal-Arroyo, a case likewise resolved under the umbrella of the 1987 Constitution, that indeed the President enjoys immunity during her incumbency, and why this must be so: Settled is the doctrine that the President, during his tenure of office or actual incumbency, may not be sued in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations while serving as such. Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to enable him to fully attend to the performance of his official duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive branch and anything which impairs his usefulness in the discharge of the many great and important duties imposed upon him by the Constitution necessarily impairs the operation of the Government.10 x x x And lest it be overlooked, the petition is simply bereft of any allegation as to what specific presidential act or omission violated or threatened to violate petitioners protected rights. This brings us to the correctness of the assailed dismissal of the petition with respect to Gen. Esperon, P/Dir. Gen. Razon, P/Supt. Roquero, P/Insp. Gomez, and the OMB. None of the four individual respondents immediately referred to above has been implicated as being connected to, let alone as being behind, the alleged abduction and harassment of petitioner Lourdes. Their names were not even mentioned in Lourdes Sinumpaang Salaysay11 of April 2007. The same goes for the respective Sinumpaang Salaysay and/or Karagdagang Sinumpaang Salaysay of Jean12 and Mary Joy.13 As explained by the CA, Gen. Esperon and P/Dir. Gen. Razon were included in the case on the theory that they, as commanders, were responsible for the unlawful acts allegedly committed by their subordinates against petitioners. To the appellate court, "the privilege of the writ of amparo must be denied as against Gen. Esperon and P/Dir. Gen. Razon for the simple reason that petitioners have not presented evidence showing that those who allegedly abducted and illegally detained Lourdes and later threatened her and her family were, in fact, members of the military or the police force." The two generals, the CAs holding broadly hinted, would have been accountable for the abduction and threats if the actual malefactors were members of the AFP or PNP. As regards the three other answering respondents, they were impleaded because they allegedly had not exerted the required extraordinary diligence in investigating and satisfactorily resolving Lourdes disappearance or bringing to justice the actual perpetrators of what amounted to a criminal act, albeit there were allegations against P/Insp. Gomez of acts constituting threats against Mary Joy.

While in a qualified sense tenable, the dismissal by the CA of the case as against Gen. Esperon and P/Dir. Gen. Razon is incorrect if viewed against the backdrop of the stated rationale underpinning the assailed decision vis--vis the two generals, i.e., command responsibility. The Court assumes the latter stance owing to the fact that command responsibility, as a concept defined, developed, and applied under international law, has little, if at all, bearing in amparo proceedings. The evolution of the command responsibility doctrine finds its context in the development of laws of war and armed combats. According to Fr. Bernas, "command responsibility," in its simplest terms, means the "responsibility of commanders for crimes committed by subordinate members of the armed forces or other persons subject to their control in international wars or domestic conflict."14 In this sense, command responsibility is properly a form of criminal complicity. The Hague Conventions of 1907 adopted the doctrine of command responsibility,15foreshadowing the present-day precept of holding a superior accountable for the atrocities committed by his subordinates should he be remiss in his duty of control over them. As then formulated, command responsibility is "an omission mode of individual criminal liability," whereby the superior is made responsible for crimes committed by his subordinates for failing to prevent or punish the perpetrators16 (as opposed to crimes he ordered). The doctrine has recently been codified in the Rome Statute17 of the International Criminal Court (ICC) to which the Philippines is signatory. Sec. 28 of the Statute imposes individual responsibility on military commanders for crimes committed by forces under their control. The country is, however, not yet formally bound by the terms and provisions embodied in this treatystatute, since the Senate has yet to extend concurrence in its ratification.18 While there are several pending bills on command responsibility,19 there is still no Philippine law that provides for criminal liability under that doctrine.20 It may plausibly be contended that command responsibility, as legal basis to hold military/police commanders liable for extra-legal killings, enforced disappearances, or threats, may be made applicable to this jurisdiction on the theory that the command responsibility doctrine now constitutes a principle of international law or customary international law in accordance with the incorporation clause of the Constitution.21 Still, it would be inappropriate to apply to these proceedings the doctrine of command responsibility, as the CA seemed to have done, as a form of criminal complicity through omission, for individual respondents criminal liability, if there be any, is beyond the reach of amparo. In other words, the Court does not rule in such proceedings on any issue of criminal culpability, even if incidentally a crime or an infraction of an administrative rule may have been committed. As the Court stressed in Secretary of National Defense v. Manalo (Manalo),22 the writ of amparo was conceived to provide expeditious and effective procedural relief against violations or threats of violation of the basic rights to life, liberty, and security of persons; the corresponding amparo suit, however, "is not an action to determine criminal guilt requiring proof beyond reasonable doubt x x x or administrative liability requiring substantial evidence that will require full and exhaustive proceedings." 23 Of the same tenor, and by way of expounding on the nature and role of amparo, is what the Court said in Razon v. Tagitis: It does not determine guilt nor pinpoint criminal culpability for the disappearance [threats thereof or extra-judicial killings]; it determines responsibility, or at least accountability, for the enforced

disappearance [threats thereof or extra-judicial killings] for purposes of imposing the appropriate remedies to address the disappearance [or extra-judicial killings]. xxxx As the law now stands, extra-judicial killings and enforced disappearances in this jurisdiction are not crimes penalized separately from the component criminal acts undertaken to carry out these killings and enforced disappearances and are now penalized under the Revised Penal Code and special laws. The simple reason is that the Legislature has not spoken on the matter; the determination of what acts are criminal x x x are matters of substantive law that only the Legislature has the power to enact.24 x x x If command responsibility were to be invoked and applied to these proceedings, it should, at most, be only to determine the author who, at the first instance, is accountable for, and has the duty to address, the disappearance and harassments complained of, so as to enable the Court to devise remedial measures that may be appropriate under the premises to protect rights covered by the writ of amparo. As intimated earlier, however, the determination should not be pursued to fix criminal liability on respondents preparatory to criminal prosecution, or as a prelude to administrative disciplinary proceedings under existing administrative issuances, if there be any. Petitioners, as the CA has declared, have not adduced substantial evidence pointing to government involvement in the disappearance of Lourdes. To a concrete point, petitioners have not shown that the actual perpetrators of the abduction and the harassments that followed formally or informally formed part of either the military or the police chain of command. A preliminary police investigation report, however, would tend to show a link, however hazy, between the license plate (XRR 428) of the vehicle allegedly used in the abduction of Lourdes and the address of Darwin Reyes/Sy, who was alleged to be working in Camp Aguinaldo.25 Then, too, there were affidavits and testimonies on events that transpired which, if taken together, logically point to military involvement in the alleged disappearance of Lourdes, such as, but not limited to, her abduction in broad daylight, her being forcibly dragged to a vehicle blindfolded and then being brought to a place where the sounds of planes taking off and landing could be heard. Mention may also be made of the fact that Lourdes was asked about her membership in the Communist Party and of being released when she agreed to become an "asset." Still and all, the identities and links to the AFP or the PNP of the alleged abductors, namely Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes, have yet to be established. Based on the separate sworn statements of Maj. Paul Ciano26 and Technical Sergeant John N. Romano,27 officer-in-charge and a staff of the 301st AISS, respectively, none of the alleged abductors of Lourdes belonged to the 301st AISS based in San Fernando Air Base. Neither were they members of any unit of the Philippine Air Force, per the certification 28 of Col. Raul Dimatactac, Air Force Adjutant. And as stated in the challenged CA decision, a verification with the Personnel Accounting and Information System of the PNP yielded the information that, except for a certain Darwin Reyes y Muga, the other alleged abductors, i.e., Cuaresma, Alfaro, Santana and Jonathan, were not members of the PNP. Petitioners, when given the opportunity to identify Police Officer 1 Darwin Reyes y Muga, made no effort to confirm if he was the same Maj. Darwin Reyes a.k.a. Darwin Sy they were implicating in Lourdes abduction.

Petitioners, to be sure, have not successfully controverted answering respondents documentary evidence, adduced to debunk the formers allegations directly linking Lourdes abductors and tormentors to the military or the police establishment. We note, in fact, that Lourdes, when queried on cross-examination, expressed the belief that Sy/Reyes was an NBI agent. 29 The Court is, of course, aware of what was referred to in Razon30 as the "evidentiary difficulties" presented by the nature of, and encountered by petitioners in, enforced disappearance cases. But it is precisely for this reason that the Court should take care too that no wrong message is sent, lest one conclude that any kind or degree of evidence, even the outlandish, would suffice to secure amparo remedies and protection. Sec. 17, as complemented by Sec. 18 of the Amparo Rule, expressly prescribes the minimum evidentiary substantiation requirement and norm to support a cause of action under the Rule, thus: Sec. 17. Burden of Proof and Standard of Diligence Required.The parties shall establish their claims by substantial evidence. xxxx Sec. 18. Judgment.x x x If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied. (Emphasis added.) Substantial evidence is more than a mere imputation of wrongdoing or violation that would warrant a finding of liability against the person charged; 31 it is more than a scintilla of evidence. It means such amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion, even if other equally reasonable minds might opine otherwise.32 Per the CAs evaluation of their evidence, consisting of the testimonies and affidavits of the three Rubrico women and five other individuals, petitioners have not satisfactorily hurdled the evidentiary bar required of and assigned to them under the Amparo Rule. In a very real sense, the burden of evidence never even shifted to answering respondents. The Court finds no compelling reason to disturb the appellate courts determination of the answering respondents role in the alleged enforced disappearance of petitioner Lourdes and the threats to her familys security. Notwithstanding the foregoing findings, the Court notes that both Gen. Esperon and P/Dir. Gen. Razon, per their separate affidavits, lost no time, upon their receipt of the order to make a return on the writ, in issuing directives to the concerned units in their respective commands for a thorough probe of the case and in providing the investigators the necessary support. As of this date, however, the investigations have yet to be concluded with some definite findings and recommendation. As regards P/Supt. Romero and P/Insp. Gomez, the Court is more than satisfied that they have no direct or indirect hand in the alleged enforced disappearance of Lourdes and the threats against her daughters. As police officers, though, theirs was the duty to thoroughly investigate the abduction of Lourdes, a duty that would include looking into the cause, manner, and like details of the disappearance; identifying witnesses and obtaining statements from them; and following evidentiary leads, such as the Toyota Revo vehicle with plate number XRR 428, and securing and preserving evidence related to the abduction and the threats that may aid in the prosecution of the person/s responsible. As we said in Manalo,33 the right to security, as a

guarantee of protection by the government, is breached by the superficial and one-sided hence, ineffectiveinvestigation by the military or the police of reported cases under their jurisdiction. As found by the CA, the local police stations concerned, including P/Supt. Roquero and P/Insp. Gomez, did conduct a preliminary fact-finding on petitioners complaint. They could not, however, make any headway, owing to what was perceived to be the refusal of Lourdes, her family, and her witnesses to cooperate. Petitioners counsel, Atty. Rex J.M.A. Fernandez, provided a plausible explanation for his clients and their witnesses attitude, "[They] do not trust the government agencies to protect them."34 The difficulty arising from a situation where the party whose complicity in extra-judicial killing or enforced disappearance, as the case may be, is alleged to be the same party who investigates it is understandable, though. The seeming reluctance on the part of the Rubricos or their witnesses to cooperate ought not to pose a hindrance to the police in pursuing, on its own initiative, the investigation in question to its natural end. To repeat what the Court said in Manalo, the right to security of persons is a guarantee of the protection of ones right by the government. And this protection includes conducting effective investigations of extra-legal killings, enforced disappearances, or threats of the same kind. The nature and importance of an investigation are captured in theVelasquez Rodriguez case,35 in which the Inter-American Court of Human Rights pronounced: [The duty to investigate] must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not a step taken by private interests that depends upon the initiative of the victim or his family or upon offer of proof, without an effective search for the truth by the government. (Emphasis added.) This brings us to Mary Joys charge of having been harassed by respondent P/Insp. Gomez. With the view we take of this incident, there is nothing concrete to support the charge, save for Mary Joys bare allegations of harassment. We cite with approval the following self -explanatory excerpt from the appealed CA decision: In fact, during her cross-examination, when asked what specific act or threat P/Sr. Gomez (ret) committed against her or her mother and sister, Mary Joy replied "None "36 Similarly, there appears to be no basis for petitioners allegations about the OMB failing to act on their complaint against those who allegedly abducted and illegally detained Lourdes. Contrary to petitioners contention, the OMB has taken the necessary appropriate action on said complaint. As culled from the affidavit37 of the Deputy Overall Ombudsman and the joint affidavits38 of the designated investigators, all dated November 7, 2007, the OMB had, on the basis of said complaint, commenced criminal39 and administrative40 proceedings, docketed as OMB-P-C-07-0602-E and OMB-P-A 07-567-E, respectively, against Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes. The requisite orders for the submission of counter-affidavits and verified position papers had been sent out. The privilege of the writ of amparo, to reiterate, is a remedy available to victims of extra-judicial killings and enforced disappearances or threats of similar nature, regardless of whether the perpetrator of the unlawful act or omission is a public official or employee or a private individual. At this juncture, it bears to state that petitioners have not provided the CA with the correct addresses of respondents Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes. The mailed envelopes containing the petition for a writ of amparo individually addressed to each of them

