G.R. No.

133685-86 May 20, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
AMADO BAGNATE, appellant.

DECISION

PER CURIAM:

Before the Court is an automatic review of the Joint Judgment rendered by the Regional Trial Court (Branch 15) of
Tabaco, Albay, finding appellant Amado Bagnate guilty beyond reasonable doubt of Murder in Criminal Case No. T-
2874 and of Rape with Homicide in Criminal Case No. T-2875, sentencing him to suffer the penalty of Death in each
case.

The Information against appellant in Criminal Case No. T-2874 reads as follows:

That on or about the 7th day of August, 1997 at 1:00 oclock in the morning, more or less, at Barangay
Buhian, Municipality of Tabaco, Province of Albay, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, with intent to kill and while armed with a bolo, with nocturnity, treachery,
superior strength, and with disregard of the respect due to the victim on account of age and sex, did then
and there willfully, unlawfully and feloniously assault, attack and hack with said bolo one AURIA BROA, 1 a
70-year old blind woman, thereby inflicting upon the latter mortal wounds, which caused her death, to the
damage and prejudice of her legal heirs.

ACTS CONTARY TO LAW.2

The Information in Criminal Case No. T-2875 reads:

That on or about the 7th day of August, 1997 at 1:00 oclock in the morning, more or less, at Barangay
Buhian, Municipality of Tabaco, Province of Albay, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, with lewd design and by means of violence, force and intimidation, did
then and there willfully, unlawfully and feloniously have sexual intercourse with ROSALIE RAYALA, against
her will and consent, and on the occasion thereof, with intent to kill, taking advantage of superior strength
and while armed with a bolo, did then and there willfully, unlawfully and feloniously assault, attack and hack
aforenamed Rosalie Rayala, thereby inflicting upon the latter mortal wounds on the different parts of her
body, which caused her death, to the damage and prejudice of her heirs.

ACTS CONTRARY TO LAW.3

When arraigned on December 1, 1997, Bagnate pleaded "not guilty" to both charges against him, 4 and joint trial on
the merits ensued.

The evidence for the prosecution established the following facts:

In the afternoon of August 7, 1997, appellant was turned over to SPO2 Junwel Ambion for custodial
investigation. Without asking the name of appellant, SPO2 Ambion informed him in the Bicol dialect of his
right to remain silent, to be assisted by counsel, that whatever he says may be used against or in his favor,
and that he cannot be tortured or molested. Asked if he is willing to cooperate, the accused assented and
gave his name as Amado Magnate. SPO2 Ambion later learned that appellants real name is Amado
Bagnate. When appellant told SPO2 Ambion that he is willing to confess, SPO2 Ambion again informed
appellant of his rights, and asked him further if he wants to be assisted by counsel but appellant said that his
counsel was in Manila. SPO2 Ambion offered the services of Atty. Paterno Brotamonte, which appellant
accepted. SPO2 Ambion then left to fetch Atty. Brotamonte whose office was located several meters away
from the police station. However, Atty. Brotamonte told SPO2 Ambion that he will just follow as he was
having his office blessing at that time. After some time, Atty. Brotamonte arrived at the police station. Before
proceeding with the investigation, Atty. Brotamonte asked the policemen to leave the investigation room and
conferred with appellant. He introduced himself to appellant and informed him of his rights. He also asked
 and examined appellant to see if he was physically harmed by the policemen and found none although Atty.
Brotamonte noticed that appellants left hand was handcuffed to the table. Appellant told Atty. Brotamonte
that he is willing to give a statement. The investigation was then conducted in the Bicol dialect, with SPO2
Ambion asking the questions. It was translated thereafter into English with the help of Atty. Brotamonte, for
the purpose of putting it into writing. After typing the first page of the confession, Atty. Brotamonte translated
and explained the contents thereof to appellant, then Atty. Brotamonte and appellant signed thereon. While
all this was going on, SPO1 Rogelio Gonzales was taking pictures. 5 The first page of the confession reads:

PRELIMINARY : Mr. Amado Bagnate, you are in this office being investigated for your involvement
in the crimes imputed against you particularly the killing of Aurea Bronia and Rosalie Rayala and at
the same time having carnal knowledge of the two in Buhian, Tabaco, Albay. But before we
proceed in this investigation, may I inform you that under our New Constitution, you have the right
to remain silent, and that anything you may say may be used in your favor or against you in any
court proceedings in the entire Philippines; that you have the right to be assisted by a counsel of
your own choice or if you cannot afford to have one, the state represented by our office will provide
you a competent counsel; that you are free from torture or any form of physical violence which will
tend vitiate your statements. Do you clearly understand your constitutional rights which were
related to you in Bicol dialect?

ANSWER : Yes sir, I clearly understand my Constitutional Rights because it was related to me in
Bicol dialect.

INVESTIGATOR : Do you want to avail of your Constitutional rights?

ANSWER : I want to be assisted by a competent counsel.

INVESTIGATOR : Do you have a counsel of your own choice?

ANSWER : I have none sir.

INVESTIGATOR : Since you do not have your own counsel, our office will provide you one, is this
acceptable to you?

ANSWER : Yes sir.

INVESTIGATOR : If our office will provide you the services of Atty. Paterno Brotamonte, who is a
competent lawyer is this acceptable to you?

ANSWER : Yes sir.

INVESTIGATOR : May I again remind you that anything you say in this investigation may be used
in favor or against you in any court proceedings in the entire Philippines. Do you still wish to give
your free and voluntary statements?

ANSWER : Yes sir.

INVESTIGATOR : Do you understand the questions that were asked from you?

ANSWER : Yes sir, because they were related to me in Bicol dialect.

INVESTIGATOR : Are you willing to sign your given statements?

ANSWER : Yes sir.6

SPO2 Ambion then proceeded with the second and third pages of the confession, following the same procedure of
propounding the questions in the Bicol dialect and translating it thereafter into English for each page. 7 Atty.
Brotamonte again read and explained the contents thereof to appellant 8 after which they again separately signed on
pages two and three thereof. The second and third pages are quoted in verbatim, to wit:

03. Q- Please state your name and other personal circumstances?

A- AMADO BAGNATE Y BRONIA, 28 years old, single, duck caretaker presently working in Balatong
Pulilan, Bulacan and a native of Buhian, Tabaco, Albay.

04. Q- When and where did the incident happened?

A- At on or about 12:30 A.M. August 7, 1997 at Buhian, Tabaco, Albay.

05. Q- Will you please narrate in detail, your knowledge of the said incident?

A- At on or about 6:00 P.M. August 6, 1997 I together with Faustino Bufi 9 and Carlito Begil drink a bottle of
gin at the store of Yolanda Buban at Buhian, Tabaco, Albay and while we were drinking said Carlito Begil
told us that he will have sex with a woman on that night, however he did not elaborate who the woman is
and at about 8:00 P.M. of same date we already consumed the bottle of gin and we decided to go home.

06. Q- Please continue

A- So I proceeded to the house of my brother-in-law Roberto Angeles to spend the night at the said house
however at on or about 12:30 A.M. August 7, 1997 I go out of the house and proceeded to my grandparents
house which is about five arms length from the house of Roberto Angeles leaving the bolo on the ground
and entered my grandparents Aurea Bronias house and go directly on the room where Rosalie Rayala is
sleeping and once inside the room I embraced the sleeping Rosalie Rayala and started on kissing her
however Rosalie Rayala spank and boxed me but still I continued on kissing her but still he spank me, so I
go out of the room and sits on the door but Rosalie Rayala followed me so I kissed her again but she spank
me again so I got hold of the bolo and hack Rosalie Rayala hitting her on her neck which caused her to fall
on the ground and I pulled Rosalie Rayala and have carnal knowledge of her while she is still alive, while
Carlito Begil and Roberto Angeles were standing and viewing what I am doing and after satisfying my lust
said Carlito Begil goes on to of Rosalie Rayala and started on pumping her and after satisfying his lust, my
grandparent Aurea Bronia shouted although she was blind and thinks that my grandparent Aurea Bronia
heard what I am doing I hacked her on her neck and when she fall I pulled her away from the house towards
the grassy portion of the yard wherein Carlito Begil and Roberto Angeles followed me wherein I was unable
to determine who from the two had carnal knowledge of my grandparent because I already left them and I
proceeded to the main road to Tabaco, Albay.

07. Q- Please continue further.

A- Before I finally proceeded to the main road I passed by the house of Jose which I had forgotten his family
name and Armando Bosque both Barangay Tanods of our place and told the two that is being wanted by my
godfather Julian Baloloy that there was something that happened in the house of my grandparents house,
and the two goes with me and because I was already then frightened I just go with them and hurriedly left
the place and proceeded to Roberto Angeles house and called my sister and I was allowed to enter and I
prepared a cup of coffee and after drinking same I hurriedly left the house and finally proceeded to the
highway and boarded a jeep bound for the town proper and spend the rest of the night at the town plaza and
at about 6:00 A.M. August 7, 1997 I proceeded to the church to hear mass and after that I went to my
sisters house at Tayhi, Tabaco, Albay and I eat my breakfast and after eating I left my sisters house named
Avelina Calla and it came to my mind that I will evade arrest and decided to proceed to Metro Manila then to
my place of work in Pulilan, Bulacan.

08. Q- How were you able to reach the Tabaco Police Station?

A- I was apprehended by residents of Bankilingan, Tabaco, Albay for accordingly an alarm to apprehend me
was set by elements of the Tabaco Police wherein one of them was able to trace me but luckily I was able to
evade them but finally I was apprehended at Bankilingan, Tabaco, Albay and later on was brought to the
Tabaco Police.
 09. Q- How are you related with the victims namely Rosalie Rayala and Aurea Bronia?

A- This Rosalie Rayala she is my nephew and Aurea Bronia she is my grandparent.

10. Q- This investigator, had no more question to ask from you, do you have anything more to add in this
statement of yours?

A- Now no more sir, but I will just relate other details if the need arises.

11. Q- Are you willing to sign this statement of yours?

A- Yes sir.10

After appellants confession was typed and signed, Atty. Brotamonte left the police station and went back to his office.
As far as he could recall, the entire process took more than an hour.11

The next day, August 8, 1997, appellant was brought before Judge Arsenio Base, Jr. of the Municipal Trial Court of
Tabaco, Albay. Judge Base requested the presence of Atty. Brotamonte and subsequently examined the
voluntariness and veracity of the confession as well as the authenticity of the signatures of appellant and Atty.
Brotamonte. He also explained to appellant the consequences of his confession to the crimes charged and asked him
if he was coerced into admitting them. Judge Base inspected appellants body and asked him if he was forced or
coerced. Judge Base then asked appellant if he was still willing to sign it again and appellant answered in the
affirmative saying that his conscience bothered him. Judge Base asked him to sign the confession again in the
presence of Atty. Brotamonte, after which appellant affixed his signature. 12

There were no eyewitnesses to the incident; only the extra-judicial confession of appellant showed how the crimes
were committed by him.

