G.R. No.

7081

September 7, 1912

THE UNITED STATES, plaintiff-appellee, vs. TAN TENG, defendant-appellant. JOHNSON, J.: This defendant was charged with the crime of rape. The complaint alleged: That on or about September 15, 1910, and before the filing of this complaint, in the city of Manila, Philippine Islands, the said Tan Teng did willfully, unlawfully and criminally, and employing force, lie and have carnal intercourse with a certain Oliva Pacomio, a girl 7 years of age. After hearing the evidence, the Honorable Charles S. Lobingier, judge, found the defendant guilty of the offense ofabusos deshonestos, as defined and punished under article 439 of the Penal Code, and sentenced him to be imprisoned for a period of 4 years 6 months and 11 days of prision correccional, and to pay the costs. From that sentence the defendant appealed and made the following assignments of error in this court: I. The lower court erred in admitting the testimony of the physicians about having taken a certain substance from the body of the accused while he was confined in jail and regarding the chemical analysis made of the substance to demonstrate the physical condition of the accused with reference to a venereal disease. II. The lower court erred in holding that the complainant was suffering from a venereal disease produced by contact with a sick man. III. The court erred in holding that the accused was suffering from a venereal disease. IV. The court erred in finding the accused guilty from the evidence. From an examination of the record it appears that the offended party, Oliva Pacomio, a girl seven years of age, was, on the 15th day of September , 1910, staying in the house of her sister, located on Ilang-Ilang Street, in the city of Manila; that on said day a number of Chinamen were gambling had been in the habit of visiting the house of the sister of the offended party; that Oliva Pacomio, on the day in question, after having taken a bath, returned to her room; that the defendant followed her into her room and asked her for some face powder, which she gave him; that after using some of the face powder upon his private parts he threw the said Oliva upon the floor, placing his private parts upon hers, and remained in that position for some little time. Several days later, perhaps a week or two, the sister of Oliva Pacomio discovered that the latter was suffering from a venereal disease known as gonorrhea. It was at the time of this discovery that Oliva related to her sister what happened upon the morning of the 15th of September. The sister at once put on foot an investigation to find the Chinaman. A number of Chinamen were collected together. Oliva was called upon to identify the one who had abused her. The defendant was not present at first. later he arrived and Oliva identified him at once as the one who had attempted to violate her.

Upon this information the defendant was arrested and taken to the police station and stripped of his clothing and examined. The policeman who examined the defendant swore from the venereal disease known as gonorrhea. The policeman took a portion of the substance emitting from the body of the defendant and turned it over to the Bureau of Science for the purpose of having a scientific analysis made of the same. The result of the examination showed that the defendant was suffering from gonorrhea. During the trial the defendant objected strongly to the admissibility of the testimony of Oliva, on the ground that because of her tender years her testimony should not be given credit. The lower court, after carefully examining her with reference to her ability to understand the nature of an oath, held that she had sufficient intelligence and discernment to justify the court in accepting her testimony with full faith and credit. With the conclusion of the lower court, after reading her declaration, we fully concur. The defense in the lower court attempted to show that the venereal disease of gonorrhea might be communicated in ways other than by contact such as is described in the present case, and called medical witnesses for the purpose of supporting the contention. Judge Lobingier, in discussing that question said: We shall not pursue the refinement of speculation as to whether or not this disease might, in exceptional cases, arise from other carnal contact. The medical experts, as well as the books, agree that in ordinary cases it arises from that cause, and if this was an exceptional one, we think it was incumbent upon the defense to bring it within the exception. The offended party testified that the defendant had rested his private parts upon hers for some moments. The defendant was found to be suffering from gonorrhea. The medical experts who testified agreed that this disease could have been communicated from him to her by the contact described. Believing as we do the story told by Oliva, we are forced to the conclusion that the disease with which Oliva was suffering was the result of the illegal and brutal conduct of the defendant. Proof, however, that Oliva constructed said obnoxious disease from the defendant is not necessary to show that he is guilty of the crime. It is only corroborative of the truth of Oliva's declaration. The defendant attempted to prove in the lower court that the prosecution was brought for the purpose of compelling him to pay to the sister of Oliva a certain sum of money. The defendant testifed and brought other Chinamen to support his declaration, that the sister of Oliva threatened to have him prosecuted if he did not pay her the sum of P60. It seems impossible to believe that the sister, after having become convinced that Oliva had been outraged in the manner described above, would consider for a moment a settlement for the paltry sum of P60. Honest women do not consent to the violation of their bodies nor those of their near relatives, for the filthy consideration of mere money. In the court below the defendant contended that the result of the scientific examination made by the Bureau of Science of the substance taken from his body, at or about the time he was arrested, was not admissible in evidence as proof of the fact that he was suffering from gonorrhea. That to admit such evidence was to compel the defendant to testify against himself. Judge Lobingier, in discussing that question in his sentence, said: The accused was not compelled to make any admissions or answer any questions, and the mere fact that an object found on his person was examined: seems no more to infringe the rule invoked, than would the introduction in evidence of stolen property taken from the person of a thief.

The substance was taken from the body of the defendant without his objection, the examination was made by competent medical authority and the result showed that the defendant was suffering from said disease. As was suggested by Judge Lobingier, had the defendant been found with stolen property upon his person, there certainly could have been no question had the stolen property been taken for the purpose of using the same as evidence against him. So also if the clothing which he wore, by reason of blood stains or otherwise, had furnished evidence of the commission of a crime, there certainly could have been no objection to taking such for the purpose of using the same as proof. No one would think of even suggesting that stolen property and the clothing in the case indicated, taken from the defendant, could not be used against him as evidence, without violating the rule that a person shall not be required to give testimony against himself. The question presented by the defendant below and repeated in his first assignment of error is not a new question, either to the courts or authors. In the case of Holt vs. U.S. (218 U.S., 245), Mr. Justice Holmes, speaking for the court upon this question, said: But the prohibition of compelling a man in a criminal court to be a witness against himself, is a prohibition of the use of physical or moral compulsion, to extort communications from him, not an exclusion of his body as evidence, when it may be material. The objection, in principle, would forbid a jury (court) to look at a person and compare his features with a photograph in proof. Moreover we are not considering how far a court would go in compelling a man to exhibit himself, for when he is exhibited, whether voluntarily or by order, even if the order goes too far, the evidence if material, is competent. The question which we are discussing was also discussed by the supreme court of the State of New Jersey, in the case of State vs. Miller (71 N.J. law Reports, 527). In that case the court said, speaking through its chancellor: It was not erroneous to permit the physician of the jail in which the accused was confined, to testify to wounds observed by him on the back of the hands of the accused, although he also testified that he had the accused removed to a room in another part of the jail and divested of his clothing. The observation made by the witness of the wounds on the hands and testified to by him, was in no sense a compelling of the accused to be a witness against himself. If the removal of the clothes had been forcible and the wounds had been thus exposed, it seems that the evidence of their character and appearance would not have been objectionable. In that case also (State vs. Miller) the defendant was required to place his hand upon the wall of the house where the crime was committed, for the purpose of ascertaining whether or not his hand would have produced the bloody print. The court said, in discussing that question: It was not erroneous to permit evidence of the coincidence between the hand of the accused and the bloody prints of a hand upon the wall of the house where the crime was committed, the hand of the accused having been placed thereon at the request of persons who were with him in the house. It may be added that a section of the wall containing the blood prints was produced before the jury and the testimony of such comparison was like that held to be proper in another case decided by the supreme court of New Jersey in the case of Johnson vs. State (30 Vroom, N.J. Law Reports, 271). The defendant caused the prints of the shoes to be made in the sand before the jury, and the witnesses who had observed shoe prints in the sand at the place of

the commission of the crime were permitted to compare them with what the had observed at that place. In that case also the clothing of the defendant was used as evidence against him. To admit the doctrine contended for by the appellant might exclude the testimony of a physician or a medical expert who had been appointed to make observations of a person who plead insanity as a defense, where such medical testimony was against necessarily use the person of the defendant for the purpose of making such examination. (People vs. Agustin, 199 N.Y., 446.) The doctrine contended for by the appellants would also prevent the courts from making an examination of the body of the defendant where serious personal injuries were alleged to have been received by him. The right of the courts in such cases to require an exhibit of the injured parts of the body has been established by a long line of decisions. The prohibition contained in section 5 of the Philippine Bill that a person shall not be compelled to be a witness against himself, is simply a prohibition against legal process to extract from the defendant's own lips, against his will, an admission of his guilt. Mr. Wigmore, in his valuable work on evidence, in discussing the question before us, said: If, in other words, it (the rule) created inviolability not only for his [physical control] in whatever form exercised, then it would be possible for a guilty person to shut himself up in his house, with all the tools and indicia of his crime, and defy the authority of the law to employ in evidence anything that might be obtained by forcibly overthrowing his possession and compelling the surrender of the evidential articles a clearreductio ad absurdum. In other words, it is not merely compulsion that is the kernel of the privilege, . . . but testimonial compulsion. (4 Wigmore, sec. 2263.) The main purpose of the provision of the Philippine Bill is to prohibit compulsory oral examination of prisonersbefore trial. or upon trial, for the purpose of extorting unwilling confessions or declarations implicating them in the commission of a crime. (People vs. Gardner, 144 N. Y., 119.) The doctrine contended for by appellant would prohibit courts from looking at the fact of a defendant even, for the purpose of disclosing his identity. Such an application of the prohibition under discussion certainly could not be permitted. Such an inspection of the bodily features by the court or by witnesses, can not violate the privilege granted under the Philippine Bill, because it does not call upon the accused as a witness it does not call upon the defendant for his testimonial responsibility. Mr. Wigmore says that evidence obtained in this way from the accused, is not testimony but his body his body itself. As was said by Judge Lobingier: The accused was not compelled to make any admission or answer any questions, and the mere fact that an object found upon his body was examined seems no more to infringe the rule invoked than would the introduction of stolen property taken from the person of a thief.

The doctrine contended for by the appellant would also prohibit the sanitary department of the Government from examining the body of persons who are supposed to have some contagious disease. We believe that the evidence clearly shows that the defendant was suffering from the venereal disease, as above stated, and that through his brutal conduct said disease was communicated to Oliva Pacomio. In a case like the present it is always difficult to secure positive and direct proof. Such crimes as the present are generally proved by circumstantial evidence. In cases of rape the courts of law require corroborative proof, for the reason that such crimes are generally committed in secret. In the present case, taking into account the number and credibility of the witnesses, their interest and attitude on the witness stand, their manner of testifying and the general circumstances surrounding the witnesses, including the fact that both parties were found to be suffering from a common disease, we are of the opinion that the defendant did, on or about the 15th of September, 1910, have such relations as above described with the said Oliva Pacomio, which under the provisions of article 439 of the Penal Code makes him guilty of the crime of "abusos deshonestos," and taking into consideration the fact that the crime which the defendant committed was done in the house where Oliva Pacomio was living, we are of the opinion that the maximum penalty of the law should be imposed. The maximum penalty provided for by law is six years of prision correccional. Therefore let a judgment be entered modifying the sentence of the lower court and sentencing the defendant to be imprisoned for a period of six years of prision correccional, and to pay the costs. So ordered. G.R. No. 16444 September 8, 1920

infringement of the constitutional provision. The trial judge in the instant case has held with the fiscal; while it is brought to our notice that a judge of the same court has held on an identical question as contended for by the attorney for the accused and petitioner. The authorities are abundant but conflicting. What may be termed the conservative courts emphasize greatly the humanitarianism of the constitutional provisions and are pleased to extend the privilege in order that its mantle may cover any fact by which the accused is compelled to make evidence against himself. (Compare State vs. Jacobs [1858], 50 N. C., 259 with State vs. Ah Chuey [1879], 14 Nev., 79. See further State vs. Ah Nordstrom [1893], 7 Wash., 506; State vs. Height [1902]. 117 Iowa., 650; Thornton vs. State [1903], 117 Wis., 338.) A case concordant with this view and almost directly in point is People vs. McCoy ([1873], 45 How. Pr., 216). A woman was charged with the crime of infanticide. The corner directed two physicians to go to the jail and examine her private parts to determine whether she had recently been delivered of a child. She objected to the examination, but being threatened with force, yielded, and the examination was had. The evidence of these physicians was offered at the trial and ruled out. The court said that the proceeding was in violation of the spirit and meaning of the Constitution, which declares that "no person shall be compelled in any criminal case to be a witness against himself." Continuing, the court said: "They might as well have sworn the prisoner, and compelled her, by threats, to testify that she had been pregnant, and had been delivered of a child, as to have compelled her, by threats, to allow them to look into her person, with the aid of a speculum, to ascertain whether she had been pregnant and been delivered of a child. . . . Has this court the right to compel the prisoner now to submit to an examination they are of the opinion she is not a virgin, and has had a child? It is not possible that this court has that right; and it is too clear to admit of argument that evidence thus obtained would be inadmissible against the prisoner." It may be revealing a judicial secret, but nevertheless we cannot refrain from saying that, greatly impressed with the weight of these decisions, especially the one written by Mr. Justice McClain, in State vs. Height, supra, the instant case was reported by the writer with the tentative recommendation that the court should lay down the general rule that a defendant can be compelled to disclose only those parts of the body which are not usually covered. Buth having disabused our minds of a too sensitive appreciation of the rights of accused persons, and having been able, as we think, to penetrate through the maze of law reports to the policy which lies behind the constitutional guaranty and the common law principle, we have come finally to take our stand with what we believe to be the reason of the case. In contradistinction to the cases above-mentioned are others which seem to us more progressive in nature. Among these can be prominently mentioned decisions of the United States Supreme Court, and the Supreme Court of these Islands. Thus, the always forward looking jurist, Mr. Justice Holmes, in the late case of Holt vs. United States ([1910], 218 U. S., 245), in resolving an objection based upon what he termed "an extravagant extension of the Fifth Amendment," said: "The prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material." (See also, of same general tenor, decision of Mr. Justice Day in Adams vs. New York [1903], 192 U. S., 585.) The Supreme Court of the Philippine Islands, in two decisions, has seemed to limit the protection to a prohibition against compulsory testimonial self-incrimination. The constitutional limitation was said to be "simply a prohibition against legal process to extract from the defendant's own lips, against his will, an admission of his guilt." (U. S. vs. Tan Teng [1912], 23 Phil., 145; U. S. vs. Ong Siu Hong [1917], 36 Phil., 735, and the derivatory principle announced in 16 Corpus Juris, 567, 568, citing the United States Supreme Court and the Supreme Court of the Philippine Islands as authority.) Although we have stated s proposition previously announced by this court and by the highest tribunal in the United States, we cannot unconcernedly leave the subject without further