have all been returned unopened. And petitioners motion interposed before the appellate court for notice or service via publication has not been accompanied by supporting affidavits as required by the Rules of Court. Accordingly, the appealed CA partial judgment disposing of the underlying petition for a writ of amparo without (1) pronouncement as to the accountability, or lack of it, of the four non-answering respondents or (2) outright dismissal of the same petition as to themhews to the prescription of Sec. 20 of the Amparo Rule on archiving and reviving cases.41 Parenthetically, petitioners have also not furnished this Court with sufficient data as to where the afore-named respondents may be served a copy of their petition for review. Apart from the foregoing considerations, the petition did not allege ultimate facts as would link the OMB in any manner to the violation or threat of violation of the petitioners rights to life, liberty, or personal security. The privilege of the writ of amparo is envisioned basically to protect and guarantee the rights to life, liberty, and security of persons, free from fears and threats that vitiate the quality of this life.42 It is an extraordinary writ conceptualized and adopted in light of and in response to the prevalence of extra-legal killings and enforced disappearances.43 Accordingly, the remedy ought to be resorted to and granted judiciously, lest the ideal sought by the Amparo Rule be diluted and undermined by the indiscriminate filing of amparo petitions for purposes less than the desire to secure amparo reliefs and protection and/or on the basis of unsubstantiated allegations. In their petition for a writ of amparo, petitioners asked, as their main prayer, that the Court order the impleaded respondents "to immediately desist from doing any acts that would threaten or seem to threaten the security of the Petitioners and to desist from approaching Petitioners, x x x their residences and offices where they are working under pain of contempt of [this] Court." Petitioners, however, failed to adduce the threshold substantive evidence to establish the predicate facts to support their cause of action, i.e., the adverted harassments and threats to their life, liberty, or security, against responding respondents, as responsible for the disappearance and harassments complained of. This is not to say, however, that petitioners allegation on the fact of the abduction incident or harassment is necessarily contrived. The reality on the ground, however, is that the military or police connection has not been adequately proved either by identifying the malefactors as components of the AFP or PNP; or in case identification is not possible, by showing that they acted with the direct or indirect acquiescence of the government. For this reason, the Court is unable to ascribe the authorship of and responsibility for the alleged enforced disappearance of Lourdes and the harassment and threats on her daughters to individual respondents. To this extent, the dismissal of the case against them is correct and must, accordingly, be sustained. Prescinding from the above considerations, the Court distinctly notes that the appealed decision veritably extended the privilege of the writ of amparo to petitioners when it granted what to us are amparo reliefs. Consider: the appellate court decreed, and rightly so, that the police and the military take specific measures for the protection of petitioners right or threatened right to liberty or security. The protection came in the form of directives specifically to Gen. Esperon and P/Dir. Gen. Razon, requiring each of them (1) to ensure that the investigations already commenced by the AFP and PNP units, respectively, under them on the complaints of Lourdes and her daughters are being pursued with urgency to bring to justice the perpetrators of the acts complained of; and (2) to submit to the CA, copy furnished the petitioners, a regular report on the progress and status of the investigations. The directives obviously go to Gen. Esperon in his capacity as head of the AFP and, in a sense, chief guarantor of order and security in the

country. On the other hand, P/Dir. Gen. Razon is called upon to perform a duty pertaining to the PNP, a crime-preventing, investigatory, and arresting institution. As the CA, however, formulated its directives, no definitive time frame was set in its decision for the completion of the investigation and the reportorial requirements. It also failed to consider Gen. Esperon and P/Dir. Gen. Razons imminent compulsory retirement from the military and police services, respectively. Accordingly, the CA directives, as hereinafter redefined and amplified to fully enforce the amparo remedies, are hereby given to, and shall be directly enforceable against, whoever sits as the commanding general of the AFP and the PNP. At this stage, two postulates and their implications need highlighting for a proper disposition of this case. First, a criminal complaint for kidnapping and, alternatively, for arbitrary detention rooted in the same acts and incidents leading to the filing of the subject amparo petition has been instituted with the OMB, docketed as OMB-P-C-O7-0602-E. The usual initial steps to determine the existence of a prima facie case against the five (5) impleaded individuals suspected to be actually involved in the detention of Lourdes have been set in motion. It must be pointed out, though, that the filing44 of the OMB complaint came before the effectivity of the Amparo Rule on October 24, 2007. Second, Sec. 2245 of the Amparo Rule proscribes the filing of an amparo petition should a criminal action have, in the meanwhile, been commenced. The succeeding Sec. 23, 46 on the other hand, provides that when the criminal suit is filed subsequent to a petition for amparo, the petition shall be consolidated with the criminal action where the Amparo Rule shall nonetheless govern the disposition of the relief under the Rule. Under the terms of said Sec. 22, the present petition ought to have been dismissed at the outset. But as things stand, the outright dismissal of the petition by force of that section is no longer technically feasible in light of the interplay of the following factual mix: (1) the Court has, pursuant to Sec. 647 of the Rule, already issued ex parte the writ of amparo; (2) the CA, after a summary hearing, has dismissed the petition, but not on the basis of Sec. 22; and (3) the complaint in OMB-P-C-O7-0602-E named as respondents only those believed to be the actual abductors of Lourdes, while the instant petition impleaded, in addition, those tasked to investigate the kidnapping and detention incidents and their superiors at the top. Yet, the acts and/or omissions subject of the criminal complaint and the amparo petition are so linked as to call for the consolidation of both proceedings to obviate the mischief inherent in a multiplicity-of-suits situation. Given the above perspective and to fully apply the beneficial nature of the writ of amparo as an inexpensive and effective tool to protect certain rights violated or threatened to be violated, the Court hereby adjusts to a degree the literal application of Secs. 22 and 23 of the Amparo Rule to fittingly address the situation obtaining under the premises. 48 Towards this end, two things are at once indicated: (1) the consolidation of the probe and fact-finding aspects of the instant petition with the investigation of the criminal complaint before the OMB; and (2) the incorporation in the same criminal complaint of the allegations in this petition bearing on the threats to the right to security. Withal, the OMB should be furnished copies of the investigation reports to aid that body in its own investigation and eventual resolution of OMB-P-C-O7-0602-E. Then, too, the OMB shall be given easy access to all pertinent documents and evidence, if any, adduced before the CA. Necessarily, Lourdes, as complainant in OMB-P-C-O7-0602-E, should

be allowed, if so minded, to amend her basic criminal complaint if the consolidation of cases is to be fully effective. WHEREFORE, the Court PARTIALLY GRANTS this petition for review and makes a decision: (1) Affirming the dropping of President Gloria Macapagal-Arroyo from the petition for a writ of amparo; (2) Affirming the dismissal of the amparo case as against Gen. Hermogenes Esperon, and P/Dir. Gen. Avelino Razon, insofar as it tended, under the command responsibility principle, to attach accountability and responsibility to them, as then AFP Chief of Staff and then PNP Chief, for the alleged enforced disappearance of Lourdes and the ensuing harassments allegedly committed against petitioners. The dismissal of the petition with respect to the OMB is also affirmed for failure of the petition to allege ultimate facts as to make out a case against that body for the enforced disappearance of Lourdes and the threats and harassment that followed; and (3) Directing the incumbent Chief of Staff, AFP, or his successor, and the incumbent DirectorGeneral of the PNP, or his successor, to ensure that the investigations already commenced by their respective units on the alleged abduction of Lourdes Rubrico and the alleged harassments and threats she and her daughters were made to endure are pursued with extraordinary diligence as required by Sec. 1749 of the Amparo Rule. They shall order their subordinate officials, in particular, to do the following: (a) Determine based on records, past and present, the identities and locations of respondents Maj. Darwin Sy, a.k.a. Darwin Reyes, Jimmy Santana, Ruben Alfaro, Capt. Angelo Cuaresma, and one Jonathan; and submit certifications of this determination to the OMB with copy furnished to petitioners, the CA, and this Court; (b) Pursue with extraordinary diligence the evidentiary leads relating to Maj. Darwin Sy and the Toyota Revo vehicle with Plate No. XRR 428; and (c) Prepare, with the assistance of petitioners and/or witnesses, cartographic sketches of respondents Maj. Sy/Reyes, Jimmy Santana, Ruben Alfaro, Capt. Angelo Cuaresma, and a certain Jonathan to aid in positively identifying and locating them. The investigations shall be completed not later than six (6) months from receipt of this Decision; and within thirty (30) days after completion of the investigations, the Chief of Staff of the AFP and the Director-General of the PNP shall submit a full report of the results of the investigations to the Court, the CA, the OMB, and petitioners. This case is accordingly referred back to the CA for the purpose of monitoring the investigations and the actions of the AFP and the PNP. Subject to the foregoing modifications, the Court AFFIRMS the partial judgment dated July 31, 2008 of the CA. SO ORDERED. 6) People vs. Gaffud - GR No. 168050 EN BANC PEOPLE OF THE PHILIPPINES, G.R. No. 168050

Plaintiff-Appellee, Present: PUNO, C.J. QUISUMBING, YNARES-SANTIAGO, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, - versus - AZCUNA, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, REYES, LEONARDO-DE CASTRO, and BRION, JJ. BERNARDINO gaffud, jr., Promulgated: Accused-Appellant. September 19, 2008 x------------------------------------------------x DECISION PUNO, C.J.: For review before this Court is the Decision1 of the Court of Appeals (CA) dated March 31, 2005 in CA-G.R. CR-HC No. 00060 finding the accused-appellant Bernardino Gaffud, Jr. guilty of the complex crime of double murder and sentencing him to death, affirming with modification the Decision2 of the Regional Trial Court (RTC) dated August 28, 2002 in Criminal Case No. 1125. The facts of this case were aptly summarized by the CA as follows: Records show that accused-appellant Bernardino Gaffud, Jr., along with two John Does were indicted for Double Murder for the killing of Manuel Salvador and Analyn Salvador, under the following Information: "The undersigned 2nd Assistant Provincial Prosecutor accuses Bernardino Gaffud, Jr. and two (2) JOHN DOES of the crime of DOUBLE MURDER defined and penalized under Article 248 of the Revised Penal Code, committed as follows: That on or about 8:00 oclock in the evening of May 10, 1994 at Sitio Biton, Barangay Wasid, Municipality of Nagtipunan, Province of Quirino, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with intent to kill and motivated by long standing grudge, after conspiring, confederating and mutually helping one another, by means of fire, did then and there, willfully, unlawfully, and feloniously, shot and burn Manuel Salvador and Analyn Salvador which caused their instantaneous death. CONTRARY TO LAW." (p. 15, Records) It appears that Manuel Salvador and his daughter Analyn Salvador were killed when the house they were staying in located at Sitio Biton, Barangay Wasid, Nagtipunan, Quirino was burned down while they were inside. An eyewitness pointed to accused-appellant Bernardino Gaffud, Jr. as one of the arsonists. Upon preliminary investigation, where appellant Gaffud, Jr. failed to appear despite being subpoenaed to submit his counter-affidavit, Assistant Provincial Prosecutor Ferdinand Orias resolved that charges for double murder by means of fire be filed against herein appellant and two John Does, (p.14, Records). When arraigned on June 6, 1995, accused-appellant Gaffud, Jr. entered a plea of Not Guilty, (p. 48, Records), paving the way for his trial.