Appellant repudiated his extra-judicial confession before the trial court and assailed its admissibility alleging that it
was executed in violation of his constitutional rights, particularly his right to a competent and independent counsel of
his own choice; and that he was not fully apprised of the consequences of his confession. He testified that the real
perpetrators of the crime were his brother-in-law, Roberto Angeles, and a certain Carlito Begil, and that he was only
forced into owning up to the crimes because Angeles threatened to harm him or his sister, Angeless wife, if he did
not do so.

Appellant recounted on the witness stand that in the afternoon of August 6, 1997, he was having a drink with Carlito
Begil and Faustino Bufe at the store of Yolanda Bulan in Buhian, Tabaco, Albay. While they were drinking, Begil
mentioned that he is planning to have sex with someone he did not identify. They finished drinking at around 8:00 in
the evening and started walking home. While he and Begil were walking, Begil asked him to accompany him to
Rosalie Rayalas house but he declined because he was already hungry and he wanted to eat first. He then went to
the house of Roberto Angeles who is married to his sister Maria Nellie Bagnate. While he was on the porch having a
smoke, Angeles arrived very drunk. Begil arrived later. Begil and Angeles drank "kalampunay". He took only one
glass of the drink and went inside the house to get a cigarette. When he went back to the porch, Angeles and Begil
were already gone. At around 12:30 in the morning, he went inside and slept. The shout of his ninong, Julian Baloloy,
telling him to fetch a barangay tanod, awakened him. He fetched Jose Rodriquez and Armando Bosque and they
went to the house of Rosalie, located thirty meters away. He was told to build a fire while the rest searched for
"something." After idling in the yard for some time, he went back to Angeless house to have coffee. Angeles and
Begil then arrived and Angeles told him to flee or he (Angeles) will kill his (appellants) sister. Angeles gave him
10.00. He took a jeep to Tabaco and reached the Tabaco plaza at 2:00 in the morning. He proceeded to his sisters
house, Avelina Bagnate, in Tayhi, Tabaco, Albay, and passed the time there. Then he went to the Tabaco town
proper. He was finally arrested in Bangkilingan, Tabaco and brought to the police headquarters at 5:00 in the morning
of August 7, 1997.13

The trial court found appellants extra-judicial confession admissible in evidence on which basis, it convicted appellant
of the crimes charged against him. The dispositive portion of its decision reads:

WHEREFORE, judgment is hereby rendered, as follows:

 1. Finding accused Amado Bagnate guilty beyond reasonable doubt of the crime of Murder as
charged in Criminal Case No. T-2874 and sentences him to suffer the penalty of DEATH and to
indemnify the heirs of Auria Broa the amount of 50,000.00 as damages; and,

2. Finding accused Amado Bagnate guilty beyond reasonable doubt of the crime of Rape with
Homicide as charged in Criminal Case No. T-2875 and hereby sentences him to suffer the penalty
of DEATH and to indemnify the heirs of Rosalie Rayala in the amount of 50,000.00 as damages.

SO ORDERED.14

In his Brief, appellant raises the following Assignment of Errors:

THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE TESTIMONY OF THE PROSECUTION
WITNESSES.

II

THE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE THE EXTRAJUDICIAL CONFESSION OF THE
ACCUSED-APPELLANT.

III

THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF
THE CRIMES OF MURDER AND RAPE WITH HOMICIDE.15

The main issue in this case is the admissibility of appellants confession. Appellant claims that Atty. Brotamonte was
not a competent and independent counsel as he failed to advise him of the penalty to be imposed on the crimes he
was accused of committing; hence, he was not aware of the consequences of his admissions.

To be admissible in evidence, an extra-judicial confession must be express and voluntarily executed in writing with
the assistance of an independent and competent counsel, and a person under custodial investigation must be
continuously assisted by counsel from the very start thereof. The presence of counsel is intended to secure the
voluntariness of the extra-judicial confession, and the assistance given must be independent and competent, that is,
providing full protection to the constitutional rights of the accused. 16

The rule is premised on the presumption that the accused is thrust into an unfamiliar atmosphere running through
menacing police interrogation procedures where the potentiality for compulsion, physical or psychological is forcefully
apparent.17 It is not intended as a deterrent to the accused from confessing guilt if he voluntarily and intelligently so
desires but to protect the accused from being coerced to admit any that is untrue. 18 To be an effective counsel, a
lawyer need not challenge all the questions being propounded to his client. The presence of a lawyer is not intended
to stop an accused from saying anything which might incriminate him but, rather, it was adopted in our Constitution to
preclude the slightest coercion as would lead the accused to admit something false. The counsel, however, should
never prevent an accused from freely and voluntarily telling the truth. 19

In the present case, the assistance rendered by Atty. Brotamonte is more than perfunctory. Before the onset of the
investigation, Atty. Brotamonte privately conferred with appellant to ascertain the voluntariness of his confession and
to make sure that no force or duress was employed by the police authorities on the latter to make him admit the
crimes charged. He informed appellant of his constitutional rights and was clear in explaining to him the questions
propounded by SPO2 Ambion. The testimony of Atty. Brotamonte during cross-examination leaves no room for doubt
that he adequately assisted appellant during the investigation, viz:

ATTY. MAROLLANO:

Q: Now, upon your arrival, were you offered a seat?

A: No, because immediately when I arrived I asked the accused to stand and examined the body of the
accused, if there were injury or what and I asked the accused, if these policemen inflicted injury to him, if he
was harmed and according to accused, none.

Q: And in doing that particularly, what did you do to examine the body of the accused of it bare some signs
of injury?

A: Because as a lawyer I have to protect the right of the accused. If the accused has body injury definitely I
will be requiring the policemen to submit the accused for medical examination before the investigation will be
conducted.

Q: In doing that, how did you do it to the accused?

A: I let the accused to stand and I asked him if any of the policemen harmed inflicted bodily injury to him and
he told me no one of the policemen.

Q: Any of the policemen present?

A: No, when I arrived, I request two (2) policemen to step-out because I have to talk to the accused when I
propound question and examine the body of the accused and the accused was inside the room.

...

Q: And you were satisfied by the answer of the accused and you did not even bother to search the body of
the accused?

A: In my observation, the accused was telling the truth. Otherwise, he will inform this representation because
I already informed him that I am a lawyer and I will protect him if somebody harmed him.

...

ATTY. BROTAMONTE:

As narrated in that affidavit, I explained to the accused that before I introduced myself, I told him that the
policemen informs this representation that you are going to give your sworn statement before the police and
I told him that I am a lawyer and I will assist him until the policemen finished the investigation and I told him
to tell the truth to the policemen and told him that if you want to give your sworn statement to the police, you
can do it because that is your right under the constitution, to remain silent.

Q: That is why for example, right to be informed; you have the right to remain silent, and whatever you said
will be used against in you, did you not explain these one by one?

ATTY. BROTAMONTE:

I explained that one by one. In fact I told the accused that the sworn statement you are going to make now
might be used against you by the police but the accused is willing to give his sworn statement.

ATTY. MAROLLANO:

Q: I see. Now, you said that you helped in the translation of the sworn statement in the Bicol dialect.
Meaning that the questions were propounded in English and you helped the police investigator to translate it
in Bicol dialect?

A: No, when I state that I helped the police in the translation of the answer, what the policemen were asking
the witness in Bicol and they translated in English and I even helped the policemen in the translation of the
question and the answer of the witness in Bicol dialect. 20
Clearly, appellant signed the confession with the assistance of a competent and independent counsel, Atty.
Brotamonte, and it was also sworn to by him before Judge Arsenio Base, Jr. of the Municipal Trial Court of Tabaco,
Albay, who, before administering the oath to appellant, conferred with him and informed him of his rights and the
consequences of his confession. Judge Base testified, thus:

Q: Judge, please explain to the Honorable Court the circumstances how this sworn statement, how the
affiant was able to come into your house and the sworn statement was sworn to?

ATTY. MAROLLANO:

The witness is not sure whether he was in his house or office.

A: The police investigator came to my office and informed me that they were investigating a rape and
murder case that happened somewhere in the mountain of Tabaco, Albay and informed me that the suspect
has been apprehended and that the suspect is willing to sign an affidavit of confession so I advised the
police investigator to comply strictly with respect to investigation custodial legis and I informed him that that
case should be assisted by a lawyer and the investigator told me that he contacted Atty. Brotamonte to
assist the suspect in the investigation and I said Its better. So, after that the suspect was brought to me
together with Atty. Brotamonte because I requested Atty. Brotamonte to be present also and the suspect. I
investigated the suspect and he admitted to me that what he stated in this affidavit which is actually a
confession that he killed the two women and actually raped one of them is correct and true. So, after
explaining to him the consequence of his having confession to the crime being charged against him and he
was still willing to sign the confession I let him sign the confession in my presence and in the presence of
Atty. Brotamonte and after which I subscribed the affidavit.

PROSECUTOR BERANGO: (To witness)

Q: Now, Judge could you tell the Honorable Court while the accused was in your presence if there was any
pressure or compulsion upon the accused to sign this document?

A: When the police investigator came to me I instructed him not to use any force and when the suspect was
presented to me, actually I inspected his body if there was any sign of abrasion and I actually asked the
suspect if he was forced or coerced into signing the crime charged and he said, no. And I asked him if this
confession is voluntary and he said, yes. And he said he is being bothered by his conscience. 21

The failure of Atty. Brotamonte to apprise appellant of the imposable penalty of the crimes he was to admit is not a
sufficient ground to strike down appellants extrajudicial confession. Section 12 (1) to (3), Article III of the Constitution
provides:

Sec. 12. (1) Any person under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent counsel preferably of his own
choice. If the person cannot afford the services of counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence of counsel.

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be
used against him Secret detention places, solitary, incommunicado, or other similar forms of detention are
prohibited.

(3) Any confession or admission obtained in violation of this or Section 17 22 hereof shall be inadmissible in
evidence against him.

Thus, what the Constitution regards as inadmissible in evidence is confession given by an accused without having
been informed of his right to remain silent, or, without having been given competent and independent

counsel, preferably his own choice, or if he cannot afford the services of counsel, he was not provided with one; or
the waiver of his rights was not in writing and not in the presence of counsel; or, that he was tortured, forced,
threatened, intimidated, by violence or any other means that vitiated his free will. There is nothing in the Constitution
that mandates a counsel to inform an accused of the possible penalty for the crime he committed. Neither would a
presumption arise that the counsel is incompetent or not independent just because he failed to apprise the accused
that the imposable penalty for the crime he was about to admit is death. After all, the imposable penalty is totally
immaterial to the resolve of an accused to admit his guilt in the commission of a crime.

To be considered competent and independent for the purpose of assisting an accused during a custodial
investigation, it is only required for a lawyer to be:

".willing to fully safeguard the constitutional rights of the accused, as distinguished from one who would
merely be giving a routine, peremptory and meaningless recital of the individuals constitutional rights. In
People v. Basay (219 SCRA 404, 418) this Court stressed that an accuseds right to be informed of the right
to remain silent and to counsel contemplates the transmission of meaningful information rather than just the
ceremonial and perfunctory recitation of an abstract constitutional principle."23

As previously stated, Atty. Brotamonte ably assisted appellant during the entire procedure from the time appellant
signified his intention to give his extrajudicial confession up to the time he signed the same. Besides, it cannot be
gainsaid that appellant was not aware of the consequences of his admissions as Judge Base explained it to appellant
when he appeared before the latter to swear to the veracity of his confession.