EMETERIA VILLAFLOR, petitioner, vs. RICARDO SUMMERS, sheriff of the City of Manila, respondent. MALCOLM, J.: The petitioner prays that a writ of habeas corpus issue to restore her to her liberty. The facts are not dispute. In a criminal case pending before the Court of First Instance of the city of Manila, Emeteria Villaflor and Florentino Souingco are charged with the crime of adultery. On this case coming on for trial before the Hon. Pedro Concepcion, Judge of First Instance, upon the petitioner of the assistant fiscal for the city of Manila, the court ordered the defendant Emeteria Villaflor, nor become the petitioner herein, to submit her body to the examination of one or two competent doctors to determine if she was pregnant or not. The accused refused to obey the order on the ground that such examination of her person was a violation of the constitutional provision relating to self-incrimination. Thereupon she was found in contempt of court and was ordered to be committed to Bilibid Prison until she should permit the medical examination required by the court. The sole legal issue from the admitted facts is whether the compelling of a woman to permit her body to be examined by physicians to determine if she is pregnant, violates that portion of the Philippine Bill of Rights and that portion of our Code of Criminal Procedure which find their origin in the Constitution of the United States and practically all state constitutions and in the common law rules of evidence, providing that no person shall be compelled in any criminal case to be a witness against himself. (President's Instructions to the Philippine Commission; Act of Congress of July 1, 1902, section 5, paragraph 3; Act of Congress of August 29, 1916, section 3; paragraph 3; Code of Criminal Procedure, section 15 [4]; United States Constitution, fifth amendment.) Counsel for petitioner argues that such bodily exhibition is an infringement of the constitutional provision; the representative of the city fiscal contends that it is not an

consideration. Even in the opinion Mr. Justice Holmes, to which we have alluded, there was inserted the careful proviso that "we need not consider how far a court would go in compelling a man to exhibit himself." Other courts have likewise avoided any attempt to determine the exact location of the dividing line between what is proper and what is improper in this very broad constitutional field. But here before us is presented what would seem to be the most extreme case which could be imagined. While the United States Supreme Court could nonchalantly decree that testimony that an accused person put on a blouse and it fitted him is not a violation of the constitutional provision, while the Supreme Court of Nuevada could go so far as to require the defendant to roll up his sleeve in order to disclose tattoo marks, and while the Supreme Court of the Philippine Islands could permit substances taken from the person of an accused to be offered in evidence, none of these even approach in apparent harshness an order to make a woman, possibly innocent, to disclose her body in all of its sanctity to the gaze of strangers. We can only consistently consent to the retention of a principle which would permit of such a result by adhering steadfastly to the proposition that the purpose of the constitutional provision was and is merely to prohibit testimonial compulsion. So much for the authorities. For the nonce we would prefer to forget them entirely, and here in the Philippines, being in the agrreable state of breaking new ground, would rather desire our decision to rest on a strong foundation of reason and justice than on a weak one blind adherence to tradition and precedent. Moreover, we believe that an unbiased consideration of the history of the constitutional provisions will disclose that our conclusion is in exact accord with the causes which led to its adoption. The maxim of the common law, Nemo tenetur seipsum accusare, was recognized in England in early days, but not in the other legal systems of the world, in a revolt against the thumbscrew and the rack. A legal shield was raised against odious inquisitorial methods of interrogating an accused person by which to extort unwilling confessions with the ever present temptation to commit the crime of perjury. The kernel of the privilege as disclosed by the textwriters was testimonial compulsion. As forcing a man to be a witness against himself was deemed contrary to the fundamentals of republican government, the principle was taken into the American Constitutions, and from the United States was brought to the Philippine Islands, in exactly as wide but no wider a scope as it existed in old English days. The provision should here be approached in no blindly worshipful spirit, but with a judicious and a judicial appreciation of both its benefits and its abuses. (Read the scholarly articles of Prof. Wigmore in 5 Harvard L. R. [1891], p. 71, and 15 Harvard L. R., 1902, p. 610 found in 4 Wigmore on Evidence, pp. 3069 et seq., and U. S. vs. Navarro [1904], Phil., 143.) Perhaps the best way to test the correctness of our position is to go back once more to elements and ponder on what is the prime purpose of a criminal trial. As we view it, the object of having criminal laws is to purgue the community of persons who violate the laws to the great prejudice of their fellow men. Criminal procedure, the rules of evidence, and constitutional provisions, are then provided, not to protect the guilty but to protect the innocent. No rule is intemended to be so rigid as to embarrass the administration of justice in its endeavor to ascertain the truth. No accused person should be afraid of the use of any method which will tend to establish the truth. For instance, under the facts before us, to use torture to make the defendant admit her guilt might only result in including her to tell a falsehood. But no evidence of physical facts can for any substantial reason be held to be detrimental to the accused except in so far as the truth is to be avoided in order to acquit a guilty person. Obviously a stirring plea can be made showing that under the due process of law cause of the Constitution every person has a natural and inherent right to the possession and control of his own body. It is extremely abhorrent to one's sense of decency and propriety to have the decide that such inviolability of the person, particularly of a woman, can be invaded by exposure to another's gaze. As Mr. Justice Gray in Union Pacific Railway Co. vs. Botsford ([1891], 141 U. S., 250) said, "To compel any one, and especially a woman, to lay bare the

body, or to submit to the touch of a stranger, without lawful authority, is an indignity, an assault, and a trespass." Conceded, and yet, as well suggested by the same court, even superior to the complete immunity of a person to be let alone is the inherent which the public has in the orderly administration of justice. Unfortunately, all too frequently the modesty of witnesses is shocked by forcing them to answer, without any mental evasion, questions which are put to them; and such a tendency to degrade the witness in public estimation does not exempt him from the duty of disclosure. Between a sacrifice of the ascertainment of truth to personal considerations, between a disregard of the public welfare for refined notions of delicacy, law and justice cannot hesitate. The protection of accused persons has been carried to such an unwarranted extent that criminal trials have sometimes seemed to be like a game of shuttlecocks, with the judge as referee, the lawyers as players, the criminal as guest of honor, and the public as fascinated spectators. Against such a loose extension of constitutional guaranties we are here prepared to voice our protest. Fully conscious that we are resolving a most extreme case in a sense, which on first impression is a shock to one's sensibilities, we must nevertheless enforce the constitutional provision in this jurisdiction in accord with the policy and reason thereof, undeterred by merely sentimental influences. Once again we lay down the rule that the constitutional guaranty, that no person shall be compelled in any criminal case to be a witness against himself, is limited to a prohibition against compulsory testimonial self-incrimination. The corollary to the proposition is that, an ocular inspection of the body of the accused is permissible. The proviso is that torture of force shall be avoided. Whether facts fall within or without the rule with its corollary and proviso must, of course, be decided as cases arise. It is a reasonable presumption that in an examination by reputable and disinterested physicians due care will be taken not to use violence and not to embarass the patient any more than is absolutely necessary. Indeed, no objection to the physical examination being made by the family doctor of the accused or by doctor of the same sex can be seen. Although the order of the trial judge, acceding to the request of the assistant fiscal for an examination of the person of the defendant by physicians was phrased in absolute terms, it should, nevertheless, be understood as subject to the limitations herein mentioned, and therefore legal. The writ of habeas corpus prayed for is hereby denied. The costs shall be taxed against the petitioner. So ordered. G.R. Nos. 108280-83 November 16, 1995 ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS SANTOS, and JOSELITO TAMAYO,petitioners, vs. PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, respondents. G.R. Nos. 114931-33 November 16, 1995 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANNIE FERRER, accused, ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS SANTOS, and JOSELITO TAMAYO, accused-appellants.

PUNO, J.: The case before us occurred at a time of great political polarization in the aftermath of the 1986 EDSA Revolution. This was the time when the newly-installed government of President Corazon C. Aquino was being openly challenged in rallies, demonstrations and other public fora by "Marcos loyalists," supporters of deposed President Ferdinand E. Marcos. Tension and animosity between the two (2) groups sometimes broke into violence. On July 27, 1986, it resulted in the murder of Stephen Salcedo, a known "Coryista." From August to October 1986, several informations were filed in court against eleven persons identified as Marcos loyalists charging them with the murder of Salcedo. Criminal Case No. 86-47322 was filed against Raul Billosos y de Leon and Gerry Nery y Babazon; Criminal Case No. 86-47617 against Romeo Sison y Mejia, Nilo Pacadar y Abe and Joel Tan y Mostero; Criminal Case No. 86-47790 against Richard de los Santos y Arambulo; Criminal Case No. 86-48538 against Joselito Tamayo y Ortia; and Criminal Case No. 86-48931 against Rolando Fernandez y Mandapat. Also filed were Criminal Cases Nos. 86-49007 and 86-49008 against Oliver Lozano and Benjamin Nuega as well as Annie Ferrer charging them as accomplices to the murder of Salcedo. The cases were consolidated and raffled to the Regional Trial Court, Branch XLIX, Manila. All of the accused pleaded not guilty to the charge and trial ensued accordingly. The prosecution presented twelve witnesses, including two eyewitnesses, Ranulfo Sumilang and Renato Banculo, and the police officers who were at the Luneta at the time of the incident. In support of their testimonies, the prosecution likewise presented documentary evidence consisting of newspaper accounts of the incident and various photographs taken during the mauling. The prosecution established that on July 27, 1986, a rally was scheduled to be held at the Luneta by the Marcos loyalists. Earlier, they applied for a permit to hold the rally but their application was denied by the authorities. Despite this setback, three thousand of them gathered at the Rizal Monument of the Luneta at 2:30 in the afternoon of the scheduled day. Led by Oliver Lozano and Benjamin Nuega, both members of the Integrated Bar of the Philippines, the loyalists started an impromptu singing contest, recited prayers and delivered speeches in between. Colonel Edgar Dula Torres, then Deputy Superintendent of the Western Police District, arrived and asked the leaders for their permit. No permit could be produced. Colonel Dula Torres thereupon gave them ten minutes to disperse. The loyalist leaders asked for thirty minutes but this was refused. Atty. Lozano turned towards his group and said "Gulpihin ninyo ang lahat ng mga Cory infiltrators." Atty. Nuega added "Sige, sige gulpihin ninyo!" The police then pushed the crowd, and used tear gas and truncheons to disperse them. The loyalists scampered away but some of them fought back and threw stones at the police. Eventually, the crowd fled towards Maria Orosa Street and the situation later stabilized. 1 At about 4:00 p.m., a small group of loyalists converged at the Chinese Garden, Phase III of the Luneta. There, they saw Annie Ferrer, a popular movie starlet and supporter of President Marcos, jogging around the fountain. They approached her and informed her of their dispersal and Annie Ferrer angrily ordered them "Gulpihin ninyo and mga Cory hecklers !" Then she continued jogging around the fountain chanting "Marcos pa rin, Marcos pa rin, Pabalikin si Marcos, Pabalikin si Marcos, Bugbugin ang mga nakadilaw!" The loyalists replied "Bugbugin!" A few minutes later, Annie Ferrer was arrested by the police. Somebody then shouted "Kailangang gumanti, tayo ngayon!" A commotion ensued and Renato Banculo, a cigarette vendor, saw the loyalists attacking persons in yellow, the color of the "Coryistas." Renato took off his yellow shirt. 2 He then saw a man wearing a yellow t-shirt being chased by a group of persons shouting "Iyan, habulin iyan. Cory iyan!" The man in the yellow t-shirt was Salcedo and his pursuers appeared to be Marcos loyalists. They caught Salcedo and boxed and kicked