The prosecution presented six (6) witnesses against appellant Gaffud, Jr., namely Dominga Salvador, common-law wife of Manuel Salvador and mother of Analyn Salvador, Orly Salvador, nephew of Manuel Salvador, Potado Ballang, Barangay Captain of Wasid, Nagtipunan, Quirino, Dan Dangpal, a neighbor of the deceased, SPO2 Dominador Tabal, the investigating police, and Dr. Teodomiro Hufana who conducted the autopsy on the deceased Manuel Salvador. Evidence for the prosecution tended to prove that on the night of May 10, 1994, Orly Salvador was on his way to the house of his uncle Manuel Salvador to fetch the latter as they were going to attend a wedding at the nearby barangay hall. He suddenly heard two gunshots. Thereafter, he saw the house of his uncle burning. Because of the glow emanating therefrom, he saw three persons within the vicinity of the burning house. He saw them hurriedly leaving the place towards the direction of the Cagayan river. One of the three was holding a flashlight, whom he identified as appellant Gaffud, Jr. He could not identify the two other persons. After the house was burned, Orly went towards the barangay hall to see if his uncle Manuel Salvador was there, but he met Brangay Captain Potado Ballang who informed him that his uncle was not at the barangay hall. They then proceeded to the burned house, and found the charred remains of Manuel Salvador and Analyn Salvador. (TSN, October 10, 1995, pp. 3-8) Barangay Captain Potado Ballang testified that he saw appellant Gaffud, Jr. on the fateful day at around 6:30 PM, along the riverbank, a few meters away from the house of Manuel Salvador. When Potado asked what he was doing there, Gaffud, Jr. said he was looking for his boat. However, Potado knew that the appellant did not own a boat. After a few minutes, Potado left to attend the wedding party being held at the barangay hall. (TSN, November 4, 1996, pp. 2-5) Dan Dangpals testimony was dispensed with, but the defense agreed to the nature of the testimony he would have given, which tended to show that sometime at about 8:00 PM on the fateful evening, while inside his house, he heard successive gunshots, and when he went out of his house, he saw the deceaseds house burning about 200 meters away. He heard persons laughing and saw the light of a flashlight and persons moving away from the burning house. He could not recognize any of them. (TSN, February 24, 1997; Exhibit "D", p. 8, Records) Dominga Salvadors testimony tended to show that the appellant Gaffud, Jr. was their neighbor. In the morning of May 10, 1994, she went to the house of the appellant to see him about her husbands share in the construction of the barangay hall, which was contracted to the appellant. Gaffud, Jr. told her that he would go to her house that afternoon to introduce his in-law Balbino Bravo to her husband. Thereafter, she went home, and left again at around 11:00 AM, leaving behind her husband Manuel Salvador and their daughter Analyn. Later that night, she was at Natipunan, Quirino attending a seminar for "hilot", (TSN, July 4, 1995, pp. 315). In her sinumpaang salaysay, offered in evidence as Exhibit "A", Dominga also related that she had earlier filed a complaint in the barangay against the appellant and his brother for slaughtering her pig. SPO2 Dominador Tabal was a police investigator who investigated the killing of Manuel and Analyn Salvador. Thereat, he saw two dead bodies hanging from a Melina tree. They were put there so that they would not be reached by the dogs. He saw that one of the victims had a fractured head, while the other had a wound on the side. Pictures of the victims including the scene of the incident were taken by them. Among those interviewed the appellant Gaffud, Jr. and his brother, (TSN, June 5, 1997, pp. 2-7). Dr. Teodomiro Hufanas testimony was also dispensed with, (p. 127, Records) in view of the defense counsels admission of the contents of his Autopsy Report on Manuel Salvador, (Exhibit "C"), which reads in pertinent part: FINDINGS -Cremated charcoaled, about 3 ft. long, stomach and intestine (Large) protruding from the

abdomen. -Presence of semi-burned rattan about 1 inch long about 1 cm. in diameter on the burned hand. -Presence of a peculiar hole from the thoracic cavity directed downward to the body, probably gunshot wound. CAUSE OF DEATH: -CREMATION (Burned) REMARKS: Cannot be identified if male or female For the appellants defense, the defense presented the appellant himself. His defense of alibi was corroborated by his wife Juanita Gaffud and in-law Balbino Bravo. Appellant denied the accusation leveled against him, and testified that the approximate time of the burning of the victims house, he was at home, entertaining his in-laws, Balbino Bravo and Rufina Bravo, who was there for a visit. After eating dinner, he and Balbino Bravo talked. At around 7:00 to 8:00 PM, he and Balbino Bravo saw a blaze coming from the other side of the Cagayan River, about 50 to 80 meters away from the house of the Bravos. They did not mind the blaze, and instead went to sleep. The next morning, they heard news about somebody being burned, and because of this, he and Balbino Bravo hiked to the place of the incident. Thats where he found that his "pare" Manuel Salvador and his daughter were burned in their house. After seeing the dead bodies, appellant went home. He went back later, and was even designated by the Barangay Captain to guard the bodies of the deceased. Thereafter, he was forced to evacuate his family from Nagtipunan, because the Ilongot tribe was forcing him to testify against someone but he didnt want to. He was told that something might happen to his family if he didnt leave, (TSN, June 3, 2002). The appellants defense was corroborated on its material points by the testimony of his wife, Juanita Gaffud, and his in-law, Balbino Bravo, both of whom testified that on May 10, 1994, the accused was at his residence entertaining visiting Bravo spouses and stayed there the whole night, (TSN January 31, 2002 and March 18, 2002). Juanita Gaffud also testified that during the pendency of the trial, she talked to Dominga Salvador about the settlement of the case and even offered a certain amount for the said purpose, (TSN, March 10, 2002, p. 12).3 After trial, the RTC rendered its Decision finding accused-appellant guilty of two (2) counts of murder, the dispositive portion of which reads: WHEREFORE, in view of all the foregoing, the Court finds Bernardino Gaffud, Jr. GUILTY for two (2) counts of murder and hereby sentences him as follows, to wit: a) Death penalty - for the death of Manuel Salvador; b) Another death penalty - for the death of Analyn Salvador; c) To pay the legal heirs of the victims: c-1) SEVENTY FIVE THOUSAND PESOS (P75,000.00) for each count or a total of ONE HUNDRED FIFTY THOUSAND PESOS (P150,000.00) as death indemnities; c-2) FIFTY THOUSAND PESOS (P50,000.00) for each count or a total of ONE HUNDRED THOUSAND PESOS (P100,000.00) as moral damages; c-3) TWENTY FIVE THOUSAND PESOS (P25,000) for each count or a total of FIFTY THOUSAND PESOS (P50,000.00) as exemplary damages; c-4) TEN THOUSAND PESOS (P10,000.00) as nominal damages; and c-5) Costs. xxxx SO ORDERED.4 As the death penalty was imposed, the case was elevated to this Court for automatic review. In his Appellants Brief,5 accused-appellant argued that the RTC erred in: (i) failing to rule and resolve whether or not conspiracy existed, as the information charged him with conspiracy

with two others in the commission of the crime; and (ii) convicting him despite the fact that conspiracy was not proven, and also despite the fact that there was no proof whatsoever as to what overt act he committed which would constitute the crime of murder. The case was transferred to the CA for appropriate action and disposition per Resolution6 of this Court dated August 24, 2004, in accordance with the ruling in People v. Mateo. 7 In disposing of the assigned errors, the CA held that the lack of discussion of conspiracy among accused-appellant and his anonymous co-accused in the decision of the RTC was not antithetic to his conviction for the crime of murder, since the charge that he was a principal performer in the killing of the victims was spelled out in the Information8 filed against him.9Moreover, in the absence of conspiracy, each of the malefactors is liable only for the act committed by him.10 As to the sufficiency of the evidence presented by the prosecution, the CA held that the circumstantial evidence in this case established accused-appellants guilt beyond reasonable doubt.11 Accordingly, the CA affirmed the Decision of the RTC, finding accused-appellant guilty of the complex crime of double murder, with the following modifications: WHEREFORE, premises considered, the appeal is hereby DISMISSED, although the decision of the lower court is hereby MODIFIED, in that: The accused Bernardino Gaffud, Jr. is hereby found GUILTY of the complex crime of double murder, and is hereby sentenced to the supreme penalty of Death. He is also ordered to pay the legal heirs of the victims: (1) P100,000.00 or P50,000.00 for each victim, as civil indemnity for the death of the victims; (2) P100,000.00 or P50,000.00 for each victim, as moral damages; and (3) P10,000.00 as nominal damages plus costs. SO ORDERED.12 Pursuant to Section 13, Rule 124 of the Rules of Court, as amended by A.M. No. 00-5-03-SC dated September 28, 2004, the case was elevated to this Court for review. On the first assigned error, we concur with the CA that the failure to prove conspiracy in this case is not fatal. The rule is that in the absence of evidence showing the direct participation of the accused in the commission of the crime, conspiracy must be established by clear and convincing evidence in order to convict the accused.13 In the case at bar, however, we hold that the direct participation of accused-appellant in the killing of the victims, Manuel Salvador and Analyn Salvador, was established beyond doubt by the evidence of the prosecution. Hence, a finding of conspiracy in this instance is not essential for the conviction of accused-appellant. On the second assigned error, we uphold the finding of both courts a quo that the evidence proffered by the prosecution, although circumstantial in nature, leads to the conclusion that accused-appellant is the perpetrator of the act resulting in the death of the victims. It is well-settled that circumstantial evidence is sufficient to sustain a conviction if (i) there is more than one circumstance; (ii) the facts from which the inference is derived are proven; and (iii) the combination of all circumstances is such as to produce conviction beyond reasonable doubt.14 In this case, the following facts or circumstances were proven: (i) Accused-appellant was near the place of the incident just a few minutes before the crime was committed. Captain Potado Bollang testified that he saw the accused-appellant at the riverbank, about 100 meters from the house of the victims, coming to and fro, allegedly looking for his boat, when in fact, Captain Bollang knew that accused-appellant did not own one.15 (ii) Accused-appellant, together with two unidentified persons, was near the house of the victims at the time it was on fire. Accused-appellant was identified by Orly Salvador as one of the three men he saw about 5 meters from the house of his uncle, Manuel Salvador, while it was burning. Previously, he heard two gunshots as he was on his way towards the said house. He also saw appellant fleeing with the other malefactors, while holding a flashlight.16

His testimony was corroborated by the admitted testimony of Dan Dangpal who said that he heard two gunshots while he was at his home, which was near that of the victims. When he went out, he also heard men laughing, and saw them fleeing from the burning house, illumined by a flashlight.17 (iii) Accused-appellant was in a hurry to leave the place of the incident without giving any help to his kumpare Manuel Salvador and the latters daughter, Analyn. Orly Salvador testified that he saw accused-appellant holding a flashlight, in a hurry to leave the burning house of the victim, going towards the direction of the river.18 (iv) Accused-appellant had a motive to kill the victims because of the complaint filed by Manuel Salvadors wife, Dominga Salvador, and the fact that he owed Manuel Salvador some money. Dominga Salvador testified that she had filed a complaint against accused-appellant and his brother in their barangay for their act of slaughtering her pig. Aside from this, in the morning of the same fateful day, she went to the house of accused-appellant aiming to collect her husbands share in the profits for the construction of the barangay hall they had buil t, but the accused-appellant only told her that he and his in-law would see her husband later that day.19 These circumstances, when taken together, are enough to produce the conclusion that accused-appellant was responsible for the killing of the victims by means of burning them inside their house. Moreover, we sustain the following observation of the CA that against the convincing evidence of the prosecution, accused-appellants defense of denial and alibi must fail: The Court finds incredible appellants story that after seeing the blaze across his house, he merely slept with his in-laws without investigating. The Court finds it against human nature for one to sleep soundly during a fire occurring just 50-80 metes from ones house, even though the blaze is occurring across a river. Also, appellant muse know, after seeing the location of the blaze, that the house of his "pare", or close friend, was in danger, and his natural reaction at least was to verify the object of the conflagration. Appellants story that he only slept soundly after seeing the blaze is therefore unbelievable, and taints the credibility of his alibi. Another telling factor on the appellants defense is his flight. Appellant admitted that in his testimony that he fled Wasid, Nagtipunan, Quirino after he was investigated at the Municipal Hall, (TSN, June 3, 2002, p. 19). Appellant said he fled because of threats from the Ilongots. However, appellant said it never entered his mind to report the threats on him. Appellants explanation fails to convince. It bears stressing that appellant fled right after being investigated and questioned by police authorities, and during the time that the preliminary investigation of the case was ongoing. This is highly suspicious, as such time is the best time for him to defend his innocence, if he is indeed innocent. As it is, appellant was arrested in San Vicente, Jones, Isabela, a remote barangay by the elements of the NBI, (Id., at 23; reverse of p. 19, Records). Flight is consistently held as and indication of guilt, (People v. Magaro, 291 SCRA 601 [1998]). There is no showing why such conclusion should not be made in this case.20 We now go to whether or not accused-appellant should be held liable for two (2) separate counts of murder or for the complex crime of double murder. Article 48 of the Revised Penal Code (RPC), as amended, reads: ARTICLE 48. Penalty for complex crimes. 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 a complex crime, although two or more crimes are actually committed, they constitute only one crime in the eyes of the law as well as in the conscience of the offender. Hence, there is only one penalty imposed for the commission of a complex crime.21 There are two kinds of complex crime. The first is known as compound crime, or when a