The Court notes that while Judge Base testified that he asked appellant to sign anew the extrajudicial confession in
his presence, the copy thereof marked as Exhibits "A", "B", and "C" attached to the records of the case do not show
any subsequent signature made by appellant. Nevertheless, appellant did not refute Judge Bases testimony, and it
does not detract the fact that appellant executed the extrajudicial confession voluntarily with the assistance of an
independent and competent counsel, and that he subsequently acknowledged having executed the same voluntarily
and swore to its veracity before Judge Base.

Appellant failed to substantiate his bare claim that when he was brought to the Tabaco police station, the police
officers boxed and kicked him, telling him to confess to the crimes. 24 As the records show, like Atty. Brotamonte,
Judge Base also asked him if he was forced to confess but Bagnate said that he was not. If it were true that he was
forced to confess to the crime, then appellant should have complained of such abuse to Atty. Brotamonte or Judge
Base as he had the opportunity to do so when the two conferred with him on separate occasions.

Where the appellants did not present evidence of compulsion or duress or violence on their persons; where they
failed to complain to the officers who administered the oaths; where they did not institute any criminal or
administrative action against their alleged intimidators for maltreatment; where there appeared to be no marks of
violence on their bodies and where they did not have themselves examined by a reputable physician to buttress their
claim, all these should be considered as factors indicating voluntariness of confessions.25

To consider appellants allegation of maltreatment as true is to facilitate the retraction of solemnly made statements at
the mere allegation of torture, without any proof whatsoever.26

The taking of appellants confession has conformed to the safeguards of the Constitution. It constitutes evidence of a
high order, because of the strong presumption that no person of normal mind would deliberately and knowingly
confess to a crime unless prompted by truth and conscience. 27

Under Section 3, Rule 133 of the Rules of Court, an extrajudicial confession made by an accused, shall not be
sufficient ground for conviction, unless corroborated by evidence of corpus delicti. The Rule specifically requires that
there should be some other evidence "tending to show the commission of the crime apart from the
confession."28Appellants confession is corroborated by evidence of corpus delicti, that is, the body of the crime and,
in its primary sense, that a crime has actually been committed. 29

The evidence of corpus delicti in both cases consists of the victims deaths, as evidenced by the death certificates of
Aurea Broa30 and Rosalie Rayala,31 and the findings of the autopsies conducted on the victims cadavers by Tabaco
Rural Health Officer Dr. Amelia Guiriba showing that both were hacked to death and Rosalie was raped.

The autopsy on victim Aurea disclosed the following:

Hacked wound back of the neck about four (4) inches in length affecting skin, subcutaneous tissue, muscle
and the cervical bone.
 Hacked wound, neck anteriorly affecting larynx about 2 inches in length.

CAUSE OF DEATH: Hemorrhage severe secondary to hacked wound, neck. 32

While the autopsy conducted on Rosalie revealed the following:

Stabbed wound neck, posteriorly about 1 inches in length, 2 inches depth reaching the cervical bone.

Hacked wound left shoulder about 1 inches length superficial slanting direction.

Hacked wound - right neck about 4 inches length affecting skin subcutaneous muscle & Blood vessels,
right earlobe cut.

Hacked wound below the chin about 3 inches length affecting skin and subcutaneous tissue.

Hacked wound, left neck about 5 inches in length affecting skin subcutaneous tissue, muscle, Blood vessels
and the cervical bone.

Hacked wound, left middle ear auricle about 1 inch in length, left occipital region about 1 inch in length.

Multiple linear abrasion both scapular region.

Contusion floor of the vaginal wall.

CAUSE OF DEATH: Hemorrhage severe secondary to multiple hacked wound, neck.33

The foregoing findings coincide with appellants extrajudicial confession. As he stated therein, he hacked both victims
on the neck with a bolo and he dragged Aurea towards the grassy portion of the yard. Appellant also admitted that he
raped Rosalie. The autopsy report shows that Rayala had contusions on the floor of her vaginal wall, thus confirming
that Rosalie had been raped. The autopsy report likewise confirmed that the victims suffered hack wounds on their
necks. The recovery of the bolo after appellant had left the place likewise jibes with appellants declaration in his
confession that he hacked both victims with a bolo.34 These are details that appellant could not have known if he did
not commit the crimes.

It must also be noted that appellant was arrested only five hours from the occurrence of the crimes. It is not possible
that within such short span of time, appellant would be able to know the details of the crimes as he described them
when he gave his confession if it were true that he really did not commit them. The voluntariness of a confession may
be inferred from its language such that if, upon its face, the confession exhibits no suspicious circumstances tending
to cast doubt upon its integrity, it being replete with details which could only be supplied by the accused reflecting
spontaneity and coherence, it may be considered voluntary.35

Lending additional credence to the truthfulness of appellants extrajudicial confession is the defense evidence itself,
establishing that: Around 12:00 midnight of August 7, 1997, defense witness Julian Baloloy heard cries for help
coming from the house of Aurea. Together with his son, Rodel, who brought a flashlight, they went to the house and
called out to Aurea and Rosalie but there was no response. When they went inside the house, they saw blood and
strands of hair on the floor but there was no sign of the two. They shouted for help and Roberto Angeles, whose
house is located in front of the victims house about thirty meters away, arrived. Appellant arrived next, saying that he
just came from work and was not able to clean his hands. When Rodel Baloloy shone his flashlight on appellant, they
saw that his hands were sticky and covered in red. Julian Baloloy then ordered appellant to fetch a barangay tanod.
When Armando Bosque and Jose Rodriguez arrived, they started to look for Aurea and Rosalie while appellant was
told to build a fire. At the back of the house, they saw impressions on the yard indicating that an object had been
dragged, after which, they found the dead bodies of Aurea and Rosalie fifty meters away. 36

Defense witnesses also testified that appellant did not join the search and therefore, the latter could not have known
or seen the injuries suffered by the victims when they were found. It has been noted that appellant, in his confession,
had accurately specified the injuries he inflicted on both victims. Julian Baloloys testimony that they saw marks on
the yard indicating that something has been dragged corroborated appellants statement that he dragged Aurea.
Moreover, that Julian Baloloy saw appellants hand sticky and covered in red, which Baloloy described "as if you have
just slaughtered a pig and you (sic) hands smudge with blood and when you washed your hands, it could still (sic)
red," bolsters the conclusion that appellant indeed had participated in the gruesome crimes. 37

Thus, the confession of appellant being admissible in evidence and corroborated by evidence of corpus delicti, the
trial court correctly found appellant guilty beyond reasonable doubt of the crimes of Murder and Rape with Homicide.

In imposing the supreme penalty of death in Criminal Case No. T-2874, the trial court considered the aggravating
circumstances of nocturnity, treachery, superior strength, and disregard of the respect due to the victim on account of
age and sex, as alleged in the Information, thus qualifying the killing of Aurea to murder.

However, the Court finds that the trial court erred in appreciating the aggravating circumstance of treachery. The
evidence on record does not sufficiently prove that it attended the commission of the crime as no one actually saw
the incident. The fact that Aurea was blind does not necessarily qualify her killing as treacherous. Treachery exists
when the offender commits any of the crimes against persons, employing means, methods or forms in the execution
thereof which tend directly and specially to ensure its execution, without risk to himself arising from the defense which
the offended party might make.38 Appellants confession merely stated: "after satisfying his lust, my grandparent
Aurea Bronia shouted although she was blind and thinks (sic) that my grandparent Aurea Bronia heard what I am
doing I hacked her on her neck and when she fall (sic) I pulled her away from the house towards the grassy portion of
the yard . . .". There is nothing in appellants confession that demonstrates that he deliberately employed a particular
means, method or form of attack in the execution of the crime.

Neither could nocturnity be considered as an aggravating circumstance considering that it was not shown that the
darkness of the night was purposely sought by appellant to facilitate the commission of the crime nor to ensure its
execution.39

It is not disputed that the crime was committed in Aureas house. However, dwelling may not be appreciated as an
aggravating circumstance in the consideration of his criminal liability as it is not alleged in the Information. 40

Nonetheless, it is alleged in the Information and established by the prosecution that the crime was committed with
abuse of superior strength. Under Article 248 of the Revised Penal Code, as amended by Section 6 of Rep. Act No.
7659,41 any person who shall kill another shall be guilty of murder and shall be punished by death if committed with
abuse of superior strength. Hence, the trial court correctly imposed the death penalty in Criminal Case No. T-2874.42

As regards the damages awarded to the heirs of Aurea Broa in the amount of 50,000.00, the Court considers the
same as representing civil indemnity. In murder cases, civil indemnity requires no further proof other than death. 43

The award of civil indemnity is separate and distinct from the award of moral damages, which is based on a different
jural foundation and assessed by the court in the exercise of sound discretion. 44 Considering that the prosecution
failed to show any proof that the heirs of Aurea Broa are entitled to moral damages, the same may not be
awarded.45

In accordance with Article 2230 of the Civil Code, exemplary damages may be awarded in criminal cases as part of
the civil liability if the crime was committed with one or more aggravating circumstances. 46 Considering the generic
aggravating circumstances of disregard of age of the victim and dwelling, the award of 25,000.00 as exemplary
damages is in order.47

In Criminal Case No. T-2875, the trial court likewise correctly imposed the death penalty. Article 334 of the Revised
Penal Code, as amended by Section 11 of Rep. Act No. 7659 imposes the penalty of death when by reason or on the
occasion of the rape, a homicide is committed.

The Court, however, has to modify the award of civil indemnity in favor of the heirs of Rosalie Rayala. Recent rulings
increased the amount of civil indemnity in cases of rape with homicide to 100,000.00.48 The heirs of Rosalie must be
awarded the amount of 75,000.00 as moral damages without need of proof, 49 in view of the rape suffered by victim
Rosalie. The fact that the heirs suffered the trauma of mental or physical and psychological sufferings which
constitute the basis for moral damages under the Civil Code are too obvious to still require recital thereof at trial. 50
Considering that the crime of rape was committed inside the dwelling of the victim, exemplary damages in the amount
of 25,000.00 should likewise be awarded to the heirs of Rosalie.

The Court finds that the heirs of both Aurea and Rosalie should be awarded the amount of 54,259.00 as actual
damages in view of the admission made by the defense that the family of Aurea and Rosalie incurred expenses in
said amount.51

Before concluding, the Court observed, as borne by the records of this case, that appellant could not have been the
only perpetrator of the crimes. As appellant revealed in his confession, he hacked each of the victims on the neck
with his bolo only once. The autopsy report, however, shows that Aurea Broa suffered two neck wounds while
Rosalie Rayala suffered five hack wounds and one stab wound, all on the neck. Appellant confessed that he dragged
Aurea towards the grassy portion of the yard and immediately

left the scene. Yet, Rosalie was also found on the grassy portion of the yard. The autopsy report further showed that
Rosalie likewise suffered multiple linear abrasions on both scapular regions, thus giving the impression that she was
also dragged towards the yard. Somebody else must have brought Rosalie to the place where she was found.
Indeed, there are clear indications that there are other perpetrators of the crimes of murder and rape with homicide.
Appellant alone could not have inflicted all the injuries sustained by the victims.