and mauled him. Salcedo tried to extricate himself from the group but they again pounced on him and pummelled him with fist blows and kicks hitting him on various parts of his body. Banculo saw Ranulfo Sumilang, an electrician at the Luneta, rush to Salcedo's aid. Sumilang tried to pacify the maulers so he could extricate Salcedo from them. But the maulers pursued Salcedo unrelentingly, boxing him with stones in their fists. Somebody gave Sumilang a loyalist tag which Sumilang showed to Salcedo's attackers. They backed off for a while and Sumilang was able to tow Salcedo away from them. But accused Raul Billosos emerged from behind Sumilang as another man boxed Salcedo on the head. Accused Richard de los Santos also boxed Salcedo twice on the head and kicked him even as he was already fallen. 3 Salcedo tried to stand but accused Joel Tan boxed him on the left side of his head and ear. 4 Accused Nilo Pacadar punched Salcedo on his nape, shouting: "Iyan, Cory Iyan. Patayin!" 5Sumilang tried to pacify Pacadar but the latter lunged at the victim again. Accused Joselito Tamayo boxed Salcedo on the left jaw and kicked him as he once more fell. Banculo saw accused Romeo Sison trip Salcedo and kick him on the head, and when he tried to stand, Sison repeatedly boxed him. 6 Sumilang saw accused Gerry Neri approach the victim but did not notice what he did. 7 Salcedo somehow managed to get away from his attackers and wipe off the blood from his face. He sat on some cement steps 8 and then tried to flee towards Roxas boulevard to the sanctuary of the Rizal Monument but accused Joel Tan and Nilo Pacadar pursued him, mauling Sumilang in the process. Salcedo pleaded for his life exclaiming "Maawa na kayo sa akin. Tulungan ninyo ako." He cried: "Pulis, pulis. Wala bang pulis ?" 9 The mauling resumed at the Rizal Monument and continued along Roxas Boulevard until Salcedo collapsed and lost consciousness. Sumilang flagged down a van and with the help of a traffic officer, brought Salcedo to the Medical Center Manila but he was refused admission. So they took him to the Philippine General Hospital where he died upon arrival. Salcedo died of "hemorrhage, intracranial traumatic." He sustained various contusions, abrasions, lacerated wounds and skull fractures as revealed in the following post-mortem findings: Cyanosis, lips, and nailbeds. Contused-abrasions: 6.0 x 2.5 cm., and 3.0 x 2.4 cm., frontal region, right side; 6.8 x 4.2 cm., frontal region, left side; 5.0 x 4.0 cm., right cheek; 5.0 x 3.5 cm., face, left side; 3.5 x 2.0 cm., nose; 4.0 x 2.1 cm., left ear, pinna; 5.0 x 4.0 cm. left suprascapular region; 6.0 x 2.8 cm., right elbow. Abrasions: 4.0 x 2.0 cm., left elbow; 2.0 x 1.5 cm., right knee. Lacerated wounds: 2.2 cm., over the left eyebrow; 1.0 cm., upper lip. Hematoma, scalp; frontal region, both sides; left parietal region; right temporal region; occipital region, right side. Fractures, skull; occipital bone, right side; right posterior cranial fossa; right anterior cranial fossa. Hemorrhage, subdural, extensive.

Other visceral organs, congested. Stomach, about 1/2 filled with grayish brown food materials and fluid. 10 The mauling of Salcedo was witnessed by bystanders and several press people, both local and foreign. The press took pictures and a video of the event which became front-page news the following day, capturing national and international attention. This prompted President Aquino to order the Capital Regional Command and the Western Police District to investigate the incident. A reward of ten thousand pesos (P10,000.00) was put up by Brigadier General Alfredo Lim, then Police Chief, for persons who could give information leading to the arrest of the killers.11 Several persons, including Ranulfo Sumilang and Renato Banculo, cooperated with the police, and on the basis of their identification, several persons, including the accused, were apprehended and investigated. For their defense, the principal accused denied their participation in the mauling of the victim and offered their respective alibis. Accused Joselito Tamayo testified that he was not in any of the photographs presented by the prosecution 12 because on July 27, 1986, he was in his house in Quezon City. 13 Gerry Neri claimed that he was at the Luneta Theater at the time of the incident. 14 Romeo Sison, a commercial photographer, was allegedly at his office near the Luneta waiting for some pictures to be developed at that time. 15 He claimed to be afflicted with hernia impairing his mobility; he cannot run normally nor do things forcefully. 16 Richard de los Santos admits he was at the Luneta at the time of the mauling but denies hitting Salcedo. 17 He said that he merely watched the mauling which explains why his face appeared in some of the photographs.18 Unlike the other accused, Nilo Pacadar admits that he is a Marcos loyalist and a member of the Ako'y Pilipino Movement and that he attended the rally on that fateful day. According to him, he saw Salcedo being mauled and like Richard de los Santos, merely viewed the incident. 19 His face was in the pictures because he shouted to the maulers to stop hitting Salcedo. 20 Joel Tan also testified that he tried to pacify the maulers because he pitied Salcedo. The maulers however ignored him. 21 The other accused, specifically Attys. Lozano and Nuega and Annie Ferrer opted not to testify in their defense. On December 16, 1988, the trial court rendered a decision finding Romeo Sison, Nilo Pacadar, Joel Tan, Richard de los Santos and Joselito Tamayo guilty as principals in the crime of murder qualified by treachery and sentenced them to 14 years 10 months and 20 days of reclusion temporal as minimum to 20 years of reclusion temporal as maximum. Annie Ferrer was likewise convicted as an accomplice. The court, however, found that the prosecution failed to prove the guilt of the other accused and thus acquitted Raul Billosos, Gerry Nery, Rolando Fernandez, Oliver Lozano and Benjamin Nuega. The dispositive portion of the decision reads as follows: WHEREFORE, judgement is hereby rendered in the aforementioned cases as follows: 1. In "People versus Raul Billosos and Gerry Nery," Criminal Case No. 8647322, the Court finds that the Prosecution failed to prove the guilt of the two (2) Accused beyond reasonable doubt for the crime charged and hereby acquits them of said charge;

2. In "People versus Romeo Sison, et al.," Criminal Case No. 86-47617, the Court finds the Accused Romeo Sison, Nilo Pacadar and Joel Tan, guilty beyond reasonable doubt, as principals for the crime of Murder, defined in Article 248 of the Revised Penal Code, and, there being no other mitigating or aggravating circumstances, hereby imposes on each of them an indeterminate penalty of from FOURTEEN (14)YEARS, TEN (10) MONTHS and TWENTY (20) DAYS, of Reclusion Temporal, as minimum, to TWENTY (20) DAYS, of Reclusion Temporal, as minimum, to TWENTY (20) YEARS ofReclusion Temporal, as Maximum; 3. In "People versus Richard de los Santos," Criminal Case No. 86-47790, the Court finds the Accused Richard de los Santos guilty beyond reasonable doubt as principal for the crime of Murder defined in Article 248 of the Revised Penal Code and, there being no other extenuating circumstances, the Court hereby imposes on him an indeterminate penalty of from FOURTEEN (14) YEARS, TEN (10) MONTHS and TWENTY (20) DAYS of Reclusion Temporal, as Minimum, to TWENTY (20) YEARS of Reclusion Temporal as Maximum; 4. In "People versus Joselito Tamayo," Criminal Case No. 86-48538 the Court finds the Accused guilty beyond reasonable doubt as principal, for the crime of "Murder" defined in Article 248 of the Revised Penal Code and hereby imposes on him an indeterminate penalty of from FOURTEEN (14) YEARS, TEN (10) MONTHS and TWENTY (20) DAYS of Reclusion Temporal, as Minimum, to TWENTY (20) YEARS of Reclusion Temporal, as Maximum; 5. In "People versus Rolando Fernandez," Criminal Case No. 86-4893l, the Court finds that the Prosecution failed to prove the guilt of the Accused for the crime charged beyond reasonable doubt and hereby acquits him of said charge; 6. In "People versus Oliver Lozano, et al.," Criminal Case No. 86-49007, the Court finds that the Prosecution failed to prove the guilt of the Accused beyond reasonable doubt for the crime charged and hereby acquits them of said charge; 7. In "People versus Annie Ferrer," Criminal Case No. 86-49008, the Court finds the said Accused guilty beyond reasonable doubt, as accomplice to the crime of Murder under Article 18 in relation to Article 248 of the Revised Penal Code and hereby imposes on her an indeterminate penalty of NINE (9) YEARS and FOUR (4) MONTHS of Prision Mayor, as Minimum to TWELVE (12) YEARS, FIVE (5) MONTHS and ELEVEN (11) DAYS of Reclusion Temporal, as Maximum. The Accused Romeo Sison, Nilo Pacadar, Richard de los Santos, Joel Tan, Joselito Tamayo and Annie Ferrer are hereby ordered to pay, jointly and severally, to the heirs of Stephen Salcedo the total amount of P74,000.00 as actual damages and the amount of P30,000.00 as moral and exemplary damages, and one-half (1/2) of the costs of suit. The period during which the Accused Nilo Pacadar, Romeo Sison, Joel Tan, Richard de los Santos and Joselito Tamayo had been under

detention during the pendency of these cases shall be credited to them provided that they agreed in writing to abide by and comply strictly with the rules and regulations of the City Jail. The Warden of the City Jail of Manila is hereby ordered to release the Accused Gerry Nery, Raul Billosos and Rolando Fernandez from the City Jail unless they are being detained for another cause or charge. The Petition for Bail of the Accused Rolando Fernandez has become moot and academic. The Petition for Bail of the Accused Joel Tan, Romeo Sison and Joselito Tamayo is denied for lack of merit. The bail bonds posted by the Accused Oliver Lozano and Benjamin Nuega are hereby cancelled. 22 On appeal, the Court of Appeals 23 on December 28, 1992, modified the decision of the trial court by acquitting Annie Ferrer but increasing the penalty of the rest of the accused, except for Joselito Tamayo, to reclusion perpetua. The appellate court found them guilty of murder qualified by abuse of superior strength, but convicted Joselito Tamayo of homicide because the information against him did not allege the said qualifying circumstance. The dispositive portion of the decision reads: PREMISES CONSIDERED, the decision appealed from is hereby MODIFIED as follows: 1. Accused-appellants Romeo Sison y Mejia, Nilo Pacadar y Abe, Joel Tan y Mostero and Richard de los Santos are hereby found GUILTY beyond reasonable doubt of Murder and are each hereby sentenced to suffer the penalty of Reclusion Perpetua; 2. Accused-appellant Joselito Tamayo y Oria is hereby found GUILTY beyond reasonable doubt of the crime of Homicide with the generic aggravating circumstance of abuse of superior strength and, as a consequence, an indeterminate penalty of TWELVE (12) YEARS of prision mayor as Minimum to TWENTY (20) YEARS of reclusion temporal as Maximum is hereby imposed upon him; 3. Accused-appellant Annie Ferrer is hereby ACQUITTED of being an accomplice to the crime of Murder. CONSIDERING that the penalty of Reclusion Perpetua has been imposed in the instant consolidated cases, the said cases are now hereby certified to the Honorable Supreme Court for review. 24 Petitioners filed G.R. Nos. 108280-83 under Rule 45 of the Revised Rules of Court inasmuch as Joselito Tamayo was not sentenced to reclusion perpetua. G.R. Nos. 114931-33 was certified to us for automatic review of the decision of the Court of Appeals against the four accused-appellants sentenced to reclusion perpetua. Before this court, accused-appellants assign the following errors:

I THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT NOTED THAT THE ACCUSED FAILED TO CITE ANYTHING ON RECORD TO SUPPORT THEIR AVERMENT THAT THERE WERE NO WITNESSES WHO HAVE COME FORWARD TO IDENTIFY THE PERSONS RESPONSIBLE FOR THE DEATH OF STEPHEN SALCEDO. II THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN GIVING CREDENCE TO THE UNRELIABLE, DOUBTFUL, SUSPICIOUS AND INCONCLUSIVE TESTIMONIES OF PROSECUTION WITNESS RANULFO SUMILANG. III THE HONORABLE COURT OF APPEALS LIKEWISE ERRED IN FINDING THE ACCUSED GUILTY WHEN THERE WAS NO EVIDENCE TO PROVE THAT ANY OF THE ACCUSED CARRIED A HARD AND BLUNT INSTRUMENT, THE ADMITTED CAUSE OF THE HEMORRHAGE RESULTING IN THE DEATH OF THE DECEASED. IV THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THERE EXISTS CONSPIRACY AMONG THE PRINCIPAL ACCUSED. V THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THE CRIME COMMITTED IS MURDER AND NOT DEATH (HOMICIDE) CAUSED IN A TUMULTUOUS AFFRAY. 25 In their additional brief, appellants contend that: I THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN REACHING A CONCLUSION OF FACT UTILIZING SPECULATIONS, SURMISES, NON-SEQUITUR CONCLUSIONS, AND EVEN THE DISPUTED DECISION OF THE TRIAL COURT, TO UPHOLD THE VALIDITY OF THE VERY SAME JUDGMENT, ALL CONTRARY TO THE RULES OF EVIDENCE. II