single act constitutes two or more grave or less grave felonies. The second is known as complex crime proper, or when an offense is a necessary means for committing the other. 22 The classic example of the first of kind is when a single bullet results in the death of two or more persons. A different rule governs where separate and distinct acts result in a number killed. Deeply rooted is the doctrine that when various victims expire from separate shots, such acts constitute separate and distinct crimes.23 In the landmark case People v. Guillen,24 the Court held that the single act of throwing a grenade at President Roxas resulting in the death of another person and injuring four others produced the complex crime of murder and multiple attempted murders. Under Article 248 of the RPC, murder is committed when a person is killed by means of explosion. Applying Article 48 of the RPC, the penalty for the crime committed is death, the maximum penalty for murder, which is the graver offense. More recently, in People v. Carpo et al.,25 we held that the single act of hurling a grenade into the bedroom of the victims causing the death of three persons and injuries to one person constituted the complex crime of multiple murder and attempted murder. Also, in People v. Comadre,26 we held: The underlying philosophy of complex crimes in the Revised Penal Code, which follows the pro reo principle, is intended to favor the accused by imposing a single penalty irrespective of the crimes committed. The rationale being, that the accused who commits two crimes with single criminal impulse demonstrates lesser perversity than when the crimes are committed by different acts and several criminal resolutions. The single act by appellant of detonating a hand grenade may quantitatively constitute a cluster of several separate and distinct offenses, yet these component criminal offenses should be considered only as a single crime in law on which a single penalty is imposed because the offender was impelled by a "single criminal impulse" which shows his lesser degree of perversity. In light of these precedents, we hold that the single act of accused-appellant burning the house of Manuel Salvador, with the main objective of killing the latter and his daughter, Analyn Salvador, resulting in their deaths resulted in the complex crime of double murder. Under Article 248 of the RPC, murder is committed by means of fire. Since the maximum penalty imposed for murder was death, when the case was pending in the CA, the CA correctly imposed the penalty of death for the complex crime of double murder instead of the two death penalties imposed by the RTC for two counts of murder. In view, however, of the passage of Republic Act No. 9346 (otherwise known as "An Act Prohibiting the Imposition of Death Penalty in the Philippines"), we reduce the penalty of death to reclusion perpetua with no eligibility for parole.27 Anent the award of damages, we increase the award of civil indemnity by the CA for the death of the victims from P100,000 or P50,000 for each victim, to P150,000 or P75,000 for each victim in accordance with prevailing jurisprudence.28 As to the deletion of exemplary damages by the CA, we reinstate the award by the RTC of exemplary damages in the amount of P50,000, orP25,000 for each victim. By and of itself, nighttime is not an aggravating circumstance. It becomes aggravating only when: (1) it is especially sought by the offender; or (2) it is taken advantage of by him; or (3) it facilitates the commission of the crime by ensuring the offender's immunity from capture. 29 In this case, the RTC correctly appreciated nighttime as aggravating considering that nighttime was especially sought by accused-appellant to carry out his evil plan. Evidence shows that accused-appellant waited for nighttime to consummate his plan. It should be noted that accused-appellant was seen lurking near the house of the victims earlier in the evening. The fact that he brought with him a flashlight clearly shows that he intended to commit the crime in darkness. We sustain the award by the CA of moral damages in the amount of P100,000, or P50,000 for

each victim, in view of the grief and sorrow suffered by the heirs of the victims. We likewise affirm the award of nominal damages in the amount of P10,000 for the value of the burned house as sufficiently explained by the RTC and affirmed by the CA. IN VIEW WHEREOF, we hereby AFFIRM the March 31, 2005 decision of the CA in CA-G.R. CR-HC No. 00060 with the following MODIFICATIONS: (1) the penalty of death imposed on accused-appellant is REDUCED to reclusion perpetua without eligibility for parole; (2) the civil indemnity for the death of the victims is increased to P150,000, or P75,000 for each victim; and (3) accused-appellant is ordered to pay exemplary damages in the amount of P50,000, or P25,000 for each victim. SO ORDERED.

7) People vs. Judge Pineda - GR No. 26222 G.R. No. L-26222 July 21, 1967

THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HONORABLE JUDGE HERNANDO PINEDA of the Court of First Instance of Lanao del Norte; and TOMAS NARBASA, TAMBAC ALINDO and RUFINO BORRES, respondents. Dominador L. Padilla for petitioner. Narbasa, Tambac Alindo and Borres for respondents. SANCHEZ, J.: Respondents Tomas Narbasa, Tambac Alindo and Rufino Borres stand indicted before the Court of First Instance of Lanao del Norte, as principals, in five (5) separate cases, four for murder, viz: Criminal Case 1246 murder of Neceforo Mendoza; Criminal Case 1247 murder of Epifania Mendoza; Criminal Case 1248 frustrated murder of Valeriana Bontilao de Mendoza; Criminal Case 1249 murder of Teofilo Mendoza; Criminal Case 1250 murder of Marcelo Mendoza. The five informations were planted upon facts gathered by the prosecuting attorney from his investigation. Of course, the truth of these facts is yet to be tested in the crucible of a full-dress trial on the merits. The indictments are bottomed upon the following alleged pivotal facts:

On the night of July 29, 1965, the occupants of the home of the spouses Teofilo Mendoza and Valeriana Bontilao de Mendoza in Pugaan City of Iligan, were asleep. It was then that guns (rifle, caliber 22) and paliuntod(homemade gun) were fired in rapid succession from outside the house. Teofilo Mendoza fell dead. Thereafter, defendants below destroyed the door of the house, entered therein, and let loose several shots killing Neceforo Mendoza, all minor children of the couple and wounding Valeriana Bontilao de Mendoza. Two of the three defendants in the five criminal cases heretofore listed Tomas Narbasa and Tambak Alindo moved for a consolidation thereof "into one (1) criminal case." Their plea is that "said cases arose out of the same incident and motivated by one impulse." Giving the nod to defendants' claim, respondent Judge, in an order dated May 13, 1966, directed the City Fiscal to unify all the five criminal cases, and to file one single information in Case 1246. He also ordered that the other four cases, Nos. 1247, 1248, 1249 and 1250 "be dropped from the docket." The City Fiscal balked at the foregoing order, sought reconsideration thereof, upon the ground that "more than one gun was used, more than one shot was fired and more than one victim was killed." The defense opposed. On May 31, 1966, respondent Judge denied the motion to reconsider. He took the position that the acts complained of "stemmed out of a series of continuing acts on the part of the accused, not by different and separate sets of shots, moved by one impulse and should therefore be treated as one crime though the series of shots killed more than one victim;" and that only one information for multiple murder should be filed, to obviate the necessity of trying five cases instead of one." Primarily to annul respondent Judge's orders of May 13, 1966 and May 31, 1966, as having been issued without or in excess of jurisdiction and/or with grave abuse of discretion, the People came to this Court on certiorari with a prayer for a writ of preliminary injunction, and for other reliefs. This Court, on July 1, 1966, issued the cease-and-desist order prayed for. The question here presented, simply is this: Should there be one information, either for the complex crime of murder and frustrated murder or for the complex crime of robbery with multiple homicide and frustrated homicide? Or, should the five indictments remain as they are? 1. The case before us calls into question the applicability of Article 48 of the Revised Penal Code, as amended, which reads: Art. 48. Penalty for complex crimes. 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. Read as it should be, Article 48 provides for two classes of crimes where a single penalty is to be imposed: first, where a single act constitutes two or more grave or less grave felonies (delito compuesto); and, second, when an offense is a necessary means for committing the other (delito complejo).1 Best exemplified by the first of the two cases is where one shot from a gun results in the death of two or more persons. Jurisprudence teaches that, in this factual setting, the complex crime

defined in the first part of Article 48 finds application.2 A similar rule obtains where one stabbed another and the weapon pierced the latter's body through and wounded another. The first died instantaneously; the second, seven days later. This Court convicted the assailant of double murder.3 So where a person plants a bomb in an airplane and the bomb explodes, with the result that a number of persons are killed, that single act again produces a complex crime. 4 A different rule governs where separate and distinct acts result in a number killed. Deeply rooted is the doctrine that when various victims expire from separate shots, such acts constitute separate and distinct crimes.5 Thus, where the six defendants, with others (armed with pistols, carbines and also a submachine gun and Garand rifles), fired volleys into a house killing eleven and wounding several others, each of the said accused is "guilty of as many crimes of murder as there were deaths (eleven).6 Again, eleven persons were indicted for quadruple murder with the use of bolos, a pistol, a barbed arrow and a piece of bamboo of a man, his commonlaw wife, and their two children in cold blood. The accused were found guilty by the trial court of such offense. This Court, in reversing this ruling below, held that "[t]he four victims were not killed by a single act but by various acts committed on different occasions and by different parties"; that such acts "may not be regarded as constituting one single crime"; and that "[t]hey should be held as separate and distinct crimes."7 And a third. At the commencement exercises of an elementary school, "a shot suddenly rang out" followed by a "series of shots" from a pistol. Two persons lay dead and a third seriously wounded but who later on also died. This Court there ruled that there were "three distinct and separate murders" committed by appellant Juan Mones.8 And finally, in People vs. Gatbunton, L-2435, May 10, 1950, the spouses Mariano Sebastian and Maxima Capule who were asleep were killed by one burst of machinegun fire; and then, by a second burst of machinegun fire, two of the couple's children also asleep were killed. The accused, Tomas Gatbunton, was found guilty by the trial court of quadruple murder. On appeal, this Court declared that "appellant must be declared guilty of four murders."9 The present ease is to be differentiated from People vs. Lawas, L-7618-20, June 30, 1955. There, on a single occasion, about fifty Maranaos were killed by a group of home guards. It was held that there was only one complex crime. In that case, however, there was no conspiracy to perpetuate the killing. In the case at bar, defendants performed several acts. And the informations charge conspiracy amongst them. Needless to state, the act of one is the act of all.10 Not material here, therefore is the finding in Lawas that "it is impossible to ascertain the individual deaths caused by each and everyone" of the accused. It is to be borne in mind, at this point, that apply the first half of Article 48, heretofore quoted, there must be singularity of criminal act; singularity of criminalimpulse is not written into the law.11 The respondent Judge reasons out in his order of May 31, 1966 that consolidation of the five cases into one would have the salutary effect of obviating the necessity of trying five cases instead of one. To save time, indeed, is laudable. Nonetheless, the statute confers upon the trial judge the power to try these cases jointly, such that the fear entertained by respondent Judge could easily be remedied.12 Upon the facts and the law, we hold that the City Fiscal of Iligan City correctly presented the five separate informations four for murder and one for frustrated murder. 2. We have not overlooked the suggestion in the record that, because of an affidavit of one of the witnesses, possibility exists that the real intent of the culprits was to commit robbery, and that the acts constituting murders and frustrated murder complained of were committed in

pursuance thereof. If true, this would bring the case within the coverage of the second portion of Article 48, which treats as a complex crime a case where an offense is a necessary means for committing the other. A rule of presumption long familiar, however, is that official duty has been regularly performed. 13 If the Fiscal has not seen fit to give weight to said affidavit wherein it is alleged that certain personal properties (transistor radio and money) were taken away by the culprits after the shooting, we are not to jettison the prosecutor's opinion thereon. The Fiscal could have had reasons for his act. For one thing, there is the grave problem of proving the elements of that offense robbery. For another, the act could have been but a blind to cover up the real intent to kill. Appropriately to be noted here is that all the informations charged evident premeditation. With ponderables and imponderables, we are reluctant to hazard a guess as to the reasons for the Fiscal's action. We are not now to say that, on this point, the Fiscal has abused his discretion. A prosecuting attorney, by the nature of his office, is under no compulsion to file a particular criminal information where he is not convinced that he has evidence to prop up the averments thereof, or that the evidence at hand points to a different conclusion. This is not to discount the possibility of the commission of abuses on the part of the prosecutor. But we must have to recognize that a prosecuting attorney should not be unduly compelled to work against his conviction. In case of doubt, we should give him the benefit thereof. A contrary rule may result in our courts being unnecessarily swamped with unmeritorious cases. Worse still, a criminal suspect's right to due process the sporting idea of fair play may be transgressed. So it is, that in People vs. Sope 75 Phil. 810, 815, this Court made the pronouncement that "[i]t is very logical that the prosecuting attorney, being the one charged with the prosecution of offenses, should determine the information to be filed and cannot be controlled by the off ended party."14 3. The impact of respondent Judge's orders is that his judgment is to be substituted for that of the prosecutor's on the matter of what crime is to be filed in court. The question of instituting a criminal charge is one addressed to the sound discretion of the investigating Fiscal. The information he lodges in court must have to be supported by facts brought about by an inquiry made by him. It stands to reason then to say that in a clash of views between the judge who did not investigate and the fiscal who did, or between the fiscal and the offended party or the defendant, those of the Fiscal's should normally prevail. In this regard, he cannot ordinarily be subject to dictation. We are not to be understood as saying that criminal prosecution may not be blocked in exceptional cases. A relief in equity "may be availed of to stop it purported enforcement of a criminal law where it is necessary (a) for the orderly administration of justice; (b) to prevent the use of the strong arm of the law in an oppressive and vindictive manner; (c) to avoid multiplicity of actions; (d) to afford adequate protection to constitutional rights; and (e) in proper cases, because the statute relied upon is unconstitutional or was 'held invalid.' "15 Nothing in the record would as much as intimate that the present case fits into any of the situations just recited.1wph1.t And at this distance and in the absence of any compelling fact or circumstance, we are loathe to tag the City Fiscal of Iligan City with abuse of discretion in filing separate cases for murder and frustrated murder, instead of a single case for the complex crime of robbery with homicide and frustrated homicide under the provisions of Article 294 (1) of the Revised Penal Code or, for that matter, for multiple murder and frustrated murder. We state that, here, the Fiscal's discretion should not be controlled.