In view of all these circumstances, the police authorities as well as the prosecutors office of Tabaco, Albay, should
be required to apprise the Court whether or not further investigation of this case was conducted for the identification
and arrest of the other perpetrators of the crimes to completely bring justice to their victims.

WHEREFORE, the decision of the Regional Trial Court (Branch 15) of Tabaco, Albay, in Criminal Case No. T-2874
finding appellant Amado Bagnate guilty beyond reasonable doubt of the crime of Murder and sentencing him to suffer
the supreme penalty of DEATH is hereby AFFIRMED with MODIFICATIONS as to damages. Appellant is ordered to
pay the heirs of Aurea Broa the amounts of Fifty Thousand Pesos (50,000.00) as civil indemnity; Fifty Thousand
Pesos (50,000.00) as moral damages; and Twenty-Five Thousand Pesos (25,000.00) as exemplary damages.

The decision of the trial court in Criminal Case No. T-2875, finding Amado Bagnate guilty beyond reasonable doubt of
the crime of Rape with Homicide and imposing on him the penalty of death is AFFIRMED with MODIFICATIONS.
The appellant is ordered to pay the heirs of the deceased victim Rosalie Rayala civil indemnity in the amount of One
Hundred Thousand Pesos (100,000.00); moral damages in the amount of Seventy-Five Thousand Pesos
(75,000.00); and Twenty-Five Thousand Pesos (25,000.00) as exemplary damages.

Appellant is ordered to pay the heirs of both Aurea Broa and Rosalie Rayala the amount of Fifty-Four Thousand
Two Hundred Fifty-Nine Pesos (54,259.00) as actual damages.

In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal Code, upon
finality of this decision, let the records of this case be forthwith forwarded to the Office of the President for possible
exercise of the pardoning power.

The Chief of the Tabaco Police Station and the Tabaco Prosecutors Office are hereby ORDERED, with ten (10) days
from receipt of copy of herein resolution, to apprise the Court whether or not subsequent investigations were
conducted to determine the other perpetrator(s) of the crimes involved herein.

SO ORDERED.

Davide, Jr.*, Puno*, Vitug**, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-
Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.
G.R. No. 113684 January 25, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ARMANDO GALLARDO y GANDER, ALFREDO COLUMNA y CORREA, and JESSIE MICATE y
ORTEZA, *accused-appellants.

PARDO, J.:

The Constitution enumerates the basic rights of a person under investigation.

Sec. 12(1). Any person under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent counsel preferably of his own
choice. If the person cannot afford the services of counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence of counsel. 1

xxx xxx xxx

The case before the Court is an appeal by accused-appellants from the decision2 of the trial court finding them guilty
of murder for the treacherous killing of Edmundo Orizal and sentencing each of them to reclusion perpetua and to pay
in solidum the heirs of Edmundo Orizal in the sum of P50,000.00 as indemnity for death and P150,000.00 as moral
damages.

On November 7, 1991, on the basis of the sworn confessions of the accused, the Provincial Prosecutor of Cagayan
filed with the Regional Trial Court, Tuguegarao, Cagayan an information charging the accused with murder,
committed as follows:

That on or about July 28, 1991, in the municipality of Tuguegarao, Province of Cagayan, and within the
jurisdiction of this Honorable Court, the said accused, Armando Gallardo y Gander, Alfredo Columna y
Correa and Jessie Micate, armed with guns, confederating and conspiring together and helping one another
with intent to kill, with evident premeditation and with treachery, did then and there willfully, unlawfully and
feloniously attack, assault and shoot one Edmundo Orizal, inflicting upon him several gunshot wounds on
the different parts of his body which caused his death.1wphi1.nt

CONTRARY TO LAW.

Tuguegarao, Cagayan, November 7, 1991.

(Sgd.) ALEJANDRO A. PULIDO, NPS III

Provincial Prosecutor3

On December 2, 1991, all three accused entered a plea of not guilty. 4 Trial ensued.

The prosecution's evidence established the following facts:

On July 28, 1991, the lifeless body of Edmundo Orizal was found in the rest house of Ronnie Balao in Balzain,
Tuguegarao, Cagayan. In an autopsy performed by Dr. Edmundo Borja, Tuguegarao Municipal Health Officer, the
victim was found to have sustained seven (7) gunshot wounds in the chest, abdomen, back, left and right thighs, and
two (2) grazing wounds on the left arm and back.5

Investigation by the Tuguegarao police station identified the suspects in the murder of Edmundo Orizal as Armando
Gallardo y Gander, Alfredo Columna y Correa, and Jessie Micate y Orteza. The police received information that the
suspects were detained at the Camalaniugan Police Station because of other criminal charges. So elements of the
Tuguegarao police went to the Camalaniugan Police Station in August 1991 to fetch the suspects. Only Armando
Gallardo and Alfredo Columna alias Fermin were in the custody of the Camalaniugan Police Station.

The two suspects Armando Gallardo and Alfredo Columna were brought to the Tuguegarao Police Department. On
August 18, 1991, they were investigated by Police Investigator SPO4 Isidro Marcos, and they gave statements
admitting that they, together with Jessie Micate, killed Edmundo Orizal.

During the investigation, the dialect used was Ilocano, the native tongue of the accused, and during the taking of the
statements, Atty. Rolando Velasco assisted them. Judge Vilma Pauig was present. She administered the oath on the
jurat of the statements. Accused-appellants signed their statements admitting the killing of Edmundo Orizal.

According to accused-appellants, they planned and executed the killing of Edmundo Orizal, as follows:

At about 10:00 in the morning of July 26, 1991, Pat. Dennis Molina, accused-appellants Armando Gallardo and
Alfredo Columna, together with Jessie Micate and Asoy (Nelson) Hidalgo, met at the house of Alfredo Columna in
Ziminilla (Camalaniugan, Cagayan). Pat. Molina conveyed to the group the desire of Congressman Domingo Tuzon
that Edmundo Orizal be killed because the latter was planning to ambush him and grab his land. Edmundo Orizal was
a strong campaigner and a bodyguard of retired Gen. Prospero Olivas, who was running for mayor of Camalaniugan
(against the congressman's re-electionist wife). Pat. Molina told the group that if they accepted the job and
succeeded in their mission, Congressman Tuzon would work for their acquittal in all their criminal cases, and would
give cash rewards.

The accused-appellants accepted the job and the following day, on July 27, 1991, they, together with Jessie Micate,
Asoy Hidalgo and Pat. Molina, set out to accomplish their mission. Pat. Molina accompanied them to Dugo,
Camalaniugan at Where Else Beauty Salon where Pat. Molina showed them their weapons: a .38 cal. and .45 cal.
handguns and a folded carbine, placed inside a box.

At around 2:00 in the afternoon of the same day, in the house of Dadoy Micate, Pat. Molina gave the .38 cal. revolver
to Armando Gallardo, the .45 cal. pistol to Alfredo Columna, and the folded carbine to Jessie Micate. Then, Pat.
Molina instructed the three accused to look for Edmundo Orizal and kill him.

The three boarded a tricycle and proceeded to Edmundo Orizals' boarding house at Caritan, Tuguegarao, Cagayan.
Edmundo was not there. He was at that time in the house of Aping in Lecaros Street, Centro, Tuguegarao. The three
went to that place. At the place of Aping, accused Gallardo engaged Edmundo in a conversation while all of them
drank San Miguel beer. In the course of their conversation, and probably to get the trust of Edmundo Orizal, accused
Gallardo told him that he had already killed Inyong Orteza, whom Edmundo Orizal wanted dead.

At around 5:00 p.m., the group moved over to the rest house of Ronnie Balao in Balzain, Tuguegarao. Edmundo
ordered Armando Gallardo to get his M-14 armalite rifle from Ronnie Balao. However, Ronnie Balao did not give the
firearm, but went with Armando to the rest house to talk to Edmundo. After talking to Edmundo and Armando, Ronnie
Balao went home.

Meanwhile, Edmundo Orizal, the two accused-appellants and Jessie Micate were conversing. Edmundo was
convincing accused-appellants and Jessie Micate to join him as bodyguards of Gen. Olivas during the election
campaign. At this point, Jessie Micate leveled his carbine at Edmundo and successively fired at him. Alfredo
Columna drew his .45 cal. Pistol and shot Edmundo Orizal five times. This was followed by Armando Gallardo who
shot Edmundo once with his .38 cal. revolver. The three accused fled, and went to the house of Dadoy Micate in
Caggay (Tuguegarao, Cagayan), where Pat. Molina was waiting for them. They informed Pat. Molina that the mission
was accomplished.

Early the next morning, July 28, 1991, the three accused and Pat. Molina boarded a Manny Trans bus and proceeded
to Camalaniugan. They stopped at Dugo, Camalaniugan and proceeded to the house of Congressman Tuzon to
report the killing.

Congressman Tuzon was out of his house attending the town fiesta of Buguey (Cagayan). When he arrived, Pat.
Molina informed him that Edmundo Orizal is dead. Congressman Tuzon was very happy and promised them that he
would work for their acquittal in their pending cases and after confirming the death of Orizal he would give them their
cash rewards.6
Nelson Hidalgo, a friend of Manuel Columna, Jr., testified that on July 26, 1991 at around 4:30 in the afternoon at the
house of Manuel Columna, Jr., he was asked by the accused to join them in their mission to kill Edmundo Orizal.

In that meeting, Nelson Hidalgo resolved to join the group, but while on his way home from the meeting, he met his
bosom friend Reynald Micate. He told the latter about their plan to kill Edmundo Orizal. Reynald Micate advised him
not to participate in the killing for it would just add to his other criminal cases. Nelson Hidalgo heeded the advice of
his bosom friend. Consequently, realizing that because of his knowledge of the plan to kill Edmundo Orizal, he would
be a target for elimination so that the plan would not be revealed to anyone, he left Camalaniugan, and went to
Buguey, then Aparri and finally, to Manila. It was only after three months that he returned to Camalaniugan and
learned that Edmundo Orizal was killed.

On August 18, 1993, accused on their part filed with the trial court a demurrer to evidence, arguing that the
prosecution failed to establish that the signed statements of the accused were procured in violation of Article III
Section 12 (1) of the Constitution. On September 10, 1993, the trial court denied the demurrer and stated that the
court would want to know controverting evidence that the defense may give to intelligently decide the issues of the
case.

Accused Armando Gallardo and Alfredo Columna testified in their defense. They gave a common version. In the
words of the trial court, here is what they alleged:

On August 18, 1991, elements of the Tuguegarao Police Station went to Camalaniugan to fetch accused
Armando Gallardo and Alfredo Columna who were detained at the Camalaniugan Municipal Jail in
connection with other criminal cases. These two accused were brought to the Tuguegarao Police Station to
be questioned on the killing of Edmundo Orizal.