THE HONORABLE COURT OF APPEALS ERRED IN ADMITTING EXHIBITS "D", "G", "O", "P", "V", TO "V-48", "W" TO "W-13", ALL OF WHICH WERE NOT PROPERLY IDENTIFIED. III THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN CONCLUDING THAT CONSPIRACY EXISTED IN THE CASE AT BAR DISREGARDING ALTOGETHER THE SETTLED JURISPRUDENCE ON THE MATTER. IV THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THE CRIME COMMITTED WAS MURDER, NOT DEATH (HOMICIDE) IN TUMULTUOUS AFFRAY SIDESTEPPING IN THE PROCESS THE FACTUAL GROUNDS SURROUNDING THE INCIDENT. 26 Appellants mainly claim that the Court of Appeals erred in sustaining the testimonies of the two in prosecution eyewitnesses, Ranulfo Sumilang and Renato Banculo, because they are unreliable, doubtful and do not deserve any credence. According to them, the testimonies of these two witnesses are suspect because they surfaced only after a reward was announced by General Lim. Renato Banculo even submitted three sworn statements to the police geared at providing a new or improved version of the incident. On the witness stand, he mistakenly identified a detention prisoner in another case as accused Rolando Fernandez. 27 Ranulfo Sumilang was evasive and unresponsive prompting the trial court to reprimand him several times. 28 There is no proof that Banculo or Sumilang testified because of the reward announced by General Lim, much less that both or either of them ever received such reward from the government. On the contrary, the evidence shows that Sumilang reported the incident to the police and submitted his sworn statement immediately two hours after the mauling, even before announcement of any reward. 29 He informed the police that he would cooperate with them and identify Salcedo's assailants if he saw them again. 30 The fact that Banculo executed three sworn statements does not make them and his testimony incredible. The sworn statements were made to identify more suspects who were apprehended during the investigation of Salcedo's death. 31 The records show that Sumilang was admonished several times by the trial court on the witness stand for being argumentative and evasive. 32 This is not enough reason to reject Sumilang's testimony for he did not exhibit this undesirable conduct all throughout his testimony. On the whole, his testimony was correctly given credence by the trial court despite his evasiveness at some instances. Except for compelling reasons, we cannot disturb the way trial courts calibrate the credence of witnesses considering their visual view of the demeanor of witnesses when on the witness stand. As trial courts, they can best appreciate the verbal and non-verbal dimensions of a witness' testimony. Banculo's mistake in identifying another person as one of the accused does not make him an entirely untrustworthy witness. 33 It does not make his whole testimony a falsity. An honest

mistake is not inconsistent with a truthful testimony. Perfect testimonies cannot be expected from persons with imperfect senses. In the court's discretion, therefore, the testimony of a witness can be believed as to some facts but disbelieved with respect to the others. 34 We sustain the appellate and trial courts' findings that the witnesses' testimonies corroborate each other on all important and relevant details of the principal occurrence. Their positive identification of all petitioners jibe with each other and their narration of the events are supported by the medical and documentary evidence on record. Dr. Roberto Garcia, the medico-legal officer of the National Bureau of Investigation, testified that the victim had various wounds on his body which could have been inflicted by pressure from more than one hard object. 35 The contusions and abrasions found could have been caused by punches, kicks and blows from rough stones. 36 The fatal injury of intracranial hemorrhage was a result of fractures in Salcedo's skull which may have been caused by contact with a hard and blunt object such as fistblows, kicks and a blunt wooden instrument. 37 Appellants do not deny that Salcedo was mauled, kicked and punched. Sumilang in fact testified that Salcedo was pummeled by his assailants with stones in their hands. 38 Appellants also contend that although the appellate court correctly disregarded Exhibits "D," "G," and "P," it erroneously gave evidentiary weight to Exhibits "O," "V," "V-1" to "V-48," "W," "W-1" to "W-13." 39 Exhibit "O" is the Joint Affidavit of Pat. Flores and Pat. Bautista, the police intelligence-operatives who witnessed the rally and subsequent dispersal operation. Pat. Flores properly identified Exhibit "O" as his sworn statement and in fact gave testimony corroborating the contents thereof. 40 Besides, the Joint Affidavit merely reiterates what the other prosecution witnesses testified to. Identification by Pat. Bautista is a surplusage. If appellants wanted to impeach the said affidavit, they should have placed Pat. Flores on the witness stand. Exhibits "V," "V-1" to "V-48" are photographs taken of the victim as he was being mauled at the Luneta starting from a grassy portion to the pavement at the Rizal Monument and along Roxas Boulevard, 41 as he was being chased by his assailants 42 and as he sat pleading with his assailants. 43 Exhibits "W", "W-1" to "W-13" are photographs of Salcedo and the mauling published in local newspapers and magazines such as the Philippine Star, 44 Mr. and Ms. Magazine, 45 Philippine Daily Inquirer, 46 and the Malaya. 47 The admissibility of these photographs is being questioned by appellants for lack of proper identification by the person or persons who took the same. The rule in this jurisdiction is that photographs, when presented in evidence, must be identified by the photographer as to its production and testified as to the circumstances under which they were produced. 48 The value of this kind of evidence lies in its being a correct representation or reproduction of the original, 49 and its admissibility is determined by its accuracy in portraying the scene at the time of the crime. 50 The photographer, however, is not the only witness who can identify the pictures he has taken. 51 The correctness of the photograph as a faithful representation of the object portrayed can be proved prima facie, either by the testimony of the person who made it or by other competent witnesses, after which the court can admit it subject to impeachment as to its accuracy. 52 Photographs, therefore, can be identified by the photographer or by any other competent witness who can testify to its exactness and accuracy. 53 This court notes that when the prosecution offered the photographs as part of its evidence, appellants, through counsel Atty. Alfredo Lazaro, Jr. objected to their admissibility for lack of proper identification. 54 However, when the accused presented their evidence, Atty. Winlove

Dumayas, counsel for accused Joselito Tamayo and Gerry Neri used Exhibits "V", "V-1" to "V48" to prove that his clients were not in any of the pictures and therefore could not have participated in the mauling of the victim. 55 The photographs were adopted by appellant Joselito Tamayo and accused Gerry Neri as part of the defense exhibits. And at this hearing, Atty. Dumayas represented all the other accused per understanding with their respective counsels, including Atty. Lazaro, who were absent. At subsequent hearings, the prosecution used the photographs to cross-examine all the accused who took the witness stand. 56 No objection was made by counsel for any of the accused, not until Atty. Lazaro appeared at the third hearing and interposed a continuing objection to their admissibility.57 The objection of Atty. Lazaro to the admissibility of the photographs is anchored on the fact that the person who took the same was not presented to identify them. We rule that the use of these photographs by some of the accused to show their alleged non-participation in the crime is an admission of the exactness and accuracy thereof. That the photographs are faithful representations of the mauling incident was affirmed when appellants Richard de los Santos, Nilo Pacadar and Joel Tan identified themselves therein and gave reasons for their presence thereat. 58 An analysis of the photographs vis-a-vis the accused's testimonies reveal that only three of the appellants, namely, Richard de los Santos, Nilo Pacadar and Joel Tan could be readily seen in various belligerent poses lunging or hovering behind or over the victim. 59 Appellant Romeo Sison appears only once and he, although afflicted with hernia is shown merely running after the victim. 60Appellant Joselito Tamayo was not identified in any of the pictures. The absence of the two appellants in the photographs does not exculpate them. The photographs did not capture the entire sequence of the killing of Salcedo but only segments thereof. While the pictures did not record Sison and Tamayo hitting Salcedo, they were unequivocally identified by Sumilang and Banculo 61Appellants' denials and alibis cannot overcome their eyeball identification. Appellants claim that the lower courts erred in finding the existence of conspiracy among the principal accused and in convicting them of murder qualified by abuse of superior strength, not death in tumultuous affray. Death in a tumultuous affray is defined in Article 251 of the Revised Penal code as follows: Art. 251. Death caused in a tumultuous affray. When, while several persons, not composing groups organized for the common purpose of assaulting and attacking each other reciprocally, quarrel and assault each other in a confused and tumultuous manner, and in the course of the affray someone is killed, and it cannot be ascertained who actually killed the deceased, but the person or persons who inflicted serious physical injuries can be identified, such person or persons shall be punished by prison mayor. If it cannot be determined who inflicted the serious physical injuries on the deceased, the penalty ofprision correccional in its medium and maximum periods shall be imposed upon all those who shall have used violence upon the person of the victim. For this article to apply, it must be established that: (1) there be several persons; (2) that they did not compose groups organized for the common purpose of assaulting and attacking each other reciprocally; (3) these several persons quarrelled and

assaulted one another in a confused and tumultuous manner; (4) someone was killed in the course of the affray; (5) it cannot be ascertained who actually killed the deceased; and (6) that the person or persons who inflicted serious physical injuries or who used violence can be identified. 62 A tumultuous affray takes place when a quarrel occurs between several persons and they engage in a confused and tumultuous affray, in the course of which some person is killed or wounded and the author thereof cannot be ascertained. 63 The quarrel in the instant case, if it can be called a quarrel, was between one distinct group and one individual. Confusion may have occurred because of the police dispersal of the rallyists, but this confusion subsided eventually after the loyalists fled to Maria Orosa Street. It was only a while later after said dispersal that one distinct group identified as loyalists picked on one defenseless individual and attacked him repeatedly, taking turns in inflicting punches, kicks and blows on him. There was no confusion and tumultuous quarrel or affray, nor was there a reciprocal aggression at this stage of the incident. 64 As the lower courts found, the victim's assailants were numerous by as much as fifty in number 65 and were armed with stones with which they hit the victim. They took advantage of their superior strength and excessive force and frustrated any attempt by Salcedo to escape and free himself. They followed Salcedo from the Chinese Garden to the Rizal Monument several meters away and hit him mercilessly even when he was already fallen on the ground. There was a time when Salcedo was able to get up, prop himself against the pavement and wipe off the blood from his face. But his attackers continued to pursue him relentlessly. Salcedo could not defend himself nor could he find means to defend himself. Sumilang tried to save him from his assailants but they continued beating him, hitting Sumilang in the process. Salcedo pleaded for mercy but they ignored his pleas until he finally lost consciousness. The deliberate and prolonged use of superior strength on a defenseless victim qualifies the killing to murder. Treachery as a qualifying circumstance cannot be appreciated in the instant case. There is no proof that the attack on Salcedo was deliberately and consciously chosen to ensure the assailants' safety from any defense the victim could have made. True, the attack on Salcedo was sudden and unexpected but it was apparently because of the fact that he was wearing a yellow t-shirt or because he allegedly flashed the "Laban" sign against the rallyists, taunting them into mauling him. As the appellate court well found, Salcedo had the opportunity to sense the temper of the rallyists and run away from them but he, unfortunately, was overtaken by them. The essence of treachery is the sudden and unexpected attack without the slightest provocation on the part of the person being attacked. 66 The qualifying circumstance of evident premeditation was alleged in the information against Joselito Tamayo. Evident premeditation cannot be appreciated in this case because the attack against Salcedo was sudden and spontaneous, spurred by the raging animosity against the so-called "Coryistas." It was not preceded by cool thought and reflection. We find however the existence of a conspiracy among appellants. At the time they were committing the crime, their actions impliedly showed a unity of purpose among them, a concerted effort to bring about the death of Salcedo. Where a conspiracy existed and is proved, a showing as to who among the conspirators inflicted the fatal wound is not required to sustain a conviction. 67 Each of the conspirators is liable for all acts of the others regardless of the intent and character of their participation, because the act of one is the act of all. 68

The trial court awarded the heirs of Salcedo P74,000.00 as actual damages, P30,000.00 as moral and exemplary damages, and one half of the costs of the suit. At the time he died on July 27, 1986, Salcedo was twenty three years old and was set to leave on August 4, 1986 for employment in Saudi Arabia. 69 The reckless disregard for such a young person's life and the anguish wrought on his widow and three small children, 70 warrant an increase in moral damages from P30,000.00 to P100,000.00. The indemnity of P50,000.00 must also be awarded for the death of the victim. 71 IN VIEW WHEREOF, the decision appealed from is hereby affirmed and modified as follows: 1. Accused-appellants Romeo Sison, Nilo Pacadar, Joel Tan and Richard de los Santos are found GUILTY beyond reasonable doubt of Murder without any aggravating or mitigating circumstance and are each hereby sentenced to suffer the penalty of reclusion perpetua; 2. Accused-appellant Joselito Tamayo is found GUILTY beyond reasonable doubt of the crime of Homicide with the generic aggravating circumstance of abuse of superior strength and, as a consequence, he is sentenced to an indeterminate penalty of TWELVE (12) YEARS of prision mayoras minimum to TWENTY (20) YEARS of reclusion temporal as maximum; 3. All accused-appellants are hereby ordered to pay jointly and severally the heirs of Stephen Salcedo the following amounts: (a) P74,000.00 as actual damages; (b) P100,000.00 as moral damages; and (c) P50,000.00 as indemnity for the death of the victim. Costs against accused-appellants. [G.R. No. L-31871. December 14, v. 1981.] CEFERINO

Restaurant

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September

8.