Upon the record as it stands, the writ of certiorari prayed for is hereby granted; the orders of respondent Judge of May 13, 1965 and May 31, 1966 are hereby set and declared null and void, and, in consequence, the writ of preliminary injunction heretofore issued is made permanent insofar as it stops enforcement of the said orders; and the respondent Judge, or whoever takes his place, is hereby directed to reinstate Criminal Cases 1246, 1247, 1248, 1249 and 1250 as they were commenced, and to take steps towards the final determination thereof. Costs against respondents Tomas Narbasa, Tambac Alindo and Rutino Borres. So ordered. People vs. Tabaco - GR No. 100382 G.R. Nos. 100382-100385 March 19, 1997 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARIO TABACO, accused-appellant.

HERMOSISIMA, JR., J.: In four related informations, Mario Tabaco was charged with four counts of Murder for shooting to death on March 22, 1987 Capt. Oscar Tabulog (Criminal Case No. 10-259), Ex-Mayor Jorge Arreola (Criminal Case No. 10-270), Felicito Rigunan (Criminal Case No. 10-284) and Pat. Romeo Regunton (Criminal Case No. 10-317). Except for the names of the victims, the informations in these four (4) cases identically read: That on or about March 22, 1987, in the Municipality of Aparri, Province of Cagayan, and within the jurisdiction of this Honorable Court, the said accused Mario Tabaco, armed with a gun, with intent to kill, with evident premeditation and with treachery, did then and there wilfully, unlawfully and feloniously assault, attack and shoot one [name], inflicting upon him several wounds which caused his death. Contrary to Law. 1 In Criminal Case No. 10-316, accused was charged in the following information with the complex crime of Homicide and Frustrated Homicide for shooting to death Jorge Siriban, Jr. and the wounding of Sgt. Benito Raquepo: That on or about March 22, 1987, in the municipality of Aparri, province of Cagayan, and within the jurisdiction of this Honorable Court, the said accused, Mario Tabaco, armed with a gun, with intent to kill, did then and there wilfully, unlawfully and feloniously assault, attack and shoot Jorge Siriban, Jr., and S/Sgt. Benito Raquepo, inflicting upon them wounds on their bodies, which wounds sustained by Jorge Siriban, Jr., caused his death. That the accused had performed all the acts of execution (with respect to the victim Sgt. Benito Raquepo) which would have produced the crime of Homicide as a consequence but which nevertheless, did not produce it by reason of causes independent of his own will. 2 All cases were consolidated before Branch 10 of the Regional Trial Court of Aparri, Cagayan.

The mass of evidence for the prosecution, as found by the trial court, is as follows: In the evening of March 22, 1987, the 117th PC stationed at Aparri, Cagayan, under then Lt. James Andres Melad, sponsored a cock derby, under the name of Jose Ting, at the Octagon Cockpit Arena located at Aparri, Cagayan. This being so, peace officers in uniform with long firearms were assigned as guards to maintain peace and order at the cockpit arena namely: (1) Sgt. Benito Raquepo; (2) CIS Roque P. Datugan, both from the 117th PC and (3) Pat. Andres Semana, INP, Aparri, Cagayan. Accused Mario Tabaco who was in civilian clothes claims to have been also assigned by his Commanding Officer of 117th PC, to verify the presence of NPAs and assist in the protection of VIPs in the cockpit arena, bringing with him his M-14 issued firearm. Other peace officers who came to participate were: (1) Policeman Mariano Retreta of INP, Buguey, Cagayan, who arrived with the deceased Jorge Siriban and Licerio Antiporda, Jr., Licerio Antiporda II; (2) Sgt. Rogelio Ferrer of 117th PC Company; (3) Policeman Romeo Regunton (deceased) who was also armed, arrived in company with the deceased Ex-Mayor Arreola; (4) Fireman Rogelio Guimmayen, INP Buguey; (5) Pat. Barba; and (6) CIC PC Paragas. At about nine (9) o'clock in the evening of same date, the group of the late Mayor Jorge Arreola of Buguey, Cagayan, arrived at the cockpit arena. His companions were (1) Antonio Villasin; (2) Rosario Peneyra; (3) victim Loreto Pita, Jr. and/or five (5) of them including the Mayor. They occupied and were (4th row) north western part cockpit-gate. Others seated with the Mayor were: (1) the late Capt. Oscar Tabulog; (2) the late Pat. Romeo Regunton, who was at the back of the mayor; (3) the late Felicito Rigunan. The accused CIC Tabaco was seated on the arm of the bench situated at the lower portion of the arena about more than three (3) meters away, (infront and a little bit in the west), from the place where the late Mayor and his group were seated (at the 4th row of seats upper portion). During the ocular inspection conducted, the Court noticed the distance to be more than three (3) meters, and/or probably 4-5 meters. At about ten (10) o'clock 1987, while the accused Mario Tabaco was seated as described above, he suddenly without warning or provocation, shot the late mayor Jorge Arreola, with his M-14 rifle, followed by several successive burst of gunfire, resulting in the shooting to death of the late Mayor Arreola, Capt. Oscar Tabulog, Felicito Rigunan and Pat. Romeo Regunton, although the latter managed to run passing through the western gate near the gaffers cage but was chased by accused Tabaco. Regunton was later found dead inside the canteen of Mrs. Amparo Go inside the Octagon cockpit arena. Pat. Mariano Retreta of INP Buguey, who was then at the Co's canteen, saw the accused going out rushing from the cockpit arena, at a distance of one meter. Pat. Retreta is a relative and neighbor of the accused Tabaco in Buguey, Cagayan. He tried to pacify Tabaco telling him "what is that that happened again Mario." Meanwhile, Sgt. Benito Raquepo of 117th PC, and one of those assigned to maintain peace and order at the Octagon cockpit arena, who was at the canteen taking snacks, heard five (5) successive gun reports coming from inside the cockpit arena. In a little while, he saw the accused Tabaco coming from inside the cockpit arena. Raquepo advised Tabaco "Mario relax ka lang" "Mario keep calm." They stood face to face holding their rifles and when Tabaco pointed his gun towards Sgt. Raquepo, Pat. Retreta grappled for the possession of the gun to disarm Tabaco, and in the process, the gun went off hitting Sgt. Raquepo and also the late Jorge Siriban who happened to be near Raquepo. Siriban

died on the spot while Raquepo survived his wounds on his legs due to adequate medical treatment. There were other persons injured that evening namely: (1) Antonio Chan injured on his right foot; (2) Salvador Berbano injured on his right forearm and on his right abdomen and (3) Rosario Peneyra on his Face and right shoulder. But, the three, did not file their complaints. 3 Upon the other hand, the evidence for the defense as stated in the Brief for the Accusedappellant is as follows: Ordered by his commanding officer in the 117th PC Company to assist in the maintenance of peace and order at the Octagon Cockpit Arena located at Talungan, Aparri, Cagayan on March 22, 1987, accused Mario Tabaco with his officially issued M14 rifle and with the basic load of ammunition went to the Octagon Cockpit arena on March 22, 1987 in compliance to the orders of a superior officer arriving thereat at about 12:00 o'clock noon, more or less. He directly went inside the cockpit arena to make some observations and found out that there were several persons inside the said cockpit who were in possession of firearms, some short and some long, and were seen in different places and/or corners of the cockpit. Accused did not bother to verify as to why the said persons were allowed to carry their firearms because of his impressions that if they did not have the authority, the guards of the main gate of the cockpit would surly have confiscated the same from them. It was his belief then that they may have come from other agencies of the government, assigned to help in the maintenance of peace and order in the cockpit. Accused thus seated himself at the lowermost seat (first step) of the slanted bleachers of the Octagon Cockpit arena on March 22, 1987. At about 9:00 o'clock that very night of March 22, 1987, while accused was seated at the lowermost seat of the slanted bleachers of the Octagon Cockpit arena, he heard a gun report fired atop his head. Having been officially assigned to help in the maintenance of peace and order in the cockpit and that his presence must be known, his immediate reaction upon hearing the gun report was to fire a warning shot in the air and directed to the ceiling and/or roof of the Octagon cockpit arena. After firing a warning shot, his warning was answered by burst of gun fire coming from different directions inside the cockpit arena, for which reason, he forced to leave and rush outside, holding his M-14 rifle with the muzzle pointed downwards. As he (accused) rushed towards the main gate of the cockpit arena, Mariano Retreta and Sgt. Benito Raquepo saw him and who told him, (accused) to relax lang. Accused testified that when Mariano Retreta and Sgt. Benito Raquepo told him to relax lang, he all the time thought that the gun reports fired inside the cockpit arena was nothing to said persons. Accused however, insisted to go out, but in so doing, Mariano Retreta pressed the gun which he was holding downwards and grabbed said gun from accused. As the gun was pressed by Mariano Retreta, said gun went off, hitting Sgt. Benito Raquepo and the death of Jorge Siriban, Jr. That because of such incident, accused had to run away, out of fear to Sgt. Benito Raquepo and the family of Jorge Siriban who may lay the blame on him. The following morning, accused surrendered to the police authorities of Lallo, Cagayan, who happened to pass by, not on account of the death of Ex-Mayor Jorge Arreola, Capt. Oscar Tabulog, Felicito Rigunan and Oscar Regunton which he did not know at the time he surrendered, but on account of the death of Jorge Siriban, Jr. and the injury sustained by Sgt. Benito Raquepo. 4

After trial, the court a quo, in a joint decision dated January 14, 1991, found accused-appellant guilty as charged on all counts. In giving credence to the version of the prosecution over that of accused-appellant, it found that: From the evidence adduced, it is easily discernible that the prosecution and defense cannot agree on what actually transpired that night of March 22, 1987, at the Octagon Cockpit Arena, Aparri, Cagayan leading to the shooting to death of subject victims. For, while the prosecution maintains that it was the accused Mario Tabaco who shot the victims, the defense insists that he is not the assailant, but somebody else or others, since the accused merely fired a warning shot upwards the roof of the cockpit arena. In fine, the Court is called upon to resolve the issue of credibility versions. "Where there are directly conflicting versions of the same incident, the Court, in its search for the truth, perforce has to look for some facts and circumstances which can be used as valuable tools in evaluating the probability or improbability of a testimony for after all, the element of probability is always involved in weighing testimonial evidence. (Carolina Industries, Inc. vs. CMS Stock Brokerage, Inc., et al., L-46908, May 17, 1980, 97 SCRA 734; Lacsan vs. Court of Appeals, et al., L-46485, November 21, 1979, 94 SCRA 461, both citing the case of People vs. Boholst Caballero, L2349, November 25, 1974, 61 SCRA 180). Towards this end, the prosecution presented three (3) eyewitnesses, namely: Antonio Villasin, Rosario Peneyra and Fireman Rogelio Guimmayen in the shooting to death of the deceased victims, Ex-Mayor Jorge Arreola, Capt. Oscar Tabulog, Romeo Regunton and Felicito Rigunan. Also, the prosecution presented Sgt. Benito Raquepo, Pat. Mariano Retreta and PC Sgt. Rogelio Ferrer, and three (3) eyewitnesses in the shooting to death of Jorge Siriban and the wounding of Sgt. Raquepo. So too, the prosecution presented PC Sgt. Antonio Domingo, Pat. Andres Semana, PC Sgt. Jose Algeria and Pat. Merlin Bautista, as corroborative witnesses in both situational cases/incidents. As well stated in the above findings of facts, prosecution witnesses Antonio Villasin and Rosario Peneyra actually saw the accused Mario Tabaco stood up from his seat at the lower front row and in port arm position directed his M-14 rifle towards the place of the late Mayor Arreola, and his group at the 4th row upper portion of the bleachers and fired three successive automatic gun shots that felled Mayor Jorge Arreola, Capt. Oscar Tabulog, Pat. Romeo Regunton and one Felicito Rigunan. This was corroborated by prosecution witness Fireman Rogelio Guimmayen who was then ten (10) meters away from the accused, which was not far, considering that the cockpit arena was well lighted at that time. Not only that, immediately after the gun burst of automatic fire, the accused was seen coming out rushing from inside the cockpit arena by INP Pat. Mariano Retreta and PC Sgt. Raquepo, the former being a relative and neighbor, pacified accused Tabaco, telling "what is that happened again Mario," while the latter told him "Mario relax ka lang keep calm." After which Mariano Retreta grappled for the possession of the gun assisted by PC Sgt. Rogelio Ferrer when Tabaco refused to stop. Sgt. Ferrer got the gun M-14 and surrendered it to his Commanding Officer, as corroborated by Sgt. Antonio Domingo, while in the process of disarming the accused Mario Tabaco, when the gun went of, hitting the deceased victim Jorge Siriban and Sgt. Raquepo. 5 The accused admitted that the M-14 rifle which he brought with him to the cockpit arena was heavily loaded, but when the gun was taken from his possession by Pat. Retreta and PC Sgt. Ferrer, the gun's magazine was already empty.