Arriving in Tuguegarao the same day, Investigator Isidro Marco investigated said accused and took their
statements at the Tuguegarao Police Station. The investigator, however, did not inform them of their
constitutional rights.

After the respective statements had been typewritten, investigator Marcos neither read to nor allowed them
to read the contents of their alleged statements. The investigator just told them to sign their so-called
statements. Accused Gallardo signed the confessional statement because he was harmed by Marcos while
accused Alfredo Columna said that he signed said document because he was afraid he might be harmed.7

On November 29, 1993, the trial court rendered decision finding accused Armando Gallardo y Gander and
Alfredo Columna y Correa guilty beyond reasonable doubt of murder qualified by evident premeditation and
aggravated by treachery and sentencing each of them to reclusion perpetua and to pay in solidum the heirs
of Edmundo Orizal P50,000.00 as the mandatory indemnity for death and P150,000.00 as moral damages.
The court acquitted accused Jessie Micate y Ortega for lack of evidence. 8

Hence, this appeal.

Accused-appellants Armando Gallardo y Gander and Alfredo Columna y Correa impute the following errors to the trial
court:

1. In admitting their extra-judicial confessions in evidence against them; and

2. In finding that their guilt was proved beyond reasonable doubt. 9

The appeal has no merit. The extra-judicial confessions of the accused were given after they were completely and
clearly apprised of their Constitutional rights. A lawyer assisted them and a judge administered their oath. In his
testimony, Atty. Rolando Velasco stated:

Q. After you were introduced to the two suspects what happened?

A. I interrogated first Gallardo and I told him whether he can understand tagalog and he said he can
understand and I told him if he is willing to voluntarily give his statement to the police and he said "yes", and
 I said he has the right to give his statement and if he is going to give his statement his statement can be
used against him in court and if he wants to get the services of a lawyer of his own choice or if he wants me
to assist him and he readily accepted.

The same was done with accused Alfredo Columna.

Q. How did you represent them in the investigation?

A. I was present and I made sure that there was no force and intimidation made on the person of these two
suspects by the police and the police who asked questions in Ilokano and the answer was in Ilocano by the
suspects.

Q. In so representing them in that investigation were you requested to sign the document?

A. I voluntarily signed, sir.10

Judge Aquino of the Regional Trial Court, Tuguegarao, Cagayan, asked Atty. Velasco several question particularly on
the point of how the accused-appellants were informed of their Constitutional rights. He stated:

Q. When you conferred with the accused before taking of their sworn statement you stated that you asked
them whether they were forced or intimidated in making the statement?

A. Yes, sir.

Q. Did you happen to know the status of the accused at the time their statements were taken whether they
are detention prisoners or not?

A. There was no warrant of arrest issued they were just apprehended as suspects.

Q. Please tell the court, did they complain to you about any harassment of any kind by the police at the time
of their investigation?

A. None, your honor.

Q. You said you accompanied them, you were present when the oath was administered by Judge Pauig?

A. Yes, the following day I was also called by the police to be present when the accused took their oath
before Judge Pauig.

Q. You said you advised the accused before taking their sworn statement of their constitutional rights in
Tagalog, why do you say that they understand Tagalog?

A. Because they were answering in Tagalog, also, sir.

Q. How was their Tagalog?

A. Good Tagalog, sir.

Q. Will you please tell in Tagalog the information the constitutional right of the accused?

A. I told them "May karapatan kayong hindi magbigay ng salaysay sa pulis, may karapatan kayong
magkaroon ng abogado na sarili ninyo kung magbigay kayo."

We have held that "while the initial choice of the lawyer in cases where a person under custodial investigation cannot
afford the services of a lawyer is naturally lodged in the police investigators, the accused really has the final choice as
he may reject the counsel chosen for him and ask for another one. A lawyer provided by the investigators is deemed
engaged by the accused where he never raised any objection against the former's appointment during the course of
the investigation and the accused thereafter subscribes to the veracity of his statement before the swearing officer. 11

In the case at bar, although Atty. Velasco was provided by the State and not by the accused themselves, the accused
were given an opportunity whether to accept or not to accept him as their lawyer. They were asked and they
immediately agreed to have Atty. Velasco as their counsel during the investigation. There is no requirement in the
Constitution that the lawyer of an accused during custodial investigation be previously known to them. The
Constitution provides that the counsel be a competent and independent counsel, who will represent the accused and
protect their Constitutionally guaranteed rights.

Also, we have held that "to be an effective counsel, a lawyer need not challenge all the questions being propounded
to his client. The presence of a lawyer is not intended to stop an accused from saying anything which might
incriminate him but, rather, it was adopted in our Constitution to preclude the slightest coercion as would lead the
accused to admit something false. The counsel, however, should never prevent an accused from freely and
voluntarily telling the truth.12

We are, therefore, convinced that Atty. Velasco acted properly in accordance with the dictates of the Constitution and
informed the accused of their Constitutional rights. Atty. Velasco assisted the accused and made sure that the
statements given by the accused were voluntary on their part, and that no force or intimidation was used by the
investigating officers to extract a confession from them.

Aside from Atty. Velasco, Judge Vilma Pauig also testified that when she administered the oath to the accused-
appellants, she asked them whether they understood the contents of their statements and whether they were forced
by the police investigators to make such statements. Accused-appellants answered in the negative. From the
foregoing, it can therefore be established that accused-appellants were properly apprised of their rights and there
was no violation of their Constitutional rights.13

Under rules laid by the Constitution, existing laws and jurisprudence, a confession to be admissible must satisfy all
four fundamental requirements, namely: (1) the confession must be voluntary; (2) the confession must be made with
the assistance of competent and independent counsel; (3) the confession must be express; and (4) the confession
must be in writing.14 All these requirements were complied with.

It would have been different if the accused were merely asked if they were waiving their Constitutional rights without
any explanation from the assisting counsel. In this case, Atty. Velasco asked the accused if they were aware of their
rights and the lawyer informed them of their rights and asked them if they were giving their statements willingly after
being informed of their rights. This is in compliance with the constitutional guarantee of the rights of an accused
during custodial investigation.

There is no merit to the contention that the prosecution failed to establish the guilt of the accused beyond reasonable
doubt. The testimony of prosecution witness Nelson Hidalgo remains uncontroverted. The defense was unable to
produce any evidence to prove that Nelson Hidalgo was biased and not credible.

Well-entrenched in this jurisdiction is the rule that "the Court will not interfere with the trial court's assessment of the
credibility of witnesses absent any indication or showing that the trial court overlooked some material facts or gravely
abused its discretion."15

Consequently, the trial court correctly found accused-appellants Alfredo Columna y Gander and Armando Gallardo y
Correa guilty beyond reasonable doubt of the treacherous murder of Edmundo Orizal.

We are however concerned with the statements of the accused that it was Congressman Tuzon who masterminded
the killing of Edmundo Orizal. The order of inquest Judge Dominador L. Garcia dropping Congressman Tuzon and
Pat. Molina from the criminal complaint for the reason that the confessions of the accused Gallardo and Columna
were inadmissible against them under the res inter alios acta rule do not persuade us that former Congressman
Tuzon and Pat. Molina were not liable as co-principals in the crime committed.1wphi1.nt
Concededly, the extra-judicial confessions of the accused Gallardo and Columna are not admissible against
Congressman Tuzon and Pat. Molina. However, the interlocking confessions of the accused are confirmatory
evidence of the possible involvement of former Congressman Tuzon and Pat. Molina in the crime. 16

Consequently, we refer the case to the Department of Justice for investigation of the involvement of former
Congressman Tuzon and Pat. Molina in the killing of Edmundo Orizal.

WHEREFORE, the decision appealed from is hereby AFFIRMED in toto. However, the award of moral damages is
reduced to P50,000.00.

Let a copy of this decision be furnished to the Honorable, the Secretary of Justice, Department of Justice, Manila, for
inquiry into the involvement of other persons in the crime.

With costs.

SO ORDERED.
.R. No. 109993 January 21, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ELIAS BARASINA y LAYNEZA, accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

MELO, J.:

It was around 6:40 in the evening of July 17, 1988 when Fiscal Lino Mayo of Olongapo City succumbed to a single
bullet on his side of his face fired from an unlicensed .45 caliber firearm while he was walking at the VIP parking lot of
the Victory Liner Compound at Caloocan City. According to the People, it was herein accused-appellant who was
accountable therefor, resulting in his being charged with the separate misdeeds of illegal possession of a firearm and
murder in this manner:

The undersigned Assistant City Fiscal accuses ELIAS BARASINA y LAYNEZA for violation of P.D.
1866, committed as follows:

That on or about the 17th day of July, 1988 in Kalookan City, Metro Manila and within the
jurisdiction of this Honorable Court, the
above-named accused did then and there wilfully, unlawfully and feloniously in violation of the
above-mentioned Presidential Decree, have in his possession, custody and control one (1) .45
caliber pistol-type firearm, marked Colt bearing SN-008645 with four (4) rds of live ammos. one (1)
cartridge case and one (1) magazine, without first securing the necessary license/permit to possess
the same. And while in possession thereof, said accused used said firearm in committing the crime
of MURDER.

CONTRARY TO LAW.

xxx xxx xxx

The undersigned Assistant City Fiscal accused ELIAS BARASINA y LAYNEZA, JOHN DOE AND
PETER DOE, true names, real identities and present whereabouts of the last two mentioned
accused, still unknown of the crime of MURDER, committed as follows:

That on or about the 17th day of July, 1988 in Kalookan City, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring together and mutually helping one another, without any
justifiable cause, with treachery and evident premeditation and with deliberate
intent to kill, did then and there wilfully, unlawfully and feloniously attack and
shoot with a .45 cal, firearm on the head one FISCAL LINO MAYO y MANIAGO,
thereby inflicting upon the latter serious physical injuries which injuries caused
his instantaneous death.

CONTRARY TO LAW.

(pp. 25-26, Rollo)

When haled to respond to the inculpations, accused-appellant was indifferent in entering any plea, thus the plea of
not guilty to the two criminal charges was entered by the court of origin in his behalf (p. 140, Record).
The generative facts of the case at bar, as culled from the exhaustive decision of the trial judge, the Honorable Rene
Victoriano, are supported by the record and are accordingly adopted, thusly:

At about 6:40 in the evening of July 17, 1988, Rufino Alvarez was on his way to the comfort room
located inside the waiting shed for the passengers at the Victory Liner Terminal Compound,
Kalookan City. He was aware of the two men walking ahead of him who were almost abreast of
each other. A gunshot was heard. Instinctively, Rufino looked ahead of him where the sound of the
gunshot came from. He saw the man immediately in front of him holding a .45 cl. handgun. He also
saw at the same time the other man just beside the gun man falling down the ground. The gun man
continued walking at the same time holding his gun with two hands trying to cock it. After walking a
few meters, the gun man tucked the gun in his right waist and began running away. At this time,
Rufino saw Barangay Councilman Prudencio Motos and about four other men chasing the gun
man. After this, Rufino approached and viewed the victim who was sprawled on the ground. At this
time there were already many people around trying to view the victim.