Paulino Gelidon, Melvin Yabut and Eladio Yabut arrived at the restaurant. Gelidon and Eladio seated themselves beside Ceferino Medrana and Ching Santos at a table which was opposite the table occupied by Fernandez. Melvin, who was the president of a customs brokerage firm known as Cargoes Unlimited, Inc., seated himself beside Fernandez who was a vice-president of the firm.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph Fernandez introduced Melvin to Medalla, telling the latter that Melvin is a nephew of Nemesio Yabut. Medalla uttered derogatory remarks against Nemesio Yabut, branding him as a squealer who caused the apprehension of two trucks of Medalla and whom he (Medalla) would kick and spit on. Fernandez countered that Medalla should not do that because Nemesio Yabut was his (Oyings) compadre. Medalla remarked that Gelidon, the bodyguard of Fernandez, was "stale" (panis). Medalla then pointed to his bodyguards, Medrana and Belarmino, who were armed with caliber .45 guns. Shortly thereafter, Medalla directed Medrana to get from his car a Thompson submachine gun so that he could fire it. Fernandez advised Medrana not to get the gun because trouble and scandal might ensue. Medalla said that he assumed responsibility for the consequences. Medrana, in compliance with Medallas directive, stood up and walked towards the parking lot near the restaurant at the corner of Palacio and P. Burgos Streets. Medalla also stood up and went to the parking lot. Fernandez followed Medalla. Belarmino and Dizon also went to the parking lot. Maria Resma, 36, a cigarette vendor who was near the parking lot at the time, testified that, at a distance of around fifteen paces, she saw Medalla and Fernandez grappling for the possession of a long gun. Medalla, who was able to wrest the gun from Fernandez, placed it inside his car. Then, Fernandez, with hands raised, moved backward, saying: "Huag, pare, hindi ako lalaban." He was unarmed. Benjamin Lopez, 19, a third-year high school student who worked as a caddy and knows Medalla and Fernandez, testified that at around ten oclock on that night of September 5, 1967, he was at the Muni Golf Links, leaning against a parked car while waiting for some golfers. He saw Medalla, Fernandez and Dizon in the parking lot. He heard a gunshot. On looking sidewise to his left, where the sound of the gunshot originated, he perceived Medalla, Medrana and Belarmino aiming their firearms at Fernandez, who was backing away with raised hands in a posture of surrender. Belarmino and Medrana were armed with .45 caliber pistols (Exh. I) After Belarmino had fired at Fernandez, the latter fell and then he stood up with raised hands, saying: "Dont kill me. Ill not fight." As Fernandez walked towards his car, which was a few meters away, Medrana fired at him. The victim continued walking in a zigzag manner towards his car. Belarmino again fired at him. Fernandez buckled down on one knee and then he rose and moved towards the driving range in a wobbly manner. Medrana followed him and fired at him repeatedly.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph Fernandez collapsed inside the restaurant near the counter for glasses and plates.

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, MEDRANA Y TORRES,Accused-Appellant. DECISION AQUINO, J.:

This is a murder case. The prosecutions evidence discloses that at around ten oclock in the evening of September 5, 1967, Arturo Fernandez (Oying), 24, was seated at a table in the restaurant of the Muni Golf Links near Intramuros, Manila. With him at the table were Napoleon Medalla, Tommy Dizon and Teodulfo D. Belarmino. They were drinking whiskey and were engaged in a friendly conversation. Fernandez invited Medalla to attend his birthday party at the Nile

A bystander, who was hiding behind the counter and who knew the victim, said: "Oying, Oying, huag dito, doon ka." Fernandez stood up and staggered towards the fairway, still pursued by Medrana. At that juncture, Dizon shouted to Medalla: "Napo, si Oying." Reacting to Dizons words, Medalla shouted the order: "Tama na yan." Heeding that injunction, Medrana desisted and returned to the parking lot. Medalla tucked his firearm in his waist and walked towards the driving range, following the route taken by Fernandez. Upon overtaking Fernandez, Medalla stooped, raised the hands of Fernandez and shouted insolently: "Ano, puede ka pa ba?" Fernandez did not answer. His head was drooping. Medalla released him and ordered Medrana to place Fernandez in his (Medallas) car and take him to the hospital. The car was driven by Leopoldo Hermo, Medallas driver. Fernandez was already dead upon arrival at the Philippine General Hospital. The postmortem examination showed that he had a fatal gunshot wound in his abdomen which lacerated his diaphragm, heart and liver. A .32 caliber slug was lodged in the pericardial sac of his heart. He had also gunshot wounds in the buttocks, forearm and left thigh. A .45 caliber bullet had entered his buttocks (gluteal region), exited on the right iliac region of his abdomen and reentered his right forearm (Exh. EE). Belarmino, 50, an employee of Medalla, voluntarily surrendered to the police and gave a statement on the following day, September 6, wherein he admitted his participation in the shooting of Fernandez (Exh. I). He reenacted his role in the killing (Exh. L to L-4). It is significant that in his statement he repeatedly stated that Medrana was with him at the scene of the crime (Exh. L). Hermo, 51, was arrested two days later or on September 7 (Exh. N). He also demonstrated how he shot Fernandez with his .32 caliber revolver, a Colt Cobra (Exhs. P and P-1). The booking sheet and arrest report regarding Hermo proves that Medrana was implicated in the killing of Fernandez, as may be seen from the following entry therein signed by Hermo, Patrolman S. Alonzo and by Sergeant Mallari for Colonel Enrique V. Morales, the chief of the detective bureau:jgc:chanrobles.com.ph "Herein accused (Hermo) was arrested at the above-stated time (6:30 p.m., 9-767), date and place for the crime of MURDER committed as follows:jgc:chanrobles.com.ph "That on or about 10:15 p.m., Sept. 5, 1967, herein accused (Hermo) together with Teodulfo Belarmino y Decena, also under arrest and one Ceferino Medrana alias Ninoy still at large, shot victim, Arturo Fernandez y Camello with a .32 cal. revolver with serial number 71087 (recovered) inside the parking space in front of the Muni Golf Links, located at the corner of Palacio and P. Burgos Sts., Intramuros, Manila, hitting victim, causing victims death upon arrival at the PGH. "Accused (Hermo) further stated that he shot victim while waiting for his employer Mr. Napoleon Medalla at the mentioned place, when all of a sudden he heard gunshot bursts and believing that his employer was injured, he drew his revolver tucked on his right waistline and aimed and shot point blank at the person who he said was in an act of attacking his employer. "The revolver was found to be covered with a certification signed by the provincial commander of Laguna.

"Accused surrendered to Col. James Barbers, Deputy Chief of Police and verbally admitted having shot victim once but refused to give a written statement as per advice of his lawyer" (Exh. N). Belarmino was charged with murder on September 7 in an information filed in the Court of First Instance of Manila (Criminal Case No. 87276). The next day the information was amended by including Hermo as a co-accused. Medalla was included as a co-accused in the amended information filed on October 19. It was alleged therein that the three accused conspired with one whose identity and whereabouts were still unknown.chanrobles virtual lawlibrary Medrana, 25, had gone into hiding. He was arrested by Calamba, Laguna policemen in a nightclub in that town on August 31, 1968 or nearly one year after the killing (Exh. GG). Prosecution witness Gelidon identified Medrana in a police lineup as one of the assailants of Fernandez (Exh. GG and GG-1). The case against Medrana was succinctly capsulized by Patrolman Alonso in his booking sheet and arrest report where under the heading "Facts known to arresting officer" Alonso said (Exh. GG):jgc:chanrobles.com.ph "Herein accused was arrested . . . for the crime of murder wherein the victim is Arturo Fernandez y Camello, committed as follows:jgc:chanrobles.com.ph "That on or about 10:15 p.m., September 5, 1967, herein accused together with other accused, already under arrest, shot victim with a .45 caliber pistol, not recovered, inside the parking space in front of the Muni Golf Links, located at the corner of Palacio and P. Burgos Streets, Intramuros, Manila, hitting victim in different parts of the body and causing victims death on arrival at the Philippine General Hospital, where he was conveyed for treatment."cralaw virtua1aw library Medrana was charged with murder in a separate information filed on September 2, 1968 in the Court of First Instance. It was alleged therein that he conspired with Belarmino, Hermo and Medalla to kill Fernandez (Criminal Case No. 90870). The case was eventually assigned to the Circuit Criminal Court (Case No. 30). Thus, Medrana was tried separately. After trial, the lower court convicted him of murder qualified by abuse of superiority and aggravated by cuadrilla, sentenced him to death and ordered him to pay an indemnity of P390,400. He appealed to this Court. Appellant Medrana, a high school graduate and a jeepney operator, relied on an alibi. He testified that he was with Medalla at around two oclock in the afternoon of September 5, 1967 and that at about six oclock he left the Muni Golf Links, after telling Belarmino to inform Medalla of his departure, and rode in a bus bound for his native barrio, Mayapa, Calamba. Medranas alibi is belied by Belarmino who declared in his statement, taken about fourteen hours after the killing, that between nine and ten oclock in the evening of September 5, 1967 Medrana (Ninoy) was with Belarmino and Medalla at the scene of the crime and that Medrana helped Medalla in placing the mortally wounded victim in Medallas car (Nos. 10, 11, 18, 28, 29 and 59, Exh, I). While Medrana in his testimony conveys the impression that his meeting with

Medalla in the afternoon of September 5, 1967 was an isolated instance, it can be deduced from Belarminos statement that Medrana was a bodyguard of Medalla. Belarmino, an employee of Medalla, said that he saw Medrana daily (araw-araw) armed with a .45 caliber revolver (No. 52, Exh. I). As already mentioned in the recital of the prosecutions version, Hermo, Medallas driver, signed Patrolman Alonsos booking sheet and arrest report implicating Medrana in the killing (Exh. N). The statement of Eladio Yabut, taken about ten hours after the shooting, also belies the alibi of Medrana. Eladio recounted in his statement that Medalla asked Medrana to get the Thompson submachine gun from Medallas car (Nos. 17 and 18, Exh. 28). This matter was also brought out in Eladios testimony. So, appellants contention that he was not mentioned by Yabut in his statement nor implicated by him in the killing of Fernandez (pp. 73-75, Brief) is not correct. Yabut repeatedly referred to a certain Ninoy as being present at the scene of the crime and as the person whom Medalla instructed to get from his car his Thompson submachine gun (Exh. 28). As previously noted, Ninoy is appellant Medrana. Yabut knows appellant by that nickname and not by his surname Medrana.chanrobles virtual lawlibrary Appellants able counsel meticulously and painstakingly exposed the alleged discrepancies, contradictions, bias, improbability and lack of credibility in the testimonies of prosecution witnesses Gelidon, Eladio Yabut, Resma and Lopez. Counsel faulted the trial court for not giving probative value to the facts elicited by him during the cross-examination of the said witnesses, for not reading his memorandum, for basing the judgment of conviction on its observation of the demeanor of the witnesses and for giving credence to the testimonies of Lopez and Resma in spite of the fact that they gave their statements eleven days after the shooting and that they were given protection, assistance and shelter by the victims father, Senator Estanislao Fernandez (1st, 2nd, 3rd and 5th Assignments of Error). In resolving these contentions, it is well to bear in mind that there is no doubt whatsoever that Medrana was at the scene of the crime, that he participated in the shooting and that he was a fugitive from justice for nearly a year, a circumstance indicative of guilt. The only issue is as to what was Medranas role in the killing where four armed persons, acting like a firing squad, conducted a fusillade and peppered with bullets a defenseless victim whose life was not spared notwithstanding his repeated conciliatory declaration (amounting to a plea for mercy) that he would not fight his assailants. Gelidon and Eladio Yabut testified that they saw Medrana, with his drawn .45 caliber automatic pistol (naka-omang), following Fernandez who was walking on the putting green towards the driving range in a zigzag manner (pasoray-soray) (31 and 85 tsn, February 25, 1970). Resma testified that after Medalla had wrested the Thompson submachine gun from Fernandez and placed it inside his car, Medalla, Belarmino and Medrana, who was on Medallas right and who was wearing a shirt with its long sleeves rolled up

to the elbow, aimed their firearms at Fernandez. Later, Medrana helped Medalla in placing Fernandez inside Medallas car (113-114, 119 tsn, February 25, 1970). Lopez corroborated Resmas testimony by declaring that he saw Medalla (who was wearing a white polo barong) and two persons on his right and left aiming their guns at Fernandez who was moving backward. The man on Medallas right, who was wearing a shirt with its sleeves rolled up, was Medrana. He shot Fernandez after Belarmino, the man on Medallas left, had fired at Fernandez. According to Lopez, Fernandez walked towards his car and was shot by Belarmino. Fernandez fell on his knees and then ran towards the driving range. Medrana chased him and shot him three times. Fernandez fell near the place where the drinking glasses were kept. He stood up and ran to the practice green. At that juncture, Medalla said "Tama na yan." Medrana returned to the parking lot. Later, he and another person placed Fernandez in Medallas car (195 -204 tsn, February 26, 1970). Those testimonies of Gelidon, Yabut, Resma and Lopez, all eyewitnesses, regarding Medranas culpability, taken in conjunction with the declarations of his co-accused, Belarmino and Hermo, as to Medranas presence at the scene of the crime, are conclusive as to his guilt and militate against the theory of self-defense and defense of a stranger which Medranas counsel sought to establish in his cross-examination of Doctor Angelo Singian, the medico-legal officer who conducted the autopsy. Appellants counsel argues that the fact that Resma and Lopez gave their statements to the police eleven days after the killing and only after having received assurances of protection from Senator Fernandez and having been given board and lodging in his house impairs their credibility. The two witnesses candidly declared during the trial that they were afraid to testify because they feared Medalla and they did not want to be involved in the case (179-180 tsn, February 25, 1970; 211-212 tsn, February 26, 1970). But because Senator Fernandez gave them security guards and they lived in his residence, they decided to testify on what they knew about the incident. Lopez said that during his first conference with Senator Fernandez the latter told him that he (Senator Fernandez) did not want a witness who had not actually seen what had happened. Lopez informed Senator Fernandez that he had witnessed the incident (216 tsn, February 26, 1970). The fact that Resma and Lopez did not volunteer to give their statements to the police immediately after the incident and the fact that their statements were taken after Senator Fernandez had given them protection, board and lodging might give the impression that their testimonies were mere inventions to help the prosecution. That is appellants basic contention in this appeal. We find that an unprejudiced and dispassionate appraisal of their testimonies and detailed statements to the police (Exhs. 5 and 36) and a consideration of their personal circumstances and the fact that they were undeniably present at the scene of the crime lead to the conclusion that their testimonies have the earmarks of veracity and would be difficult to fabricate. Resma, a squatter in the ruins of Intramuros who finished grade four, and Lopez,