The court a quo said further: ATTY. VILLENA: Q: When you took that M-14 from the accused, do you remember if it had a magazine that time? A: Yes, sir with magazine. Q: Do you have the magazine now? A: It is with 117th PC Company, sir. Q: After taking that M-14 from the accused, did you examine the rifle? A: Yes, sir, I examined it. Q: Did you examine the magazine of that rifle? A: Yes, sir. Q: Did you examine if there are live bullets? A: No live bullets, sir. (TSN, direct examination, Sgt. Ferrer, pp. 44-45, March 26, 1990 session, stenographer L. Tamayo). Further, Sgt. Ferrer continued: PROSECUTOR ATAL: Q: You likewise mentioned in your direct examination that when you surrendered this gun, M14, and this magazine, there were no live ammunitions in the magazine? A: There were two remaining bullets, sir. Q: How many bullets in all? A: Twenty, sir. Q: You said you heard first seven gun reports? A: Yes, sir I heard seven gun reports. (TSN, continuation of direct examination, Sgt. Ferrer, May 14, 1990 session, Stenographer L. Tamayo). MORE, there is evidence that empty/spent shells of bullets were found inside the cockpit arena (Exh. "R" & "R-l", pp. 157-158, record). ATTY. ARRIOLA: Q: Showing to you Exh. "R", do you know whose picture is this? A: Picture of spent shells. Q: How about Exh. "R-l", do you know what is this? A: The same, sir spent shells. (TSN, PC/CIS Sgt. Investigator Jose Algeria, p. 29, Oct. 1, 1990 session, Stenographer L. Tamayo).

Finally, another circumstance which maybe considered as adverse against the accused, is the fact that he was really arrested and not that he voluntarily surrendered as appearing in the INP Lallo Police Blotter, as testified to by Pat. Melin Bautista (Exh. "S", p. 188, record). Furthermore, it appears that the same accused Mario Tabaco, has still a pending case for murder before Branch 6, of this Court. (Exh. "T", p. 187, record). The Court is impressed with the testimonies of the three prosecution eyewitnesses namely: Antonio Villasin, Rosario Peneyra and INP Fireman Rogelio Guimmayen who narrated their versions of the incident with ring of truth, which are both clear and convincing, in regard to the shooting to death by accused Mario Tabaco of the deceased victims Ex-Mayor Jorge Arreola (Crim. Case No. 10-270), Capt. Oscar Tabulog (Crim. Case No. 1259), Pat Romeo Regunton (Crim. Case No. 10-317) and the late Felicito Rigunan (Crim. Case No. 10-284). Such positive testimonies were corroborated by the testimonies of PC Sgt. Raquepo, PC Sgt. Ferrer and Pat. Mariano Retreta, who saw the accused rushing outside the cockpit arena holding his M-14 rifle, immediately after the burst of successive and automatic gunfire inside the cockpit arena. Although they have not seen the accused shoot the four victims (Arreola, Tabulog, Rigunan and Regunton), yet their corroborative testimonies constitute sufficient combination of all circumstances, so as to produce a conviction of guilt beyond reasonable doubt. (People vs. Pimentel, 147 SCRA 251; People vs. Trinidad, 162 SCRA 714), even as such circumstances proved reasonable leads to the conclusion pointing to the accused Tabaco, to the exclusion of all others, as the author of the crime. (People vs. Magallanes, 147 SCRA 92; People vs. Macatana, 161 SCRA 235). And, in the face of all these circumstances, the burden of proof to establish his innocence LIES on the accused, as the ONUS PROBANDI from that moment is now shifted to the accused. (Dulpo vs. Sandiganbayan, 150 SCRA 138). A resort to circumstantial evidence is in the very nature of things, a necessity, and as crimes are usually committed in secret and under conditions where concealment is highly probable, and to require direct testimony would in many cases result in freeing criminals and would deny the proper protection of society. (People vs. ROA, 167 SCRA 116). As to the death of Jorge Siriban (Crim. Case No. 10-316) and the wounding of Sgt. Raquepo, there is no adventure of doubt, that accused Mario Tabaco was the author of the crime charged and thus be held responsible for the same. The evidence adduced in this case is overwhelming, coming no less from accused's brothers PC personnel, who, aside from their direct testimonies, are entitled to the settled rule that they have regularly performed their official duty. (Section 5(M), Rule 131, Revised Rules of Court). Accordingly, the Court is not impressed with the defense put up by the accused, even as it does not inspire confidence, hence, the same deserves no credence. The accused contends that he merely fired his gun up towards the roof, and that he could have not shot the four (4) deceased victims with the group of Ex-Mayor Arreola considering the elevation of the 4th step or row in the upper bleachers of the cockpit arena, in relation to where the accused was, the front row, in much lower elevation. The accused further contends that he could not have shot aforesaid victims, as maybe gleaned from the testimony of Dr. Rivera, especially to wound No. 2, inflicted upon the body of the late Mayor Arreola. The Court believes otherwise. In the first place, the three (3) eyewitnesses Antonio Villasin, Rosario Peneyra and INP Fireman Rogelio Guimmayen, testified that they saw the accused

stood up from his seat and directed his gun M-14 towards the group of Ex-Mayor Arreola who were then at the upper 4th row of cemented seats at the bleachers. They could have been inaccurate of the distance of meters, as it could have been around 5 meters from where the accused stood up, which is a little bit west of the group of Ex-Mayor Arreola, who were then facing south, face to face with the accused. This is true and the same will jibe with the findings of Dr. Rivera, where the gun shot wounds inflicted upon the body of the late Capt. Tabulog, were on the left portion of his forehead front to back (Wound No. 1); Wound No. 2, in his left temple; Wound No. 3, below his right clavicle of his right shoulder and Wound No. 4, on his left thigh downward. In the case of the late Mayor Arreola his wounds are: Wound No. 1, is on the left side of his head above the hairline; Wound No. 2, right base of his neck and exited at the upper shoulder base through and through. Wound No. 3, was on his left lower abdomen and his lower back as exit for wound Nos. 1 and 2, the relative position of the assailant and the victim is face to face, so with Wound No. 3. For wound No. 2, the point of entry is higher than the point of exit, but there is a possibility that the victim Arreola, probably bent forward and the bullet ricocheted. It must be noted that the seats in the upper bleachers where the group of the late Mayor stayed were all cemented including their back rests and the bullets fired from the gun of the accused must have rebounded or deflected from surface to surface, on the cemented back rests and seats hitting wound No. 2, on the body of the Mayor and the bodies of Romeo Regunton and Felicito Rigunan. The bullets RICOCHETED, at the place where the group of the Mayor stayed. Anent the cemented railguard dividing the lower and upper bleachers, the same is not too high so as to obviate the possibility of hitting the group of the late Mayor Arreola, especially as in this case, when the accused stood up from his seat and fired at his victims. Witness Rosario Peneyra testified that his wound on his face and right abdomen must have been caused by the debris of the said cemented railguard which was hit by the bullets. In the case of the death of Jorge Siriban, there is not much dispute as the evidence adduced is overwhelming and even the defense admits that Siriban died due to gunshot wounds inflicted upon him during the grappling of the subject gun (Exh. "K"). The Court believes in the reliability and intrinsic credibility of the prosecution witnesses, there being no competent evidence presented for them to falsely testify against the accused. There is no issue of motive, as the accused was clearly and positively identified. All told, the Court believes and so holds that herein accused Mario Tabaco is the author/culprit in the shooting to death of the deceased victims, Jorge Arreola, Oscar Tabulog, Felicito Rigunan and Romeo Regunton, as well as the deceased Jorge Siriban and the wounding of Benito Raquepo. 6 The dispositive part of the decision reads: WHEREFORE, prescinding from the foregoing, and fortified by the balm of clear judicial conscience, the Court finds the accused Mario Tabaco guilty beyond reasonable doubt of all the crimes charged against him: 1. In Criminal Cases Nos. (a) 10-259 (Oscar Tabulog); (b) No. 10-270 (Jorge Arreola); (c) 10284 (Felicito Rigunan); and (d) 10-317 (Romeo Regunton), involving four (4) murder victims, but declared to have been prosecuted in one Information; the same being a complex crime under

Art. 248, Revised Penal Code, the accused Mario Tabaco is sentenced to a single penalty of RECLUSION PERPETUA, in its maximum period, with all the accessory penalties provided for by law, and to pay the heirs of the deceased victims Oscar Tabulog, Felicito Rigunan and Romeo Regunton, the amount of P50,000.00 each for a total of P150,000.00 subject to the lien herein imposed for payment of the appropriate docket fees if collected, without subsidiary imprisonment in case of insolvency. However, in Criminal Case No. 10-270, the accused Mario Tabaco is further ordered to pay the heirs of the late Mayor Jorge Arreola, the grand total amount of P633,500.00, by way of total civil liability, subject to the lien herein imposed for payment of the appropriate docket fees, in case of successful collection, both without subsidiary imprisonment in case insolvency. 2 In Criminal Case No. 10-316 for Homicide with Frustrated Homicide, the accused Mario Tabaco is sentenced to suffer an indeterminate penalty ranging from, ten (10) years and one (1) day Prision Mayor as MINIMUM, to Seventeen (17) years, Four (4) months, one (1) day of RECLUSION TEMPORAL as MAXIMUM, and to pay the heirs of the deceased Jorge Siriban, the amount of P50,000.00, by way of death indemnity, plus P30,000.00 to Sgt. Benito Raquepo, by way of medical expenses incurred, subject to the lien herein imposed for payment of the appropriate docket fees in case of successful collection; both without subsidiary imprisonment in case of insolvency. 3. The M-14 rifle (Exh. "K" and "K-2") the corpus delicti, presently deposited with 117th PC Company, Aparri, Cagayan, is hereby ordered forfeited in favor of the government; Perforce, the Commanding Officer of the 117th PC, Aparri, Cagayan, is peremptorily ordered to deposit to the Acting Branch Clerk of Court of this court, the said M-14 rifle with magazines, for proper disposition in accordance with law and the rules. 4. The accused to pay the costs. 5. In the service hereof, the accused shall be entitled to the full length of time, he underwent preventive imprisonment (March 23, 1987), provided he voluntarily agreed in writing to abide by the same disciplinary rules imposed upon convicted prisoners, otherwise, he shall be credited to only four-fifth (4/5) thereof. (Art. 29, NCC; as amended by RA 6127, June 17, 1970; U.S. vs. Ortencio, 38 Phil. 341; People vs. Chavez, 126 SCRA 1). SO ORDERED. 7 (Emphasis ours) Notwithstanding the single penalty imposed by the trial court, accused still interposed the present appeal on the following grounds: (1) The trial court erred in convicting Mario Tabaco of the crime of murder in connection with the deaths of Oscar Tibulog, Jorge Arreola, Felicito Rigunan, and Romeo Regunton. (2) The trial court erred in holding Mario Tabaco liable for homicide on the death of Jorge Siriban and the injury sustained by Benito Raquepo. (3) The trial court erred in not giving credence to the testimony of accused-appellant Tabaco. The pivotal issue presented in this case is one of credibility. Time and again, we have ruled that when the issue hinges on the credibility of witnesses vis-a-vis the accused's denials, the trial court's findings with respect thereto are generally not disturbed on appeal, 8 unless there appears in the record some fact or circumstance of weight and influence which has been

overlooked or the significance of which has been misinterpreted. 9 The reason for the rule is eloquently stated in the case of People vs. de Guzman, 10 thus: In the resolution of factual issues, the court relies heavily on the trial court for its evaluation of the witnesses and their credibility. Having the opportunity to observe them on the stand, the trial judge is able to detect that sometimes thin line between fact and prevarication that will determine the guilt or innocence of the accused. That line may not be discernible from a mere reading of the impersonal record by the reviewing court. The record will not reveal those tell-tale signs that will affirm the truth or expose the contrivance, like the angry flush of an insisted assertion or the sudden pallor of a discovered lie or the tremulous mutter of a reluctant answer or the forthright tone of a ready reply. The record will not show if the eyes have darted in evasion or looked down in confession or gazed steadily with a serenity that has nothing to distort or conceal. The record will not show if tears were shed in anger, or in shame, or in remembered pain, or in feigned innocence. Only the judge trying the case can see all these and on the basis of his observations arrive at an informed and reasoned verdict. 11 After a careful examination of the records, we find no ground or reason to set aside or disturb the trial court's assessment of credibility of the eyewitnesses when they testified pointing to accused-appellant as the assailant in the shooting of the group of Ex-Mayor Arreola and his companions. 1. Eyewitnesses Antonio Villasin and Rosario Peneyra, who were with the group of Ex-Mayor Arreola on that fateful night of March 22, 1989, categorically testified that it was accusedappellant, whom they positively identified in court, who fired his M-14 Rifle at their direction hitting the ex-mayor and his companions. Villasin's testimony on this point is as follows: COURT: Q: You heard gun report, what can you say? A: I saw that he was the one who made the gun report, sir. ATTY ARRIOLA: Q: Who was that "he" you are referring to? A: Mario Tabaco, sir. (p. 19, tsn, March 19, 1990) Q: Why do you say that Mario Tabaco was the one from whom those gun reports come from? A: Because he was the only person from whom I saw a gun, sir. Q: What did you do also upon hearing those gun reports? A: I had to seek shelter, sir. Q: What happened to Ex-Mayor Arreola? A: He was hit, sir. PROSECUTOR MIGUEL:

Q: You said that the accused shot Ex-Mayor Arreola, what kind of weapon did he use if you know? A: M-14, sir. xxx xxx xxx Q: After the incident (precedent) have you come to learn what happened to Regunton? A: I came to know that he was dead, sir. Q: Was that all you gathered? A: Also Capt. Tabulog, sir. xxx xxx xxx Q: How many shots did you hear? A: Three (3) shots, sir. Q: All those three (3) shots were directed to Ex-Mayor? A: Yes, sir. Q: You heard three shots according to you, was that successive or automatic? A: Successive, sir. Q: You were seated at the left side of Ex-Mayor Arreola, who was seated on his right side? A: None, sir. xxx xxx xxx Q: Mr. witness, you said that you saw the deceased holding a gun when you first heard gun shot, will you please describe the stands (position) of the accused? A: Like this. (The witness demonstrated that the accused was standing on a forth (port) arm position). xxx xxx xxx Q: What did he do with the gun when you saw him? A: He fired the gun, sir. Q: To what the gun was directed when he fired the gun? A: To Ex-Mayor Arreola, sir. ATTY. VILLENA: Q: You said earlier that after the incident you left the cockpit and returned, when you returned, what did you see? A: I saw two dead persons, sir.

Q: Whose cadavers were these that you saw? A: The cadavers of Ex-Mayor Arreola and Capt. Tabulog, sir. Q: How far was the cadaver of Tabulog to Arreola? A: Less than a meter, sir. xxx xxx xxx Q: When you saw the corpse of Capt. Tabulog, can you identify the person passing as you mentioned? A: They have similarity, sir. xxx xxx xxx Q: When you heard first gun shot, can you tell the position of Arreola, you and your companions? A: We were sitting at the backrest of the 4th seat, sir. Q: Where were you facing? A: We were facing south the arena. Q: Where did the first gun shot came from? A: It came from Mario Tabaco, sir. Q: From what direction? A: Infront of us, sir. Q: Where was he, was he in your front? A: He was in the first row of seats. Q: After the first gun shot, what happened? A: Somebody was killed, sir. Q: Who was that? A: Ex-Mayor Arreola, sir. xxx xxx xxx COURT: Q: How many gun shot reports did you hear? A: Many, sir. ATTY. VILLENA: Q: You said that you heard more gun shots, can you tell the nature, was there in succession or automatic?

A: Automatic, sir. xxx xxx xxx Q: Can you tell us your previous occupation? A: An army man, sir. Q: How long have you been employed with the army? A: Five (5) years, sir. Q: As an army before, have you ever been handled an M-14? A: Yes, sir. Q: Can you tell us if you are familiar with a M-14 being fired? A: Yes, sir. Q: Now, you said earlier that you heard many more shots after you run, would you say that these gun shots you heard were fired from M-14 rifle? A: Those are that came from M-14, sir. Q: Where were you at the time when you heard the automatic gun shot? A: I was outside the cockpit, sir. 12 On cross-examination by the defense counsel, witness Villasin testified, thus: ATTY. CONSIGNA: Q: You said that after the first gun shot or gun report, Mr. Tabaco was on the first seat downward, is it not? A: Mr. Tabaco placed his left foot on the first seat aiming his gun, sir. Q: Directly toward the first seat, is that what you mean? A: It was directed to Ex-Mayor Arreola. xxx xxx xxx Q: I want to make it clear, Mr. witness, it was the first gun that you went to hide yourself at the gate of the cockpit, is that correct? A: After the 3rd gun shot, sir. Q: And these three (3) gun reports, they were in a single successive shot, is it not Mr. witness? A: Yes, sir. xxx xxx xxx Q: That person who allegedly passed by you or infront of you prior to the first gun report, did you notice if he had a gun with him?

A: He passed by our back, sir. xxx xxx xxx Q: And that person according to you was still there when the late Mayor Arreola was shot? A: He was directly behind him when the gun reports were made, sir. Q: You mean to say the first gun report? A: Yes, sir. Q: And that first gun report was hit Ex-Mayor Arreola? A: The three gun reports hit the Mayor, sir. For his part, Peneyra testified as follows: ATTY. ARRIOLA Q: Do you remember what particular place of the cockpit when you go with Mayor Arreola? A: Yes, sir. Q: What part of the cockpit? A: We went up to the bleacher, sir. Q: Do you remember how the bleachers were arranged inside the cockpit? A: Yes, sir. Q: How were they arranged? A: In rows, step by step, sir. COURT: Q: How many rows? A: Four rows, sir. ATTY. ARRIOLA: Q: And what row did you stay together with the late Mayor Arreola? A: The late Mayor Arreola and Antonio Villasin took the 4th step, sir. Q: And how about you? A: We stood at their back west of them, sir. Q: By the way, can you tell to the court what were your respective position of the place where you stayed? A: The late Mayor Arreola and Antonio Villasin sat at the backrest of the fourth step, sir. Q: And how about you, where did you stay also?
13

A: I stood at the right back of Mayor Arreola, sir. Q: And how about Romeo Regunton? A: He also stayed at the back of Mayor Arreola, sir. xxx xxx xxx Q: While you were in that position together with your companions, do you remember if there was untoward incident that happened? A: Yes, sir. Q: What was that untoward incident that happened? A: That was the time when Mario Tabaco shot the late Mayor Arreola, sir. Q: Do you know what did Mario Tabaco use in shooting the late Arreola? A: Yes, sir. Q: What kind of firearm? A: M-14, sir. Q: And do you know if Mayor Arreola was hit when Mario Tabaco shot him? A: Yes, sir. Q: How do you know that Mayor Arreola was hit? A: Because I saw it, sir. Q: What did you do also? A: When Mayor Arreola was already dead, I sought cover because I was also wounded. Q: Do you know what happened also to Romeo Regunton? A: Yes, sir. Q: What happened to him? A: When I was wounded he also said, "uncle I was also wounded." Q: What did you tell when he told you that? A: I told him, "you seek cover also my son". Q: How did Romeo Regunton took cover? A: He moved slowly by dragging his body along the ground, sir. xxx xxx xxx Q: By the way, how far were you from Mario Tabaco who fired upon the person of Mayor Arreola? A: Probably more than 3 meters, sir. 14

On cross-examination, this witness testified as follows: ATTY. CONSIGNA: Q: When for the first time when you were already in the cockpit arena did you see the accused Mario Tabaco? A: Before the shooting, sir. Q: And approximately how many minutes or seconds did you see Mario Tabaco for the first time prior to the shooting incident? A: Probably 5 minutes before, sir. Q: And in that place of the cockpit arena have you seen the accused herein Mario Tabaco? A: He sat on the first row of the seats. Q: And sitting on the first row of the bleachers, on what part of the cockpit arena did Mario Tabaco, the accused sit? A: He sat a little bit west of us, sir. COURT: Q: How far? A: Probably more than 3 meters, sir. Q: A little bit to the west, do I get from you that he was seated on the western part of the cockpit? A: A little to the west, sir. Q: An you together with the late Mayor Arreola were also on the western part of the cockpit? A: We were on the northwest. Q: Mario Tabaco, therefore, the accused in these cases was not directly in front of you? A: A little bit west of us, sir. Q: It was on that position of the accused Mario Tabaco and your position with the late Arreola on the northwest when you according to you saw Mario Tabaco fired his gun, is that what you mean? A: Yes, sir. Q: That the accused Mario Tabaco was on the first row when he allegedly shot on Mayor Arreola who was on 4th row, is that what you mean? A: Mario Tabaco stood up and faced us, sir. Q: So while Mario Tabaco stood up and faced towards the direction where you were together with the late Mayor Arreola still Mario Tabaco was on the floor of the cockpit arena? A: Yes, sir, on the cemented floor.

Q: And immediately after you heard the first shot coming from the accused Mario Tabaco considering that you were right behind the late Mayor Arreola, as you have stated in your direct examination you immediately sought cover? A: I only lay flat to the floor of the cockpit when Mario Tabaco fired three (3) shots. xxx xxx xxx Q: At the time you laid flat facing down and you did not come to know that Mayor Arreola was dead already? A: Why not, the first and second shots, I know him that he was already dead. Q: And the three (3) shots that you heard were all directed towards Mayor Arreola? A: Yes, sir, in our place. xxx xxx xxx COURT: Q: To whom the 3rd shot directed? A: In our place, sir. Q: No person was involved on the 3rd shot? A: That was also the time when Romeo Regunton came toward me and told me that he was also hit. xxx xxx xxx COURT: Q: You don't know the person who shot him? A: It was Mario Tabaco because he was still firing then, sir. Q: You do not know the person who shot him? A: It was Mario Tabaco because he was still firing then, sir. 15 The above testimonies of Villasin and Peneyra pointing to accused-appellant as the assailant in the shooting of the ex-mayor and his companions were corroborated further by the testimony of another eyewitness in the person of Rogelio Guimmayen. His account of the incident is as follows: PROSECUTOR ABAD: xxx xxx xxx Q: How far were you from Tabaco when you saw him holding that gun? A: More or less ten (10) meters, sir. Q: Where was he at that specific time and place?