At about the same time on said evening of July 17, 1988, Felipe Hamtig who was a security guard
was at his assigned post at the V.I.P. Parking Space at the Victory Liner Compound. He saw a
stout man carrying an attache case pass by his post beside the entrance to the V.I.P. parking area.
There was another man following the aforementioned stout man. When the stout was about five
meters away, Felipe Hamtig saw the second man shoot the stout man who was just ahead of him
on the left cheek with a .45 cal. hand gun. The gun man then cocked his gun and ran towards Rizal
Avenue Extension. Felipe Hamtig tried to chase the assailant but he saw several people already
chasing him (assailant). Among the person chasing the assailant was Councilman Prudencio
Motos. Because of this, Felipe Hamtig no longer ran after the assailant but he went back to see the
victim who was sprawled on the ground. He later came to know the victim as Olongapo City Fiscal
Lino Mayo.

At about the same time and date, Ruel Ganiola, a porter, was at the Sunshine Restaurant waiting
for cargoes coming from Olongapo. This is located about 20 meters from the Victory Liner Terminal
Compound. While standing, he heard a gunshot coming from the V.I.P. parking area. He looked at
the area where the sound came from. He saw a person slumped on the ground. He saw another
person running away from the man slumped on the ground who was holding a gun and was even
cocking it. Councilman Motos ordered them to chase the gun man. Motos was in front of the
Sunshine Restaurant at the time. He followed the order of Motos and ran after the gun man.
Michael Estapia, a porter, also ran after the gun man. The chasers shouted at a policeman several
meters ahead and pointed at the fleeing gun holder. The policeman was able to catch the gun
wielder at the stairway of LRT Station at Monumento, Kalookan City. Pat. Francia took the gun of
the accused (a .45 cal. gun) from his right waist.

At about the same time and date, Barangay Councilman Prudencio Motos was standing at the front
of the Sunshine Restaurant. He heard a gunshot coming from the V.I.P. parking area. He looked at
the place where the gunshot came from and saw a man fall down on the ground. He saw at the
same time another man moving away from the fallen man and cocking a gun at the same time. The
gun man then tucked the gun in his waistline and ran towards the direction of Rizal Avenue
Extension. He shouted at his companions to run after the gun man. Prudencio Motos and his
companions ran after the gun man and when the gun man was about to reach the LRT Station,
they shouted at the policeman conducting traffic in the area and pointed at the running man. The
policeman, Pfc. Napoleon Francia, shouted at the gun man who stopped and raised his hands. Pfc.
Napoleon Francia then confiscated a .45 cal. pistol from the gun man. Afterwards, Pfc. Francia
Councilman Motos and others brought the gun man to the Kalookan City Police Headquarters
aboard a passenger jeep.

Dr. Bienvenido Muoz, an NBI Medico-Legal Officer, conduct(ed) an autopsy on the body of the
victim, Fiscal Lino Mayo on July 17, 1988. A request for autopsy was made by Sgt. Norberto Surara
of the Kalookan City Police Force (Exhibit G). The autopsy was conducted at the International
Funeral Homes located at Rizal Avenue, Manila. The body of the victim was identified by Omar
Mayo, a relative of the victim (Exhibit H). The time and date of death was placed at 6:45 p.m. on
July 17, 1988.
After conducting an external examination, Dr. Muoz found out that the victim suffered one gunshot
wound. The point of entrance of the bullet was on the left jaw and the point of exit was at the back
of the right ear.

After conducting an internal examination, Dr. Muoz found out that there was a fracture of the
mandible and first cervical vertebra. There was also a fracture of the right mastoid bone. The cause
of death was gunshot wound on the head. It was possible that the assailant was lightly at the back
of the victim taking into consideration that the head is a very movable part (tsn, June 6, 1989, p.
12). The muzzle of the gun used was more than
24 inches from the victim (tsn, June 6, 1989, p. 18).

Dr. Muoz produce a diagram he prepared showing the injuries sustained by the victim (Exhibit I).
He identified the written report he made on his examination. (Exhibit J).

Aida Magsipoc, a supervising Forensic Chemist of the NBI testified in this case concerning the
paraffin examination conducted on the accused on July 18, 1988.

She received the letter request to conduct the examination at about 10:00 a.m. on July 18, 1988.
Before taking the paraffin cast on the hands of the accused, she required the accused to first wash
his hands under running water. His hands were then air-dried. The paraffin wax was melted and
was applied on the dorsal aspects of the left and right hands of the accused. She dropped the
melted paraffin on the dorsal portion of both hands of the accused. While she personally conducted
the pre-casting on the hands of the accused, it was Edwin Purificando, her subordinate, who
actually conducted the actual examination.

Edwin Purificando, a Forensic Chemist of the National Bureau of Investigation conducted a paraffin
examination of the accused, Elias Barasina. He received a letter request dated July 17, 1988 to this
effect from the Kalookan City Police Force, which was signed by Lt. Norberto Surara (Exhibit K).
The accused was accompanied by the NBI Forensic Laboratory by Kalookan City policemen where
the accused was subjected to the paraffin casting. The casting was made on the dorsal portion of
the right hand and left hand of the accused in order to test the presence of gun powder residue on
the hands of the accused. The casting was placed by Aida Magsipoc, an NBI Forensic Chemist
Supervisor, in the morning of July 18, 1988. Edwin Purificando was the one who placed the
chemical reaction agent, however, at about 10:00 p.m. of the said date. The chemical reaction
agent was then allowed to react on the paraffin cast.

As a result of the foregoing, process, the left and right hands of the accused were both found to be
positive for gun powder nitrates. Edwin then, prepared a diagram of the left and right hands of the
accused showing the exact spots where the presence of the nitrates was found. The diagram was
marked as Exhibit "L". A written report was then made on the paraffin examination (Exhibit "M").

Because of the foregoing, it was possible that the accused fired gun before the paraffin
examination was conducted (TSN, June 6, 1989, p. 40). Gun powder residue stay in the hands of a
person for not more than 3 days. A photograph of the accused taken at the NBI Forensic
Laboratory just before the paraffin examination was identified (Exhibit "N").

Brandeis Flores is a ballistician of the National Bureau of Investigation. On July 17, 1988, his office
received a written request from Sgt. Norberto Surara of the Kalookan City Police Headquarters for
the ballistic examination of one cal. .45 gun with Serial No. 008645 with magazine loaded with four
rounds of live ammunitions and one empty shell marked "DDR" (Exhibit "W"). Pat. Loreto Samson
of the Kalookan City Police Force personally carried the foregoing specimen to the NBI together
with the letter request.

Brandeis Flores first conducted the actual test firing of the submitted .45 cal. handgun in order to
obtain empty shells for comparison with the evidence shell. After obtaining the test shells, Brandeis
compared them with the evidence shell under the microscope. He found out that the evidence shell
contains similar characteristics markings with the three test shell was previously marked as
Exhibit[s] "V-1". The three test shells were taped together and were marked as Exhibit "X". His
finding was that the evidence bullet (Exhibit "V-1") was fired from the submitted .45 cal. gun marked
as Exhibit "U". A written report of the ballistic examination was prepared and marked as Exhibit "Y".

Pfc. Arsenio Nacis of the Kalookan City Police Force conducted the investigation of this case. At
about 7:00 o'clock in the evening of July 17, 1988, Cpl. Napoleon Francia, Barangay Councilman
Motos, and a Barangay Tanod appeared in the office of Cpl. Nacis at the Station Investigation
Division. Cpl. Francia then turned over to Investigator Nacis the accused and a .45 cal. handgun
with four bullets and an empty shell. After having been informed that the accused was a suspect in
the death of a person at the Victory Liner Compound, Pfc. Nacis, Cpl. Daniel del Rosario, Pfc.
Elmario Adelante, Sgt. Serrano, and the inquest Fiscal proceeded immediately to the scene of the
crime. They found the body of the victim right at the entrance of the Victory Liner Terminal.
Investigator Nacis noticed blood still oozing from the victim's ear. He prepared a sketch of the
scene of the crime and tried to get his evidence (Exhibit "F"). The victim was found lying face down
and was positively identified by the Inquest Fiscal Bonifacio Sison as Olongapo City Fiscal Lino
Mayo, his former classmate. He then invited the following witnesses to his office, namely:
Councilman Prudencio Motos, Rufino Alcaraz, Felipe Hamtig, Ruel Ganiola, Michael Estapia and
Pat. Napoleon Francia. Cpl. Daniel del Rosario took the statements of Rufino Alcaraz (Exhibits "A"
to "A-1")
and the joint sworn statements of Rule Ganiola and Michael Estapia (Exhibit "D").

Pfc. Nacis took down the sworn statement of Felipe Hamtig

(Exhibit "C"). He also executed his own sworn statement (Exhibit "R"). He prepared a referral slip
for the Kalookan City Fiscal (Exhibit "S").

Cpl. Daniel del Rosario investigated the accused but before doing so, he informed the latter of his
Constitutional rights. The accused then stated his desire to have a lawyer. As instructed by Lt.
Norberto Surara, one private practitioner named Atty. Abelardo Torres was fetched from the latter's
office. Atty. Torres arrived at the Station Investigation Divisions of the Kalookan City Police Station
at 3:00 p.m. on July 18, 1988. Atty. Torres conferred with the accused for about 30 minutes. The
accused indicated his desire to give a statement in the presence of Atty. Torres. Before actually
taking down the statement of the accused, Cpl. del Rosario prepared a written appraisal of the
Constitutional rights of the accused in a document entitled "PAALALA" (Exhibit "P"). It was signed
both by the accused and Atty. Torres. Cpl. del Rosario then proceeded to take a written statement
of the accused. His counsel was present in the investigation room. The sworn statement of the
accused was identified (Exhibits "Q", "Q-1", and "Q-2"). Cpl. del Rosario identified the signatures of
the accused in each page of said statement (Exhibits "Q-3", "Q-4" an "Q-5"). He also identified the
signature of the statement (Exhibit "Q-6").

Lt. Norberto Surara, the Chief of the Homicide Section of the Kalookan City Police Force confirmed
that he assigned Pfc. del Rosario to take the sworn statement of the accused. He also confirmed
that he directed that Atty. Abelardo Torres be fetched to act as counsel of the accused during the
investigation. He introduced Atty. Torres to the accused and after this, the accused accepted the
services of Atty. Torres (TSN, July 3, 1989, p. 12). He execute[d] a sworn statement on his
participation in the execution of the sworn statement of the accused (Exhibit "Z"). The accused,
when brought to Inquest Fiscal Nepthali Aliposa, refused to sign the statement. Thus, the statement
was not sworn to (TSN, July 3, 1989, p. 20).

Atty. Abelardo Torres admitted being fetched in the afternoon of July 18, 1988 to assist the
accused (TSN, July 10, 1989, p. 4). He admitted having conferred with the accused on said date
before the statement of the latter was taken down. He was present when the accused gave a
written statement but left at the beginning to take his merienda. He returned to the investigation
room a few minutes later (TSN, July 20, 1989, pp. 21-22). He was present when the accused
signed his written statement.