a teenager struggling to earn a living as a caddy, appear to be guileless individuals without any rascality in their make-up. Belonging to a humble station in life and not accustomed to the mischievousness of more sophisticated and educated persons, the two eyewitnesses are not of the stuff of which perjurers are made. They were intensively cross-examined before two judges by skilled advocates. If their declarations as to Medranas role in the assassination of Fernandez were fabrications, as repeatedly asseverated by appellant in his reply brief, then the competent defense lawyers would have easily unmasked them as liars. But Resma and Lopez withstood the gruelling cross-examination. They did not abandon their version that Medrana was one of the gunwielders who shot Fernandez.chanrobles lawlibrary : rednad Appellants assumption that Resma and Lopez should have volunteered to apprise the police immediately that they had witnessed the shooting is contrary to human experience. It is well-known that eyewitnesses to killings usually do not want to undergo the trouble and inconvenience of an investigation and of appearing in court, being grilled by lawyers and being exposed to reprisal from the accused. It is not surprising that in this case the victims father had to take Resma and Lopez into custody. Their failure to testify might have prevented the prosecution from proving its case against the accused. A miscarriage of justice would have been the result. If Resma and Lopez were not telling the truth as to the participation of Medrana in the killing of Fernandez, then Medrana should have presented eyewitnesses to refute their testimonies. There were several persons in the driving range and parking lot at the time the incident occurred (156-157 tsn, February 25, 1970). But Medrana presented only one witness, a fifty-eight-year-old caddy named Pedro Ofredo, who testified that when he heard the gunshots he noticed that Maring Resma, like himself, left the golf course. He said that he did not see Lopez on the night of September 5, 1967 because Lopez did not render any service at that time. The truth is that Lopez resided at the caddy house where he slept. So, night and day he was in the golf course. Resmas testimony that she witnessed the shooting with her companions Joe Solomon and Pedro Mata cannot be nullified by Ofredos testimony that he allegedly saw her leaving the golf course immediately after the gunshots were heard. Appellant regards the failure of Resma and Lopez to recognize Medrana in the newspaper photographs shown to them by the police (No. 45, Exh. 5; No., 43, Exh. 36) as an instance showing their lack of credibility. It should be noted that even Medrana, when shown on the witness stand his photograph with the caption "Ceferino Medrana" published in the Manila Times of September 16, 1967, said frankly: "I am not sure if that is my picture" (18 tsn March 2, 1970.) Resma and Lopez saw Medrana only once on the night of September 5, 1967 at the scene of the crime. What they saw was the entire person of Medrana. They did not see him at close range or face to face. What remained in the archives of their memory was the whole figure of Medranas person, not merely his head. Hence, it was difficult for them to recognize Medrana when only the photograph of his face

was

shown

to

them

(See

176

tsn,

February

25,

1970)

As to the inconsistencies and contradictions, it was inevitable that the testimonies of Gelidon, Eladio Yabut, Resma and Lopez before Judge Alikpala would not jibe perfectly with their testimonies about two years later before Judge Pamaran. The absence of discrepancies would confirm appellants assertion that they "gave perjured, fabricated and incredible testimony" (p. 43, Reply Brief) The contradictions and errors dealt with minor details and did not nullify their declaration as to the participation of Medrana in the shooting of Fernandez. That is the point that matters and on that point the testimonies of the four witnesses are worthy of belief. Appellant contends that Judge Manuel R. Pamaran erred in not awaiting the completion of the testimonies of Belarmino and Hermo in Criminal Case No. 87276 before Judge Federico C. Alikpala and thus prevented Medrana from proving selfdefense or defense of another person by means of their testimonies or that the shooting was justified (6th assignment of error) We hold that no error was committed by the trial court on that score. Medrana was given a separate trial. His defense was alibi or, according to his counsel, denial of any participation in the shooting. We have already noted that Belarmino in his confession declared that Medrana was present at the scene of the crime (Exh. I). Hermo in the booking sheet and arrest report implicated Medrana (Exh. N)chanrobles.com:cralaw:red In the face of those statements, the testimonies of Hermo and Belarmino would be of no help to Medrana. The medico-legal officer testified in this case and in the case against Hermo, Belarmino and Medalla before Judge Alikpala. The theory of self-defense and defense of another person is partly based on the medico-legal officers testimony. As will be shown presently, that theory cannot be sustained in this case. The prosecutions evidence (particularly the reenactment made by Hermo and Belarmino) proves that the ruthless liquidation of Fernandez was not justified. There was no reason why Fernandez would perpetrate unlawful aggression against Medalla and his bodyguards. Medranas learned counsel, in his fourth assignment of error and in his summation (filed after the submission of his brief), harps on the plea of self-defense which was intimated in Belarminos statement. Belarmino said that he shot Fernandez when the latter made a motion to draw his weapon ("akmang bubunot") (No. 28, Exh. I) Counsel adverted to the testimony of the medico-legal expert on crossexamination that the bullet which most probably first struck Fernandez was the .45 caliber slug (Exh. R) fired by Belarmino. That bullet entered the left side of the victims waist, travelled more or less horizontally across his body, exited at the right side of his waist and then re-entered and lodged on the victims right forearm above the right wrist. The testimony allegedly belied the claim of the prosecution witnesses that the first shot was fired when the hands of Fernandez were raised in a gesture of surrender to Medalla and his companions. Counsels argument is highly controversial. We find that the testimony of the

medico-legal officer, like expert testimony in general, is a hodgepodge of conjectures. It should be emphasized that on redirect examination, he admitted that it was also possible that the .32 caliber bullet (Exh. S) fired by Hermo was the first slug that hit Fernandez (291 tsn). While the conspiracy among the four accused was not proven directly, it could be implied from their concerted attack and their relationship to each other (Belarmino and Medrana were bodyguards of Medalla and Hermo was Medallas driver) that they had an agreement or community of design to kill Fernandez because of some deep-seated grudge harbored by Medalla against Fernandez and Nemesio Yabut whose exact business relationship to Fernandez is not definitely shown in the record. The motive may be gleaned from the following declaration of Belarmino in his statement (No. 27, Exh. I):jgc:chanrobles.com.ph "Ang naging paksa ng usapan ni Oyeng (Fernandez) at ni Mr. Medalla ay iyon paggogolf nila ni Mr. Nemesio Yabut at nasabi nga ni Mr. Medalla ang tungkol doon sa barilan sa Custom, at sinabi pa ni Medalla na mabait na tao iyan si Mr. Yabut pero kung minsan somosobra iyon(g) mga taohan niya. "Iyon ay kinagalit ni Oyeng at katwiran niya ay hindi dapat siraan si Mr. Yabut dahil sa malaki ang pakinabang niya ki Mr. Yabut. "Ang sagot naman ni Mr. Medalla ay wala naman akong (siyang) sinasabing masama tungkol ki Mr. Yabut. Ang katunayan ay mabuting tao si Mr. Yabut, kaya lamang ay bakit ang dala-dala na armas ng mga taohan niya ay high-powered at mga armalite. Iyon lamang at nagalit naman si Oyeng, kayat nagbayad si Mr. Medalla ng lahat ng nainom at nagyaya ng umuwi."cralaw virtua1aw library Appellant Medrana was a co-conspirator. His complicity in the killing of Fernandez was proven beyond reasonable doubt. Appellants contention in his seventh assignment of error that the trial court erred in holding that the killing was qualified by abuse of superiority is not well-taken. It is incontestable that the four accused, all armed, ganged up against Fernandez and took advantage of their numerical superiority in liquidating him with impunity. What happened in this case is known in colloquial parlance as "overkill." On the other hand, the Solicitor General contends that because deadly, highpowered weapons were utilized against the helpless victim to insure his liquidation and that it is evident that the four assailants had made some preparation for the assault, treachery should be considered aggravating.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph We disagree with that contention. The victim had been alerted that he would be liquidated. It was his misfortune that he was not able to stop the assault. The element of surprise, a characteristic feature of alevosia, was absent. Anyway, the point has only academic significance because when treachery and abuse of superior strength coexist, they are treated as one aggravating circumstance (U.S. v. Jamino, 3 Phil. 102, 109; People v. Bustos, 45 Phil. 9, 54-55) Appellants contention in his eighth assignment of error that abuse of superiority absorbed cuadrilla is correct. Band cannot be appreciated in this case as an

aggravating circumstance independently of abuse of superior strength. If treachery absorbs abuse of superiority and band (U.S. v. Abelinde, 1 Phil. 568), then it is reasonable to hold that band should not be treated as an aggravating circumstance separate and distinct from abuse of superior strength. The two circumstances have the same essence which is the utilization of the combined strength of the assailants to overpower the victim and consummate the killing. There being no generic aggravating circumstances nor mitigating circumstances in this case, the penalty for murder, which is reclusion temporal maximum to death, should be imposed in its medium period. Hence, appellant Medrana should be sentenced to reclusion perpetua. Appellants last assignment of error refers to the trial courts computation of the civil liability. It estimated the victims life expectancy at sixty years. Since he was almost twenty-five years old when he was killed and his salary and allowances amounted to P9,600 a year, the trial court computed his lost earnings or income for 35 years at P336,000. That amount plus his salary of P2,400 for the rest of 1967, moral and exemplary damages of P40,000 and the usual indemnity of P12,000 totalled P390,400. Appellant contends that the allowances should not have been included in the income and that the victims life expectancy should be based on actuarial tables. We hold that the indemnity of P390,400 payable to the heirs of the victim is not excessive nor unwarranted. "There can be no exact or uniform rule for measuring the value of a human life and the measure of damages cannot be arrived at by precise mathematical calculation but the amount recoverable depends on the particular facts and circumstances of each case" (25 C.J.S. 1241) WHEREFORE, the trial courts judgment is affirmed with the modification that the penalty is reduced toreclusion perpetua. Costs de oficio. August 25, 1917 G.R. No. L-12661 THE UNITED STATES, plaintiff-appellee, vs. ZACARIAS TEGRADO, defendant-appellant. Antonio M. Jimenez for appellant. Acting Attorney-General Feria for appellee. MALCOLM, J.: A colt valued at P34 was stolen from Valeriano Blanca. It was subsequently found in the possession of Agapito Partolan. The latter testified that he bought the animal from Zacarias Tegrado, the accused. The accused, however, claimed that the colt was raised from a mare belonging to him and then sold to Partolan. Identification of the colt to determine if its mother was a mare belonging to the complainant Valeriano Blana or if its mother was a mare belonging to the accused Zacarias Tegrado is, therefore, the determining factor. The colt was identified by a number of witnesses as the property of Blanca. Other witnesses testified to having seen the colt following a mare belonging to the accused. Whom shall we believe? We could, of course, rest our conclusion on the findings of the trial court. We could, in addition, point out grave

discrepancies in the testimony of the witnesses for the defense, which argues against its reliability. But there was present as in interested, spectator, another witnesses, who, without being sworn, could tell the truth and nothing but the truth. This was the colt. The colt was separated from the mare of the complaining witness and turned loose; it at once went back to this mare. The colt was then taken to the mare of the accused; but showed its dislike for the mare and tried to find the mare of the complaining witness. Another colt was placed near the mare of the complaining witness; thereupon the mare and that colt both resisted. This was a practical demonstration worthy of a Solomon by which the colt was able to testify by manifesting all the signs of the young, whether human or not, on finding a long lost mother. (U. S. vs. Caralipio and Fernando [1911], 18 Phil. Rep., 421.) If we are to accept the evidence of the prosecution as true, then we must conclude that the defendant stole the colt. The presumption of stolen property prima facie proof of guilt, would work against the accused. (U. S. vs. Soriano [1907], 9 Phil. Rep., 445; U. S. vs. Lopez [1914], 25 Phil. Rep., 589) We are convinced that the defendant is guilty as charged. The lower court found that the accused had previously been convicted of the same crime. The court thereupon in view of the value of the colt, P34, which would bring the facts within the provisions of paragraph 3 of article 518 of the Penal Code, in view of article 520 of the same Code as amended which would raise the penalty to the one next higher in degree, and in view of the fact that the accused was a recidivist which would raise the penalty to the maximum, sentenced the accused to four years two months and one day of presidio correccional, to the accessories of the law, and to pay the cost. This judgment is affirmed with the addition of an order to return the property stolen to its owner if not already done, or to reimburse the owner in the amount of P34, or to suffer subsidiary imprisonment in case of insolvency, with the costs of this instance. So ordered. [G. R. No. 130331. November 22, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ADEL TUANGCO, NELSON PINEDA, JR. and SONNY TUANGCO, accused. ADEL TUANGCO and SONNY TUANGCO, accused-appellants. DECISION PER CURIAM: In the morning of January 4, 1995, the naked cadaver of Aurea Eugenio, a bookkeeper employed by the Centro Escolar University Credit Cooperative in Manila was found lying beside a creek about 50 meters away from the national highway in Apalit. Her body bore multiple stab wounds and her private parts were bloodied and showed signs of sexual abuse. On May 18, 1995 two informations were filed in court charging Adel Tuangco y Dizon, Nelson Pineda Jr. alias "Jun Tattoo"[1], and Sonny Tuangco y Dizon alias "Baba" with the crimes of rape with homicide and theft. The Information in Criminal Case No. 95-1609(M) states: "That on or about January 3, 1995, between 7:30 to 8:30 in the evening, in Sitio Dalan Baka, Barangay Sulipan, Municipality of Apalit, Province of Pampanga, Philippines and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and mutually helping one another, did then and there, wilfully, unlawfully and feloniously, with intent to gain which came as an afterthought to them after executing their primordial intent to rape and kill victim AUREA EUGENIO, took and carried away her wrist watch, three rings, earrings, P3,000.00 cash money and camera, the total value of which amounts to P20,000.00, to the damage and prejudice of her heirs.