A: Inside the cockpit, sir. Q: Where were you also? A: I was at the stairs, sir. Q: When you saw him what happened if any? xxx xxx xxx A: When he entered he stopped and then the gun fired and that was the time when I got down, sir. Q: Did you see to whom he was directing the gun? A: It was directed to the Mayor's place, sir. Q: How far was the Mayor from the accused Mario Tabaco? A: More or less three (3) meters only. There was only one bench between them, sir. Q: Did you see the accused firing his gun towards the Mayor? A: With his first shot which was directed to the Mayor that was the time I got down to hide myself, sir. 16 On cross-examination, this witness testified as follows: ATTY. CONSIGNA: Q: So, it was at the time you were inside the cockpit arena that you heard gunfire? A: Yes, sir. Q: And you did not see who fired that gunfire while you were inside the cockpit arena? A: When I was inside, I saw Mario Tabaco pointing a gun to the Mayor and the gun went off and that's the time I took cover, sir. xxx xxx xxx Q: And that was the last time you heard burst of gunfire inside the cockpit arena? A: When I went outside, I heard shots inside and outside. 17 Set over against the foregoing positive and categorical testimonial declaration of the abovenamed eyewitnesses for the prosecution is the accused-appellant's bare denial of the charges against him. As between the positive identification of the accused by the prosecution witnesses and the bare denial of accused, the choice is not difficult to make. For, it is a settled rule that positive identification by the prosecution witnesses of the accused as perpetrator of the crime is entitled to greater weight than his bare denial and explanation. 18 Likewise, there is no evidence from the record, as none was adduced by accused-appellant, of any ill-motive on the part of the prosecution witnesses as to why would they testify adversely against accused-appellant in the way that they did. Well settled is the rule that where there is no evidence and nothing to indicate, that the principal witnesses for the prosecution were actuated

by improper motive, the presumption was that they were not so actuated and their testimonies are entitled to full faith and credit. 19 2. Accused-appellant contends that eyewitnesses Villasin and Peneyra were not telling the truth when they testified that it was accused-appellant who was the assailant in the shooting of ExMayor Arreola and his companions considering that Dr. Rivera, who examined the cadaver of Ex-mayor Arreola, testified that the trajectory of the bullets that hit the ex-mayor shows that the assailant was on the same level as the ex-mayor, and the trajectory of the third bullet shows that the assailant was at a higher level as the point of entry was higher than the point of exit. Appellant states that he was seated at the first row which was the lowest while the ex-mayor and his companions were seated at the fourth row which was the highest. This contention, however, is untenable. Eyewitnesses Villasin and Peneyra testified that accused-appellant was at the first row of seats of the slanted bleachers of the cockpit arena, when he stood up, stepped on one of the seats, aimed his rifle at Ex-Mayor Arreola and his companions and fired at them. 20 The above-quoted testimonies explain very well why two gunshot wounds found on the cadaver of Ex-mayor Arreola appear to have been inflicted while he and his assailant were face to face and at the same level. Upon the other hand, according to Dr. Rivera, one of the gunshot wounds of Ex-Mayor Arreola had a point of entry higher than the point of exit because he must have already been lying down when his wound was inflicted. 21 Well established, too, from the evidence on record is accused-appellant's liability for the death of Jorge Siriban, Jr. and the near-fatal wounding of Sgt. Benito Raquepo. Not seriously disputed by accused-appellant are the testimonies of Sgt. Benito Raquepo and policeman Mario Retreta. Sgt. Benito Raquepo testified that at about 9:00 o'clock in the evening of March 22, 1987 while he was taking his snacks at the canteen of Co located at the left side of the gate of the cockpit arena, he heard five successive gun reports coming from inside the cockpit arena. While he was on his way inside the cockpit arena, he saw the accused-appellant coming from inside the cockpit arena. He told the accused "Mario relax ka lang", after which the accused pointed his gun at him. At that point in time, Mario Retreta who was among the persons near Mario Tabaco, grabbed the gun from the latter. It was at that point when the gun went off hitting him on the right thigh and the bullet exiting on his left thigh. He also saw that Jorge Siriban, who was then about three meters away from his left side, was hit at his testicles. Mario Retreta, a policeman and relative of accused-appellant, on the other hand corroborated in part the testimony of Sgt. Raquepo. He testified that at about 10:00 o'clock in the evening of March 22, 1987, he was at the canteen of Mrs. Co. While thereat, he saw accused-appellant rushing out from the cockpit arena. Before he saw accused-appellant, he heard a gun report from inside the cockpit arena. He was then about one meter away from accused-appellant when he noticed Sgt. Raquepo whom he is acquainted with, and Jorge Siriban who was then standing at the gate of the cockpit arena. Sgt. Raquepo was facing accused-appellant and at that distance and position, he heard Sgt. Raquepo said: "Mario keep calm". He also told accusedappellant: "What is that happened again, Mario." When he saw accused-appellant change his gun position from port arm to horizontal position, he got near accused-appellant and pressed down the muzzle of the gun when accused appellant squeezed the trigger hitting Sgt. Raquepo

on both thighs and also Jorge Siriban. A certain Sgt. Ferrer joined in the grapple and was able to take away the gun from accused-appellant. Sgt. Raquepo survived the gunshot wounds due to adequate medical assistance but Siriban was not as lucky. Accused-appellant claims that he did not have the criminal intent to kill Siriban or wound Sgt. Raquepo, and that the gun would not have been fired in the first place had Mario Retreta, for no apparent reason, not tried to grab the gun from him, are without merit. Retreta testified that he grabbed the gun from accused-appellant because the latter changed his gun from port arm position to horizontal position, and at that instance he thought accusedappellant might harm Sgt. Raquepo. 22 Furthermore, even assuming that he lacked criminal intent in the killing of Sgt. Raquepo and the near-fatal wounding of Siriban, his claim of innocence cannot be sustained. His undisputed act of firing the gun, which is by itself felonious in total disregard of the consequences it might produce, is equivalent to criminal intent. Accused-appellant cannot evade responsibility for his felonious acts, even if he did not intend the consequences thereof for, in accordance with Art. 4 of the Revised Penal Code, criminal liability is incurred by any person committing a felony although the wrongful act done be different from that which he intended. We note that while the accused was found guilty in all four (4) murder charges and the penalty ofreclusion perpetua should have been imposed on him in all four (4) murder charges, the trial court imposed the penalty of reclusion perpetua for all four murder charges. The trial court explained the single sentence for four murder charges in this wise: Whether or not the criminal cases Nos. 259, 270, 284 and 317, involving the killings of Oscar Tabulog, Jorge Arreola, Felicito Rigunan and Romeo Regunton, respectively, should have been prosecuted under only one Information. The law provides: Art. 48. Penalty for complex crimes. 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. (as amended by Art. No. 400). (Art. 48, Revised Penal Code). Read as it should be, this article provides for two clauses of crimes where a single penalty is to be imposed; first, where the single act constitutes two or more grave or less grave felonies (delito compuesto); and second, when the offense is a necessary means for committing the other. (delito complejo) and/or complex proper (People vs. Pineda, 20 SCRA 748). In the cases at bar, the Provincial Prosecutor filed four (4) separate Informations of murder, which should have been otherwise, as the shooting to death of the four (4) victims should have been prosecuted under one information, involving four (4) murder victims.

The evidence shows that the four (4) victims were FELLED by one single shot/burst of fire and/or successive automatic gun fires, meaning continuous. Hence, it is a complex crime involving four murdered victims, under the first category, where a single act of shooting constituted two or more grave or less grave felonies (delito compuesto), as decided in the cases of People vs. Dama, CA 44 O.G. 3339; People vs. Lawas, 97 Phil. 975; People vs. Pineda, L26222, July 21, 1967, 20 SCRA 748. Paraphrasing a more recent decision of the Supreme Court, we say as the deaths of Oscar Tahulug, Jorge Arreola, Felicito Rigunan and Romeo Regunton, in Criminal Cases Nos. 259, 270, 284 and 317 respectively, were the result of one single act of the accused Mario Tabaco, (People vs. Guillen, 85 Phil. 307) the penalty is the penalty imposed for the more serious offense. The more serious offense is murder, the killing have been attended by TREACHERY because the victims were completely taken by surprise and had no means of defending themselves against Mario Tabaco's sudden attack. The penalty is imposable in its maximum degree (People vs. Fernandez, 99 Phil. 515), but as the death penalty is no longer permitted the same is hereby reduced to a single Penalty of RECLUSION PERPETUAfor the four (4) murders. (People vs. Herson Maghanoy, GR Nos. 67170-72, December 15, 1989). Accordingly, in Criminal Case No. 10-316, for homicide with Frustrated Homicide and it appearing also that the death of Jorge Siriban and the wounding of Benito Raquepo, was the result of one single act of the accused Tabaco, the applicable penalty is the penalty imposed for the more serious offense. The more serious offense is HOMICIDE, to be imposed in its maximum degree of reclusion temporal, which is 17 years, 4 months, 1 day to 20 years. There being no modifying circumstances and applying the Indeterminate Sentence Law, the penalty that should be imposed, and which is hereby imposed, upon the accused Mario Tabaco is 10 years and 1 day of Prision Mayor as the minimum, to 17 years, 4 months, 1 day of Reclusion Temporal, as maximum, plus P30,000.00 actual damages for medical expenses of Benito Raquepo. It was duly proved beyond doubt that the gun (Exhs. "K", SN No. 1492932, "K-2" magazine of M-14 and Exh. "L" Memo Receipt of M-14 issued to Tabaco), used by the accused, is admittedly an automatic powerful weapon, more powerful than an M-16 armalite rifle. It is so powerful that the bullets can penetrate even more than five (5) persons resulting to their deaths. And, this was proven when, according to witness Rosario Peneyra, the bullets even destroyed the cemented rail guard separating the lower and upper bleachers of the cockpit arena, and causing wounds on his face and on his right shoulder. Additionally, we have the used/spent empty shells (Exh. "R" and "R-1"). 23 We hold that the trial court was in error in imposing only a single penalty of reclusion perpetua for all four murder cases. The trial court holding that a complex crime was committed since "the evidence shows that the four (4) victims were FELLED by one single shot/burst of fire and/or successive automatic gun fires, meaning continuous (emphasis ours) 24 does not hold water. Of course, to justify the penalty imposed, the trial court relied on the doctrines enunciated in People vs. Pama 25 (not People vs. Dama, as cited by the trial court), People vs. Lawas, 26 and People vs. Pineda.27 The trial court misappreciated the facts in People vs. Pama. In said case, there was only one bullet which killed two persons. Hence, there was only a single act which produced two crimes, resulting in a specie of complex crime known as a compound crime, wherein a single act

produces two or more grave or less grave felonies. In the case at bench, there was more than one bullet expended by the accused-appellant in killing the four victims. The evidence adduced by the prosecution show that Tabaco entered the cockpit with a fully loaded M-14 sub-machine gun. 28 He fired the weapon, which contained 20 rounds of bullets in its magazine, continuously. When the rifle was recovered from Tabaco, the magazine was already empty. Moreover, several spent shells were recovered from the scene of the crime. Hence, the ruling enunciated in People vs. Pama cannot be applied. On the contrary, what is on all fours with the case at bench is the ruling laid down in People vs. Desierto. 29 The accused in that case killed five persons with a Thompson sub-machine gun, an automatic firearm which, like the M-14, is capable of firing continuously. As stated therein: In the case at bar, Article 48 of the Revised Penal Code is not applicable because the death of each of the five persons who were killed by appellant and the physical injuries inflicted upon each of the two other persons injured were not caused by the performance by the accused of one simple act as provided for by said article. Although it is true that several successive shots were fired by the accused in a short space of time, yet the factor which must be taken into consideration is that, to each death caused or physical injuries inflicted upon the victims, corresponds a distinct and separate shot fired by the accused, who thus made himself criminally liable for as many offenses as those resulting from every single act that produced the same. Although apparently he perpetrated a series of offenses successively in a matter of seconds, yet each person killed and each person injured by him became the victim, respectively, of a separate crime of homicide or frustrated homicide. Except for the fact that five crimes of homicide and two cases of frustrated homicide were committed successively during the tragic incident, legally speaking there is nothing that would connect one of them with its companion offenses. (emphasis ours) In Desierto, although the burst of shots was caused by one single act of pressing the trigger of the Thompson sub-machine gun, in view of its special mechanism, the person firing it has only to keep pressing the trigger with his finger and it would fire continually. Hence, it is not the act of pressing the trigger which should produce the several felonies, but the number of bullets which actually produced them. 30 The trial court also misread People vs. Pineda. 31 True, the case of Pineda provided us with a definition of what a complex crime is. But that is not the point. What is relevant is that Art. 48, was not applied in the said case because the Supreme Court found that there were actually several homicides committed by the perpetrators. Had the trial court read further, it would have seen that the Supreme Court in fact recognized the "deeply rooted . . . doctrine that when various victims expire from separate shots, such acts constitute separate and distinct crimes." 32 Clarifying the applicability of Art. 48 of the Revised Penal Code, the Supreme Court further stated in Pineda that "to apply the first half of Article 48, . . . there must be singularity of criminal act; singularity of criminal impulse is not written into the law." 33 (emphasis supplied) The firing of several bullets by Tabaco, although resulting from one continuous burst of gunfire, constitutes several acts. Each person, felled by different shots, is a victim of a separate crime of murder. There is no showing that only a single missile passed through the bodies of all four victims. The killing of each victim is thus separate and distinct from the other. InPeople vs. Pardo 34 we held that:

Where the death of two persons does not result from a single act but from two different shots, two separate murders, and not a complex crime, are committed. Furthermore, the trial court's reliance on the case of People vs. Lawas 35 is misplaced. The doctrine enunciated in said case only applies when it is impossible to ascertain the individual deaths caused by numerous killers. In the case at bench, all of the deaths are attributed, beyond a shadow of a doubt, to the accused-appellant. Consequently, the four murders which resulted from a burst of gunfire cannot be considered a complex crime. They are separate crimes. The accused-appellant must therefore be held liable for each and every death he has caused, and sentenced accordingly to four sentences of reclusion perpetua. WHEREFORE, no reversible error having been committed by the trial court in finding accusedappellant guilty of four (4) counts of Murder and one (1) count of Homicide with Frustrated Homicide, the judgment appealed from should be, as it is, hereby AFFIRMED, with the MODIFICATION that four sentences of reclusion perpetua be hereby imposed. Costs against accused-appellant. SO ORDERED.