Teresa Mayo, the widow of Fiscal Lino Mayo, testified on the civil aspect of this case. Fiscal Mayo
was the City Fiscal of Olongapo City at the time of his death and was receiving a monthly salary of
P12,000.00 then and a monthly allowance of P2,000.00. The body of the late Fiscal was buried at
Infanta, Pangasinan, after having lain in state at Olongapo City for two days and at Infanta for 2
days. She paid P20,000.00 for the burial of the victim (Exhibit "AA"). She spent P1,600.00 for the
religious funeral services (Exhibit "BB"). She also spent P40,000.00 for constructing the burial site
of the victim (Exhibit "CC"; Exhibit "DD"; Exhibit "DD-1"). She spent for food and groceries during
the wake in the total amount of P50,000.00.

The place where the victim, Fiscal Lino Mayo, was shot inside the V.I.P. parking area inside the
Victory Liner Compound located at Kalookan City. The V.I.P. Parking area is located at the ground
floor of the Administrative Office of said bus company (see Exhibit "B" and
Exhibit "F").

Rufino Alcaraz described the area where Fiscal Mayo, the victim was shot as well lighted (TSN,
May 9, 1989, p. 7). The lighting facilities inside the Bus Terminal of the Victory Liner consisted of
fluorescent lamps installed at the ceiling. A distance of four to five meters separate one fluorescent
lamp from another (TSN, May 9, 1989, p. 4). This was corroborated by Felipe Hamtig (TSN, May 9,
1989, p. 5). This was likewise corroborated by Ruel Ganiola who stated that the lighting facilities
included the V.I.P. Parking Area (TSN, May 22, 1989, p. 9).

Prosecuting witness Rufino Alcaraz was residing at Stall No. 1 at the Victory Liner Compound on
the day of the incident. He was only about five (5) meters from the assailant when he heard a
gunshot (TSN, May 3, 1989, pp. 5; 26). He saw the faces of both men although they were in front of
him because their faces were a little oblique (TSN, May 9, 1989, p. 28). The gunman was carrying
a .45 cal. pistol (TSN, May 9, 1989, p. 38). Witness Alcaraz first identified the gunman when he
executed a different statement before the police on the evening of July 17, 1988 right after the
shooting. The gunman turned out to be Elias Barasina, the accused (TSN, May 9, 1989, p. 37).

Prosecution witness Felipe Hamtig was employed as a security guard of the Lions Security Agency
with assignment at the Victory Liner Compound (V.I.P. Parking Area) at the time of the incident. He
was seated at his post at the V.I.P. Parking Area when he saw the accused shoot the victim at the
left cheek with a .45 cal. pistol (TSN, May 10, 1989, pp. 8-9). He was only five (5) meters away
from the victim then (TSN, May 10, 1989, p. 6). He identified the gunman on the evening of July 17,
1988 when he was investigated by the Kalookan City Policemen (Exhibit "C-1"). The gunman was
Elias Barasina whom the witness again identified during the trial (TSN, May 10, 1989, pp. 6-7).

Prosecution witness Ruel Ganiola was a resident of Stall No. 3 inside the Victory Liner Compound
at the time of the incident. He was then working as a porter at the Victory Liner Compound. He was
standing at the Sunshine Restaurant which is about 20 meters from the V.I.P. Parking Area inside
the Victory Liner compound when he heard a gunshot (TSN, May 22, 1989, p. 10).

He saw the gunman running towards Rizal Avenue Extension from the V.I.P. Parking area. In doing
so, the gunman passed by the place where Ganiola and another porter, Michael Estapia were
standing in front of the Sunshine Restaurant (TSN, 5/22/89, pp. 36-37). Because he recognized the
gunman, he identified the latter inside the Kalookan City Police Headquarters on July 17, 1988
(TSN, May 22, 1989, p. 18). The gunman was the accused, Elias Barasina.

Prosecution witness Prudencio Motos was a Barangay Councilman compound the area around the
Victory Liner Compound and owned a carinderia inside the compound of the Victory Liner
Compound at the time of the incident. The gunman was three meters away when he passed in front
of witness Motos outside the Sunshine Restaurant. Witness Motos saw the face of the gunman
(TSN, May 23, 1989, p. 24). He was with Pfc. Napoleon Francia and others when the accused was
brought to the Kalookan City Police Headquarters (TSN, May 23, 1989, p. 3). He identified the
gunman at the Kalookan City Police Headquarters on July 18, 1988 (TSN, May 23, 1989, p. 16).

The gun which was confiscated from the accused by Pfc. Napoleon Francia on July 17, 1988 is a
cal. .45 pistol marked "Colt" with Serial
No. 008645 with four (4) live bullets and one (1) empty shell. It was marked as Exhibit "U" during
the trial. The four live bullets which were taped together and the markings exhibit was placed on the
tape. The spent shell was marked as Exhibit "V-1".

Barangay Councilman identified the gun in Court. He was able to recognize it because of the
extended barrel and because of its serial number. He first saw the gun when the gunman passed
by him. He was one meter away when Pfc. Francia confiscated the gun from the gunman. (TSN,
June 27, 1989, p. 3). He saw Pfc. Francia recover the spent bullet from the gun while Pfc. Francia,
Motos and others were inside the jeep with the gunman on their way to the police headquarters
(TSN, June 27, 1989, p. 6).

Witness Rufino Alcaraz testified that the accused used a .45 cal. pistol (TSN, May 9, 1989, pp. 8;
39-40).

Witness Felipe Hamtig stated that the accused used a .45 cal. pistol in shooting the victim (TSN,
May 10, 1989, pp. 8-9).

Witness Ruel Ganiola stated that when the gunman passed by him the gunman was holding a .45
cal. pistol handgun (TSN, May 22, 1989,
p. 52).

Witness Pfc. Arsenio Nacis identified the gun which was turned over to him by Pfc. Francia and
Councilman Motos and which was previously marked as Exhibit "U". This was previously marked
as Exhibit "U". This was previously confiscated from the accused. (TSN, June 27, 1989, p. 12). He
recognized the gun (Exhibit "U") because of its serial no. and because of its extended muzzle
which is called a "Pin gun" (TSN, June 27, 1989, pp. 12-13).

The accused, Elias Barasina is not a licensed firearm holder of any kind. This was certified to by
the Chief of the Records, Legal and Research Branch of the Firearms and Explosives Unit located
at Camp Crame, Quezon City in a certification dated June 13, 1989 (Exhibit "T"). The Certification
was brought to the courtroom by Lt. Agrifino Javier of the aforesaid office. Lt. Javier identified the
Certificate marked Exhibit "T".

In the course of the trial, the accused, through counsel, filed a Motion to Quash on the ground of
double jeopardy. It was alleged that the accused was in jeopardy of being convicted of two offenses
Murder and Illegal Possession of Firearms based on an alleged act which is defined and
penalized as only one offense under Paragraph 2 of Section 1 of P.D. 1866 which states:

If homicide or murder is committed with the use of an unlicensed firearm, the

penalty of death shall be imposed.

This Motion was opposed by the Prosecution.

In an Order, dated August 17, 1989, this Court denied the Motion to Quash and cited the case
of Tangan vs. People, 155 SCRA 435; 436 in support of its Order. Its ruling follows:

There is no double jeopardy in the filing of the two aforesaid criminal cases
against the accused because the first jeopardy has not yet attached. It is well
settled that the mere filing of two informations or complaints charging the same
offenses does not yet afford the accused in those cases the occasion to complain
that he is being placed in jeopardy twice for the same offense, for the simple
reason that the primary basis of the defense of double jeopardy is that the
accused has already been convicted or acquitted in the first case or that the
same has been terminated without his express consent. It is the conviction or
jeopardy of being convicted or the acquittal of the accused or termination of the
case that bars further prosecution of the same offense or any attempt to commit
the same or frustration thereof, or for any offense which necessarily includes or is
necessarily included in the offense charged in the former complaint or
information. (Tangan vs. People, 155 SCRA 435, 436).

Another issue cropped up during the Joint Trial. The cross examination of prosecution witness
Felipe Hamtig was not completed because he did not return despite the issuance of subpoena and
a warrant for his arrest. Hamtig testified on direct examination on May 10, 1989. A partial cross-
examination was conducted. Because of the failure of Hamtig to return for the completion of the
cross-examination, accused through counsel moved to strike out the records the entire testimony of
Felipe Hamtig. The principal basis of the Motion is the right of the accused to confront and cross-
examine the witnesses against as mentioned under
Sec. 14, Article III of the Constitution of the Philippines; as stated under paragraph F of Rule 115 of
the Revised Rules of Criminal Procedure and as listed in paragraph 6 of Rule 132 of the Revised
Rules on Evidence. This was opposed by the Public Prosecutor in his Memorandum of August 4,
1989.

This Court denied on August 8, 1989 the Motion to Strike Out the Testimony of Felipe Hamtig. This
was based on the following:

1. The partial cross examination of the witness was fairly through considering that the same could
be found from page 22 to page 37 of the Transcript of Stenographic notes taken on May 10, 1989;

2. The Court was bale to make its observations on the reliability of its witness and to determine if
his testimony in chief was adversely affected by the partial cross examination;

3. The failure to complete the cross-examination was not the fault of the Prosecution. The defense
moved for a postponement of the cross-examination on May 10, 1989 but this was opposed by the
Prosecution. As a compromise, the Defense was directed to cross examine the witness up to 11:00
A.M. on said date. Had the postponement not been made, the cross-examination should have been
completed on May 10, 1989;

4. Defense counsel failed to enter into the records how the absent witness, Felipe Hamtig would
have testified if he were available for further cross-examination; and

5. The right of cross-examination is not absolute and the Court may at its discretion, limit the same
and consider it terminated if it would serve the ends of justice (People vs. Gorospe, 129 SCRA 242,
243).

The version of the accused follows:

Between 6:30 p.m. and 7:00 p.m. on July 17, 1988, he was walking with his brother Juanito, along
Rizal Avenue Extension near the LRT Station, Caloocan City. They were on the right side of the
Rizal Avenue Extension because they were taking the light railway on their way to Pasay. The
accused noticed persons chasing each other at his back. Then somebody bumped him and he
stumbled on the sidewalk. Something fell down from said person when he stumbled. This man
stood up immediately and ran away. The accused picked up the thing which fell from the stranger.
He saw that it was a gun. He ran after the man to return the gun and he even fired a warning shot.
However, he lost his track of the man who ran inside the LRT Station. As he was holding the gun,
policemen who were running after the said man accosted the accused and took the gun from him.
He was then brought to the Caloocan City Police Headquarters. He submitted his sworn statement
to the Fiscal who conducted a re-investigation of this case (see Exhibit "3", "3-A", "3-B", "3-C"). The
testimony of the accused was partly corroborated by Rodolfo Laurente, a balot vendor. (pp. 2-12,
Decision;
p. 27, Rollo in CA-G.R. No. 10892).

xxx xxx xxx

One of the principal defenses set up by the accused was that he was mauled, maltreated and
forced to sign two documents by the Caloocan policemen while he was inside a small cell inside
the Caloocan City Police Headquarters. He identified those two documents as Exhibit "P", the
"Paalala", dated July 18, 1988, and his statement dated July 18, 1988 (Exhibits "Q", "Q-1", "Q-2").
He further claimed that he never read any of those documents and that he was not assisted by any
lawyer during their execution. He claimed further that he did not know Atty. Abelardo Torres. He
signed an Affidavit of retraction dated July 22, 1988 (Exhibit "2", "2-a", "2-b"). (pp. 2-13, RTC
Decision; pp. 27 et seq., Rollo in CA-G.R.
No. 10892).
Accused-appellant was found guilty by the court of origin on February 28, 1990, the decretal portion of the discourse
reading as follows:

WHEREFORE, in view of the foregoing, this Court finds the accused Elias Barasina y Layneza
guilty beyond reasonable doubt of:

1. Violation of Par. 1 of P.D. 1866 (Illegal Possession of Firearm); and

2. Murder.

This Court hereby sentences said accused Elias Barasina as a result of his conviction under P.D.
1866 to suffer imprisonment of SEVENTEEN (17) Years, FOUR (4) Months and ONE (1) Day
of Reclusion Temporal as minimum to TWENTY (20) Years of Reclusion Temporal, as maximum,
and to pay the costs after taking into consideration the Indeterminate Sentence Law.