The commission of this offense added ignominy to the natural effects of the crime." whereas the Information in Criminal Case No. 95-1610 (M) reads: "That on or about January 3, 1995, between 7:30 to 8:30 in the evening, in Sitio Dalan Baka, Barangay Sulipan, Municipality of Apalit, Province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and mutually helping one another, with evident premeditation, abuse of superior strength and taking advantage of nighttime, did then and there willfully, unlawfully, feloniously and with lewd design dragged Aurea Eugenio, reclined her in a tree, opened wide her thighs, inserted a bottle of Pidol syrup in her vaginal canal and forcibly took turns in having sexual intercourse with her against her will, after which, and by reason of such rape accused with intent to kill, did then and there, wilfully, unlawfully and feloniously stabbed several times Aurea Eugenio in her neck which caused her death. That the commission of this offense was attended by the aggravating circumstance of evident premeditation, use of superior strength, nighttime which was purposely sought by the accused to facilitate and insure its commission. CONTRARY to Article 335 of the Revised Penal Code as amended by Republic Act No. 2632 and Republic Act No. 411."[2] Adel Tuangco was arraigned on June 5, 1995; he pleaded not guilty to both charges. In the course of the trial accused Sonny Tuangco was apprehended and also pleaded not guilty. Nelson Pineda, Jr. remains at large. The principal evidence against the accused consisted of the testimony of an eyewitness, Silvestre Sanggalan, a deaf-mute. He gave his testimony through sign language, which was interpreted by a sign language expert. The court's summation of the evidence is as follows: "On January 3, 1995 at around 6:00 o'clock in the evening, he was inside a 'beer house' along the national highway. He had seven (7) companions at that time. (TSN, July 10, 1995, pp. 5557). The group consisting of eight (8) persons including the witness arrived at the said place at day time. When nighttime came, witness Sanggalan together with three (3) of his companions left the place and proceeded to a rice field near the highway. (Ibid, p. 58). Sanggalan described and identified the said three (3) other persons as a) tricycle driver with tatoos over his body and scars on his arms; b) a person with a long chin and known as 'Baba' and c) accused Adel Tuangco. Sanggalan stepped down from the witness stand and identified accused Adel Tuangco as one of the three (3) other persons together with whom, he went to the rice field. (Ibid, pp. 58-59). The tricycle driver with tatoos over his body and the person with an elongated chin were not inside the court room at the hearing of these cases on July 10, 1995. Accused Adel Tuangco and the person with elongated chin are brothers. (Ibid, p. 60). The group of eight (8) persons were drinking beer and gin inside the 'beer house'. When night time came, Sanggalan, accused Adel Tuangco, the person with tatoos over his body and the one with elongated chin proceeded to the rice field where there was a waiting shed in which they stayed for a while. Inside the waiting shed, the person with tatoos over his body, known as 'Tatoo', and the one with elongated chin, known as 'Baba', took Pidol cough syrup. (Ibid, pp. 61-65). They went to the rice field because they were very drunk. (Ibid, pp. 66). The four (4) stayed at the waiting shed until 8:00 o'clock in the evening. (TSN, July 21 , 1995, p. 12). The three, accused Adel Tuangco, 'Baba' and 'Tatoo' later left the waiting shed and went to the rice field to follow a girl who was wearing a long hair. Through photographs of the

deceased Aurea Eugenio, witness Sanggalan identified her to be the girl whom the three followed into the rice field. (Ibid, pp. 14 and 27-28). As soon as they caught up with the deceased, Tatoo' pushed her. Adel Tuangco got hold of the shoulder bag which the deceased Aurea Eugenio was carrying at that time. 'Baba' and 'Tattoo' then pushed Aurea against a tree and stabbed her with a knife several times on the neck. At this point, Adel Tuangco joined the two and also stabbed the deceased. The deceased fell down. (Ibid, pp. 1519). After the deceased fell down on the ground, 'Tatoo' inserted a bottle of Pidol cough syrup into her private parts. Then 'Baba' pushed the bottle further into the private parts of the deceased. While the bottle was being pushed, Adel Tuangco was hugging the deceased who at that time was still alive and resisting the assault. Together, the three removed the blouse, bra, skirt and panty of Aurea Eugenio. Adel Tuangco raped the deceased. 'Tatoo' and 'Baba' likewise successively raped Aurea in that order. (Ibid, pp. 19-23). At the time that the three accused were raping Aurea Eugenio, witness Sanggalan was about three and one half (3) meters away from them. While Adel Tuangco was raping the victim, 'Tatoo' and 'Baba' were beside them. When 'Baba' and 'Tatoo' took their respective turns in raping the victim the other two were holding her hands. (Ibid, pp. 24-25). After raping the victim, Adel Tuangco took her bag, 'Tatoo' got her camera and cash money while 'Baba got her ring, earrings and watch. (Ibid, pp. 25-26). After the incident, 'Tatoo' and 'Baba' went to the rice field while Adel Tuangco went to the other direction. (Ibid, p. 29). Earlier, during the incident, Adel Tuangco, 'Tatoo' and 'Baba', on two occasions, asked witness Sanggalan to leave. However, the witness merely hid behind the grasses and trees. (Ibid, p. 30 and TSN, August 7, 1995, p. 31). When recalled to the witness stand on January 17, 1996, Sanggalan identified accused Sonny Tuangco as the one he referred to as 'Baba'. [3] Dr. Dominic Aguda, a medico legal officer at the National Bureau of Investigation, conducted an autopsy of the victim and made the following findings: "Pallor, marked and generalized Hematoma- 7.0 x 5.0 cms. left frontal region, head; 3.0 x 2 cms. right frontal region head; 7.0 x 6.0 cms. right auricular region; 4.0 x 2.0 cms. right palm; 3.0 x 2.0 cms., left palm 2.0 x 2.0 cms. chest; 3.0 x 2.0 cms. chin Abrasion- 3.0 x 2.0 cms., right chin; 2.0 x 1.0 cms. right breast 2.0 x 2.0 cms. left breast. Lacerated wound. 2.5 cms. pre-auricular area, left Stab Wounds1. Six (6) in number, gaping, within an area of 9.0 x 6.0 cms. located on the left side of the neck directed medially involving the skin, blood vessels, lacerating the throat and esophagus, with depths from 2-5 cms. One end is contused the other is sharp. 2. Three (3) in number, gaping, within an area of 6.0 x 5.0 cms. one end is contused, the other is sharp, located on the right side of the neck; directed medially involving the skin, blood vessels, hitting the trachea with depths from 2.4 cms. Brain and visceral organs-very pale Heart chambers- contain a very small amount of dark clotted blood.

Stomach- empty Hymen- fresh lacerations on all sides with an opening of about 4.0 x 3.0 cms., massive blood clots accumulated within vaginal canal. Perineum- V- shaped median laceration measuring about 5.0 cms. (Exhibit "E") Dr. Aguda explained the nature of the fresh lacerations on the hymen of the victim as well as the massive blood clots accumulated within the vaginal canal. He testified that these injuries were caused not only by human penis that penetrated the hymen but by a hard foreign object like a bottle. (Ibid, p. 30). The abrasions on the left and right breast could have been caused by human bites. (Ibid, p. 25). The stab wounds described as gaping and the stab wounds located within the neck area were inflicted on the victim by her assailant using a single bladed weapon. (Ibid, p. 26). It is very possible that the victim was sexually abused. (Ibid, p. 31 ). The heart chambers of the victim contained very small amount of dark clotted blood, which means there was not enough blood anymore in the heart as the victim suffered massive bleeding. This was due to the nine (9) stabbed wounds inflicted on the neck of the victim. The proximate cause of death of the deceased was severe hemorrhage secondary to multiple stab wounds. (Ibid, pp. 34-35). The abrasions and hematomas on the body of the victim are indications of struggling during the sexual attack on the victim. (Ibid, p. 34).[4] Both accused denied the charges. Adel Tuangco testified that he was at home in the evening in question, a defense which was corroborated by his common-law wife Liza Reyes Tuangco,[5] by his mother, Erlinda Dizon Tuangco[6] and his sister Glessen. For his part Sonny Tuangco claimed he was alone in his house at Balungao, Calumpit, Bulacan in the evening of January 3, 1995.[7] The trial court made the following findings of facts: "From the evidence adduced in these cases, it was established thatThe victim Aurea Eugenio, single and a resident of Sitio Dalan Baka, Barangay Sulipan, Apalit Pampanga was working as a bookkeeper in Centro Escolar University Credit Cooperative located at the City of Manila. On January 3, 1995, the first working day of the year, she reported to office bringing with her a Kodak camera to take pictures of her officemates for souvenir. At about 5:00 o'clock in the afternoon of the same day, she told her officemates that she will go to their house in Apalit, Pampanga although she was not scheduled to do so as it was an ordinary week day. She brought with her, the camera and the P3,000.00 cash money to be spent on the occasion of their town fiesta. From the office, she proceeded to the terminal of Victory Liner Bus at Caloocan City, where, at 6:00 o'clock in evening, she boarded Victory Liner Bus No. 272. Between 7:00 and 7:30 o'clock in the evening, the bus stopped at Sitio Dalan Baka, Barangay Sulipan, Apalit, Pampanga where the victim Aurea Eugenio alighted. From the national highway, the house of the victim was about three hundred (300) meters away. Although lights can be seen from the said house, it was very dark and silent on the road going to the same and coming from the highway. On either side of the road were tall grasses and trees. On the side of the highway was a waiting shed. Inside the waiting shed were four (4) persons. They were three (3) accused, namely, Adel Tuangco y Dizon, his brother Sonny Tuangco y Dizon alias 'Baba' and Nelson Pineda, Jr. alias 'Jun Tattoo' and the prosecution eye witness Silvestre Sanggalan alias 'Popoy, alias 'Pipi'.

Earlier, at around 6:00 o'clock in the evening of the same day, the three (3) accused and witness Sanggalan were inside a 'beer house' located along the national highway at Calumpit, Bulacan, drinking beer and gin. Together with four (4) other persons, they started their drinking spree when it was still daytime. When nighttime came, the three (3) accused and witness Sanggalan left their companions and proceeded to a rice field near the highway. They stayed in the waiting shed located at the opposite side of the road where the victim Aurea Eugenio alighted. The four (4) went to the rice field because they were already drunk. While inside the waiting shed, accused Sonny Tuangco and Nelson Pineda took Pidol cough syrup. The three (3) accused left the waiting shed and went to the rice field to follow the victim who had already crossed the national highway and was walking towards her house. The three (3) accused asked Sanggalan to leave. However, instead of leaving, Sanggalan hid behind the bushes and trees, thus, he was able to witness the incident in question. As soon as the accused caught up with the victim, Nelson Pineda, Jr. pushed her while Adel Tuangco got hold of her shoulder bag. Sonny Tuangco and Nelson Pineda pushed the victim Aurea Tuangco against a tree and stabbed her several times in the neck. At this point, Adel Tuangco joined the two (2) and he also stabbed the victim until she fell down. As the victim was lying on the ground, Nelson Pineda inserted the bottle of Pidol cough syrup in her private parts. Sonny Tuangco further pushed the bottle into the body of the victim. While the bottle was being pushed, Adel Tuangco was hugging the victim who was still alive and resisting the assault being made against her person. Together, the three (3) accused removed the blouse, bra, skirt and panty of Aurea Eugenio. Thereafter, Adel Tuangco, Nelson Pineda, Jr. and Sonny Tuangco, in that order, successively raped the victim. While Adel Tuangco was raping the victim, the two (2) other accused were beside him. When Nelson Pineda, Jr. and Sonny Tuangco were taking their respective turns in raping the victim, the two (2) other accused were holding her hands. After raping the victim, Adel Tuangco took her bag, Pineda got her camera and cash money while Sonny Tuangco got her ring, earrings and watch. Thereafter, Nelson Pineda, Jr. and Sonny Tuangco went to the rice field while Adel Tuangco proceeded to the opposite direction. The body of the victim was already stiff when found by witness Michael Enriquez the following day lying on the rice field owned by his grandfather, Ignacio Enriquez. The body was lying on its back with the hands upraised, the blouse raised upwards and naked from the waist down. The private parts of the victim had an opening of about two (2) inches and with blood all over it. The fresh lacerations on the hymen of the victim as well as the massive blood clots accumulated within the vaginal canal were caused not only by human penis that penetrated her private parts but by hard foreign object like a bottle. The abrasions on the breast of the victim could have been caused by human bites. The stab wounds located within the neck area of the victim were inflicted by her assailant using a single bladed weapon. The nine (9) stab wounds in the neck induced severe hemorrhage which was the proximate cause of the victim's death. The abrasions and hematomas on the body of the victim are indications of struggling during the sexual attack on the victim."[8] The trial court ruled that the guilt of the accused as charged was established with the required quantum of evidence and concluded that the three accused conspired to commit the crimes charged. The accused were sentenced as follows: "WHEREFORE, the Court finds the accused Adel Tuangco y Dizon and Sonny Tuangco y Dizon guilty beyond reasonable doubt as principals of the crime of theft defined in Article 309

in relation to Article 308 of the Revised Penal Code and of the crime of Rape with Homicide defined in Article 335, as amended, of the same Code and hereby renders judgment as follows: 1. In Criminal Case No. 95-1609(M), the said accused are convicted of Theft and hereby sentenced to suffer the indeterminate penalty ranging from six (6) months of arresto mayor as minimum to two (2) years, eleven (11) months and ten (10) days of prision correccional as maximum; the said accused are likewise ordered to indemnify the heirs of the victim Aurea Eugenio, jointly and severally, the amount of P3,000.00. 2. In Criminal Case No. 95-1610(M), the aforesaid accused are convicted of two (2) special complex crimes of Rape with Homicide and each of them is hereby sentenced to two (2) death penalties; both of them are ordered, jointly and severally, to indemnify the heirs of the victim Aurea Eugenio the sum of P105,150.00 as actual damages, and the further sums of a) P50,000.00 for the victim's death, b) P100,000.00 as moral damages and c) P50,000.00 as exemplary damages, or a total of P200,000, in each of the two (2) crimes which they have separately committed and each shall pay one-half () of the costs. SO ORDERED.[9] The case is before this Court on automatic review. The Public Attorney's Office submits the following assignment of errors in the appellants' brief: I THE TRIAL COURT GRAVELY ERRED IN GIVING FULL FAITH AND CREDENCE TO THE ALLEGED EYEWITNESS ACCOUNT OF SILVESTRE SANGGALAN WHO IS A DEAF-MUTE AND UNSCHOOLED. II THE TRIAL COURT GRAVELY ERRED IN FINDING BOTH ACCUSED-APPELLANTS GUILTY BEYOND REASONABLE DOUBT OF TWO (2) COUNTS OF SPECIAL COMPLEX CRIME OF RAPE WITH HOMICIDE AND THEFT."[10] In discrediting the testimony of the deaf-mute eyewitness, accused- appellant points out that because Silvestre Sanggalan has had no formal schooling in a special school for deafmutes, the possibility that resort to conjectures and surmises, brought about by overzealousness to understand what his witness really wanted to say could not be discounted. Thus, accused-appellant cites certain portions of Sanggalan's testimony which appeared unclear, e.g., the witness admitted that the place where the incident happened was "very dark", and he was inconsistent as to who, between Adel Tuangco or Jun Tatoo, was the first to rape the victim. Thus, his handicap prevented a truthful narration of what really transpired. The Solicitor General prays for an affirmance of the decision in all respects. He asserts that a deaf-mute is qualified to testify, and the interpreter explained that through sign language, Sanggalan demonstrated how Eugenio was raped and thereafter killed by appellants and Pineda, Jr. It is claimed that the inconsistencies pointed out are minor and do not detract from the positive identification made by witness Sanggalan of the accusedappellants as the persons who raped and killed Eugenio and took her personal effects.

After a very careful examination of the evidence of record, we resolve to affirm the judgment of conviction. We find no cogent justification to disturb or set aside the finding of the trial court upholding the credibility of the deaf-mute witness, on the following rationalization: "This Court, cognizant of the physical handicap of the eyewitness Silvestre Sanggalan, carefully scrutinized his testimony and noted that the same were made, on several occasions from July 10, 1995 when he was called for the first time to testify until July 5, 1996 when he was recalled for the purpose of cross-examination on behalf of accused Sonny Tuangco, in a candid and straightforward manner. While the Court observes minor inconsistencies in his declarations, these are not reasons to render his testimony incredible. On the contrary, it is well-established that minor inconsistencies in the testimony of a witness are indications that the same is not rehearsed and all the more should be considered credible. Thus, discrepancies in minor details indicate veracity rather than prevarication and only tend to bolster the probative value of such testimony. (People vs. Mocasa, 229 SCRA 422). This Court likewise evaluated very carefully, the qualifications and competence of Eva Sangco, the sign language expert utilized by the prosecution and found the same to be sufficient to put on record with accuracy, the declarations being made by witness Sanggalan on the witness stand. According to Eva Sangco, sign language experts have different mode of communications. These are a) oral method b) simultaneous method c) pantomine d) reverse interpretation e) speech reading f) natural signs and gestures and g) interactive writings which are more on dramatization and drawing illustrations. In the interpretation of the declarations of witness Sanggalan, Eva Sangco employed the natural homemade sign method. Eva Sangco has undergone several trainings on this particular method. (TSN, July 21, 1995, pp. 7-8). In its futile attempt to destroy the credibility of witness Sanggalan, the defense attacked his character and present a witness in the person of Merlita Baliber to show that he is a drunkard and a drug addict. Likewise the defense presented documentary evidence (Exh. "3") to show that Sanggalan had been accused of rape in a criminal case before the Regional Trial Court of Pasig, Rizal. These evidence presented by the defense are unavailing. In People vs. Dominguez, 217 SCRA 170, it was held that even a fact of prior criminal conviction alone does not suffice to discredit a witness. And in People vs. Tanco, 218 SCRA 494, it was held that the mere pendency of a criminal case against a person does not disqualify him from becoming a witness. For the test to measure the value of the testimony of a witness is whether or not such is in conformity to knowledge and consistent with experience of mankind. (People vs. Morre, 217 SCRA 219). This Court finds it unnecessary to reiterate the earlier discussion as to why it gives credence to the testimony of witness Sanggalan. If at all, the evidence of the defense with respect to the character of Sanggalan substantiated the theory of the prosecution- that these people, witness Sanggalan, and the three (3) accused were often times seen drinking liquor and taking prohibited drugs. No less than defense witness Merlita Baliber testified that on one occasion, she saw witness Silvestre Sanggalan and accused Nelson Pineda, Jr. going out of the 'beer house' to join their three (3) other companions walking along the highway. That Baliber would deny that accused Adel Tuangco and Sonny Tuangco were among those people, is expected. For, as admitted by Baliber, she was asked by the mother of accused Adel Tuangco and accused Sonny Tuangco to testify in these proceedings to help the said accused. (TSN, February 7, 1996, p. 35). Then too, the demeanor by which Baliber was testifying immediately casts doubt on her motive for taking the witness stand and renders incredible her testimony. Thus, on several times at the witness stand, she had been observed smiling and not candid with her declarations. (TSN, February 7, 1996, p. 13). On one occasion, after stating that Adel Tuangco and Sonny Tuangco have nothing to do with the rape-slay of Aurea Eugenio, witness Baliber immediately laughed. (Ibid, pp. 25-26).[11]

The theory of the accused-appellant that Sanggalan "could not truthfully and convincingly convey what really transpired on that fateful night" because he had no formal schooling in a school for special persons like him and the interpreter was not the one who had taught him is not tenable. A deaf-mute is not incompetent as a witness. All persons who can perceive, and perceiving, can make known their perception to others, may be witnesses. [12] Deaf-mutes are competent witnesses where they (1) can understand and appreciate the sanctity of an oath; (2) can comprehend facts they are going to testify on; and (3) can communicate their ideas through a qualified interpreter.[13] Thus, in People vs. De Leon[14] and People vs. Sasota,[15] the accused was convicted on the basis of the testimony of a deaf-mute. Although in People vs. Bustos[16] the testimony of a deaf-mute was rejected, this was because there were times during his testimony that the interpreter could not make out what the witness meant by the signs she used. In the instant case, the interpreter was a certified sign language interpreter with twenty-two (22) years teaching experience at the Philippine School for the Deaf, had exposure in television programs and had testified in five other previous court proceedings. She possessed special education and training for interpreting sign language. The trial court evaluated her competence to put on record with accuracy the declaration made by witness Sanggalan on the witness stand, and she testified that she employed the natural or homemade sign method.[17] Needless to stress, the manner in which the examination of a deaf-mute should be conducted is a matter to be regulated and controlled by the trial court in its discretion, and the method adopted will not be reviewed by the appellate court in the absence of a showing that the complaining party was in some way injured by reason of the particular method adopted.[18]The imperfections or inconsistencies cited in appellants' brief arise from the fact that there is some difficulty in eliciting testimony where the witness is deaf-mute, but these do not detract from the credibility of his testimony, much less justify the total rejection of the same. What is material is that he knew personally the accusedappellants, was with them on the fateful night when the incident happened, and had personally witnessed the rape-slay and theft three and (3 ) meters away from the scene. He did not waver in the identification of the three accused despite rigorous cross-examination, and positively pointed to the accused-appellants as the persons who raped and killed Eugenio and took her personal effects.[19] The trial court's assessment of the credibility of Sanggalan, whose testimony was found to be candid and straightforward, deserves the highest respect of this Court. Moreover, the testimony of Sanggalan was corroborated by the doctor who conducted the autopsy. Dr. Aguda testified that Eugenio had nine (9) stab wounds on the neck, fresh hymenal lacerations and massive blood clots within the vaginal canal, caused, among others, by the entry of a hard foreign object like a bottle and that the abrasions and hematomas on the cadaver indicated that Eugenio struggled during the assault.[20] The defense of alibi must yield to the positive identification of the accused-appellants by Sanggalan, and the attempt of the mother of the accused-appellants, Erlinda Tuangco, a sister, Glessen Tuangco, and the common-law wife of Adel Tuangco, Liza Reyes, to corroborate such a defense must fail. Moreover, no proof was adduced to show the physical impossibility of the accused being at the scene of the crime; the evidence shows that the rapeslay took place in Sitio Dalan Baka, Barangay Sulipan, Municipality of Apalit, Pampanga, which was ten to fifteen minutes from the residence of Adel Tuangco in Frances Bukid, Calumpit, Bulacan.[21] In the case of Sonny Tuangco, who went into hiding after learning that his brother Adel was arrested, and who stayed with a relative in Caloocan City for about one (1) year until he was apprehended by the police authorities,[22] his flight should be taken as an admission of his guilt. We also find no cogent reason to disturb the finding of conspiracy among the accusedappellants as rationalized by the trial court thus:

"First, they were together drinking in a pubhouse from where they proceeded to the rice field and stayed inside a nearby waiting shed. Second, as soon as the victim was seen walking towards her house, the three (3) accused immediately followed her. Third, when they caught up with the victim, they simultaneously attacked her by stabbing her neck with bladed weapon. Thereafter, when the victim fell down, the accused aided each other in raping the victim. Fourth, before fleeing from the scene of the crimes, the accused took the victim's cash money and personal belongings."[23] The imposable penalty for the rape with homicide is death. Pursuant to Article 335 of the Revised Penal Code, as amended by Section 11 of the Republic Act No. 7659, "when by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death". Because of the finding of conspiracy in the commission of the complex crime of rape with homicide, the imposition of two death penalties upon each of the accused-appellants is correct.[24] The imposable penalty for theft is prision correcional in its minimum and medium period, if the value of the thing stolen is more than P200.00but does not exceed P6,000.00 . In this case, the amount of P3,000.00 which is the cash taken from the victim, was the only amount proven, as the value of the other objects taken was not established. Thus, the trial court correctly imposed an indeterminate penalty of six (6) months of arresto mayor as minimum to two (2) years, eleven (11) months and ten (10) days of prision correcional as maximum. The civil indemnity must also be modified in line with prevailing jurisprudence. [25] Thus, the civil indemnity ex delicto should be P100,000.00for the victim's death. The award of exemplary damages is justified in view of the presence of the aggravating circumstances of cruelty, as the insertion of the bottle into the private part of the victim caused unnecessary moral and physical pain while the victim was still alive. Four justices of this Court, however, have continued to maintain the unconstitutionality of Republic Act No. 7659 insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the majority to the effect that the law is constitutional and that the death penalty can be lawfully imposed in the case at bar. WHEREFORE, the judgment convicting Adel Tuangco y Dizon and Sonny Tuangco y Dizon for the crimes of theft and rape with homicide in Criminal Case Nos. 95-1609(M) and 95-1610(M) is hereby affirmed with the modification that the civil indemnity ex delicto is increased to P100,000.00. Upon finality of this decision, let certified true copies thereof, as well as the records of this case, be forthwith forwarded to the Office of the President for possible exercise of the pardoning power.