This Court also sentences said accused as a result of his conviction of Murder, to suffer
imprisonment of TEN (10) Years and ONE (1) Day of Prision Mayor as minimum to EIGHTEEN
(18) Years, EIGHT (8) Months and ONE (1) Day of Reclusion Temporal, as maximum, there being
no aggravating circumstances and after taking into consideration the Indeterminate Sentence Law,
and to pay the costs.

The accused is hereby directed to indemnify the heirs of the victim, Fiscal Lino Mayo, the amount
of P61,000.00 representing the funeral and burial expenses of the victim and the amount of
P500,000.00 representing the moral damages suffered by his widow and the loss of income as a
result of the victim's death at the age of 50 years.

The subject of .45 cal. pistol and the subject of 4 rds. of live ammos., one cartridge case and one
magazine are forfeited in favor of the government and the Deputy Sheriff of this Court is hereby
directed to turn over the custody of the same to the Chief, Firearms and Explosives Unit, Camp
Crame, Quezon City, for their disposition.

The accused shall be credited to the full record of his preventive imprisonment pursuant to Art. 29
of the Revised Penal Code, provided the conditions enumerated therein have between complied
with.

SO ORDERED.

(p. 5, RTC Decision; p. 27, Rollo in CA-G.R. No. 10892).

On December 29, 1992, the Court of Appeals (de Pano, Elbias, Gutierrez [P], JJ.), acting on the appeal interposed
by accused-appellant, rendered a decision jacking up the penalties imposed on accused-appellant to reclusion
perpetua for each of the two crimes committed, thusly:

ACCORDINGLY, the appealed decision is hereby MODIFIED. In Criminal Case No. C-30992 for
illegal possession of firearm, the accused-appellant is sentenced to reclusion perpetua. In Criminal
Case No. 30995 for murder, he is likewise sentenced to reclusion perpetua. With respect to this
civil liabilities, in addition to the awards made by the trial court, the accused-appellant is hereby
ordered to pay the victim's widow the sum of P50,000.00 as civil indemnity.

(p. 11, RTC Decision; p. 122, Rollo).

The records do not show that the case was certified by the Court of Appeals to this Court pursuant to Section 13,
Rule 124 of the 1985 Rules on Criminal Procedure although the records of the case were forwarded to us by the
Court of Appeals on May 11, 1993 (p. 1, Rollo in G.R. No. 109993) after the assailed decision was promulgated on
December 29, 1992. Seemingly, accused-appellant was served a copy of the decision of the appellate court from
which no entry of judgment was made because of the proscription under Section 13, Rule 124 of the 1985 Rules on
Criminal Procedure. In any event, the appeal was later accepted by us (p. 2, Rollo in G.R. No. 109993) and accused-
appellant was thereupon required to file his brief following which the Solicitor General filed a brief for the People.

Accused-appellant submits that two errors supposedly committed below ought to be rectified at this stage, in that the
Court of Appeals erred in:

. . . affirming the ruling of the trial court admitting in evidence the extrajudicial confession of the
herein accused-appellant.

II

. . . affirming the judgment of the trial court finding accused-appellant guilty beyond reasonable
doubt despite insufficient evidence adduced by the prosecution. (p. 10, Rollo in G.R. No. 109993)

To buttress the first point, accused-appellant makes reference to the manner the extrajudicial confession and waiver
were extracted from him in the absence of a lawyer of his own choice. He maintains that he procured the services of
Atty. Romeo Mendoza in the course of the custodial investigation but it was turned out that it was Atty. Abelardo
Torres who assisted during the interrogation upon the directive of P.Lt. Surara (p. 12, Brief for Appellant; p. 21, rollo).
Accused-appellant concludes that the extrajudicial statement can not thus be utilized against him for want of
competent, independent counsel of his own choice.

Section 12(1), Article 3 of the 1987 Constitution dealing with the rights of a person undergoing investigation reads:

Any person under investigation for the commission of an offense shall have the right to be informed
of his right to remain silent and to have competent and independent counsel preferably of his own
choice. If the person cannot afford the services of counsel, he must be provided with one. These
rights cannot be waived except in writing and in the presence of a counsel.

The phrase "competent and independent" and "preferably of his own choice" were explicit details which were added
upon the persistence of human rights lawyers in the 1986 Constitutional Commission who pointed out cases where,
during the martial law period, the lawyers made available to the detainee would be one appointed by the military and
therefore beholden to the military
(I Record of the Constitutional Commission 731-734; 1 Bernas, The Constitution of the Republic of the Philippines,
1987 First ed., p. 347). Yet, the apprehension of the human rights advocates then along this line hardly inspires belief
in the case at bar inasmuch as there was no indication below that accused-appellant did in fact choose Atty. Romeo
Mendoza to assist him while in the process of offering the inculpatory statements, to the exclusion of other lawyers.
Verily, and as tersely put by the trial court:

. . . As previously stated, the execution of these two documents were testified to by Cpl. Daniel del
Rosario who prepared Exhibits "P" and "Q". Exhibit "P" is actually a waiver signed by the accused
by the investigator Cpl. del Rosario and by Atty. Abelardo Torres. Exhibit "Q" is actually a
confession signed by the accused and by Atty. Abelardo Torres, the assisting counsel of the
accused. Both Cpl. del Rosario and Atty. Torres described how the documents were prepared. Atty.
Torres related how he was called and how he actually assisted the accused in the preparation of
the two documents. Lt. Norberto Surara testified as to why he called Atty. Torres to assist the
accused then. He identified his own sworn statement marked as Exhibit "Z" to show his
participation in the execution of the two documents.

(p. 13, RTC Decision, p. 27, Rollo in CA-G.R. No. 10892).

which observations were correctly sustained by the Court of Appeals, through Justice Angelina S. Gutierrez of the
Ninth Division in this wise:

The claim of herein appellant that he was assisted by counsel, not of his own choice, is belied by
records. During the custodial investigation, he failed to indicate in any manner and at any stage of
the process that he wishes to consult with an attorney of his own preference before speaking or
 giving any statement. Indeed, there is no showing that he manifested any resistance when he was
assisted by Atty. Torres. We are thus inclined to agree with the Solicitor General that the hiring of
Atty. Romeo Mendoza as counsel by the appellant after the custodial investigation is an
afterthought.

(p. 8, CA Decision; p. 119, Rollo in CA-G.R. No. 10892)

Withal, the word "preferably" under Section 12[1], Article 3 of the 1987 Constitution does not convey the message
that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and
independent attorneys from handling his defense. If the rule were otherwise, then, the tempo of a custodial
investigation will be solely in the hands of the accused who can impede, nay, obstruct the progress of the
interrogation by simply selecting lawyer who for one reason or another, is not available to protect his interest. This
absurd scenario could not have been contemplated by the framers of the charter.

Assailed as well is the testimony of Felipe Hamtig, the security guard at the V.I.P. parking lot at the Victory Liner
Compound, which accused-appellant claims should be expunged from the record considering that said witness was
not thoroughly cross-examined (p. 12, Brief for Appellant; p. 22, Rollo). But what is proscribed by statutory norm
(Section 1[f], Rule 115 of the Rules of Criminal Procedure) and jurisprudential precept is the absence of the
opportunity to cross-examine the witness (U.S. vs. Javier, 37 Phil. 449 [1918]; 2 Regalado, Remedial Law
Compendium, 1988 ed., p. 296) and certainly does not cover the situation where the witness had been extensively
examined on material points and thereafter failed to appear (People vs. Gorospe, 129 SCRA 233 [1984]);
2 Regalado, Vide at p. 534) more so, when, in this case, the failure to complete the cross examination was not
brought about by the prosecution (p. 12, RTC Decision; p. 27, Rollo in CA-G.R. 10892).

On the merits of the case, there is no need to re-emphasize accused-appellant's culpability derived from the positive
open court declarations of the People's witnesses since the details indicating accused-appellant's participation have
been sufficiently demonstrated to such a degree as to overcome the constitutional presumption of innocence. In the
light of the mass of positive evidence adduced by the prosecution below when juxtaposed with accused-appellant's
naked assertion of denial, coupled with the strange and bizarre (Nutty would probably be the pedestrian term)
behavior of accused-appellant in allegedly picking up a gun dropped by the imaginary gunman, attempting to return it
to said gunman, and when the killer would not stop, firing a round to call his attention, we have no recourse but to
agree with the conclusion reached by the Court of Appeals, on account of the elementary axiom in adjective law that
affirmative, and, categorical testimony is stronger than negative testimony (People vs. Angeles, 218 SCRA 352
[1993]). Verily, the efficacy of accused-appellant's own version that he merely picked up the gun which supposedly
fell from a stranger who bumped appellant, presumably for the purpose of returning the firearm to its rightful owner (p.
7, Brief for Appellant; p. 16, Rollo) had been adequately diminished by Prudencio Motos who sat on the witness stand
to particularly say that nobody bumped accused-appellant near the LRT station at Kalookan City (tsn, August 31,
1989, pp. 2-4; p. 24, Brief for Appellee; p. 67, Rollo).

With respect to the penalty, we agree with the Court of Appeals that the imposable penalty is reclusion perpetua, for
the illegal possession of firearm in Criminal Case No. C-30992, and another reclusion perpetua for murder in Criminal
Case No. 30995, inasmuch as this action dovetails with the earlier doctrine laid down by the Court in People vs. Tac-
an (182 SCRA 601 [1990]) and reiterated in People vs. Morato, (G.R. Nos. 95358-59, July 5, 1993).

WHEREFORE, as recommended by the Court of Appeals, the conviction of accused-appellant in Criminal Cases No.
30992 and 30995 is hereby AFFIRMED with the following modifications: (a) the penalty for each offense shall
be reclusion perpetua and (b) the civil indemnity to be paid by accused-appellant to the heirs of the victim is
increased to Fifty Thousand Pesos (P50,000.00).

SO ORDERED.